Exhibit 10.5 Agreement with DNAPrint genomics
This Contract Genotyping Agreement (this "Agreement") is made and entered into
as of January 15, 2002 (the "Effective Date") by and between DNAPrint genomics,
a Utah corporation, (hereinafter "DNAPRINT") and GenoMed LLC, a Delaware
corporation (hereinafter "GENOMED").
Recitals
DNAPRINT is the owner of certain genotyping equipment (a SNPstream 25K platform,
Xxxxxxx multimek and ancillary front end and back end equipment), and desires
to provide identified genotyping services for GENOMED.
GENOMED is the owner of certain genotyping equipment (the UHT platform). GENOMED
is also the owner of certain DNA samples and related medical information
collected from patients with various diseases, and of certain rights therein.
GENOMED is in the business of disease research and product development, and
desires to contract the genotyping portion of the research with DNAPRINT.
GENOMED wishes to increase the genotyping throughput of DNAPRINTs laboratory so
that DNAPRINT can perform this work in a timely manner.
NOW, THEREFORE, in consideration of these premises, as well as the obligations
herein made and undertaken, the parties hereto do hereby agree as follows:
1. EQUIPMENT
1.1. Placement. Subject to the terms and conditions of this Agreement,
GENOMED will purchase from Orchid Biosciences (hereafter referred to
as "ORCHID") and place at DNAPRINT a UHT genotyping platform system.
On behalf of GENOMED, ORCHID will install and train DNAPRINT workers
on the use of this equipment. In addition to this, GENOMED will
purchase and place at DNAPRINT one or more thermal cyclers such that
the number of amplifications that can be processed at once is at least
1,536. In addition, GENOMED will purchase and place one automated
liquid handling system if determined by both parties that this item is
necessary for DNAPRINT to execute under the terms of this Agreement.
DNAPRINT will operate all equipment autonomously and the placed
equipment shall remain at DNAPRINT for the duration of the agreement.
1.2. Maintenance. DNAPRINT will assume financial responsibility for
maintenance of the SNPstream 25K system. GENOMED will assume financial
responsibility for maintenance of the UHT plate reader, UHT twister
arm and, if placed, thermal.
1.3. Operation. Only DNAPRINT employees or individuals approved by DNAPRINT
may operate the equipment.
1.4. Insurance. DNAPRINT is responsible for insuring the equipment against
theft or destruction.
2. SERVICES
2.1. Provision. DNAPRINT will provide GENOMED with at least 3 Million
genotypes during the first year of this agreement. GENOMED will
provide DNAPRINT with DNA specimens for genotyping. DNAPRINT will
provide all necessary consumables, labor and non-UHT equipment for
determining and transferring these genotypes.
2.2. Payment. Subject to the terms and conditions of this agreement, and
within 30 days from DNAPRINTs request, but no more frequently than
once per month, GENOMED will pay DNAPRINT a sum equal to 40 cents per
determined and transferred genotype. In addition to this, if GENOMED
realizes a net profit that exceeds $10,000,000 USD which was directly
or indirectly enabled by compositions of matter produced under the
terms of this Agreement, then GENOMED will provide DNAPRINT with a
royalty of 5% on these realized net profits.
2.3. Transfer. DNAPRINT will physically or electronically transfer
genotyping data to GENOMED in a manner agreed upon by both parties.
3. SERVICES FOR THIRD PARTIES.
3.1 Services. DNAPRINT may perform commercial genotyping operations for
third parties, using GENOMED equipment, only with GENOMED approval.
For third party contracts, DNAPRINT will provide all overhead,
management and labor, and DNAPRINT and GENOMED will share total net
profits at a ratio of 3:1 to reflect their capital and physical
contribution to such contracts.
4. CONTINUATION, TERM and TERMINATION.
4.1 Services. The minimum term of the agreement is 2 years. After this
minimum term, the Agreement shall continue indefinitely, but may be
terminated by either party upon a material breach by the other,
provided, however, that the breaching party has been given thirty (30)
days to cure such breach. Sections 2.2 (Payment), 3.2 (Termination), 4
(Restrictions on Use), 5 (Limited Warranty), 6 (Mediation and
Arbitration), 7.5 (Assignment), 7.6 (Governing Law), and 7.7
(Severability) shall survive expiration or early termination of this
Agreement.
4.2 Termination. Upon discontinuation of the agreement, GENOMED will
satisfy any and all outstanding debts to DNAPRINT and DNAPRINT will
return GENOMEDs equipment to GENOMED.
5. RESTRICTIONS ON USE
5.1 DNAPRINT and GENOMED may sign subsequent to this Agreement, DNAPRINT
agrees and understands that the genotyping data is the property of
GENOMED, and that it acquires no rights therein and that it can use
GENOMEDs Samples, including any Documentation, only for legitimate
scientific research as directed by GENOMED, and for no other purpose
whatsoever. DNAPRINT may not resell the Samples, or any portion
thereof, for any reason.
5.1 Privacy. Genotyping data is the property of GENOMED, and DNAPRINT may
not sell, loan, disclose or present GENOMEDs data in any manner
whatsoever, unless requested by or agreed to by GENOMED.
