WHEREAS, CELL ORIGINS has specific rights to distribute the Dr. George Smith
libraries and vectors (As described in Exhibit 1).
WHEREAS, Recipient desires to receive a sample of the Material(s) for research and commercial use.
NOW THEREFORE, the parties hereto agree to the terms and conditions contained herein.
1. Definitions.
a. “Material(s)” shall mean the library or vector, provided in the form and quantities as further described in Exhibit 1 attached hereto, as it may be amended from time to time, and made a part hereof.
b. “Invention” shall mean any invention, including but not limited to any material or process, conceived or reduced to practice by Recipient in connection with Recipient’s use of the Materials.
c. “Commercial Use” means the use of the Materials for commercial benefit.
d. “Term” shall mean ten (10) years from the date of this agreement.
2. Transfer of Materials. CELL ORIGINS shall transfer to Recipient the Materials
for commercial or research purposes. Upon completion or termination of the evaluation of the Materials provided hereunder, Recipient shall promptly, upon the request of CELL ORIGINS, destroy all remaining unused Materials and Derivatives.
3. Use of Materials. Recipient represents and warrants that the testing and use of the Materials will occur only in the Recipient’s laboratories and that of its contractors. CELL ORIGINS MATERIALS ARE NOT FOR USE IN HUMANS.
All right, title and interest to all Derivatives and Inventions (and any patent and intellectual property rights) shall remain the whole responsibility of the Recipient. Recipient agrees to inform CELL ORIGINS of any data generated indicating the health of the Materials for the purpose of Quality Assurance and Quality Improvement. This Section shall survive termination or expiration of this Agreement.
8. Nonexclusivity. Transmission of the Materials to Recipient shall not restrict
CELL ORIGINS from transmitting the Materials to others or from using the Materials in any other manner CELL ORIGINS desires.
10. Disclaimer; Waiver; Indemnification. CELL ORIGINS MAKES NO
REPRESENTATION OR EXPRESS OR IMPLIED WARRANTY THAT THE USE OF THE
MATERIALS WILL NOT INFRINGE INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES AND HEREBY DISCLAIMS THE SAME. Recipient accepts the Materials with the knowledge that they are experimental and agrees to comply with all laws, regulations and guidelines including, without limitation, those of the Food and Drug Administration and the National Institutes of Health, for the transport, handling, storage and use thereof. BECAUSE THE MATERIALS ARE EXPERIMENTAL IN NATURE, THEY ARE BEING SUPPLIED TO RECIPIENT WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
Recipient and its employees using the Materials agree to waive all claims relating to the Materials against CELL ORIGINS. Recipient agrees that in no event shall CELL ORIGINS be liable for any use of Materials by Recipient and that Recipient shall indemnify, defend and hold harmless CELL ORIGINS and its affiliates and their directors, officers, employees, affiliates, and agents and their respective successors, heirs and assigns against any liability, damage, loss or expense (including reasonable attorneys’ fees and expenses of litigation) incurred by or imposed upon them in connection with any claims, suits, actions, demands or judgments arising out of Recipient’s transport, handling, storage, or use of the Materials. This Section shall survive
termination of this Agreement.
11. Notice. Notices required herein shall be given by overnight courier, prepaid, or by telecopy to the addresses or telecopy number of the parties set forth on the signature page of
this Agreement.
12. Miscellaneous. This Agreement may not be transferred or assigned by Recipient party without the prior written consent of CELL ORIGINS. This Agreement contains the entire understanding of the parties with respect to the Materials and supersedes any prior oral or written agreements or understandings with respect thereto, all of which, to the extent any exist, are
hereby terminated. No change, modification, alteration or addition to any provision of this Agreement shall be binding unless in writing and executed by duly authorized representatives of both parties. This Agreement shall be governed by and construed under the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties have caused this instrument to be executed by
their duly authorized representatives.