Exhibit 10.3
CONFIDENTIAL TREATMENT HAS BEEN SOUGHT FOR
PORTIONS OF THIS EXHIBIT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED
TUFTS UNIVERSITY
SPONSORED RESEARCH AGREEMENT
This Agreement is entered into as of August 1, 1999, (the "Effective
Date"), by and between Photogen, Inc. ("Sponsor"), a Tennessee corporation,
having its principal place of business at 0000 Xxx Xxxxx Xxxxxxx, Xxxxxxxxx,
Xxxxxxxxx 00000 and Tufts University, a/k/a Trustees of Tufts College, a
Massachusetts not-for-profit corporation ("Tufts"). Sponsor and Tufts are
sometimes referred to as a "Party" or collectively, as the "Parties."
WHEREAS, Sponsor desires to have Tufts undertake a research program in
accordance with the scope of work described in Section 1 and Protocols attached
hereto; and
WHEREAS, the performance of such research is of mutual interest to
Sponsor and Tufts, and is consistent with the instructional, scholarship, and
research objectives of Tufts as a non-profit, tax-exempt, educational
institution;
NOW, THEREFORE, the Parties agree as follows:
1. THE RESEARCH. Tufts, through the Principal Investigator (as
defined below) agrees to use its reasonable efforts to perform in a
timely and expeditious manner one or more research projects pursuant
and limited to one or more protocols to be agreed upon by the Parties
(the "Research"). The first phase of the Research will consist of
research pursuant to the terms of the protocol dated August 1, 1999
attached hereto as Exhibit A ("Protocol-1"). Additional phases of the
Research will be conducted pursuant to mutually agreed upon protocols
which shall be subject in all respects to this Agreement and shall be
designated by consecutive numbers (e.g., Protocol-2, Protocol-3, etc.).
Revised budgets shall be mutually agreed upon for such additional
protocols and shall form the basis for an amendment to this Agreement.
2. THE TERM. The term of this Agreement and the Research shall be from
August 1, 1999 through August 1, 2004, unless sooner terminated in
accordance with the terms hereof.
3. TERMINATION. This Agreement and the Research may be terminated as set
forth below, in which case Sponsor's payment obligations will be
adjusted as provided for in Section 5.
(a) In the event that either Party materially defaults in the due
performance of its respective obligations under this
Agreement, or in the event that any representation or warranty
by either Party in this Agreement or in the documentation or
data produced through the Research proves to be materially
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false or misleading, and such default or breach is not cured
within thirty (30) days after written notice by the other
Party, then the non- defaulting Party may elect to terminate
the Research and this Agreement by giving written notice to
the defaulting Party, and this Agreement shall terminate upon
the defaulting Party's receipt of said notice. (Termination
for Cause).
(b) Tufts shall promptly advise Sponsor if for any reason Xxxxx
Xxxxxxxxx, DVM, DACVIM will not be available as the Principal
Investigator. If the Parties cannot agree on a qualified
scientist as a replacement as provided in Section 4 hereof,
either Party may terminate the Research and this Agreement as
provided in said Section 4 hereto.
(c) Notwithstanding anything in this Agreement to the contrary,
either Party may terminate this Agreement, without cause and
without liability except as provided hereinafter, on 90 days'
prior written notice to the other Party, in which event this
Agreement and the Research shall terminate on the 90th day
after delivery of such notice (Termination Without Cause). In
the event of such termination, Sponsor shall have an
obligation to continue for up to four (4) months beyond such
termination, salary support at the pretermination level of all
Ph.D., M.D., D.V.M. or equivalent personnel who have been
committed to the Research on half-time or greater basis,
provided Tufts uses reasonable efforts to reduce such costs to
Sponsor.
(d) The Parties recognize that the results of any particular
research cannot be guaranteed even through the use of Tufts's
reasonable efforts; therefore, it is specifically agreed that
the failure of Tufts to achieve specific research results or
to reach specific research milestones shall not constitute a
default or breach of this Agreement. Further, the Parties
agree that obligations under Sections 6, 7, 8, 10, 11, 12, 13,
15, 16, and 22 survive any termination of this Agreement or
the Research.
