SPONSORED RESEARCH AGREEMENT (NON-CLINICAL)

 

 

This agreement ("AGREEMENT") is dated as of March 23 , 2012 (the “EFFECTIVE DATE”) by and between THE REGENTS OF THE UNIVERSITY OF COLORADO, a body corporate, contracting for and on behalf of the University of Colorado Denver, a public institution of higher education created under the Constitution and the Law of the State of Colorado (hereinafter referred to as “UNIVERSITY") with administrative offices at University of Colorado Denver, Office of Grants and Contracts, Mail Stop F428, Anschutz Medical Campus Bldg 500, W1126, 13001 E 17th Place, Aurora, Colorado 80045 and Omni Bio Pharmaceutical, Inc. (hereinafter referred to as "Sponsor"), having a principal place of business at 5350 South Roslyn, Suite 430 Greenwood Village, CO 80111, referred to individually as Party or collectively as Parties.

 

WHEREAS, the research program contemplated by this AGREEMENT is of mutual interest and benefit to UNIVERSITY and SPONSOR, and will further the instructional and research objectives of UNIVERSITY in a manner consistent with its status as a non-profit educational institution.

 

 

NOW, THEREFORE, the Parties agree as follows:

 

 

UNIVERSITY agrees to perform a program of scientific research (“RESEARCH”) as described in the Statement of Work ("STATEMENT"), a copy of which is attached to this AGREEMENT as Exhibit A.

 

 

 

UNIVERSITY'S relationship to SPONSOR under this AGREEMENT will be that of an independent contractor and not an agent, joint venture or partner of SPONSOR.

 

 

 

The RESEARCH will be supervised by Charles A. Dinarello ("INVESTIGATOR") at UNIVERSITY.  If, for any reason INVESTIGATOR is unable to continue to serve as Principal Investigator and a successor acceptable to both UNIVERSITY and SPONSOR is not available, the AGREEMENT will be terminated in accordance with Article 7 below.

 

 

In consideration of the foregoing, SPONSOR will pay UNIVERSITY a fixed price sum of One Hundred Five Thousand dollars ($105,000).   Such fixed price shall include all indirect costs.  Payment will be made to UNIVERSITY by SPONSOR upon execution of this AGREEMENT.  Payments shall be made and mailed to:

 

University of Colorado Denver

Grants and Contracts, # 121769-CD

PO Box 910238

Denver, CO  80291-0238

 

The RESEARCH will be conducted during a one (1) year period effective on October 1, 2011, (“Effective Date”) and concluding on or before October _1, 2012.  SPONSOR may renew this AGREEMENT for subsequent periods upon written amendment executed by the Parties.

 

 

 

UNIVERSITY will provide SPONSOR with periodic written progress reports on the RESEARCH on a quarterly basis.   INVESTIGATOR and other participating UNIVERSITY personnel shall meet with SPONSOR, either by telephone or at UNIVERSITY’s facilities, as reasonably requested by SPONSOR.   In addition, UNIVERSITY will provide SPONSOR with a final report on such RESEARCH within sixty (60) days of termination of this AGREEMENT.

 

 

 

Either Party may terminate this AGREEMENT upon thirty (30) days written notice to the other Party with no further obligation of the Parties.    In the event this AGREEMENT is terminated, those clauses which by their nature should survive termination of this AGREEMENT and Articles 8, 9, 10, 11, 12, and 13 shall survive termination.

 

 

 

"Confidential Information" ("INFORMATION") shall mean all information provided by one Party to the other and clearly identified in writing as confidential by the transmitting Party at the time of disclosure or which by the nature of the information or circumstances surrounding its disclosure would reasonably be understood to be confidential.  Specifically excepted from this definition is all information:  (a) known by the receiving Party at the time of disclosure, whether such disclosure was prior to or following the EFFECTIVE DATE; (b) publicly disclosed except by breach of this AGREEMENT; (c) rightfully received by the receiving Party from a third party without an  obligation of confidence; (d) independently developed by the employees or agents of either Party without any knowledge of or reliance upon the INFORMATION provided by the other Party;  or (e) is required to be disclosed pursuant to any judicial or government request, requirement or order or other legal requirement, provided that the party required to make such disclosure takes reasonable steps to provide the other party with sufficient prior notice in order to allow the other party to contest such request, requirement or order.  The Party receiving the INFORMATION agrees to hold that INFORMATION in trust and confidence for the transmitting Party, using the same care and discretion that the receiving Party uses with similar INFORMATION which it considers confidential, but in no event using less than reasonable care.  The receiving Party will not use INFORMATION other than for the benefit of the two Parties except as provided herein.    The receiving Party will not disclose such INFORMATION without authorization from the other Party, except as may be provided for in Article 9 regarding publication.  This provision shall remain in effect during the term of this AGREEMENT and for five (5) years thereafter.

