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Detailed Instructions: In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
Problem:[2, 3, 5, 1, 1, 2, 5, 5, 5]
Solution:
|
[3]
|
task097_conala_remove_duplicates
|
NIv2
|
zs_opt
| 8
|
train
|
In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
One example is below.
Q: [0,1,0,2,5,1]
A: [2,5]
Rationale: The only elements that are not duplicated is 2 and 5. This is a good example.
Q: [4, 1, 0, 2, 4, 2, 5]
A:
|
[1, 0, 5]
|
task097_conala_remove_duplicates
|
NIv2
|
fs_opt
| 9
|
train
|
Given the task definition and input, reply with output. In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
[6, 5, 3, 5, 0, 7, 3, 3, 4, 3]
|
[6, 0, 7, 4]
|
task097_conala_remove_duplicates
|
NIv2
|
zs_opt
| 5
|
train
|
Given the task definition and input, reply with output. In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
[6, 6, 2, 4, 6]
|
[2, 4]
|
task097_conala_remove_duplicates
|
NIv2
|
zs_opt
| 5
|
train
|
In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
Q: [1, 1, 2, 6, 2, 1, 6]
A:
|
[]
|
task097_conala_remove_duplicates
|
NIv2
|
zs_opt
| 4
|
train
|
In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
Input: Consider Input: [1, 7, 6, 2, 4, 4, 5, 5, 4]
Output: [1, 7, 6, 2]
Input: Consider Input: [2, 7, 3, 6, 6]
Output: [2, 7, 3]
Input: Consider Input: [0, 3, 5, 6, 4, 5, 0]
|
Output: [3, 6, 4]
|
task097_conala_remove_duplicates
|
NIv2
|
fs_opt
| 2
|
train
|
Instructions: In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
Input: [7, 4, 4, 3, 3]
Output:
|
[7]
|
task097_conala_remove_duplicates
|
NIv2
|
zs_opt
| 3
|
train
|
In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
Let me give you an example: [0,1,0,2,5,1]
The answer to this example can be: [2,5]
Here is why: The only elements that are not duplicated is 2 and 5. This is a good example.
OK. solve this:
[6, 2, 3, 0, 4, 5]
Answer:
|
[6, 2, 3, 0, 4, 5]
|
task097_conala_remove_duplicates
|
NIv2
|
fs_opt
| 8
|
train
|
In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
[1, 3, 0, 5, 5, 1, 0]
|
[3]
|
task097_conala_remove_duplicates
|
NIv2
|
zs_opt
| 0
|
test
|
In this task you will be given a list of numbers and you should remove all duplicates in the list. If every number is repeated in the list an empty list should be returned. Your list should be numbers inside brackets, just like the given list.
Example: [0,1,0,2,5,1]
Example solution: [2,5]
Example explanation: The only elements that are not duplicated is 2 and 5. This is a good example.
Problem: [3, 3, 3, 2, 0, 0, 0, 3]
|
Solution: [2]
|
task097_conala_remove_duplicates
|
NIv2
|
fs_opt
| 5
|
validation
|
You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Statement: जयपुर लिटरेचर फेस्टिवल , द डेली टेलीग्राफ हय-ऑन-वाई फेस्टिवल, द वीक हे फेस्टिवल इन केरल, कोवलम लिटरेचर फेस्टिवल, जोहानसबर्ग, साउथ अफ्रीका में पानी पर शब्द <MASK> में ओडिशा साहित्य उत्सव, कसौली में खुशवंत सिंह साहित्य उत्सव, पंचकूला कला उत्सव, दिल्ली जिमखाना क्लब लिटफेस्ट, ढाका लिटरेचर फेस्टिवल, तिरुवनंतपुरम में मातृभूमि अंतर्राष्ट्रीय उत्सव पत्र और कोझीकोड में केरल साहित्य उत्सव का उद्घाटन , फ्रैंकफर्ट बुक फेयर और शारजाह इंटरनेशनल बुक फेस्टिवल में भी कार्यक्रम कर चुकी हैं और लंदन बुक फेयर में एक पैनल चर्चा का हिस्सा रही हैं।
Option A: बकिंघमशायर
Option B: त्रिवेंद्रम
Option C: इब्राहिमपट्टनम
Option D: भुवनेश्वर
|
भुवनेश्वर
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
zs_opt
| 0
|
train
|
Teacher: You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Teacher: Now, understand the problem? If you are still confused, see the following example:
Statement: सिग्नेचर केल्विन क्लेन अंडरवियर बुटीक, ब्यूनस आयर्स, टोरंटो, मेक्सिको सिटी, <MASK>, ग्लासगो, मेलबोर्न, हांगकांग, लंदन, मैनचेस्टर, न्यूयॉर्क शहर, शंघाई, फ्रैंकफर्ट एम् मेन, सिंगापुर में देखे जा सकते हैं। केल्विन क्लेन अंडरवियर, कार्डिफ़ के सेंट डेविड शॉपिंग सेंटर में भी 2010 में क्रिसमस से पहले एक दुकान खोलने जा रहा है।
Option A: मैनचेस्टर
Option B: मैनचेस्टर
Option C: एडिनबर्ग
Option D: मेलबोर्न
Solution: एडिनबर्ग
Reason: The most suitable word from the given options to replace the <MASK> token is एडिनबर्ग as the rest places have already been stated in the statement .