4. CERTAIN PERSONNEL. The Research will be under the overall direction of
Xxxxx X. Xxxxxxxxx, DVM, DACVIM (the "Principal Investigator") for
Tufts. Xxxxxx X. Xxxx, Ph.D., M.D. will serve as Co-Principal
Investigator contingent upon his appointment by Tufts as a Research
Professor. If Principal Investigator withdraws from or is unable to
serve as Principal Investigator for any reason, Tufts will endeavor to
obtain a successor to the satisfaction of Sponsor, in its sole
discretion, but if Tufts is not able to do so within a reasonable
period of time not to exceed six (6) months, then either Party may
terminate the Research and this Agreement by written notice to the
other any time after the expiration of that six (6)-month period and
before Tufts has notified the Sponsor of the appointment of such
successor. In addition to the Principal Investigator, Tufts shall use
all reasonable efforts to provide the personnel identified on Exhibit B
hereto who shall work under the supervision of the Principal
Investigator on the Research, who together with the Principal
Investigator are hereafter sometimes referred to as the
"Investigators."
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In the event such personnel shall terminate their status as
Investigators on the Research, the Principal Investigator jointly with
Sponsor shall appoint replacements as Investigators on the Research.
Each Party will obtain written agreements from those of its employees,
independent contractors, consultants and similar persons involved in
the Research (in the case of Tufts, all Investigators) causing such
persons to be bound by the provisions of Sections 7, 8, 10 and 12 of
this Agreement.
5. PAYMENTS BY SPONSOR.
(a) INITIAL PAYMENT. To fund Protocol-1 of the Research, Sponsor
agrees to make payments to Tufts in an aggregate amount during
the performance of Protocol-1 of the Research of $[****] (the
"Initial Protocol Payment") upon the schedule of payments
hereafter provided. The Parties estimate that the Initial
Protocol Payment should be sufficient to support the costs of
Protocol-1 of the Research for the performance of the
Research. Sponsor shall not be liable for any payment in
excess of the Initial Protocol Payment with respect to
Protocol-1 except as mutually agreed upon by the Parties
hereto in writing, nor shall Tufts be obligated to spend finds
on Protocol-1 of the Research other than those provided by
Sponsor. Tufts shall not be required to specifically account
to Sponsor for the application of the payments made by Sponsor
to Tufts hereunder nor be required to refund any portion of
any of those payments which are made except as provided in
this Section 5. Payments with respect to Protocol-1 shall be
made to Tufts by the Sponsor according to the following
schedule:
AMOUNT DATE
$[****] August 31, 1999
$[****] By December 31, 1999
$[****] By April 30, 2000
$[****] By August 31, 2000
Checks shall be made payable to Trustees of Tufts College and
shall be sent to Sponsored Program Accounting, 000 Xxxxxxxx
Xxxxxx, Xxxxxx, XX, 00000, Attention: Xx. Xxxxxx Xxxxxx,
Manager, with each payment including the title of the Research
and the name of the Principal Investigator for identification
purposes. If Sponsor terminates Research under Section 3
hereof, Sponsor agrees
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[****] REPRESENTS MATERIAL WHICH HAS BEEN REDACTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2
UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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that, in addition to payment of the portions of the Initial
Protocol Payments payable up through the effective termination
date, Sponsor will reimburse Tufts for non-cancelable expenses
related to the Research and budgeted to be spent after the
termination date, which expenses shall be deemed to include
any fellowships or post-doctoral associate appointments, but
shall not exceed the total amount committed under this
Agreement. Any funds paid by Sponsor in excess of the amount
due hereunder will be returned to Sponsor by Tufts.
All funds provided by Sponsor under this Agreement may be used
at the discretion of Tufts in support of the work for the
Research. Any changes to the above payment schedule must be
agreed to in writing by the Parties.
(b) SUBSEQUENT PAYMENTS. The cost for subsequent work pursuant to
other protocols must receive the mutual written agreement of
the Parties.
6. EQUIPMENT. In addition to the Initial Protocol Payment, Sponsor will
lease the equipment and provide the services described in Exhibit C
(the "Equipment") and make the required lease payments, including
service contracts, and any balloon, final or buy-out payments (the
"Lease Payments") over the five year term of this Agreement. Sponsor
shall make such Lease Payments even if this Agreement is terminated by
Tufts for Cause or by Sponsor without Cause. If this Agreement is
terminated (i) by Sponsor for Cause or (ii) by Tufts without Cause,
then Tufts may elect on thirty (30) days' written notice to Sponsor to
make all remaining Lease Payments and Tufts shall indemnify and hold
Sponsor harmless from such remaining Lease Payments. In either such
event, at the end of the five year term of this Agreement, title to the
Equipment and title to any other equipment purchased by Tufts in the
performance of the Research shall vest in Tufts. If Tufts does not
elect to make such Lease Payments, as provided above, then Sponsor
shall continue to be obligated for such Lease Payments; provided,
however, that Sponsor shall take possession of and remove the Equipment
listed in Exhibit C from the premises at Tufts and shall indemnify and
hold Tufts harmless from such remaining Lease Payments.
