Exhibit 10.1
FACILITY USE AGREEMENT
THIS FACILITY USE AGREEMENT ("Agreement") is entered into as of this
18th day of April, 2006 by and between The Ohio State University on behalf of
The Comprehensive Cancer Center (collectively "OSU") and Neurologix Inc., a
corporation with a principal place of business at Xxx Xxxxxx Xxxxx, Xx. Xxx,
Xxx Xxxxxx, XXX 00000 ("COMPANY").
COMPANY desires, and OSU wishes to provide, COMPANY employee(s) listed on
ATTACHMENT A (collectively "COMPANY SCIENTISTS"), with access to, and use of,
the OSU facilities and equipment listed on ATTACHMENT B in order to complete
COMPANY research projects. In return, COMPANY shall provide OSU with the
payment amounts and schedule detailed on ATTACHMENT C. COMPANY will be
providing equipment listed in ATTACHMENT D (collectively "COMPANY EQUIPMENT")
for use by COMPANY SCIENTISTS to complete COMPANY research projects.
The parties hereto, intending to be legally bound, and in consideration of the
mutual covenants hereinafter contained, agree as follows:
I. INTELLECTUAL PROPERTY
1. OSU shall retain title to all OSU background intellectual property
conceived by OSU, its employees and/or its agents before, or
independent of this Agreement. COMPANY shall retain title to
background intellectual property conceived solely by COMPANY, COMPANY
SCIENTISTS or COMPANY employees who are not also employed by OSU
before or independent of this Agreement.
2. Except as provided in the separate Master Sponsored Research
Agreement between the COMPANY and The Ohio State University Research
Foundation ("OSURF"), inventions, discoveries, improvements,
know-how, technology, technical data, software, patents, patent
applications, divisions and continuations issued or issuing thereon,
created solely by OSU employees participating in COMPANY research
conducted at OSU under the terms of this Agreement shall, as required
by Ohio law and in accordance with OSU policy, be solely owned by OSU
("OSU INVENTIONS").
3. Inventions, discoveries, improvements, know-how, technology,
technical data, software, patents, patent applications, divisions and
continuations issued or issuing thereon, created solely by COMPANY
SCIENTISTS who are not also OSU employees, using OSU facilities under
the terms of this Agreement shall be solely owned by COMPANY
("COMPANY INVENTIONS").
4. Inventions, discoveries, improvements, know-how, technology,
technical data, software, patents, patent applications, divisions and
continuations issued or issuing thereon, created in-part by COMPANY
SCIENTISTS who are not also OSU employees and in-part by OSU
employees participating in COMPANY research conducted at OSU under
the terms of this Agreement, using OSU facilities under the terms of
this Agreement shall be jointly owned by COMPANY and OSU ("JOINT
INVENTIONS").
5. Each Party agrees to execute all documents necessary to perfect the
other party's ownership in INVENTIONS referenced above.
6. The intellectual property ownership provisions of this Agreement
shall survive any termination of this Agreement.
II. CONFIDENTIALITY
1. Except as otherwise specified in the Visiting Scientist Agreement
between the parties of even date herewith, for a period of five (5)
years after the termination of this Agreement, each party agrees to
keep confidential both during the term and after termination of this
Agreement all confidential information of the other party, its
employees and agents ("CONFIDENTIAL INFORMATION"), which includes,
but is not limited to, the following:
(i) All confidential research data, designs, records,
flow-charts, programs, databases, patents, patent
applications, copyrights, trademarks, trade secrets,
know-how, models, materials, and/or prototypes seen by
either party during the term of this Agreement;
(ii) All confidential documents showing names of employees,
research sponsors, collaborators, agents, or affiliates
including all computer printouts, recordable media, other
records, or lists;
(iii) All confidential information or data presented in any
internal meetings attended by either party; and
(iv) All confidential other information or data belonging to
either party reviewed by the other party.
2. CONFIDENTIAL INFORMATION does not include such information that: (a)
has been known publicly; (b) has been known generally in the industry
before communication; (c) has become known publicly, without fault on
the part of the non-disclosing party, subsequent to disclosure; (d)
has been known otherwise by the non-disclosing party before
disclosure; or (e) has been received by the non-disclosing party
without any obligation of confidentiality from a third party source
(other than OSU or the COMPANY or COMPANY SCIENTISTS) lawfully having
possession of such information.
3. Each party will take any and every provision necessary to protect the
other party's CONFIDENTIAL INFORMATION received in any form.