Now, solve this instance: Statement: 1979 में, बिली जोएल ने 2-4 मार्च के बीच होने वाले ऐतिहासिक हवाना जाम फेस्टिवल के हवाना,<MASK> की यात्रा की, उनके साथ-साथ रीटा कूलिज, स्टीफन स्टिल्स, सीबीएस (CBS) जैज ऑल-स्टार्स, ट्रायो ऑफ़ डूम, फानिया ऑल-स्टार्स, बिली स्वान, बोनी ब्राम्लेट, माइक फिन्नेगन, वेदर रिपोर्ट, के अलावा इराकेरे, पाचो अलोंसो, टाटा गुइनेस और ओर्क्वेस्ता अरागोन जैसे क्यूबाई कलाकारों की एक श्रृंखला भी वहां मौजूद थी। उनके प्रदर्शन को अर्नेस्टो जुआन कैस्टेलानोस के वृत्तचित्र हवाना जाम '79 में संग्रहित किया गया है।
Option A: क्यूबा
Option B: बीटल्स
Option C: वियना
Option D: ऑस्ट्रेलिया
Student:
|
क्यूबा
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
fs_opt
| 2
|
train
|
You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
One example is below.
Q: Statement: सिग्नेचर केल्विन क्लेन अंडरवियर बुटीक, ब्यूनस आयर्स, टोरंटो, मेक्सिको सिटी, <MASK>, ग्लासगो, मेलबोर्न, हांगकांग, लंदन, मैनचेस्टर, न्यूयॉर्क शहर, शंघाई, फ्रैंकफर्ट एम् मेन, सिंगापुर में देखे जा सकते हैं। केल्विन क्लेन अंडरवियर, कार्डिफ़ के सेंट डेविड शॉपिंग सेंटर में भी 2010 में क्रिसमस से पहले एक दुकान खोलने जा रहा है।
Option A: मैनचेस्टर
Option B: मैनचेस्टर
Option C: एडिनबर्ग
Option D: मेलबोर्न
A: एडिनबर्ग
Rationale: The most suitable word from the given options to replace the <MASK> token is एडिनबर्ग as the rest places have already been stated in the statement .
Q: Statement: रैडक्लिफ <MASK> स्थित सिटिंगबोर्न के डेमेल्ज़ा हाउस चिल्ड्रेन्स हौस्पिस सहित विभिन्न स्वयंसेवी संस्थाओं में अनुदान देते आये हैं, जिसके लिए उन्होंने अपने प्रशंसकों से अनुरोध किया है कि वे उन्हें सालगिरह पर उपहार देने के बजाय दान करें।
Option A: हैमरस्मिथ
Option B: एसेक्स
Option C: हॉलीवुड
Option D: केंट
A:
|
केंट
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
fs_opt
| 9
|
train
|
Instructions: You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Input: Statement: जैमिनि, <MASK> के सर्पयज्ञ में "ब्रह्मा" बनाए गए थे (महाभारत, आदिपर्व 53.6)। युधिष्ठिर की सभा में ये विद्यमान थे (महाभारत, सभापर्व, 4.11) और शरशय्या पर पड़े हुए भीष्मपितामह को देखने गए थे (महाभारत, शांतिपूर्व 47.6)। पुराणों में लिखा है कि जैमिनि "वज्रवारक" थे (शब्द कल्पद्रुम, पं॰ 345 बंगला संस्करण)
Option A: जनमेजय
Option B: पाणिनि
Option C: वेदव्यास
Option D: यास्क
Output:
|
जनमेजय
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
zs_opt
| 3
|
train
|
You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Example Input: Statement: ब्रह्माण्ड किरणें (cosmic ray) अत्यधिक उर्जा वाले कण हैं जो बाहरी <MASK> में पैदा होते हैं और छिटक कर पृथ्वी पर आ जाते हैं। लगभग ९०% ब्रह्माण्ड किरण (कण) प्रोटॉन होते हैं; लगभग १०% हिलियम के नाभिक होते हैं; तथा १% से कम ही भारी तत्व तथा इलेक्ट्रॉन (बीटा मिनस कण) होते हैं। वस्तुत: इनको "किरण" कहना ठीक नहीं है क्योंकि धरती पर पहुँचने वाले ब्रह्माण्डीय कण अकेले होते हैं न कि किसी पुंज या किरण के रूप में।
Option A: आकाशगंगा
Option B: अंतरिक्ष
Option C: पृथ्वी
Option D: सौरमंडल
Example Output: अंतरिक्ष
Example Input: Statement: सात का समूह या जी७ <MASK>, फ्रांस, जर्मनी, इटली, जापान, यूनाइटेड किंगडम और संयुक्त राज्य अमेरिका का एक समूह है। यह देश, दुनिया की सात सबसे बड़ी उन्नत अर्थव्यवस्थाओं के साथ, वैश्विक शुद्ध संपत्ति ($280 ट्रिलियन) का 62% से अधिक का प्रतिनिधित्व करते हैं। जी७ देश नाममात्र मूल्यों के आधार पर वैश्विक सकल घरेलू उत्पाद (जीडीपी) का 46% से अधिक और क्रय-शक्ति समता के आधार पर वैश्विक सकल घरेलू उत्पाद का 32% से अधिक का प्रतिनिधित्व करते हैं। जी7 शिखर सम्मेलन में यूरोपीय संघ भी प्रतिनिधित्व करता है।
