Exclusive License Agreement, dated as of April 23, 2012, by and between the UAB Research Foundation and the Registrant (as successor-in-interest to Complexa, Inc.)

EX-10.10 4 imra-ex1010_712.htm EX-10.10 imra-ex1010_712.htm

Exhibit 10.10

Certain identified information has been excluded from the exhibit because it is both (i) not
material and (ii) is the type of information that the registrant treats as private or confidential.
Double asterisks denote omissions.

EXCLUSIVE LICENSE AGREEMENT

 

This license agreement (this "Agreement") is made and is effective as of April 25, 2012 (the "Effective Date") between The UAB Research Foundation ("UABRF") and Complexa, Inc. (the "Licensee").

 

RECITALS

 

WHEREAS, UABRF, by and through its authority as the lead institution under an Inter­ Institutional Agreement (the "IIA") with the University of Oregon, Morehouse School of Medicine, and Cardiff University and their Affiliates ("Other Owners") holds all right to transfer all rights, title and interest in the intellectual property described in UABRF intellectual property disclosure numbered U2003-0061, entitled "Cell Signaling by Nitrated Hydrocarbons"  which was developed by inventor employees from UABRF and Other Owners, which are Bruce Freeman et al., UABRF; Valerie O'Donell, Cardiff University; Eugene Chen, Morehouse School of Medicine; and Bruce Branchaud, University of Oregon ("Inventors").

 

WHEREAS UABRF and Other Owners own all right, title, and interest to inventions made by University personnel during the course of their employment. UABRF and Other Owners entered into and duly authorized the IIA dated February 28, 2012 which gives UABRF full authority to negotiate and grant exclusive licenses for the commercial development and exploitation of their jointly owned patent and intellectual property rights in the abovementioned intellectual property disclosures.

 

WHEREAS, the Licensee, a company engaged in the area of drug design and discovery, desires to obtain a license to the Licensed Patents upon the terms and conditions set forth in this Agreement.

 

NOW, THEREFORE, in consideration of the premises described above and the mutual promises and agreements set forth in this Agreement, the Parties agree as set forth below.

 

ARTICLE 1

DEFINITIONS

 

The Definitions used in this Agreement are set forth below.

 

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ARTICLE 2

GRANT OF LICENSE

 

2.1Grant of License. Subject to the terms and upon the conditions set forth in this Agreement, UABRF hereby grants to the Licensee an exclusive right and license, subject to UABRF's rights in Section 2.3, to (a) practice and fully exploit, including the right to enforce as set forth in Article 7, the Licensed Patents and (b) make, have made, develop, use, lease, offer to sell, sell, import and export Licensed Products, within the Licensed Field of Use in the Licensed Territory during the Term. The Licensee may transfer its rights under this Agreement to an Affiliate, provided such Affiliate assumes all of the obligations of the Licensee under this Agreement, or as otherwise provided in this Agreement under Section 12.5.

 

2.2Rights of the United States Government. It is understood that a United States Governmental Authority (National Heart, Lung, and Blood Institute - Grant Number HL0581 l 5) has funded research, during the course of or under which the Licensed Patents were conceived or made, the United States Government is entitled, as a right, under the provisions of 35 U.S.C. §§ 200-212 and applicable regulations of Chapter 37 of the Code of Federal Regulations, to a non­ exclusive, non-transferable, paid-up license to practice or have practiced and use the Licensed Patents for governmental purposes. The Licensee acknowledges that the rights and license granted to it pursuant to this Agreement are subject to any and all rights of the United States Government.

 

2.3Reservation of Rights by UABRF, its Affiliates, and the Other Owners. UABRF reserves the right, for itself, for its Affiliates, and for the Other Owners, to:

 

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2.4Title Remains with UABRF and Other Owners. All title in and to the Licensed Patents remains with UABRF and Other Owners. Except as provided in this Agreement, no express or implied licenses with respect to the Licensed Patents or any other rights are transferred  or granted to the Licensee by implication, estoppel or otherwise.