7. INTELLECTUAL PROPERTY RIGHTS OF THE PARTIES. Neither Party (nor any
Investigator) shall have any claim by virtue of this Agreement or the
Research to any right, title or interest in any Invention, Trade Secret
or Patent Rights (defined below) or any other intellectual property
rights (a) issued to, owned or controlled by the other Party (or any
Party in the case of an Investigator) prior to the date hereof, or (b)
after the date hereof except any new Inventions, Trade Secrets or
Patent Rights conceived and reduced to practice, constructively or
actually in the performance of the Research and as specifically set
forth in Section 8 below.
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8. INVENTIONS; PATENTING; LICENSES.
(a) The term "Invention" means a patentable discovery or invention
conceived and reduced to practice, constructively or actually
in the performance of the Research, including any novel
process, method, formula, machine, manufacture, composition of
matter or technology. The term "Sponsor Trade Secret" means
non-patented know-how, compositions, protocols, formulas,
processes and techniques, discoveries, machines, ideas,
compilations of information, computer programs (including
software and data used in all such programs), drawings,
specifications and technical information owned or developed by
Sponsor or its employees. The term "Patent Rights" means
patent applications and patent disclosures claiming an
Invention, together with all letters patent, reissuances,
continuations, divisionals, those claims in any continuations
in part of any patent application which claim an Invention
described in said patent application, revisions, extensions,
and reexaminations thereof.
(b) Inventions, Patent Rights and Sponsor Trade Secrets arising
out of the Research during the term of this Agreement and for
a period of 12 months thereafter if directly related to the
Research shall be owned as follows:
(1) Tufts will own all such Inventions it, the Principal
Investigator or any other Tuft's Investigator
independently conceives (a "Tufts' Invention") and
all corresponding Patent Rights, subject to the
license if Sponsor exercises its option described in
subsection 8(f) below;
(2) Tufts and Sponsor will jointly own all such
Inventions jointly conceived by Tufts, the Principal
Investigator or any other Investigator together with
Sponsor (a "Joint Invention") and all corresponding
Patent Rights, subject to the license if Sponsor
exercises its option described in subsection 8(f)
below; and
(3) Sponsor will own all Inventions and Sponsor Trade
Secrets Sponsor independently conceives or owns and
all corresponding Patent Rights.
(c) With respect to a Tufts' Invention, Tufts will use its best
efforts, consistent with its current practices to cause all
Investigators to report such Invention and assign all of their
right, title and interest therein to Tufts; and with respect
to Joint Inventions, the Sponsor will cause its personnel and
Tufts will use its best efforts to cause each Investigator to
report such Invention and assign all of their right, title and
interest therein to Sponsor and Tufts as appropriate. Sponsor
and Tufts shall promptly advise the other in writing of each
Tufts' Invention or Joint Invention and shall cause their
Investigators and personnel, as applicable, to maintain
current and reasonably detailed records (in accordance with
customary academic research practice) as to possible Tufts and
Joint Inventions, which shall
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be open to inspection by the other Party with reasonable
advance notice. The Parties shall discuss for up to 90 days
after the date an Invention is disclosed by one Party to the
other Party whether patent applications pertaining to such
Tufts or Joint Invention should be filed and in which
countries. All of the foregoing shall constitute proprietary
information subject to Section 10.
(d) Patent applications relating to Tufts' Inventions shall be
filed by Tufts at Tufts' sole discretion, and patent
applications relating to Joint Inventions shall be filed as
agreed by the Parties. All prosecution and maintenance costs
pertaining to patent applications covering a Tufts' or Joint
Invention that are filed by mutual agreement of the Parties
(including preparation, filing, prosecution, issuance and
maintenance costs) shall be borne by Sponsor. Tufts may select
counsel for such Tufts' or Joint Inventions, subject to
consultation with Sponsor. If Tufts declines to pursue filing
a patent application, Sponsor may select counsel. Tufts agrees
to cause Patent counsel selected by it to promptly provide
Sponsor with copies of all documents relating to the patent
application, to be available to Sponsor for consultation and
suggestions and for Sponsor to be otherwise fully informed
regarding all matters relating to the patent application and
its prosecution. If within the 90-day period provided for in
subsection 8(c) above, one Party states in writing that it is
not interested in filing patent applications on either a
Tufts' Invention or a Joint Invention (a "declining Party")
and the other Party (a "prosecuting Party") is interested in
filing such applications, the prosecuting Party shall be free
to select its own counsel, at its own expense, to file such
applications in the name(s) of the Parties to whom the
Inventors would be obliged to assign their rights and the
declining Party shall render the prosecuting Party, at the
prosecuting Party's expense, all necessary assistance in order
to facilitate filing and licensing of such Joint Inventions.