Option A: जापान
Option B: जर्मनी
Option C: फ्रांस
Option D: कनाडा
Example Output: कनाडा
Example Input: Statement: २०१३ के विधानसभा चुनाव में रानीवाड़ा क्षेत्र से कांग्रेस के रतन देवासी को 61582 जबकि <MASK> उम्मीदवार नारायण सिंह देवल को 94234 वोट मिलें थे। इस चुनाव में नारायण सिंह देवल ने रतन देवासी को 32652 मतों के अंतर से हराया था। अब तक रानीवाड़ा क्षेत्र में हुए सभी विधानसभा चुनावों में देवल द्वारा दर्ज की गई इस जीत का अंतर सर्वाधिक रहा है।
Option A: लोकसभा
Option B: कांग्रेस
Option C: राजस्थान
Option D: भाजपा
Example Output:
|
भाजपा
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
fs_opt
| 3
|
train
|
Detailed Instructions: You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Problem:Statement: एसीसीए (ACCA) की कनाडा शाखा <MASK> प्रान्त के पब्लिक एकाउंटिंग एक्ट 2004 (Public Accounting Act of 2004) के तहत ओंटेरियो प्रान्त में वैधानिक ऑडिट प्रयोजनों के लिए मान्यता पाने का प्रयास कर रही है।
Option A: ओंटेरियो
Option B: चीन
Option C: ताइवान
Option D: ग्लासगो
Solution:
|
ओंटेरियो
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
zs_opt
| 8
|
train
|
instruction:
You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
question:
Statement: राष्ट्र के लिए सम्मान के प्रतीक इस मंदिर को १९८३ से कंबोडिया के राष्ट्रध्वज में भी स्थान दिया गया है। यह मन्दिर मेरु पर्वत का भी प्रतीक है। इसकी दीवारों पर <MASK> धर्म ग्रंथों के प्रसंगों का चित्रण है। इन प्रसंगों में अप्सराएं बहुत सुंदर चित्रित की गई हैं, असुरों और देवताओं के बीच समुद्र मन्थन का दृश्य भी दिखाया गया है। विश्व के सबसे लोकप्रिय पर्यटन स्थानों में से एक होने के साथ ही यह मंदिर यूनेस्को के विश्व धरोहर स्थलों में से एक है।
Option A: भारतीय
Option B: कंबोडिया
Option C: यूनेस्को
Option D: हिंदचीन
answer:
भारतीय
question:
Statement: क्लाउडफ्लेयर इन्कार्पोरेटेड (Cloudflare, Inc.) <MASK> की एक कंपनी है जो वेबसाइटों के लिए सामग्री, इन्टरनेट सुरक्षा तथा वितरित डोमेन नाम सर्वर सेवा प्रदान करती है। इसका मुख्यालय कैलिफोर्निया की सान फ्रैन्सिस्को में स्थित है। इसके अलावा इसके कार्यालय लन्दन, सिंगापुर, चैंपियन, ऑस्टिन, बोस्टन और वाशिंगटन डीसी में भी हैं।
Option A: सिंगापुर
Option B: ऑस्टिन
Option C: अमेरिका
Option D: बोस्टन
answer:
अमेरिका
question:
Statement: बॅल सबसे पहले चौदह वर्ष की आयु में लोगों की नजरों में आए जब उन्होंने स्टीवन स्पिलबर्ग की एम्पायर ऑफ़ द सन (1987) में काम किया। जे.जी. बैलार्ड की मूल कहानी पर आधारित इस फ़िल्म में बॅल ने एक अंग्रेजी लड़के का अभिनय किया जो द्वितीय विश्व युद्ध के दौरान अपने माता-पिता से अलग होने के पश्चात अपने को <MASK> नजरबंदी शिविर में पाता है। वर्ष 2000 में अमेरिकन साएको में एक सिलसिलेवार हत्यारे पैट्रिक बेटमैन की भूमिका में नज़र आए बॅल ने अपने इस किरदार के लिए आलोचकों की प्रशंसा इकट्ठा करी।
Option A: जापानी
Option B: अमेरिकी
Option C: स्पेनी
Option D: अंग्रेज
answer:
|
जापानी
|
task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
fs_opt
| 9
|
train
|