 

2.5Right to Grant Sublicenses. The Licensee has the right to grant sublicenses to any Person under this Agreement on the following terms and conditions:

 

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ARTICLE 3

DEVELOPMENT AND COMMERCIALIZATION

 

3.1Development and Commercialization Plan. During the Term, the Licensee shall use commercially reasonable efforts to develop, manufacture, commercialize and market a Licensed Product in accordance with the procedures and practices that are usual and customary for similar technologies and industries. The Parties acknowledge that the Licensee has provided to UABRF the Development and Commercialization Plan set forth on attached Exhibit B which sets forth its current development and commercialization objectives. The Parties further acknowledge and agree that the Development and Commercialization Plan is, and the development and commercialization milestones set forth therein are reasonable.

 

3.2Amendment of Development and Commercialization Plan. All variations and deviations from and changes to the Development and Commercialization Plan must be expressly approved in writing by UABRF, such approval not to be unreasonably withheld, conditioned or delayed.

 

3.3Development and Commercialization Report. The Licensee shall provide UABRF, [**], with written progress reports detailing the activities of the Licensee relating to the Development and Commercialization Plan. As a general guide, each such report shall provide information regarding the accomplishments and progress made by the Licensee during the prior reporting period and the objectives and goals to be reached during the forthcoming reporting period. The Licensee will thereafter provide such reports to UABRF on an annual basis on the anniversary of the Effective Date.

 

3.4Regulatory Approvals. With respect to each Licensed Product, and to the extent regulatory approval is required, the Licensee shall use commercially reasonable efforts to obtain the approval of each applicable Regulatory Authority prior to the First Commercial Sale in each country/jurisdiction in which the Licensee intends to sell Licensed Products.

 

3.5Patent Markings. The Licensee shall ensure that each Licensed Product manufactured and/or sold in the United States shall bear patent markings that meet all applicable requirements of 35 U.S.C. §287, as amended from time to time. All Licensed Products manufactured and/or sold outside of the United States shall be marked in such a manner as to conform to the Applicable Law of such country/jurisdiction.

 

3.6Manufacturing in the United States. The Licensee shall use [**] to substantially manufacture in the United States any Licensed Products sold in the United States.

 

 

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ARTICLE 4

PROCUREMENT OF THE  LICENSED PATENTS; PA TENT PROSECUTION

 

4.1Future Procurement Activities.

 

 

4.2Information to the Licensee. UABRF shall provide copies of all patent applications and all filings, correspondence and other related documentation pertaining to prosecutorial matters arising from the Protection Activities, including, but not limited to, all office actions, requests for examinations and restriction requirements.

 

ARTICLE 5

FINANCIAL TERMS

 

5.1Accrued Procurement Expenses. Within one (1) year of the Effective Date, the Licensee shall reimburse UABRF for all Procurement Expenses incurred prior to the Effective Date.

 

5.2Future Procurement Expenses. During the Term and with respect to each Licensed Patent, other than Disclaimed Licensed Patents, the Licensee will be financially responsible for the

 

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payment of all Procurement Expenses incurred after the Effective Date. The Licensee shall pay such amounts to UABRF within [**] of receipt of an invoice for the same from UABRF. UABRF shall be responsible for all Procurement Expenses incurred in connection with each Disclaimed Licensed Patent in countries/jurisdictions not designated by the Licensee pursuant to Section 4.1(d) above

 

5.3License Fee. On or before the Effective Date, the Licensee shall pay to UABRF a non­ refundable, non-creditable license fee of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00).

 

5.4Milestone Payments. Within [**] of the receipt, by Licensee, of the approval of an NDA from the United States Food and Drug Administration (the "FDA"), or an equivalent approval from any other Regulatory Authority authorized to issue such approvals in markets other than the United States, for the first Licensed Product, Licensee shall make a one-time payment of [**] to UABRF.

 

5.5Patent Issue Fee: Upon the first issuance of any Licensed Patent, a divisional, continuation, continuation-in part, reissues, or foreign counterparts, any claim of which covers a Licensed Product, Licensee shall pay a one-time, non-creditable, non-refundable License Issue Fee of FIFTEEN THOUSAND DOLLARS ($15,000.00), which shall be paid to UABRF no later than December 1, 2013. This provision will apply only once and only to the first issued Licensed Patent.

