Master Services Agreement, dated September 9, 2022, by and between Factor Bioscience Inc. and Brooklyn ImmunoTherapeutics, Inc

3.1         Term. This Agreement shall become effective on the Effective Date and shall continue in effect until terminated by either Party in accordance with Section 7. Notwithstanding the foregoing, should any Work Order(s) entered into during the term of this Agreement require Services to be performed beyond the termination date of this Agreement, then the terms of this Agreement shall remain in effect with respect to such Work Order(s) until the expiration or termination of that Work Order(s).

5.1        General. As used herein, the term “Confidential Information” means all information furnished by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is confidential or proprietary to the Disclosing Party (whether or not reduced to writing or other tangible medium of expression, and whether or not patented, patentable, capable of trade secret protection or protected as an unpublished or published work under the United States Copyright Act of 1976, as amended), including without limitation, (a) information relating to the intellectual property and business practices of the Disclosing Party; (b) information observed or otherwise made available to BTX or its personnel while on Factor’s premises; and (c) any third party confidential or proprietary information in the possession of the Disclosing Party that is provided to the Receiving Party. Each Party, in its capacity as a Receiving Party, agrees to treat as the confidential and exclusive property of the Disclosing Party all Confidential Information that is disclosed or otherwise made available by the Disclosing Party in connection with this Agreement or the Parties’ business relationship. The Receiving Party agrees to use any Confidential Information of the other Party solely for purposes of its performance under this Agreement unless otherwise mutually agreed in writing. The Receiving Party shall maintain at least the same degree of care and diligence in the protection of the Confidential Information as it uses with regard to its own confidential or proprietary information, which in any event shall be no less than a reasonable standard of care and diligence for the industry.

5.2        Non-Disclosure. The Receiving Party agrees not to disclose any Confidential Information of the Disclosing Party to any third party for any purpose without obtaining the prior written consent of the Disclosing Party, except to its employees and personnel who have a need to know in order to perform its obligations under this Agreement; provided that such employees and personnel are obligated in writing to maintain the confidential nature of such Confidential Information on terms at least as restrictive as those set forth herein, and the Receiving Party will be responsible for any damages resulting from any breach of this Agreement by its employees and personnel.

5.3       Exclusions. Confidential Information does not include information that the Receiving Party is able to demonstrate (a) was rightfully in its possession prior to receipt from the Disclosing Party, as evidenced by the Receiving Party’s written records, (b) is now, or hereafter becomes, part of the public domain through no act or failure to act on the part of the Receiving Party or its agents or collaborators, (c) becomes known to the Receiving Party at any time through disclosure by a third party having no known obligation of confidentiality with respect to such information, or (d) was independently developed by or on behalf of the Receiving Party without the aid, application, use or benefit of the Disclosing Party’s Confidential Information, as evidenced by the Receiving Party’s written records. In addition, a Receiving Party may disclose such Confidential Information to the limited extent required to do so by applicable law or a proper legal, governmental or other competent authority, or by the rules of any securities exchange on which any security issued by either Party is traded. Except where impracticable, such Receiving Party shall give the Disclosing Party reasonable advance notice of such disclosure requirement and shall afford the Disclosing Party a reasonable opportunity to oppose, limit or secure confidential treatment for such required disclosure, or, where it is impracticable to give an advance notice, such Receiving Party shall give the Disclosing Party reasonable notice promptly after such required disclosure. In the event of any such required disclosure, the Receiving Party shall disclose only that portion of the Confidential Information legally required to be disclosed.

5.4         Return of Confidential Information. Each Party agrees that, upon the earlier to occur of (a) the other Party’s written request or (b) termination of this Agreement, the Receiving Party shall (i) return to the Disclosing Party any or all parts of the Confidential Information of such party provided to the Receiving Party in documentary or other tangible form, including all copies and other tangible embodiments thereof, and (ii) destroy any or all Confidential Information in the Receiving Party’s possession and stored in then-accessible electronic or other media, in accordance with the Receiving Party’s own policies and timing for the destruction of its own Confidential Information.

5.6.        Term of Confidentiality Obligations. The provisions of this Section 5 shall remain in effect for five (5) years following the termination of this Agreement, except that with respect to any Confidential Information constituting a trade secret as defined under applicable law, the provisions of this Section 5 shall remain in effect for as long as such Confidential Information continues to constitute a trade secret.