Definition: You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Input: Statement: <MASK> में किसी विश्वविद्यालय से इंजीनियरी में बैचलर या मास्टर्स डिग्रीधारी ही सलाहकार इंजीनियर के रूप में काम कर सकते हैं। इसके साथ ही उन्हें स्थानीय नगरपालिका से लाइसेंस प्राप्त होना चाहिये या उनके साथ पंजीकृत होना चाहिये, तभी वे अपने सार्वजनिक योजना, डिजाइन, चित्रकारी (ड्राइंग) आदि जमा कर सकते हैं। अन्य देशों में भी विभिन्न प्रकार की व्यवस्थाएँ हैं।
Option A: नगरपालिका
Option B: विश्वविद्यालय
Option C: उम्मयद
Option D: भारत
Output:
|
भारत
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task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
zs_opt
| 2
|
train
|
Teacher:You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Teacher: Now, understand the problem? Solve this instance: Statement: सहरसा जिला कोशी प्रमंडल एवं जिला का मुख्यालय शहर है। इसके उत्तर में मधुबनी एवं <MASK>, दक्षिण में खगड़िया, पूर्व में मधेपुरा एवं पश्विम में दरभंगा और समस्तीपुर जिला स्थित है। जिले का कुल क्षेत्रफल 1,661.3 वर्ग कि०मी० है। नेपाल की ओर से आने वाली नदियों में प्रायः हर साल आने वाली बाढ और भूकंप जैसी भौगोलिक आपदाओं से प्रभावित होता रहा है। बाढ के दिनों में नाव दुर्घटना से प्रतिवर्ष दर्जनों लोग काल के गाल में समा जाते हैं। वर्ष २००८ में कोशी बाँध टूटने से उत्पन्न बाढ लाखों लोगों के लिए तबाही एवं मौत का पर्याय बन गयी।
Option A: सुपौल
Option B: खगड़िया
Option C: दरभंगा
Option D: मिथिला
Student:
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सुपौल
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task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
zs_opt
| 6
|
test
|
You will be given a definition of a task first, then some input of the task.
You are given a statement written in Hindi. Choose the most logical word from the given 4 options which can be used to replace the <MASK> token in the statement. Output the word from the correct option .
Statement: सौर मण्डल की छोटी वस्तुएँ खगोलीय वस्तुओं की एक श्रेणी है जो २००६ में अंतर्राष्ट्रीय खगोलीय संघ ने स्थापित की थी। इस परिभाषा में हमारे सौर मण्डल में मौजूद वे सारी वस्तुएँ आती हैं जो न तो <MASK> हैं, न बौना ग्रह हैं और न ही किसी ग्रह या बौना ग्रह के उपग्रह हैं। इस नयी श्रेणी में अधिकतर क्षुद्रग्रहों, वरुण-पार वस्तुओं और धूमकेतुओं का शुमार होता है। इसमें वे सारे हीन ग्रह भी शामिल हैं जिन्हें बौना ग्रह का दर्जा न मिला हो।
Option A: क्षुद्रग्रह
Option B: सीरीस
Option C: ऍरिस
Option D: ग्रह
Output:
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ग्रह
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task947_wiki_cloze_hi_multiple_choice_question_answering
|
NIv2
|
zs_opt
| 1
|
validation
|
Q: In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
[19, 170, 414, 201, 440, 356, 146, 300, 336, 296, 40, 375, 183, 443, 420, 491, 30, 153, 430, 338]
A:
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472
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task1315_find_range_array
|
NIv2
|
zs_opt
| 7
|
train
|
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
Q: [53, 456, 388, 446, 83, 84, 354, 428, 431, 107, 319, 476, 345, 413, 213, 404, 278, 462, 61, 482]
A:
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429
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task1315_find_range_array
|
NIv2
|
zs_opt
| 4
|
train
|
You will be given a definition of a task first, then an example. Follow the example to solve a new instance of the task.