4. If either party is legally compelled by law, legal process or order
of any court or governmental agency to disclose any of the other
party's CONFIDENTIAL INFORMATION, such party shall notify the other
party so that he/she may seek a protective order or take other
appropriate action.
5. Each party shall be responsible and fully liable for any claims
arising out of its failure to keep the other party's CONFIDENTIAL
INFORMATION confidential. Each party agrees that any breach of the
confidentiality obligations of this Agreement may result in
irreparable harm and damage to the other party for which there is no
adequate remedy at law. Therefore, it is agreed that each party may
be entitled to equitable relief, including an injunction enjoining
any such breach by any court of competent jurisdiction. Such
injunction shall be without prejudice to any other right or remedy to
which a party may be entitled, including damages.
6. The confidentiality provisions of this Agreement shall survive any
termination of this Agreement. Immediately upon termination of the
Agreement, all CONFIDENTIAL INFORMATION of each party held by the
other party shall be turned over to the other party, if to OSU then
to the Director of the OSU Office for Technology Licensing.
III. USE OF FACILITIES AND EQUIPMENT.
1. OSU, subject to the terms and conditions of this Agreement, hereby
grants to COMPANY a limited, non-exclusive license for COMPANY
SCIENTISTS to use the OSU facilities and the equipment described on
ATTACHMENT B (the "LICENSED FACILITIES"). COMPANY warrants that
COMPANY SCIENTISTS shall use the LICENSED FACILITIES solely for
purposes of completing COMPANY's research projects. COMPANY further
warrants that COMPANY SCIENTISTS shall use the LICENSED FACILITIES in
accordance with all applicable federal, state and local laws and
ordinances and with all OSU rules and regulations concerning the use
of the LICENSED FACILITIES, including, without limitation, all OSU
environmental, health and safety, animal care and use, human subjects
protections, occupational, and parking policies and regulations.
2. COMPANY agrees that LICENSED FACILITIES are provided under this
Agreement in an "as-is" condition "with all faults". OSU extends no
warranties of any kind regarding the condition of the LICENSED
FACILITIES.
3. COMPANY agrees that COMPANY SCIENTISTS shall use the LICENSED
FACILITIES in a manner which shall not cause interference with the
use or occupancy of the other portions of the LICENSED FACILITIES by
OSU or others in any way. COMPANY's use hereunder will be done in
such a manner so as not to interfere with or impose any additional
expense upon OSU in maintaining the LICENSED FACILITIES including the
equipment contained therein.
4. COMPANY shall be permitted to utilize and store Company Equipment at
the LICENSED FACILITIES and shall be solely responsible for the risk
of loss to that Equipment.
IV. TERM AND TIMES OF PERMITTED USE
The term of this is Agreement shall begin April 18, 2006 and
shall, unless sooner terminated pursuant to the provisions
hereof, terminate on April 17, 2010 (the "TERM"). Access by
COMPANY SCIENTISTS to the LICENSED FACILITIES shall be
pursuant to applicable University policies.
V. INSURANCE
1. COMPANY agrees that it shall, at its sole cost and expense, procure
and maintain a policy of commercial general liability insurance, in
an amount not less than $1,000,000, per occurrence, $3,000,000 in the
annual aggregate. Such insurance policies shall be carried with
companies licensed to do business in the State of Ohio, reasonably
satisfactory to OSU and shall be non-cancelable and not subject to
material change except after thirty (30) days written notice to OSU.
COMPANY shall deliver to OSU duly executed certificates of insurance
upon request.
2. COMPANY agrees that OSU shall not at any time be liable for damages
or injuries to persons or property in or upon the LICENSED FACILITIES
caused by COMPANY SCIENTISTS. OSU agrees that COMPANY shall not at
any time be liable for damages or injuries to persons or property in
or upon the LICENSED FACILITIES caused by OSU or OSURF and/or their
employees or agents.
VI. INDEMNIFICATION
1. COMPANY shall indemnify, defend and save harmless OSU and OSURF,
their Boards of Trustees, officers, agents and employees from and
against any and all loss, cost (including attorneys' fees), damage,
expense and liability (including statutory liability and liability
under workers' compensation laws) in connection with claims,
judgments, damages, penalties, fines, liabilities, losses, suits,
administrative proceedings, arising out of any act or neglect by
COMPANY SCIENTISTS in, on or about the LICENSED FACILITIES. This
indemnity shall survive the termination of this Agreement.