 

5.6Running Royalty Payments. During the Term and with respect to each country or jurisdiction within the Licensed Territory, the Licensee shall pay to UABRF a continuing royalty of [**] on all Net Sales arising in such country/jurisdiction until the expiration of the last Valid Patent Claim in that country/jurisdiction. All amounts owing to UABRF under this Section 5.6 shall be paid on a quarterly basis, on or before the [**] following the end of the calendar quarter in which such amounts were earned. If Licensee is compelled to take a license from a Third Party in order to bring Licensed Product to market, the royalty due to UABRF shall be reduced by no more than [**] to offset royalties due to such Third Party or Third Parties. For clarification, regardless of the number of Third Party licenses, Licensee is compelled to enter into to bring Licensed Product to market, the royalty payments due to UABRF under this Section 5.6 will never be reduced to lower than [**] of Net Sales made by Licensee, Sublicensees, or Affiliates.

 

Licensee will notify UABRF immediately after Licensee's obligation to pay royalties to a Third Party under a valid license agreement in place between the Licensee and the Third Party is triggered and will provide UABRF with a copy of such license which may be redacted for other proprietary matters, but which contains the full royalty agreement between Licensee and the Third Party.

 

5.7Minimum Royalty Payments. Beginning on [**] of this Agreement, the Licensee shall be obligated to pay minimum annual royalty payments to UABRF. In the event that the aggregate running royalty payments paid by the Licensee to UABRF pursuant to Section 5.6 above do not reach the minimum payment obligations set forth below by the date set forth below, then the Licensee shall, within [**] following each of the dates specified, pay UABRF the difference between such aggregate royalty payment actually paid to UABRF and the

 

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minimum payment set forth below. All such minimum annual royalty payments shall be nonrefundable.

 

All running royalty payments paid by the Licensee to UABRF during any one calendar  year shall be credited against the minimum annual payment due to be paid by December 1 of that calendar year. Running royalties paid in any one calendar year may not be carried forward to be credited against the minimum annual royalty payment due in any subsequent calendar year. All such minimum annual royalty payments shall be nonrefundable.  Upon the expiration of the Term or earlier termination of this Agreement, any minimum royalties shall  be pro-rated  as of the date of termination or expiration by the number of days elapsed in the applicable twelve- (12-) month period.

 

5.8Royalty Reports. Commencing with the first day of the calendar quarter following the calendar quarter in which the obligation of the Licensee to pay running royalty payments pursuant to Section 5.7 of this Agreement  is triggered,  the Licensee shall provide to UABRF a written report setting forth all applicable information specified in Exhibit E, which such report shall accompany the payment of all running royalties due to be paid to UABRF by the Licensee with respect to the preceding calendar quarter. Reports furnished must include the calculation of running royalties by Licensed Product and by country/jurisdiction and must include the rate of currency conversion and the date such conversion was calculated as described in Section 5.13 of this Agreement, all in substantially the format set forth in Exhibit E. If the Licensee is required to pay an annual minimum royalty payment, at the time such payment is made, the Licensee shall also furnish a written report providing, to the extent not already provided  to UABRF, all of the information required to be set forth in the quarterly reports discussed above and the additional amount being paid by the Licensee which accompanies the report, being the difference between aggregate running royalty payment actually paid to UABRF in that calendar year and the minimum payment required to be paid.

 

5.9Non-Royalty Income. The Licensee shall not receive any Non-Royalty Income without the prior written consent of UABRF, which such consent shall not be unreasonably withheld, conditioned or delayed. All Non-Royalty Income received by Licensee during the Term [**]. All such payments shall be accompanied by a written notification of the nature and origin of the payment, the identity of the original maker of the payment and, if the original payment was made in a foreign currency, must include the rate of currency conversion and the date such conversion was calculated as described  in Section  5.14 of this Agreement.  In the event that the Licensee receives Non-Royalty Income that is not cash or a cash equivalent, the percentage of non-cash payments shall be calculated as percentage of the then current fair market value of such non-cash

 

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consideration.