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
[1,2,3,4,5,7,34,25]
Solution: 33
Why? maximum element is 34 and minimum element is 1, range is equal to the difference between 34 and 1 which is 33.
New input: [121, 412, 372, 145, 352, 232, 196, 164, 421, 345, 419, 136, 186, 252, 216, 413, 106, 143, 423, 330]
Solution:
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317
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task1315_find_range_array
|
NIv2
|
fs_opt
| 0
|
train
|
You will be given a definition of a task first, then some input of the task.
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
[218, 284, 359, 456, 33, 488, 388, 59, 208, 68, 190, 188, 338, 45, 350, 103, 265, 58, 178, 193]
Output:
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455
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task1315_find_range_array
|
NIv2
|
zs_opt
| 1
|
train
|
Instructions: In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
Input: [234, 71, 141, 450, 416, 70, 133, 280, 269, 242, 58, 110, 131, 96, 410, 432, 349, 177, 418, 183]
Output:
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392
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task1315_find_range_array
|
NIv2
|
zs_opt
| 3
|
train
|
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
[EX Q]: [261, 417, 397, 447, 23, 462, 199, 299, 71, 263, 92, 389, 159, 182, 302, 155, 350, 378, 188, 233]
[EX A]: 439
[EX Q]: [471, 130, 251, 75, 238, 301, 215, 65, 69, 217, 122, 203, 15, 279, 149, 368, 478, 225, 67, 403]
[EX A]: 463
[EX Q]: [405, 24, 381, 104, 62, 443, 356, 312, 245, 10, 221, 483, 298, 29, 160, 275, 320, 175, 143, 495]
[EX A]:
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485
|
task1315_find_range_array
|
NIv2
|
fs_opt
| 6
|
train
|
Detailed Instructions: In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
Q: [436, 445, 238, 217, 70, 95, 88, 37, 410, 165, 299, 66, 115, 153, 26, 324, 294, 186, 300, 429]
A:
|
419
|
task1315_find_range_array
|
NIv2
|
zs_opt
| 9
|
train
|
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
[40, 208, 12, 109, 408, 270, 344, 281, 153, 453, 166, 266, 157, 433, 68, 17, 201, 234, 169, 42]
|
441
|
task1315_find_range_array
|
NIv2
|
zs_opt
| 0
|
train
|
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
Q: [95, 43, 93, 232, 133, 340, 102, 337, 262, 250, 10, 267, 58, 442, 273, 438, 242, 325, 260, 203]
A:
|
432
|
task1315_find_range_array
|
NIv2
|
zs_opt
| 4
|
test
|
Part 1. Definition
In this task, you are given a list of integers you need to calculate and return the range of the integers which is the difference between maximum and minimum element in the list.
Part 2. Example
[1,2,3,4,5,7,34,25]
Answer: 33
Explanation: maximum element is 34 and minimum element is 1, range is equal to the difference between 34 and 1 which is 33.
Part 3. Exercise
[422, 43, 178, 310, 41, 107, 320, 236, 24, 443, 14, 371, 464, 230, 191, 197, 342, 362, 402, 148]
Answer:
|
450
|
task1315_find_range_array
|
NIv2
|
fs_opt
| 7
|
validation
|
A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Example: देश के अलग-अलग इलाकों में जितना ज्यादा इंफ्रास्ट्रक्चर मजबूत होगा, संपर्क सुगम होगा, जितना ज्यादा ट्रांसपोर्ट के अलग-अलग माध्यम एक दूसरे को सपोर्ट करेंगे, उतना ही लोगों का जीवन आसान बनेगा, व्यापार के नए अवसर बनेंगे, रोजगार के नए अवसर बनेंगे।
Example solution: દેશના વિવિધ વિસ્તારોમાં વધુ ઇન્ફ્રાસ્ટ્રક્ચર મજબૂત બનશે, સંપર્કનો સામનો કરવો પડશે, એટલું જ નહીં, કારણ કે પરિવહનના વિવિધ માધ્યમ એકબીજાને ટેકો આપશે, લોકોનું જીવન સરળ બનશે, રોજગાર માટે નવી તકો બનશે..
