SPONSOREDRESEARCH AGREEMENT

1.1

"Project" shall mean the research services to be performed under this Agreement as described in Appendix A hereof, under the direction and supervision of University's Principal Investigator (hereinafter called the "PI").

1.2

"Equipment" is defined as any tangible item of property with a unit cost of $5,000 or more and an expected useful life of one year or more.

1.3

"University Intellectual Property" shall mean individually and collectively all inventions, improvements, and discoveries, which are conceived and/or made in the performance of Project solely by one or more University personnel.

1.4

The term "Know-how" shall mean all unpatented and unpatentable technical information, trade secrets, devices, models, things, know-how, methods, documents, materials, and all other confidential information related to the Project which was developed by the Pl.

2.1

University will use its reasonable best efforts to conduct the Project in accordance with the terms and conditions of this Agreement, and will furnish the facilities necessary to carry out the Project.

2.2

The Project will be carried out under the direction and supervision of Leland Shapiro, M. D., the University designated Pl.

2.3

University does not guarantee specific results, and the Project will be conducted only on reasonable best efforts basis.

2.4

University will keep accurate financial and scientific records relating to the Project and will make records available to Sponsor or its authorized representative throughout the Term of the Agreement during normal business hours upon reasonable notice.

3.1

This agreement shall become effective on April 17 , 2006 and shall terminate on April 16. 2009, unless a subsequent time extension, supplement, addition, continuation or renewal is mutually agreed upon in writing between the parties.

4.1

This is a fixed price Agreement. As consideration for the performance by University of its obligations under this Agreement, and subject to Paragraphs 4.2, 4.3 and 16.1, Sponsor agrees to pay University a fixed-price total of One million Ninety Seven Thousand Four Hundred Sixty Dollars, ($1,097,460) Dollars, ($1,097,460) in accordance with the budget described in the attached Appendix A of this Agreement. Sponsor shall remit not less than Eighty Thousand Dollars ($80,000) of the total contract price within seven (7) days after the execution by both parties of this Agreement. The remaining amount of the contract price due under this Agreement shall be paid in increments upon receipt of invoices from University issued as prescribed in Appendix B for the duration of the period of performance. Invoices are due and payable within thirty (30) days.

4.2

If this Agreement is terminated for any reason by Sponsor under Paragraph 16.1, Sponsor shall, up to a maximum of the amount stated in Paragraph 4.1 hereof, reimburse University for the total actual and reasonable costs incurred by University for the Project through the date of termination, including those costs necessary to implement the early termination of this Agreement and costs incurred by University as a result of non-cancelable obligations which may extend beyond the date of such termination.

4.3

If this Agreement is terminated for any reason by University under Paragraph 16.1, Sponsor shall, subject to the provision hereafter and Paragraph 8, reimburse University for those actual and reasonable costs in Appendix A incurred by University for the Project through the date of termination; provided that in no event shall such costs exceed the amount stated in Paragraph 4.1 hereof and such costs shall not include any charges or expenses incurred to implement the early termination or as a result of non-cancelable obligations of the University which may extend beyond the date of such termination.

5.1

University will provide reports on the progress of Project in accordance with the following schedule:

6.1

Sponsor recognizes that because University is a public institution of higher education and engages only in research that is compatible with its academic role and mission, the results of University research must be publishable. Sponsor agrees that University personnel engaged in Project shall be permitted to present at symposia, national or regional professional meetings, and to publish in journals, theses or dissertations, or otherwise of their own choosing, methods and results of Project, provided, however, that Sponsor shall have been furnished copies of any proposed publication to a journal, editor, or other third party not less than thirty days prior to the submission of such proposed publication.

6.2

University shall own all right, title and interest in and to any and all copyrights or copyrightable material, including software programs, first produced, composed, or fixed in any tangible medium of expression in the performance of work under this Agreement, and University shall have the sole right to determine the disposition of all or any thereof.

 

a.

is not disclosed in writing or reduced to writing and so marked with an appropriate confidentiality legend within thirty (30) days of disclosure;

 

b.

is already in recipient party's possession at the time of disclosure thereof;

 

c.

is or later becomes part of the public domain through no fault of recipient party;

 

d.

is received from a third party having no obligations of confidentiality to disclosing party;

 

e.

is independently developed by the recipient party; or

 

f.

is required by law or regulation to be disclosed.

7.2

In the event that information is required to be disclosed pursuant to subsection (f), the party required to make disclosure shall notify the other to allow that party to assert whatever exclusions or exemptions may be available to it under such law or regulation.

7.3

Confidential Information shall be clearly marked by the disclosing party with the legend, "CONFIDENTIAL INFORMATION" or another appropriate proprietary legend. If disclosed orally, the employee(s) making the disclosure shall be responsible for clearly informing the recipient's employee(s), in writing within thirty (30) days, of the confidentiality of the information disclosed.

8.1

Unless otherwise agreed to between the parties in the License Agreement between University and Sponsor dated April , 2006 ("License Agreement"), which agreement and its terms and conditions shall supercede any provisions to the contrary herein, all rights and title to University Intellectual Property and Know-How under Project shall belong to University which shall have the right, if it so chooses, to proceed at its expense to obtain patent protection to all inventions and discoveries arising therefrom.

8.2

In the event that University develops any improvements to the inventions claimed in the Patent Rights or to any other preexisting patent application or patent that is dominated by the Patent Rights in the License Agreement, then each such improvement or addition will be considered part of the License Agreement for no additional consideration.