5.2 Equipment. During the term of this Agreement, DNAPRINT is permitted to
use GENOMED equipment for its own internal research and development.
DNAPRINT is permitted to use GENOMED equipment for other contract
genotyping customers only with GENOMED prior approval, and under the
terms of this agreement.
6. Limited Warranty; Limitation of Liability
6.1 Limited Warranty. DNAPRINT represents and warrants to GENOMED that
DNAPRINT has the authority and licenses necessary to use its equipment
for the purpose of contract genotyping. DNAPRINT also warrants the
quality of the genotyping data delivered to GENOMED. GENOMEDs sole and
exclusive remedy for DNAPRINTs breach of this limited warranty shall
be a refund of the Payment. DNAPRINT disclaims all other warranties,
express or implied, with regard to the data, including all implied
warranties of merchantability, fitness for a particular purpose, title,
and non-infringement.
6.2 Limitation on Liability. Neither party shall be liable to the other
for any indirect, consequential, special or incidental damages
(including damages for loss of business profits, business
interruption, loss of business information, and the like) arising out
of this Agreement even if such party has been advised of the
possibility of such damages.
7. Mediation and Arbitration
7.1 Mediation and arbitration approach. The parties agree to select a
mutually agreeable, neutral third party to help them mediate any
dispute that arises under the terms of this Agreement. Costs and fees
associated with the mediation will be shared equally by the parties.
7.2 Arbitration. If the mediation is unsuccessful, the parties agree that
the dispute will be decided by binding arbitration under the rules of
the American Arbitration Association. The decision of the arbitrators
will be final and binding on the parties and may be entered and
enforced in any court of competent jurisdiction by either party. The
prevailing party in the arbitration proceedings will be awarded
reasonable attorney fees, expert witness costs and expenses, and all
other reasonable costs and expenses incurred in connection with the
proceedings, unless the arbitrators for good cause determine
otherwise.
8. General
8.1 Notices. Any notice required or permitted hereunder must be in
writing, and will be effective on the date of delivery when delivered
personally, the next business day after dispatch when sent by Federal
Express or other recognized overnight courier service, or the fifth
business day after dispatch when sent by certified mail, postage
prepaid, return receipt requested. Notices should be addressed to the
other party at the address shown below or at such other address as a
party may designate by ten days' advance written notice to the other
party:
DNAPRINT GENOMICS, INC. GENOMED INC.
000 Xxxxxxxx, Xxx. 0000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000 Xx. Xxxxx, XX 00000
8.2 Entire Agreement; Modifications. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior representations, proposals, discussions, and
communications, whether oral or in writing. This Agreement may be
modified or amended only by a writing executed by a duly authorized
representative of each party.
8.3 Force Majeure. Neither party will be liable to the other for any
failure or delay caused by events beyond such party's control,
including, without limitation, sabotage, terrorism, riots,
insurrections, fires, flood, storm, explosions, war or earthquakes.
However, if such events have a material impact on the satisfaction of
this Agreement, and shall continue for thirty (30) days or more, the
other party shall have the option of terminating this Agreement by
giving written notice of termination.
8.4 Change in Law; Change in Circumstances. No party shall make or receive
any payment or take any action under this Agreement if any judicial
decision, legislative action, or regulatory or other administrative
interpretation, whether federal or state, would render illegal the
conduct of either party under this Agreement. If performance by either
party of any term of this Agreement should be deemed illegal by any
party or third party who is essential to performance of this Agreement
for any such reason, either party shall have the right to require that
the other party renegotiate the terms of this Agreement.
8.5 Assignment. This Agreement will be binding upon and inure to the
benefit of the parties hereto, their successors and permitted assigns.
Either party may assign this Agreement in its entirety to a successor
corporation upon notice to the other party in the event of a merger or
an acquisition of all or substantially all of the assets of the
assigning party. This agreement between DNAPRINT and GENOMED will
survive and insure to the benefit of the other party through any and
all mergers, acquisitions, or change in ownership.
8.6 Governing Law. All questions concerning the validity, operation,
interpretation, and construction of this Agreement will be governed by
and determined in accordance with the laws of the State of California,
without regard to its conflict of laws provisions. Application of the
United Nations Convention on Contracts for the International Sale of
Goods is specifically excluded.
8.7 Severability. If a court of competent jurisdiction determines that any
provision of this Agreement is invalid, illegal, or otherwise
unenforceable, such provision shall be replaced with a valid,
enforceable provision as nearly as possible in accordance with the
stated intention of the parties, while the remainder of this Agreement
shall remain in full force and effect. To the extent any provision
cannot be enforced in accordance with the stated intentions of the
parties, such provision shall be deemed not to be a part of this
Agreement.
8.8 Counterparts. This agreement may be executed in any number of
counterparts, all of which together will constitute one and the same
instrument.
IN WITNESS THEREOF, the parties have caused this Agreement to be executed by
their respective duly authorized representatives as set forth below:
DNAPRINT GENOMICS GENOMED
By:/s/ Xxxx Xxxxxxxx 1/16/02 By:/s/ Xxxxx X. Xxxxx 01/22/02
Xxxx Xxxxxxxx, P.D. Xxxxx X. Xxxxx
CEO President and CEO