Example explanation: Correct translation for given sentence. Input sentence means 'The more infrastructure will be strong in different areas of the country, the contact will be facilitated, as much as the different medium of transport will support each other, the life of the people will become easier, will become new opportunities for employment..' which is the same as the output sentence.
Problem: उन्होंने कहा कि विक्रम साराभाई ने आधुनिक विज्ञान, भौतिक अनुसंधान और परमाणु ऊर्जा इत्यादि क्षेत्रों में संस्थानों की स्थापना के जरिए आधुनिक भारत के निर्माण में बहुत बड़ा योगदान दिया है।
|
Solution: આ કાર્યક્રમ આજથી શરૂ કરીને ભારતભરના 100 પસંદ કરાયેલા શહેરોમાં હાથ ધરવામાં આવશે જે 12મી ઓગસ્ટ, 2020ના રોજ થિરુવનંતપુરમ ખાતે સમાપન કાર્યક્રમ સાથે સમાપ્ત થશે.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
fs_opt
| 5
|
train
|
A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
One example is below.
Q: देश के अलग-अलग इलाकों में जितना ज्यादा इंफ्रास्ट्रक्चर मजबूत होगा, संपर्क सुगम होगा, जितना ज्यादा ट्रांसपोर्ट के अलग-अलग माध्यम एक दूसरे को सपोर्ट करेंगे, उतना ही लोगों का जीवन आसान बनेगा, व्यापार के नए अवसर बनेंगे, रोजगार के नए अवसर बनेंगे।
A: દેશના વિવિધ વિસ્તારોમાં વધુ ઇન્ફ્રાસ્ટ્રક્ચર મજબૂત બનશે, સંપર્કનો સામનો કરવો પડશે, એટલું જ નહીં, કારણ કે પરિવહનના વિવિધ માધ્યમ એકબીજાને ટેકો આપશે, લોકોનું જીવન સરળ બનશે, રોજગાર માટે નવી તકો બનશે..
Rationale: Correct translation for given sentence. Input sentence means 'The more infrastructure will be strong in different areas of the country, the contact will be facilitated, as much as the different medium of transport will support each other, the life of the people will become easier, will become new opportunities for employment..' which is the same as the output sentence.
Q: मेट्रो से जुड़े कार्यों में एक बहुत बड़ी कमी ये थी कि हर शहर में पहले अपने ही तरीके से काम किया जा रहा था।
A:
|
મેટ્રો સાથે જોડાયેલાં કામોમાં સૌથી મોટી ઉણપ એ હતી કે દરેક શહેરમાં પહેલાં પોતાની રીતે જ કામ કરવામાં આવી રહ્યું હતું.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
fs_opt
| 9
|
train
|
Detailed Instructions: A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Q: देशभर में लगभग 5000 प्रधानमंत्री जन औषधि केन्द्र खोले गए हैं।
A:
|
દેશભરમાં આશરે 5000 પ્રધાનમંત્રી જન ઔષધિ કેન્દ્રો સ્થાપિત થયા છે.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
zs_opt
| 9
|
train
|
You will be given a definition of a task first, then some input of the task.
A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
एक ही प्रकार के नेता, एक ही प्रकार की सोच, एक ही प्रकार की बोलचाल यह भारत की विविधता के लिए ठीक नहीं बैठती।
Output:
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એક જ પ્રકારના નેતા, એક જ પ્રકારની વિચારધારા, એક જ પ્રકારની બોલચાલ, આ બધું ભારતની વિવિધતા સાથે બંધ બેસતું નથી.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
zs_opt
| 1
|
train
|
A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Ex Input:
राष्ट्र नायकों के योगदान को सम्मान देना, हर देशवासी का और सरकार का कर्तव्य है।
Ex Output:
આ વર્ષે નાનાજી દેશમુખ, ભૂપેન હજારિકા અને પ્રણવ મુખર્જીને ભારત રત્નથી અલંકૃત કરવાનો નિર્ણય લેવામાં આવ્યો છે.
Ex Input:
आपके यहां रास्ता बने, सड़क बने, इसलिए वो बलिदान मोल लेता है। आपके यहां टेलीफोन का टॉवर लग जाए, इसलिए वो गोलियां खाता है।
Ex Output:
તમારે ત્યાં માર્ગો બને, રસ્તાં બને, એટલે તેઓ પોતાનું બલિદાન આપે છે. તમારે ત્યાં ટેલીફોનનો ટાવર લાગે, એટલે તેઓ ગોળીઓ ખાય છે.
