RESEARCH AGREEMENT

 

 

1.1

“Research” shall mean the project described in Appendix A hereof, under the direction Mark E. Thompson, Ph.D. (“Principal Investigator”).

 

1.2

“University Intellectual Property” shall mean individually and collectively all inventions, improvements and discoveries, whether or not covered by intellectual property protection, which are conceived or made by one or more employees of University in performance of the Research.

 

 

2.1

University shall use reasonable efforts to perform such Research substantially in accordance with the terms and conditions of this Agreement. Anything in this Agreement to the contrary notwithstanding. Sponsor and University may at any time amend the Research by mutual written agreement.

 

2.2

In the event that the Principal Investigator become unable or unwilling to continue the Research, and a mutually acceptable substitute is not available, University or Sponsor shall have the option to terminate this Agreement.

 

2.3

Nothing in the Agreement shall be construed to limit the freedom of researchers, whether participants in this Agreement or not, from engaging in similar research inquires made independently under other grants, contracts or agreements with parties other than Sponsor.

 

 

 

 

 5.1

It is agreed and understood by the parties hereto that, subject to Article 22, total costs to the Sponsor hereunder shall not exceed the amount of ($2,874,238). Payment shall be made by Sponsor in advance according to the following schedule.

 

(a)

Sponsor shall pay University $959, 339 less any amount unexpended from the prior 12 month period. Six equal payments will be made in advance following the established payment schedule.

 

(b)

Notice of such amount including the month of April shall be delivered to Sponsor no later than April 1, 1999.

 

(a)

Sponsor shall pay University $992,814 less any amount unexpended from the prior 12 month period. Six equal payments will be made in advance following the established payment schedule.

 

(b)

Notice of such an amount including the month of April shall be delivered to Sponsor no later than April 1, 2000.

 

5.2

Checks shall be made payable to University of Southern California and sent to:

 

5.3

In the event of termination of this Agreement pursuant to Article 14 hereof, Sponsor shall pay all costs accrued by University as of date of termination, including noncancellable obligations. Such obligations shall include all noncancellable graduate fellowships and appointments called for in Appendix A incurred prior to the effective date of termination. After termination, any obligation of the Sponsor for graduate fellowships and appointments shall end no later than the end of University's academic year following termination.

 

5.4

University shall furnish to Sponsor on an annual expenditure report, within 30 days of each anniversary date of this Agreement, outlining spending by major budget categories listed in the proposal budget.

 

5.5

The payment schedule can be modified upon mutual agreement of the parties.

 

5.6

Interest shall accrue on the amounts paid by Sponsor until spent by the University. The accrued interest will be used to support this project.

 

5.7

Subcontract payments included in the total amount and budgeted for Princeton University total $1,547,990:

 

 

 

7.1

University shall have the right, at its discretion, to release information or to publish any material resulting from the Research. University shall furnish Sponsor with a copy of any proposed publication thirty (30) days prior to submission for publication for review and comment. Sponsor may request University to delay publishing such proposed publication for a maximum of an additional sixty (60) days in order to protect the potential possibility of any invention described therein.

 

7.2

University shall give Sponsor the option of receiving an acknowledgement in any publication for its sponsorship of the research.

 

 

8.1

During the course of this Agreement, Sponsor may provide University with certain information, data, or material in writing which Sponsor has clearly marked as confidential or proprietary in nature. University shall receive and hold such information in confidence and agrees to use its reasonable efforts to prevent disclosure to third parties of said information in the manner University treats its own similar information.

 

8.2

University shall not consider information disclosed to it by sponsor confidential which: (1) is now common knowledge or subsequently becomes such through no breach of this Agreement; (2) is rightfully in University's possession prior to Sponsor's disclosure as shown by written records; (3) is disclosed to University by an independent third party; or (4) is independently developed by or for University without benefit of confidential information received from Sponsor.

 

 

9.1

All rights and title to University Intellectual Property under the Research shall belong to University and shall be subject to the terms and conditions of this Agreement and the License Agreement as hereinafter defined.