8.3

Unless otherwise agreed to between the parties in the License Agreement, which agreement and its terms and conditions shall supercede any provisions to the contrary herein, subject to University obligations, if any, to the Federal Government arising from use of Federally supplied funds or equipment in the Project, and provided that Leland Shapiro is at the time obligated to assign intellectual property to University, in the event that during the term of this Agreement Leland Shapiro or anybody working in a laboratory under the supervision or direction of Leland Shapiro, makes any invention in the Field of Use of the License Agreement, the practice of which would not require the practice of an invention claimed in or covered by the Licensed Patent Rights ("Independent Invention"), then University hereby grants to Sponsor, without option fee other than the consideration of the research sponsored herein and the reimbursement of Institution for all patent expenses incurred for the subject Invention prior to and during the option period and appertaining license negotiation period, an option to acquire an exclusive, worldwide, royalty-bearing license of University's rights to any Independent Invention, which option shall extend for ninety (90) days after Sponsor's receipt of the Independent Invention disclosure. If Sponsor notifies University in writing of its exercise of the option within the option period, then the parties shall proceed in good faith to negotiate a license agreement within sixty (60) days after notification of exercise. If Sponsor does not exercise this option, or notifies University that it will not exercise this option, or the parties fail to sign a license agreement within said sixty (60) day negotiation period, then Sponsor's option to University's rights in the subject Independent Invention shall terminate.

8.4

The parties mutually acknowledge that the United States government, as a matter of statutory right under Code of Federal Regulations, 37 CFR, Part 401, "Rights to Inventions Made by Non-Profit Organizations and Small Business Firms Under Government Grants, Contracts and Cooperative Agreements", holds or may hold a non-exclusive license and certain other rights under patents on inventions made as a consequence of research whose funding includes funds supplied by the United States government. In the event that the United States government has such rights or in the future is found to have such rights with respect to all or any new inventions or discoveries, any license contemplated or granted under this Agreement, even if termed "exclusive" license, shall be understood to be subject to the rights of the United States government, without any effect on the parties' remaining obligations, as set forth in the license or in this Agreement.

8.5

Unless otherwise agreed to between the parties in the License Agreement, which agreement and its terms and conditions shall supercede any provisions to the contrary herein, nothing in Article 8 shall be construed as granting Sponsor expressly, by implication, or estoppel any rights or licenses to use inventions, improvements or discoveries not conceived and/or made in the performance of the Project, or under any patents not falling under the definition of University Intellectual property including patents, inventions and discoveries which may dominate University Intellectual Property and which may be owned or controlled by the Regents of the University of Colorado, the University Technology Corporation or any entity related thereto.

9.1

University hereto agrees to be responsible and assume liability for its own wrongful or negligent acts or omissions, or those of its officers, agents or employees to the full extent allowed by law.

9.2

Notwithstanding any other provision of this Agreement to the contrary, no term or condition of this Agreement shall be construed or interpreted as a waiver, either express or implied, of any of the immunities, rights, benefits or protection provided to the Regents under governmental immunity laws from time to time applicable to the Regents, including, without limitation, the Colorado Governmental Immunity Act (CRS Section 24-10-101 through 24-10-120).

9.3

Sponsor shall indemnify, save and hold harmless University, its employees and agents, against any and all claims, damages, liability and court awards including costs, expenses, and attorney fees incurred as a result of any act or omission by the Sponsor, or its employees, agents, Subcontractors, or assignees pursuant to the terms of this Agreement.

9.4

Each party warrants and represents that it has adequate liability insurance for the protection of itself and its officers, employees, and agents, while acting within the scope of their employment by the party.

9.5

No liability hereunder shall result to a party by reason of delay in performance caused by force majeure, that is, circumstances beyond the reasonable control of the party, including,   without limitation, acts of God, fire, flood, war, civil unrest, or shortage of or inability to obtain material or equipment.

10.1

All equipment purchased by University under the terms of this Agreement shall become the property of University upon acquisition.

17.1 

This Agreement constitute the entire agreement between the parties with respect to the subject matter hereof. Neither party shall be bound by any agreement, covenants or warranties made by its agents or employees, or any other persons, either oral or written, unless such agreements, covenants and warranties shall be reduced to writing and signed by the authorized officer of such party and shall expressly refer to this Research Agreement. The failure of either of the parties at any time or times to require performance by the other of any provisions hereofshall in no manner affect the right of the first-mentioned party thereafter to enforce the same. The waiver by either of the parties of any breach of any provision hereof shall never be construed to be a waiver of any succeeding breach of such provision or a waiver of the provisions itself.

Original to:

 

Leland Shapiro

Campus Box B168

Biomedical Research Building, Room 401 S/M Infectious Diseases Division

4200 E. 9th Avenue Denver, CO 80262 (Phone) 303 ###-###-####

 

Copy to:

Pamela Jones, Ph.D, Director

Office of Contracts and Grants Fitzsimons Building 500

Mail Stop F-428

P.O. Box 6508

Aurora, CO 80045-0508

(Phone) (303) 724-0090

 

 

 

Original to:

 

 

 

David Olson

Chief Executive Officer 5820 Tolcate Woods Lane Salt lake City, Utah 84121 (Phone) 720 ###-###-####

 

Mark N. Schneider, Esq.

4764 South 900 East, Suite 3-C Salt Lake City, Utah 84117 (Phone) (801) 263-3576