Ex Input:
उन्होंने कहा कि उन्हें बताया गया है कि इस कार्यक्रम के दौरान लगभग दो हजार करोड़ रुपए के ण संवितरित किए जाएंगे।
Ex Output:
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તેમણે જણાવ્યું હતું કે, આ કાર્યક્રમ દરમિયાન બે હજાર કરોડ રૂપિયાનાં લોનની વહેંચણી કરવામાં આવશે એવું તેમને કહેવામાં આવ્યું છે.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
fs_opt
| 1
|
train
|
A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Q: छात्रवृत्ति की उपलब्धता होने से अब पुलिस परिवारों के ज्यादा से ज्यादा युवा अध्ययन करने और विभिन्न क्षेत्रों में आगे बढ़ने में सक्षम हो पायेंगे।
A:
|
શિષ્યાવૃત્તિની ઉપલબ્ધતા પોલીસ કર્મચારીઓનાં પરિવારજનોનાં વધારે યુવાનોને વિવિધ ક્ષેત્રોમાં અભ્યાસ કરવા અને ઉત્કૃષ્ટ કારકિર્દી બનાવવા સક્ષમ બનાવશે.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
zs_opt
| 4
|
train
|
Detailed Instructions: A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Q: सीनियर जनरल ने प्रधानमंत्री मोदी को हालिया संसदीय चुनावों में मिली सफलता पर बधाई दी।
A:
|
સીનિયર જનરલે પ્રધાનમંત્રીને લોકસભાની ચૂંટણીમાં વિજય બદલ અભિનંદન પાઠવ્યા હતા.
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task1034_pib_translation_hindi_gujarati
|
NIv2
|
zs_opt
| 9
|
train
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A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Q: यह पुरस्कार वसुधैव कुटुम्बकम का संदेश देने वाले दर्शन को मान्यता देता है, जिसका अर्थ है कि समस्त विश्व एक परिवार है ।
A: આ પુરસ્કાર એ એવા લોકોને મળેલો પુરસ્કાર છે કે જે વ્યક્તિની મહેચ્છા કરતાં સમાજના હિતને સર્વોપરી ગણે છે. આ પુરસ્કાર મને એવા સમયે મળ્યો છે કે જ્યારે અમે મહાત્મા ગાંધીની 150મી જન્મજયંતિ ઉજવી રહ્યા છીએ.
****
Q: मंत्रिमण्डल कैबिनेट ने अरुणाचल प्रदेश की अनुसूचित जनजाति सूची में संशोधन के लिए संविधान (अनुसूचित जनजातियां) आदेश (संशोधन) विधेयक, 2018 को मंजूरी दी
A: મંત્રીમંડળે બંધારણ (અનુસૂચિત જનજાતિ) આદેશ (સુધારા) વિધેયક, 2018માં અરૂણાચલ પ્રદેશની અનુસૂચિત જનજાતિઓની યાદીમાં સુધારા માટે મંજૂરી આપી
****
Q: लेकिन आज दुनिया कह रही है कि भारत multi trillion dollar के investment का destination बन गया है।
A:
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પરંતુ આજે દુનિયા કહી રહી છે કે ભારત મલ્ટી ટ્રિલિયન ડોલરના રોકાણનું ગંતવ્ય સ્થાન બની ગયું છે.
****
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task1034_pib_translation_hindi_gujarati
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NIv2
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train
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Q: A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
कल अटल जी की जन्म जयंती है, 25 दिसम्बर।
A:
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આવતી કાલે અટલજીની જન્મજયંતિ છે, 25 ડિસેમ્બર.
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task1034_pib_translation_hindi_gujarati
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NIv2
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zs_opt
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test
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Teacher:A text is given in Gujarati. Translate it from the Gujarati language to the Hindi language. The translation must not omit or add information to the original sentence.
Teacher: Now, understand the problem? Solve this instance: प्रधानमंत्री ने कृषि में ढांचागत सुधार लाने की जरूरत पर ज़ोर दिया जिसमें कॉरपोरेट निवेश को प्रोत्साहित करना, रसद तंत्र को मजबूत करना और खाद्य प्रसंस्करण पर ध्यान केंद्रित करना भी शामिल है।
Student:
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પ્રધાનમંત્રીએ કૃષિ ક્ષેત્રમાં માળખાગત સુધારાને હાથ ધરવા માટેની જરૂરિયાત પર ભાર મૂક્યો હતો, જેમાં કૉર્પોરેટ રોકાણને પ્રોત્સાહન આપવું, માલપરિવહનને મજબૂત કરવું અને ખાદ્ય પ્રસંસ્કરણ પર ધ્યાન કેન્દ્રિત કરવાની બાબતો સામેલ છે.