 

UNIVERSITY shall be free to use the results of the subject RESEARCH (“RESULTS) for its own teaching, patient care, internal noncommercial (i.e. not for the benefit of any third party commercial partner during the term of this AGREEMENT and in any case subject to SPONSOR’s rights under Articles 8 and 10 of this AGREEMENT) research and publication purposes; subject to SPONSOR’S rights in this Article 9.   UNIVERSITY shall submit to SPONSOR for its review, a copy of the proposed publication or presentation resulting from the subject RESEARCH at least thirty (30) days prior to the date of submission for publication or presentation, and agrees to consider in good faith all comments received during that time.  Other than the RESULTS, UNIVERSITY shall not include in any such publication or presentation any INFORMATION of SPONSOR provided that SPONSOR shall not prevent use of information necessary to enable the complete and accurate publication of RESULTS.  If SPONSOR determines that the proposed publication contains patentable subject matter requiring protection, SPONSOR may require the delay of the publication for a period of time not to exceed an additional sixty (60) days for the purpose of allowing the pursuit of such protection.  SPONSOR shall be free to use the RESULTS for any legitimate purpose, subject to any patent or other intellectual property rights held by UNIVERSITY.

 

SPONSOR agrees to indemnify, hold harmless and defend UNIVERSITY, its officers, employees, and agents against any and all claims, suits, losses, damages, costs, fees, and expenses asserted by third parties, both government and non-government, resulting from or arising out SPONSOR’s use of the RESULTS or SPONSOR’s negligence or willful misconduct; provided, however, that SPONSOR shall not be responsible for UNIVERSITY's negligence or willful misconduct.  SPONSOR shall maintain in force at its sole cost and expense, with reputable insurance companies, insurance of a type and in an amount reasonably sufficient to protect against liability hereunder.  UNIVERSITY shall have the right to request the appropriate certificates of insurance from SPONSOR for the purpose of ascertaining the sufficiency of such coverage.

 

Neither Party will, without the prior written consent of the other Party:  (a) use in advertising, publicity or otherwise, the name of any employee or agent, any trade-name, trademark, trade device, service mark, symbol, or any abbreviation, contraction or simulation thereof owned by the other Party, or (b) represent, either directly or indirectly, that any product or service of the other Party is a product or service of the representing Party or that it is made in accordance with or utilizes the information or documents of the other Party, except that UNIVERSITY may acknowledge SPONSOR's support in academic publications prepared in accordance with Article 9.

Any notice or other communication required or permitted under this AGREEMENT will be in writing and will be deemed given as of the date it is:  (a) delivered by hand, or (b) mailed, postage prepaid, first class, certified mail, return receipt requested, to the Party at the address listed below or subsequently specified in writing, or (c) sent, shipping prepaid, return receipt requested, by national courier service, to the Party at the address listed below or subsequently specified in writing:

 

 

As to UNIVERSITY:	University of Colorado Denver | Anschutz Medical Campus
	Office of Grants and Contracts
	Mail Stop F428, Bldg. 500, W1131B
	13001 E. 17th Place
	Aurora, CO 80045
	Attn:  Pamela J. Jones
	***@***
With Copy to:	Charles A. Dinarello, MD
	University of Colorado Denver
	SOM Infectious Diseases Division
	Mail Stop B168
	Research Complex II, Room 11003
	Aurora, CO  80045
	***@***

 

As to SPONSOR:	Omni Bio Pharmaceutical, Inc.
	5350 S. Roslyn Street, Suite 430
	Greenwood Village, CO 80111
	Attn:  James Crapo, Chief Executive Officer

This AGREEMENT and all attached Exhibits contain the entire AGREEMENT and understanding between the Parties as to its subject matter.  It merges all prior discussions between the Parties and neither Party will be bound by conditions, definitions, warranties, understandings, or representations concerning such subject matter except as provided in this AGREEMENT or as specified on or subsequent to the effective date of this AGREEMENT in a writing signed by properly authorized representatives of the Parties.  This AGREEMENT can only be modified by written agreement duly signed by persons authorized to sign agreements on behalf of both SPONSOR and UNIVERSITY.

 

The failure of a Party in any instance to insist upon the strict performance of the terms of this AGREEMENT will not be construed to be a waiver or relinquishment of any of the terms of this AGREEMENT, either at the time of the Party's failure to insist upon strict performance or at any time in the future, and such terms will continue in full force and effect.

 

Each clause of this AGREEMENT is a distinct and severable clause and if any clause is deemed illegal, void or unenforceable, the validity, legality or enforceability of any other clause or portion of this AGREEMENT will not be affected thereby.

 

 

The construction and performance of this AGREEMENT will be governed by the laws of the State of Colorado.

 

 

 

All titles and articles headings contained in this AGREEMENT are inserted only as a matter of convenience and reference.  They do not define, limit, extend or describe the scope of this AGREEMENT or the intent of any of its provisions.

 

 

 

Neither Party may assign, delegate or otherwise transfer any of its rights or obligations under this AGREEMENT without the prior written consent of the other Party; provided, however, that SPONSOR  may assign this AGREEMENT to a successor in connection with the sale of all or substantially all of the business of SPONSOR, whether by asset sale, merger, reorganization or otherwise.