10.1     Entire Agreement; Amendments. This Agreement and any Work Orders issued hereunder, together with the License, represents the entire understanding of the parties with respect to the Services that are subject matter hereof and (with the exception of the License) shall merge and supersede all prior and contemporaneous agreements or understandings, oral or written, with respect thereto. This Agreement shall not be modified except by a written agreement signed by the Parties hereto specifying that it is a modification to the Agreement.

10.2       Waiver. The failure of a Party to insist upon strict adherence to any term of this Agreement on any occasion shall not be considered a waiver or deprive that Party of the right to insist upon strict adherence to that term or any other term of this Agreement. Any waiver must be in writing and signed by the Party making the waiver.

10.3       Severability. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision hereof.

10.4      Governing Law and Venue. This Agreement shall be construed under and governed by the laws of the Commonwealth of Massachusetts, without regard to the conflict of laws principles thereof. The Parties hereby submit to the exclusive jurisdiction of the federal and/or state courts sitting in Boston, Massachusetts, without restricting any right of appeal.

10.5       Representations, Warranties and Covenants; Disclaimer. Each Party hereto hereby represents, warrants and covenants to the other that (a) it is a corporation duly incorporated, validly existing and in good standing; (b) it has taken all necessary actions on its part to authorize the execution, delivery and performance of the obligations undertaken in this Agreement, and no other corporate or regulatory actions (e.g., obtaining permits, licenses or authorizations) are necessary with respect thereto; (c) it is not a party to any agreement or understanding, and there is no applicable law or regulation or third party rights, that would prohibit it from entering into and performing this Agreement or that would be violated through entering into this Agreement or any Work Order or the provision or use of the Services or Deliverables  (provided that, with respect to Factor’s representation under this subsection (c) BTX pays the fees, if any, required for any additional license that Factor identifies to BTX in writing as being required under Factor’s existing agreements for equipment or related software to be provided by Factor for use by BTX as part of the Services or Deliverables under a Work Order); and (d) when executed and delivered by it, this Agreement will constitute a legal, valid and binding obligation of it, enforceable against it in accordance with this Agreement’s terms. Factor further represents and warrants that the Services shall be performed in a professional manner by competent and properly trained personnel in accordance with Factor’s training standards and practices, which are reasonably consistent with standards that are generally accepted in the industry.  Except as expressly provided in this Agreement, neither Party makes any representations, extend any warranties of any kind, either express or implied, including, without limitation, any implied warranties of merchantability or any implied warranties of fitness for a particular purpose or non-infringement, or assumes any responsibilities whatsoever with respect to the Services or the Deliverables, including the use, sale, or other disposition of products or services incorporating or made by use of the Services or the Deliverables. Except for a Party’s breach of Section 5, in no event will either Party, or its directors, officers, employees, affiliates or agents, be liable for any special, incidental, consequential or indirect damages of any kind, whether grounded in tort (including negligence), strict liability, contract or otherwise. The Parties acknowledge that the Services could not be made available under the terms provided herein without an increase in cost if Factor were required to provide any representations, warranties or guarantees in addition to, or in lieu of, those expressly set forth in this Agreement.

10.6      Mutual Indemnification.  Each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party, its Affiliates and their respective directors, officers, employees, consultants, licensors and agents, and their respective successors, and assigns (collectively, the “Indemnified Party”), against all third party suits, actions, claims, proceedings, liabilities, demands, damages, losses, or expenses (including legal expenses, investigative expenses, and reasonable attorneys’ fees) resulting from, arising out of, or otherwise attributable to the Indemnifying Party’s breach of its express representations and warranties set forth herein, except to the extent resulting from, arising out of, or otherwise attributable to the Indemnified Party’s breach of any of its express representations, warranties or covenants set forth herein, or any act of gross negligence or intentional misconduct by the Indemnified Party. As used herein, “Affiliate” means any person or entity directly or indirectly controlling or having the power to control, or controlled by or being under common control with another person or entity.  For this purpose, “control” means the direct or indirect possession of power to direct or cause the direction of the management or policies of such party, whether through ownership or stock or other securities, by contract or otherwise.  Ownership of more than fifty percent (50%) of the beneficial interest of an entity shall be conclusive evidence that control exists.