If Sponsor is the declining Party, Sponsor shall thereby have
waived its rights under subsection 8(f) below.
(e) The Parties agree to cooperate and work together in good faith
to effect the provisions of this Section 8. Each Party agrees
to execute and deliver (or cause to be executed and delivered)
all assignments and other instruments of transfer necessary to
effect the provisions of this Section 8.
(f) As to all Patent Rights relating to a Tufts' Invention or a
Joint Invention (except as waived by Sponsor in subsection
8(d) above), Tufts hereby grants Sponsor for the twelve (12)
months next following the first filing of patent applications
in any jurisdiction relating to such Invention, the
irrevocable first option to obtain a license granting Sponsor
the following rights and containing the following terms:
(1) Sponsor shall for the life of all patent rights,
unless sooner terminated by either Party in
accordance with the terms of such a license
agreement, have a world-wide, exclusive (subject only
to subsection 8(i) below), royalty-bearing license
granting Sponsor the right to use the Invention, to
design,
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make, have made, market lease, offer for sale, sell,
import and distribute products embodying or produced
through the use of the Invention, itself or through
third Parties by way of sublicense, and in all other
respects to use, sublicense, and commercialize the
Invention and any such product under all Patent
Rights. Pursuant to such license, Sponsor shall use
reasonable efforts to commercialize such products in
accordance with time limits and objectives consistent
with the market potential of the Invention and the
capacity and resources of the Sponsor. Sponsor will
be free to design the products, and select pricing
and marketing methods in its discretion.
(2) Sponsor shall pay Tufts a reasonable royalty of an
amount consistent with industry standards for such
Invention.
(3) Sponsor will use all reasonable efforts to defend,
through counsel selected by it, at its expense all
challenges to Patent Rights, including alleged
infringements, and Tufts will cooperate with Sponsor
in that regard, including joining any infringement
suit as a plaintiff (or counter or cross plaintiff)
if required by law.
(4) Sponsor may abandon the license at any time by
express written notice to Tufts, in which case all
rights will revert back to Tufts and all license and
royalty obligations of Sponsor shall terminate.
(5) In addition to the foregoing, any other commercially
reasonable terms standard for agreements between
universities and industry not inconsistent with the
foregoing.
(g) Sponsor may exercise the subsection 8(f) option by giving
written notice of exercise to Tufts during said twelve-month
period. Thereafter, Tufts and Sponsor each agree to negotiate
in good faith and to enter into a license agreement
incorporating the foregoing terms within six (6) months after
notice of exercise. If Sponsor elects not to give written
notice of exercise during such 12-month period, Tufts may
grant a license to such Invention and Patent Rights to any
other person or entity.
(h) To the best of its knowledge, Tufts is not prohibited or
prevented from granting such a license to Sponsor and such
license will not conflict with any agreement or court order by
which it is bound. Tufts agrees, during the term of the
Research hereunder, not to enter into any agreement with any
third party to fund Principal Investigator to conduct the
Research and not to enter into an agreement with a third party
under terms that will prevent Tufts from granting to the
Sponsor the license contemplated under subsection 8(f) above
or which would conflict with such license to Sponsor. Tufts
will use reasonable efforts consistent with
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academic practice to monitor the activities of the Principal
Investigator in order to avoid conflicting activities that
would prevent Tufts from granting such a License.
(i) It is understood that Tufts may reserve the right to use a
Tufts' Invention or Joint Invention (as defined in this
Agreement) only for non-commercial research, clinical and
educational purposes, and that if federal funding supports the
Invention, Sponsor's license will be subject to the rights,
conditions and limitations imposed by U.S. law including
without limitation the royalty-free non- exclusive license
granted to the U.S. government (see 35 USC sec. 202 et. seq.
and regulations pertaining thereto). Tufts represents,
warrants and agrees with Sponsor that no federal funds will be
used to support the Research as of the date of this Agreement
and, if any such funds will be used in the future, Tufts will
give Sponsor at least 120 days' prior written notice of
Tufts's acceptance of federal funds.