 

9.2

University will promptly notify Sponsor of any University Intellectual Property. Sponsor shall, upon reviewing such notification, determine whether to request University to file, prosecute and maintain any patent application or application for other intellectual property protection, domestic or foreign, in University's name. Sponsor shall bear all reasonable costs incurred in connection with such preparation, filing, prosecution and maintenance directed to said University Intellectual Property. University shall keep Sponsor advised as to all developments with respect to such applications and Sponsor shall be given an opportunity to review and comment thereon.

 

9.3

If Sponsor decides to discontinue the financial support of the application for intellectual property protection, University shall be free to file or continue prosecution and maintenance on any such application, at University's sole expense. If Sponsor elects to discontinue the financial support of the application for intellectual property protection prior to Issuance of a valid patent, Sponsor thereby waives and gives up any fight it may have under Section 10 below to license University Intellectual Property.

 

 

 

 

 

 

14.1

Either party may terminate this Agreement upon ninety (90) days prior written notice to the other.

 

14.2

Termination of this Agreement by either party for any reason shall not effect the rights and obligations of the parties accrued prior to the effective date of termination.

 

 

15.1

University agrees to perform the Research in accordance with prevailing professional standards.

 

15.2

UNIVERSITY MAKES NO WARRANTIES FOR ANY PURPOSE WHATSOEVER, EXPRESS OR IMPLIED, AS TO THE RESEARCH OR THE RESULTS OF THE RESEARCH, INCLUDING THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE RESEARCH OR THE RESULTS OF THE RESEARCH UNDER THIS AGREEMENT. Neither the Principal Investigator, Sponsor, nor any other person is authorized to give any such warranty in the name of or on behalf of University.

 

15.3

Sponsor agrees that it will not rely solely upon technical information provided by University or the Principal Investigator in developing any invention or product, but will independently test, analyze and evaluate all inventions and products prior to manufacture and distribution of such inventions and products.

 

 

16.1

University agrees to maintain adequate liability insurance, such protection being applicable to officers, employees and agents while acting within the scope of their employment by University.

 

16.2

Sponsor agrees to hold harmless, indemnify and defend University, its trustees, officers, employees and agents from all liabilities, demands, damages, expenses and losses arising out of (i) performance of this Agreement, except to the extent of University's gross negligence or willful misconduct, (ii) Sponsor's use of the results of the Research, or (iii) Sponsor's use, manufacture or sale of products or inventions made by use of the results of the Research. The provisions of this paragraph shall survive completion or termination of this Agreement

 

16.3

Sponsor warrants that at its sole cost and expense it maintains in effect a policy or program of comprehensive general liability insurance or self-insurance in single limit coverage of not less than Two Million Dollars ($2,000,000) per incident and Two Million Dollars ($2,000,000) annual aggregate for death, bodily injury, illness or property damage to support the indemination obligations assumed herein. Such policy shall name University as an additional insured and shall provide for not less than thirty (30) days prior written notice before any cancellation or material change in coverage shall be effective. A Certificate evidencing the comprehensive general liability policy shall be delivered to University upon request.

 

 

18.1

University and Sponsor agree to abide by all Federal, State and local laws, rules, regulations, and ordinances in the performance of this Agreement.

 

18.2

This Agreement shall be governed and construed in accordance with the laws of the State of California. Jurisdiction and venue of any dispute arising out of this Agreement shall lie with any court of competent jurisdiction within the County of Los Angeles.

 

 

 

 

21.1

No waiver by either party of any breach of any provision hereof shall constitute a waiver of any other breach of that or of any other provision hereof

 

21.2

In the event a court or governmental agency of competent jurisdiction holds any provision of this Agreement to be invalid, such holding shall have no effect on the remaining provisions of this Agreement, and they shall continue in full force and effect. Upon such holding, the parties shall, within a reasonable period of time, determine whether the severed provision(s) detrimentally and materially affect the obligations or performance of either or both parties. If so affected, the parties shall, within a reasonable period of time, negotiate in good faith to modify this Agreement to relieve such effects. If such negotiations do not result in mutually agreeable modification to this Agreement, notwithstanding the provisions of Article 14 herein either effected party may terminate this Agreement upon providing the other party with thirty (30) days written notice of such termination.