The Indemnified Party will promptly give notice to the Indemnifying Party of any suits, actions, claims, proceedings, liabilities, demands, damages, losses, or expenses which might be covered by this Section and the Indemnifying Party will have the right to defend the same, including selection of counsel and control of the proceedings; provided that the Indemnifying Party will not, without the written consent of the Indemnified Party, settle or consent to the entry of any judgment with respect to any such third party claim (x) that does not release the Indemnified Party from all liability with respect to such third party claim or (y) which may materially adversely affect the Indemnified Party’s or under which the Indemnified Party would incur any obligation or liability, other than one as to which the Indemnifying Party has an indemnity obligation hereunder. The Indemnified Party agrees to reasonably cooperate and aid such defense.   The Indemnified Party at all times reserves the right to select and retain counsel of its own at its own expense to defend the Indemnified Party’s interests.

10.7       Force Majeure. Failure of either Party to perform its obligations under this Agreement shall not subject such Party to any liability or place such Party in breach of any term or condition of this Agreement to the other Party to the extent that such failure is due to causes beyond the reasonable control of the affected Party including, but not limited to, fire, explosion, flood, drought, hurricane, war, terrorism, riot, civil unrest, sabotage, vandalism, embargo, epidemic, pandemic or other declared national, state or local health emergency, compliance with any order or regulation of any government entity acting with color of right, or any other cause beyond the reasonable control of such non-performing Party and not caused by the negligence, intentional conduct or misconduct of the non-performing Party (such event or cause referred to as “force majeure”).  The Party unable to perform hereunder due to force majeure shall, as promptly as reasonably practicable, notify the other Party and shall use reasonable efforts to eliminate, cure or overcome the force majeure, keeping the other Party informed of its progress, and resume performance of its obligations as soon as reasonably practicable.  If a condition constituting force majeure exists for more than thirty (30) consecutive days, the Parties shall meet and discuss in good faith modifications to the Services, timetable for provision and completion of the Services and/or other affected aspects of the Agreement or Work Order.

10.8       Injunctive Relief. Each Party agrees that it would be impossible or inadequate to measure and calculate the other Party’s damages from any breach of the covenants set forth in Section 5 of this Agreement, and that a breach of such covenants could cause serious and irreparable injury to such other Party.  Accordingly, each Party shall have available, in addition to any other right or remedy available to it, the right to seek an injunction from a court of competent jurisdiction restraining such a breach (or threatened breach) and to specific performance of any such covenant.  Each Party further agrees that no bond or other security shall be required in seeking such equitable relief.

10.9      Assignment. This Agreement will be binding upon and will inure to the benefit of each Party and each Party’s respective transferees, successors and assigns, pursuant to the provisions set forth below.  Neither Party may transfer or assign this Agreement without the prior written consent of the other Party, except as provided in this Section 10.9. In the event that a third party (the “Acquiring Party”) acquires all or substantially all of a Party’s business, capital stock or assets, or the portion of such Party’s assets pertaining to this Agreement, whether by sale, merger, change of control, operation of law or otherwise (an “Acquisition”), such Party may assign this Agreement and the Work Orders hereunder to the Acquiring Party without the prior written consent of the other Party, provided that the Acquiring Party agrees in writing to assume the assigning Party’s obligations under this Agreement and the Work Orders hereunder. In such event, the rights granted to the Party being acquired under this Agreement shall inure to the benefit of the Acquiring Party. For the avoidance of doubt, in the event of an Acquisition of BTX by an Acquiring Party, the Acquiring Party will be responsible for all payments and other obligations set forth in this Agreement, including, but not limited to, all payments set forth herein, and any obligations that matured prior to the Acquisition date. Upon an Acquisition of BTX by an Acquiring Party, payment thereof shall remain an ongoing obligation of the Acquiring Party until such amount is paid in full. Any attempted assignment in contravention of this Section 10.9 will be null and void.

10.10     Announcement.  As soon as reasonably practicable after entering into this Agreement, the Parties may issue a joint press release announcing their entering into this Agreement, provided that the content of such press release shall be determined by mutual agreement of the Parties acting in good faith.  BTX shall also be entitled to disclose this Agreement in its filings with the Securities and Exchange Commission and as otherwise required in order to comply with applicable legal requirements and the rules or regulations of any securities exchange on which BTX’s securities are listed.

10.11    Counterparts. This Agreement may be executed by original or facsimile signature in any number of counterparts, each of which need not contain the signature of more than one Party but all such counterparts taken together will constitute one and the same agreement.