9. REPORTS. Progress reports by the Principal Investigator shall be:
submitted to Sponsor each ninety (90) days after the Effective Date,
and a final Research Report shall be submitted after completion of the
Research with respect to each Protocol. Interim written progress
reports may be provided on a mutually agreed schedule.
10. CONFIDENTIALITY.
(a) Subject to the provisions of Section 12 Sponsor and Tufts each
agree that all Intellectual Property and all information
concerning research by the Parties shall be held by each Party
in confidence and not disclosed by a Party, or used by a Party
for any purpose other than the uses permitted under this
Agreement. Tufts agrees that all information disclosed to
Tufts' Principal and other Investigators concerning any
proprietary technology belonging to Sponsor that is identified
in writing by Sponsor as being confidential ("Sponsor
Confidential Information") shall be held by Tufts in
confidence and not disclosed by Tufts or used by it for any
purpose except to perform the Research in compliance with this
Agreement.
(b) Notwithstanding the foregoing, neither Party receiving
information ("Recipient") is required to keep confidential any
information received from the other Party ("Discloser") that:
(1) at the date of its disclosure by Discloser to Recipient
was known to Recipient; or (2) at the date of disclosure by
Discloser to Recipient was, or thereafter becomes through no
fault of Recipient, generally available to the public; or (3)
after its disclosure by Discloser to Recipient is also
received by the Recipient in good faith from a third Party not
under any duty to Discloser not to disclose it; or (4) after
its disclosure by Discloser to Recipient is independently
developed by employees of Recipient having no access to or
knowledge of it, which fact is supportable by documentary
evidence. Each Party agrees not to make any use or disclosure
in reliance on the exceptions of the immediately preceding
sentence unless it has given the other Party thirty (30) days'
prior
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written notice of the reasons why the notifying Party believes
an exception applies.
(c) Sponsor agrees not to disclose any Sponsor Confidential
Information to Tufts' employees other than the Principal or
other Investigator(s), so as to provide for appropriate
control of the information.
11. USE OF NAMES. Sponsor agrees not to use the name of Tufts or any Tufts
participant in the Research in any form of publicity or disclosure
without Tufts' prior written consent, which may be withheld or
withdrawn in Tufts' discretion at any time; provided, however, Tufts
will make no objection to any proper reference by Sponsor to published
technical publications by such participants; and, subject to
confidentiality requirements and the conditions of the final sentence
of Section 10(b), above, Tufts will make no objection to Sponsor's
making such other disclosures as in the reasonable opinion of legal
counsel are required as a matter of law and such general disclosures of
this Agreement as may be desired by Sponsor for purposes of grant
solicitations from governmental authorities. The foregoing
notwithstanding, (a) Tufts and the Principal Investigator shall
acknowledge Sponsor's support of the Research in their respective
reports and publications, (b) Sponsor may disclose the existence and
describe the terms of, and may file a copy of this Agreement (redacted
to the extent Sponsor deems appropriate to ensure confidentiality) as
an exhibit to its press releases, reports and governmental filings,
including reports and filings with the U.S. Securities and Exchange
Commission and relevant foreign government authorities; and (c) Sponsor
may make reference to technical publications by the Principal
Investigator or his co-authors. Any publicity or governmental filings
of this Agreement pursuant to this Section 11 shall describe the
relationship of the Parties accurately and appropriately, including the
fact that the Research is being undertaken by Tufts in conjunction with
Sponsor.
12. PUBLICATION.
(a) The Research may be worthy of written or oral publication in
scholarly journals or at meetings. Such presentation or
publication shall be jointly authored by the Principal
Investigator and Sponsor's scientists in accordance with their
respective scientific contributions to the Research, if
applicable (otherwise, by the originating person). Prior to
publication, each Party will give the other the opportunity to
review and comment on any intended public disclosure covering
the Research, but in no event shall publication be permitted
without the express written approval of the Party from which
the results originated in accordance with prevailing academic
practice.