 

5.10Royalty Payments from Sublicensees.   The Licensee shall pay to UABRF an amount equal to that which the Licensee would have been required to pay to UABRF had the Licensee effected the Sales actually effected by the Sublicensee.

 

5.11Address for Payments. Except as otherwise directed by UABRF, all amounts due to be paid by the Licensee to UABRF pursuant to this Agreement shall be paid to UABRF at the address set forth below its signature on the signature page of this Agreement.

 

5.12Late Payment Penalty. The balance of any amount which remains unpaid more than [**] after it is due to UABRF shall accrue interest until paid at the rate equal to the lesser of [**] per calendar month or the maximum amount allowed under Applicable Law. However, in no event shall this interest provision be construed as a grant of permission for payment delays.

 

5.13Currency Conversion. All amounts due to be paid to UABRF pursuant to this Agreement shall be made in United States dollars.  Any and all amounts received  by the Licensee or generated in foreign currency shall be converted into United States dollars at the official rate of exchange from such currency to United States dollars at the rate quoted in the Wall Street Journal (United States edition) for the last business day of the calendar quarter in which running royalties are due and payable to UABRF or on a business day no earlier than [**] before payment is made to UABRF.

 

5.14Foreign Taxes. UABRF is exempt from paying income taxes under United States law; therefore, all payments under this Agreement shall be made without deduction for taxes, assessments or other charges of any kind which may be imposed on UABRF by any government outside of the United States or any political subdivision of such government with respect to any amounts payable to UABRF pursuant to this Agreement. All such taxes, assessments or other charges shall be assumed by the Licensee.

 

ARTICLE 6

RECORDKEEPING AND AUDIT RIGHTS

 

6.1Books and Records. The Licensee shall keep complete and accurate books, accounts and other records and documentation necessary to ascertain all transactions and events pursuant to which payments due to UABRF pursuant to this Agreement arise and are accrued and to verify the accuracy and completeness of such amounts. All such books, accounts and other records and documentation shall be kept at the Licensee's principal place of business for a period of not less than [**] following the end of the calendar year to which they pertain.

 

6.2Right to Audit. UABRF shall have the right to have the Licensee's books and records audited, at UABRF's expense, by a qualified, independent accounting firm of its choosing, under appropriate confidentiality provisions such as those set forth in Section 8.4 of this Agreement, to ascertain the accuracy of the reports and payments due to UABRF under this Agreement and compliance by the Licensee, its Affiliates and its Sublicensees with their obligations pursuant to this Agreement and any sublicense. Such audit shall be conducted on [**] advance notice during normal business hours and in a manner that does not interfere unreasonably with the Licensee's business but not more than [**]. If any such examination reveals that the Licensee has underpaid

 

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or underreported any amount due under this Agreement to UABRF for any calendar quarter examined, the Licensee shall immediately pay to UABRF the amount so underpaid or underreported.

 

6.3Reimbursement of Cost of Audit. If any such examination reveals that the Licensee has underpaid or underreported any amount due under this Agreement to UABRF by more than [**] for any calendar quarter examined, the Licensee shall immediately reimburse UABRF the full costs and expenses incurred by it with respect to the audit.

 

ARTICLE 7

INFRINGEMENT; ENFORCEMENT

 

7.1Notification of Infringement. During the Term, each Party shall provide prompt written notice to the other Party of any actual infringement or suspected/potential infringement of the Licensed Patents of which such Party is or becomes aware and shall provide, to the extent reasonable and practicable, any available evidence of such infringement by a Third Party (an "Infringement Notice").