2. To the extent permitted by Ohio law, including but not limited to the
Ohio Constitution, Ohio Revised Code Chapter 2743 et seq. and Ohio
Revised Code Section 3345.40, OSU agrees to be responsible for those
damages or losses which arise directly from the negligent acts or
omissions of OSU or OSURF employees as may be determined by a court
of competent jurisdiction.
VII. ASSIGNMENT AND SUBLICENSING
COMPANY shall not assign any interest in this Agreement or otherwise
transfer or sublicense the LICENSED FACILITIES or any part thereof
or permit the use of the LICENSED FACILITIES to any party other than
COMPANY without the prior consent of OSU, such consent not to be
unreasonably withheld or delayed.
VIII. TERMINATION
1. OSU may terminate this Agreement upon the happening of any one or
more of the following events:
(i) Failure of COMPANY to perform any of its covenants
hereunder, including, but not limited to COMPANY'S
payment obligations described in ATTACHMENT C; or
(ii) COMPANY SCIENTISTS fail to perform any of his/her/their
covenants hereunder.
2. After April 17, 2007, COMPANY may terminate this Agreement upon sixty
(60) days prior written notice to OSU.
3. This Agreement shall automatically terminate upon termination of the
Master Sponsored Research Agreement between the COMPANY and XXXXX.
0. In any of the aforesaid events contemplated above, and in addition to
any and all rights and remedies available to OSU by law or in equity,
OSU may, with or without further notice, forthwith terminate this
Agreement and expel and remove COMPANY SCIENTISTS, or any other
COMPANY employee or agent in occupancy from the LICENSED FACILITIES,
together with their goods and chattels, using such force as may be
necessary in the judgment of OSU or its agents in so doing, without
evidence of notice or resort to legal process or becoming liable for
any loss or damage which may be occasioned thereby, and repossess and
enjoy said LICENSED FACILITIES, and in addition to any other remedy
it may have, OSU may recover from COMPANY all damages it may incur by
reason of such breach by COMPANY.
5. Upon termination of this Agreement for any reason, COMPANY shall be
released from all further payment obligations set forth in Attachment
C hereof and refunded prorated prepaid amounts.
IX. RESTORATION
If any damage occurs to the LICENSED FACILITIES, or if any repairs
or replacements need to be made to the LICENSED FACILITIES as a
result of COMPANY's negligence under this License, COMPANY shall pay
OSU for any such damage, repairs, or replacements upon demand by
OSU.
X. Cancellation
COMPANY may cancel this Agreement at any time before the
Commencement Date by providing written notice of such election to
OSU; provided, however, that if COMPANY shall elect to so cancel
this agreement, it shall be and remain responsible for any costs or
expenses incurred in good faith by OSU in preparation for COMPANY's
use of the LICENSED FACILITIES.
XI. NOTICE
Any notices required to be given under this Agreement shall be made
in writing and delivered by facsimile transmission, by hand or by
first class mail to the following addresses:
If to OSU:
Xxxx Xxxxxx, Associate Director for Administration
The Ohio State University Comprehensive Cancer Center
A455C Xxxxxxxx Loving Hall
000 X. 00xx Xxxxxx
Xxxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000_
Xxxx.Xxxxxx@xxxxx.xxx
With a copy sent to:
Xxxx X. Xxxxxxxxxx
Associate General Counsel
519 Xxxxx Cancer Hospital
000 X 00xx Xxx
Xxxxxxxx, XX 00000
If to COMPANY:
Xxxx Xxxxxx, Chief Financial Officer
Neurologix Inc.
Xxx Xxxxxx Xxxxx
Xx. Xxx, Xxx Xxxxxx 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
xxxxxxxxxx@xxxxxxxxxx.xxx
With a copy sent to:
Xxxxxx X. Xxxx, Esq.
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XII. Governing Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Ohio. Any legal actions, claims or demands
shall be handled in a court of competent jurisdiction within the
State of Ohio.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
The Ohio State University
/s/ Xxxxxxx X. Xxxxxxx
---------------------------
Xxxxxxx X. Xxxxxxx
Senior Vice President for Business and Finance
Neurologix, Inc.
/s/ Xxxx Xxxxxx
--------------------------
Xxxx Xxxxxx
Chief Financial Officer
Company Scientists
/s/ Xxxxx Xxxxxxxxxx
--------------------------
Xxxxx Xxxxxxxxxx, Ph.D.
/s/ Xxxx Xxxxx
--------------------------
Xxxx Xxxxx, Ph.D.