(b) In order to give Sponsor an opportunity to protect against
loss of confidentiality or patent rights as a result of
publication, the Principal Investigator and/or Tufts shall
submit copies of drafts of any article, abstract, submission
for publication or presentation on the Research conducted
which is written by any Investigator to
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Sponsor for review and comment at least thirty (30) days prior
to the anticipated date of submission for publication or
presentation. In the absence of Sponsor's notice to the
contrary, Tufts shall be free to submit such drafts for
publication or presentation. If Sponsor notifies Tufts in
writing within such 30 day period that it needs additional
time to seek patent protection for the information, then Tufts
and the Principal Investigator, as the case may be, agree to
defer publication or presentation until such patent
application has been filed, or an additional 30 days,
whichever is sooner.
13. NO TUFTS' WARRANTIES. TUFTS MAKES NO REPRESENTATIONS AND EXTENDS
NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER,
INCLUDING WITHOUT LIMITATION, TO CONDITION OR RESULTS OF THE RESEARCH
OR ANY INVENT IONS OR PRODUCTS, WHETHER TANGIBLE OR INTANGIBLE,
CONCEIVED, DISCOVERED, OR DEVELOPED UNDER THIS AGREEMENT; OR THE
OWNERSHIP, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE
RESEARCH OR ANY SUCH MENTION OR PRODUCTS. Without limitation of the
foregoing generality, nothing contained herein or in any disclosure of
the Research made by or on behalf of Tufts shall be construed as
extending any representation or warranty with respect to the Research
or the results to be obtained by the use of the Research or any
products resulting therefrom, or that anything made, used, to sold by
use of the Research or any part thereof, alone or in combination, will
be free from infringement of patents of third Parties. TUFTS SHALL NOT
BE LIABLE TO SPONSOR OR ANY OTHER PARTY, REGARDLESS OF THE FORM OR
THEORY OF ACTION (WHETHER CONTRACT, TORT, INCLUDING NEGLIGENCE; STRICT
LIABILITY, OR OTHERWISE), FOR ANY DAMAGES, INCLUDING WITHOUT
LIMITATION, ANY DIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE,
OR OTHER DAMAGES ARISING OUT OF OR RELATED TO THE RESEARCH, OR ANY
PRODUCTS OR SERVICES FURNISHED OR NOT FURNISHED TUFTS, EVEN IF TUFTS
HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.
14. FORCE MAJEURE. Tufts shall not be considered in breach of this
Agreement to the extent any failure to perform any term or provision is
caused by any reason beyond Tufts' reasonable control, or by reason of
any of the following circumstances: labor or employee disturbances or
disputes of any kind; accidents; laws, rules or regulations of any
government (including, without limitation, export and import
regulations); failure of any government approval required; disease;
failure of utilities, mechanical breakdowns, material shortages or
other similar occurrences; civil disorders or commotions acts of
aggression, vandalism or other similar occurrences; or fire, floods,
earthquakes, or acts of God.
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15. INDEMNITY.
(a) INDEMNITY. Sponsor agrees to exonerate, indemnify, and hold
harmless Tufts, its trustees, officers, employees, students
and agents, from all costs, expenses (including attorneys'
fees), interest, losses, obligations, liabilities, and damages
paid or liability for which is incurred by any of said Parties
("Losses"), and which arise out of or are in connection with
or are for the purpose of avoiding any and all claims,
demands, actions, causes of action, suits, appeals, and
proceedings ("Claims"), all whether groundless or not, or the
settlement thereof, based on any actual or alleged injuries,
damages' or liability of any kind whatsoever (including,
without limitation, personal injury, death, property damage,
breach of warranty, or breach of contract) arising, directly
or indirectly, out of any one or more of: any breach of
Sponsor of its representations, warranties, or agreements
hereunder; or any manufacture, marketing, possession, use,
sale, or other disposition by Sponsor, its licensees, or
anyone else claiming by, through, or under any of them, of any
products made by use of any of the Research or Tufts
Intellectual Property or any products furnished to Sponsor by
Tufts pursuant to this Agreement or in connection with any
license granted to Sponsor hereunder or referred to herein
(whether same occurs during or after the Research); or any
acquisition, possession, disclosure, or use of any of the
Research or Tufts Intellectual Property by Sponsor, its
licensees, or anyone else claiming by, through, or under any
of them; or the presence of Sponsor's officers, agents,
employees, invitees, or property or any thereof on Tufts'
premises or the installation, presence, or operation of the
Equipment prior to title vesting in Tufts; or the removal and
disposal of current Tufts' equipment under this Agreement. The
obligations of Sponsor under this Section 15 shall apply in
full force whether or not the Claims and any Losses resulted
or are alleged to have resulted in whole or in part from the
negligent acts or omissions of Tufts or any other Party
indemnified under this Section or from acts of omissions of
Tufts or such other Party for which they or any of them would
otherwise be liable on any other theory, including, without
limitation, any theory of warranty (whether express or
implied) or strict liability.