 

7.2Licensee Right to Pursue/Prosecute. During the Term, the Licensee shall have the first right, but not the obligation, to resolve, in the Licensed Field of Use and in the Licensed Territory, any suspected/potential infringement and prosecute any infringement of any Licensed Patents, in its own name and at its own expense, provided:

 

 

Before the Licensee commences an action with respect to any infringement or potential infringement, it shall give careful consideration to the views of UABRF and the potential effects on the public interest in making its decision whether or not to sue. UABRF and the Other Owners shall use their best efforts to co-operate with the Licensee in connection with any remedial action undertaken by the Licensee and shall be responsible for the costs and expenses incurred by it and for those costs and expenses incurred by it at the reasonable request of the Licensee with respect to such co-operation.

 

7.3Control of Suit; Joinder; Expenses.

 

 

 

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7.4Settlement. The Licensee may not settle, enter into a consent judgment or other voluntary final disposition of any lawsuit initiated by it or to which it is a party without the prior written consent of UABRF, which consent shall not be unreasonably withheld, conditioned or delayed. Neither Party may settle or otherwise dispose of any lawsuit to which it is a party, which admits liability on the part of the other Party or which requires the other Party to pay money damages nor issue a formal statement without such other Party's prior written consent.

 

7.5Recoveries.

 

 

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5.6 of this Agreement.

 

 

 

7.6Inapplicability of Licensee's Rights. Notwithstanding Sections 7.1 -7.5 above, the rights and obligations of the Licensee under this article shall not apply to any Disclaimed Licensed Patent.

 

ARTICLE 8

OTHER COVENANTS AND AGREEMENTS

 

8.1Use of Names. No Party may, without the prior written consent of the other Party:

 

 

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Notwithstanding the above, the Licensee may disclose that it has received a license from UABRF in connection with any Licensed Product, and either Party may use the name of the other Party to the extent such use is reasonably necessary for complying with Applicable Law.

 

8.2Publications. In furtherance of the rights reserved in Section 2.3(c) of this Agreement, UABRF or its Affiliates shall submit the proposed publication or disclosure to the Licensee at least [**] prior to submission for publication or disclosure to allow the Licensee to review the matter for disclosure of Proprietary Information of the Licensee. The Licensee shall have [**] from its receipt of such proposed publication or disclosure to review and to provide written notice to UABRF or its Affiliate who provided the submission requiring removal of the Licensee's Proprietary Information and UABRF or its Affiliate shall remove the Licensee's Proprietary Information prior to publication or disclosure. If the Licensee does not provide written notice of such request to UABRF or its Affiliate who provided the submission within [**] after receipt of the proposed publication or disclosure from UABRF or its Affiliate, UABRF or its Affiliate shall be free to publish or disclose to third parties the proposed publication or disclosure without further obligation to the Licensee.

 

8.3Insurance Coverage. Prior to commencing any Clinical Trial and thereafter during the Term, the Licensee shall cause to be in effect through purchase from a reputable insurance company or, upon the consent of UABRF, through a self-insurance program, at its sole expense, shall maintain "occurrence based type" liability insurance coverage or, if the Licensee is unable to obtain "occurrence based type" liability insurance, a "claims made type" liability insurance coverage (with at least [**] tail coverage). Such insurance coverage shall include a contractual endorsement providing coverage for all liability which may be incurred in connection with this Agreement, including, but not limited to general liability and products liability, and such other type of insurance coverage required by Applicable Law or which it deems necessary to enable the Licensee to perform its obligations under this Agreement. All such insurance coverage shall list UABRF and Other Owners as additional insureds. The Licensee shall provide evidence of such insurance coverage to UABRF upon the reasonable request of UABRF.  All such insurance coverage shall require the insurance provider, or in the case of a self insurance program, the Licensee, to provide UABRF with at least [**] prior written notice of any change in the terms or cancellation of coverage.

 

8.4Confidentiality.

 

 

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ARTICLE 9

TERM AND TERMINATION

 

9.1Term. This Agreement shall commence on the Effective Date and shall continue on a country-by-country basis until the date of expiration of the last to expire of any Valid Patent Claim (inclusive of any extensions, supplementary protection certificates or their equivalents) within the Licensed Patents, unless terminated sooner in accordance with the terms of this Agreement (the "Term").