(b) DEFENSE; SETTLEMENT. Sponsor shall defend and control
negotiation of settlement of any Claim, with counsel of
Sponsor's choosing approved in advance by Tufts, which
approval shall not be unreasonably withheld. Tufts agrees to
cooperate fully in the defense of any Claim and may
participate in the defense with counsel of Tufts' choosing,
such separate counsel to be at Tufts' expense unless a
conflict of interest exists between Sponsor and Tufts with
respect to the defense, in which case Tufts' separate counsel
shall be at the Sponsor's expense. Any settlement by which
Tufts would incur any obligation or liability, whether for the
payment of money, the taking of any action, the refraining
from any action, or otherwise, shall require the advance
written consent of Tufts, which may be withheld in the sole
discretion of Tufts without relieving Sponsor of any of its
indemnification or other obligations hereunder.
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16. INSURANCE.
(a) COVERAGE. Not later than thirty (30) days before the time
when Sponsor or any licensee of Sponsor or anyone claiming by,
through, or under any of them, shall make, use, or sell any
products made by use of any of the Research or Tufts
Intellectual Property or any products furnished to Sponsor by
Tufts pursuant to this Agreement or in connection with any
license granted to Sponsor hereunder, and at all times
thereafter until the expiration of all applicable statutes of
limitation pertaining to any manufacture, marketing,
possession, use, sale or other disposition of any of the
aforesaid products, Sponsor will, at Sponsor's expense, obtain
and maintain in full force and effect, comprehensive general
liability insurance, including product liability insurance,
protecting Tufts against all claims suits, obligations,
liabilities, and damages, based upon or arising out of actual
or alleged bodily injury, personal injury, death, or any other
damage to or loss of persons or property, caused by any such
manufacture' marketing, possession, use, sale, or other
disposition. Such insurance policy or policies shall be issued
by companies rated by A. M. Best as A VIII or better (or
other' companies acceptable to Tufts), shall name Tufts as an
additional named insured, shall have limits of at least
$1,000,000 per occurrence with an aggregate of at least
$3,000,000, shall be non-cancelable except upon thirty (30)
days' prior written notice to Tufts, and shall provide that as
to any loss covered hereby and also by any policies obtained
by Tufts itself, Sponsor's policies shall provide primary
coverage for Tufts and Tufts ' policies shall be considered
excess coverage for Tufts.
(b) CERTIFICATES; POLICIES. Sponsor will forthwith after the
obtaining of such insurance required by Subsection 16(a),
obtain and deliver to Tufts certificates of and copies of, and
at all times thereafter, deliver without further demand
replacement certificates and copies of, all such insurance
policies that are in force and effect. As often as is
reasonably requested by Tufts, Sponsor will furnish to Tufts a
complete list, statement, and description of all insurance
called for in this Section, together with certificates and
copies of policies from each insurance company issuing any
thereof, that such insurance is in full force and effect, that
all premiums have been paid, and that such insurance will not
be canceled except upon thirty (30) days' prior written notice
to Tufts.
17. ASSIGNMENTS. Neither Party shall assign this Agreement to another
without the prior written consent of the other Party hereto. Subject to
the foregoing, this Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and
permitted assigns.
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18. INDEPENDENT INQUIRY. As between the Parties hereto, Sponsor, Tufts, and
the entities and individuals participating in the Research shall all be
free to engage in similar research and inquiries made independently
under other grants, contracts, or agreements with or involving Parties
other than those to this Agreement; provided, however, that the
confidentiality provisions of Section 10 shall be complied with
notwithstanding the foregoing.
19. NOTICES. All notices, requests, consents or other communications under
this Agreement that are required to be in writing shall be delivered by
courier, return receipt requested, or mailed by certified or registered
mail, return receipt requested, charges and postage pre-paid, addressed
to the Parties as follows
If to Sponsor: Xxxx X. Xxxxxx
Photogen, Inc.