 

9.2Termination by the Licensee.   The Licensee may terminate this Agreement at any time, in its sole discretion, by giving not less than ninety (90) days prior written notice to UABRF.   Upon the reasonable request of UABRF, the Licensee shall provide assistance, at UABRF's expense, to UABRF to enable UABRF to facilitate and effect the transfer of applicable information and documents in Licensee's actual possession regarding the Licensed Patents to a new licensee.

 

9.3Termination by UABRF. UABRF shall have the right to immediately terminate this Agreement upon the occurrence of any one or more of the following events:

 

 

 

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9.4Effect of Termination or Expiration. Upon the termination of this Agreement or the expiration of the Term, all payments then or thereafter due to the Licensee pursuant to any sublicense shall, immediately and automatically, become owed directly to UABRF.

 

ARTICLE 10

COVENANTS; REPRESENTATIONS AND WARRANTIES; LIMITATIONS ON UABRF's OBLIGATIONS

 

10.1The Licensee.The Licensee makes the following representations and warranties to UABRF.

 

 

10.2UABRF. UABRF makes the following representations and warranties to the Licensee.

 

 

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10.3Limitations on UABRF's Representations and Warranties. Except as set forth in this Agreement, UABRF makes no other representations or warranties of any kind. In particular, UABRF makes no express or implied warranties regarding merchantability, fitness for a particular purpose, non infringement of the intellectual property rights of third parties, validity and scope of any Licensed Patents, the capability, safety, efficacy, utility or commercial application or usefulness for any purpose of any Licensed  Patents, or that it will not grant licenses to one or more Third Parties to make, use or sell products or perform processes that may be similar to and/or compete with any Licensed Product, provided, however, that such license grant to one or more Third Parties is not otherwise inconsistent with the terms of this Agreement.

 

10.4No Obligation of UABRF. UABRF has no obligation to:

 

 

ARTICLE 11

LIABILITY AND INDEMNIFICATION

 

11.1No Liability of UABRF or the Other Owners. Neither UABRF, the Other Owners,, nor any of their Representatives have any liability whatsoever to the Licensee, or any Sublicensee or any Person for or on account of any injury, loss or damage of any kind or nature, sustained by, assessed or asserted against, or any other liability incurred by or imposed upon the Licensee, or any Sublicensee or any Person, arising out of or in connection with or resulting from:

 

provided, however, that such liability is not based upon, arising out of or otherwise relating to UABRF, the Other Owners, and/or their Representative(s)'s gross negligence or willful misconduct.

 

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11.2Indemnification by the Licensee. The Licensee agrees to indemnify and hold UABRF, the Other Owners, and their Representatives harmless from and against any and all claims, demands, losses, costs, expenses, deficiencies, liabilities or causes of action of any kind or nature (including, without limitation, reasonable attorneys' fees and other costs and expenses of defense) based upon, arising out of or otherwise relating to:

 

provided, however, that such claims, demands, losses, costs, expenses, deficiencies, liabilities or causes of action of any kind or nature (including, without limitation, reasonable attorneys' fees and other costs and expenses of defense) are not based upon, arising out of or otherwise relating to UABRF, or the Other Owners, and/or their Representative(s)'s gross negligence or willful misconduct.

 

ARTICLE 12

MISCELLANEOUS

 

12.1Entire Agreement. This Agreement is the sole and entire agreement by and between the Parties regarding the subject matter set forth in this Agreement, and this Agreement supersedes all prior agreements and understandings with respect thereto. All previous negotiations, statements and preliminary instruments by the Parties with respect to the subject matter hereof are superseded by this Agreement.

 

12.2No Inducement. Each Party hereby acknowledges that in executing this Agreement, such Party has not been induced, persuaded or motivated by any promise or representation made by any other Party, unless expressly set forth in this Agreement.

 

12.3Independent Contractors. The relationship between the Parties is that of independent contractors. No Party has the authority to bind or act on behalf of the other Party without obtaining such other Party's prior written consent. The Parties do not intend to create an employer/employee relationship.