0000 Xxx Xxxxx Xxxxxxx
Xxxxx X
Xxxxxxxxx, XX 00000
With a Copy to: Xxxxxx & Xxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attn.: Xxxxxxxx X. Xxxxxx
If to Tufts: Associate Xxxxxxx for Research
000 Xxxxxxxx Xxxxxx (00X-0000)
Xxxxxx, XX 00000
With a Copy to: Xxxx Xxxxxxxx
Contract Officer
Tufts University School of Veterinary Medicine
000 Xxxxxxxx Xxxx
X. Xxxxxxx, XX 00000
or to such other address or addresses as may from time to time be given
in writing by either Party to the other pursuant to the terms hereof.
20. DATA. The original data generated as a result of the Research shall be
provided to Sponsor promptly. Sponsor agrees to hold any data so
disclosed in confidence provided Sponsor may use such data as it deems
advisable, seeking regulatory approvals or for any other purposes,
except to the extent that such use infringes upon a patent owned or
controlled by Tufts not licensed to Sponsor. However, this provision
shall not be interpreted to restrict Tufts's publication rights under
Section 12 of this Agreement. The Principal Investigator shall keep
reasonable and customary records of the Research and
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related data sufficient for Sponsor's regulatory approval activities
and shall make such records available to Sponsor on reasonable request.
21. APPROVALS. Tufts represents and warrants to Sponsor that this Agreement
and the Research have received the required approvals of Tufts
University and that no other approvals are required to authorize the
execution and effectiveness of this Agreement. Sponsor represents and
warrants to Tufts that this Agreement and the Research have been
approved by its Board of Directors.
22. OTHER PROVISIONS.
(a) INDEPENDENT CONTRACTORS. The Parties hereto shall be
independent contractors with respect to each other, and
neither shall be deemed to be the agent, principal, employee,
servant, joint venturer, or partner of the other for any
purpose.
(b) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of
Massachusetts without regard to conflict of law rules or
principles. Tufts and Sponsor each irrevocably consent and
submit to the jurisdiction of the courts of the state of New
York and the United States District Court for the District of
Manhattan, New York.
(c) SOLE AGREEMENT. This Agreement and any Exhibits and Protocols
attached hereto (each of which is hereby made part hereof by
this reference) constitute the entire agreement between the
Parties concerning the subject matter hereof and all prior
negotiations, representations, warranties, agreements, and
understandings related thereto are superseded hereby.
(d) SEVERABILITY. If any provision of this Agreement shall to any
extent be found to be invalid or unenforceable, the remainder
of this Agreement shall not be affected thereby, and any such
invalid or unenforceable provision shall be reformed so as to
be valid and enforceable to the fullest extent permitted by
law.
(e) HEADINGS. Headings of Articles, Sections, and subsections
included herein for convenience for reference only and shall
not be used to construe this Agreement.
(f) FINANCIAL CONFIDENTIALITY. Both Parties agree to keep the
financial terms of this Agreement confidential, unless
required by law to be disclosed.
(g) SPONSOR REPRESENTATIONS. Sponsor represents and warrants to
Tufts that:
(1) Sponsor is a corporation organized and existing under
the laws of the state of Tennessee and has the power
and authority to enter into this Agreement.
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(2) Sponsor has taken all necessary corporate action to
authorize its execution and delivery of this
Agreement by the representatives of Sponsor who
carried out such execution and deliver, and to
authorize the performance by Sponsor of its
obligations hereunder.
(3) Execution and delivery of this Agreement and its
performance by Sponsor will not result in any breach
or violation of, or constitute a default under, any
agreement, instrument, judgment, or order to which
Sponsor is a party or by which it is bound.
23. INVESTIGATORS JOIN INTO AGREEMENT. Each person engaged by Tufts as an
Investigator hereby joins into this Agreement and agrees to become
bound to all terms applicable to him or her and in particular, Sections
4, 7, 8, 10, and 12.
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IN WITNESS WHEREOF, the Parties hereto have hereunder executed and
delivered this Agreement to be effective as the date hereof.
TUFTS UNIVERSITY Photogen, Inc.
By: /s/ Xxxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxx
------------------------------ --------------------------------
Xxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxx Chairman and President
--------------------------------- ------------------------------------
Typed Name
8/19/99
------------------------------------
Associate Xxxxxxx for Research Date
---------------------------------
Title
8/18/99
---------------------------------
Date
Agreed to and Accepted by the following Investigator(s) as his or her interests
and obligations may appear in the Agreement:
Name(s)
Date: 8/11/99 /s/ Xxxxx Xxxxxxxxx
----------------------- --------------------------------
Date: _______________________ ________________________________
Date: _______________________ ________________________________
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