12.4No Third Party Beneficiaries. This Agreement is entered into by and among the Parties for the exclusive benefit of the Parties and their successors and permitted assignees. This Agreement is expressly not intended for the benefit of any creditor of a Party, or any other person. Except and only to the extent provided by applicable statute, no such creditor or Third Party shall have any rights under this Agreement or any other agreement between the Parties.

 

12.5Assignment. Neither Party shall sell, assign, transfer or otherwise dispose of this Agreement including by operation of law to a Third Party without the prior written consent of the other, which consent shall not be unreasonably withheld, conditioned or delayed; provided, however, that either Party may assign this Agreement to a Third Party that acquires, by merger,

 

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sale of assets or otherwise, all or substantially all of the business of the assigning Party to which the subject matter of this Agreement relates without the prior written consent of the other Party. Any attempted assignment of this Agreement not in compliance with the terms of this subsection will be null and void. No assignment will relieve any Party of the performance of any accrued obligation that such Party may then have pursuant to this Agreement.

 

12.6Amendments. Any and all modifications to this Agreement shall only be effective and binding if in writing and signed by a duly authorized representative of each Party.

 

12.7Notices. Any notice, request, approval or consent required to be given under this Agreement will be sufficiently given if in writing and delivered to a Party in person, by recognized overnight courier or mailed in the United States Postal Service, postage prepaid to the address appearing below such Party's signature on the last page of this Agreement, or at such other address as each Party so designates in accordance with these criteria. Notice shall be deemed effective upon receipt if delivered in person or by overnight courier or five (5) business days after mailing with the United States Postal Service.

 

12.8Disputes.

 

12.9Rights and Remedies. The rights and remedies provided by this Agreement are cumulative, and the use of any one right or remedy by any Party shall not preclude or waive the right to use any or all other remedies.   Such rights and remedies are given in addition to any other rights the

 

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Parties may have by law, statute, ordinance or otherwise.

 

12.10Waiver. No waiver of a provision, breach or default shall apply to any other provision or subsequent breach or default or be deemed continuous, nor will any single or partial exercise of a right or power preclude any other further exercise of any rights or remedies provided by law or equity.

 

12.11Severability. In the event that any covenant, condition, or other provision contained in this Agreement is determined to be invalid, void or illegal, such covenant, condition or other provision shall be deemed deleted from the Agreement and shall not affect the validity of the remaining provisions of this Agreement.

 

12.12Force Majeure. Neither Party shall be liable for any failure to perform as required by this Agreement to the extent such failure to perform is due to circumstances reasonably beyond such Party's control, including, without limitation, labor disturbances or labor disputes of any kind; accidents; acts, omissions or delays in acting by any Governmental Authority; civil disorders; insurrections; riots; war; acts of war (whether war be declared or not); terrorism; acts of aggression; acts of God; fire; floods; earthquakes; natural disasters; energy or other conservation measures imposed by law or regulation; explosions; failure of utilities; mechanical breakdowns; material shortages; disease or other such occurrences; provided that the affected Party uses reasonable efforts to overcome or avoid the effects of such cause and continues to perform its obligations to the extent possible.

 

12.13Survivability. All rights and obligations of the Parties which by intent or meaning have validity beyond or by their nature apply or are to be performed or exercised after the termination or expiration of this Agreement shall survive the termination or expiration of this Agreement for the period so specified, if any, or for perpetuity.

 

12.14Jurisdiction. The Licensee consents to the personal jurisdiction of the federal and state courts located in the State of Alabama with respect to all claims or other causes of action arising out of this Agreement.

 

12.15Interpretation. Whenever used in this Agreement and when required by the context, the singular number shall include the plural and the plural the singular.   Pronouns of one gender shall include all genders, masculine, feminine and neuter.

 

12.16Captions.  The captions as to contents of particular sections or paragraphs contained in this Agreement are inserted for convenience and are in no way to be construed as part of this Agreement or as a limitation on the scope of the particular sections or paragraphs to which they refer.

 

12.17Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original but all of which shall constitute one and the same instrument.

 

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IN WITNESS WHEREOF, the Licensee and UABRF have each caused its duly authorized representative to execute this Agreement, effective as of the Effective Date.

 

 

 

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