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task1034_pib_translation_hindi_gujarati
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NIv2
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zs_opt
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validation
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Detailed Instructions: In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Q: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Minority Serving Institution Digital
and Wireless Technology Opportunity Act of 2003''.
SEC. 2. ESTABLISHMENT OF PROGRAM.
Section 5 of the Stevenson-Wydler Technology Innovation Act of 1980
(15 U.S.C. 3704) is amended by inserting the following after subsection
(f):
``(g) Minority Serving Institution Digital and Wireless Technology
Opportunity Program.--
``(1) In general.--The Secretary, acting through the Under
Secretary, shall establish a Minority Serving Institution
Digital and Wireless Technology Opportunity Program to assist
eligible institutions in acquiring, and augmenting their use
of, digital and wireless networking technologies to improve the
quality and delivery of educational services at eligible
institutions.
``(2) Authorized activities.--An eligible institution may
use a grant, cooperative agreement, or contract awarded under
this subsection--
``(A) to acquire equipment, instrumentation,
networking capability, hardware and software, digital
network technology, wireless technology, and
infrastructure to further the objective of the Program
described in paragraph (1);
``(B) to develop and provide training, education,
and professional development programs, including
faculty development, to increase the use of, and
usefulness of, digital and wireless networking
technology;
``(C) to provide teacher education, including the
provision of preservice teacher training and in-service
professional development at eligible institutions,
library and media specialist training, and preschool
and teacher aid certification to individuals who seek
to acquire or enhance technology skills in order to use
digital and wireless networking technology in the
classroom or instructional process;
``(D) to obtain capacity-building technical
assistance, including through remote technical support,
technical assistance workshops, and distance learning
services; and
``(E) to foster the use of digital and wireless
networking technology to improve research and
education, including scientific, mathematics,
engineering, and technology instruction.
``(3) Application and review procedures.--
``(A) In general.--To be eligible to receive a
grant, cooperative agreement, or contract under this
subsection, an eligible institution shall submit an
application to the Under Secretary at such time, in
such manner, and containing such information as the
Under Secretary may require. Such application, at a
minimum, shall include a description of how the funds
will be used, including a description of any digital
and wireless networking technology to be acquired, and
a description of how the institution will ensure that
digital and wireless networking will be made accessible
to, and employed by, students, faculty, and
administrators. The Under Secretary, consistent with
subparagraph (C) and in consultation with the advisory
council established under subparagraph (B), shall
establish procedures to review such applications. The
Under Secretary shall publish the application
requirements and review criteria in the Federal
Register, along with a statement describing the
availability of funds.
``(B) Advisory council.--The Under Secretary shall
establish an advisory council to advise the Under
Secretary on the best approaches to encourage maximum
participation by eligible institutions in the program
established under paragraph (1), and on the procedures
to review proposals submitted to the program. In
selecting the members of the advisory council, the Under Secretary
shall consult with representatives of appropriate organizations,
including representatives of eligible institutions, to ensure that the
membership of the advisory council includes representatives of minority
businesses and eligible institution communities. The Under Secretary
shall also consult with experts in digital and wireless networking
technology to ensure that such expertise is represented on the advisory
council.
``(C) Review panels.--Each application submitted
under this subsection by an eligible institution shall
be reviewed by a panel of individuals selected by the
Under Secretary to judge the quality and merit of the
proposal, including the extent to which the eligible
institution can effectively and successfully utilize
the proposed grant, cooperative agreement, or contract
to carry out the program described in paragraph (1).
The Under Secretary shall ensure that the review panels
include representatives of minority serving
institutions and others who are knowledgeable about
eligible institutions and technology issues. The Under
Secretary shall ensure that no individual assigned
under this subsection to review any application has a
conflict of interest with regard to that application.
The Under Secretary shall take into consideration the
recommendations of the review panel in determining
whether to award a grant, cooperative agreement, or
contract to an eligible institution.
``(D) Information dissemination.--The Under
Secretary shall convene an annual meeting of eligible
institutions receiving grants, cooperative agreements,
or contracts under this subsection to foster
collaboration and capacity-building activities among
eligible institutions.
``(E) Matching requirement.--The Under Secretary
may not award a grant, cooperative agreement, or
contract to an eligible institution under this
subsection unless such institution agrees that, with
respect to the costs incurred by the institution in
carrying out the program for which the grant,
cooperative agreement, or contract was awarded, such
institution shall make available, directly, or through
donations from public or private entities, non-Federal
contributions in an amount equal to one-quarter of the
grant, cooperative agreement, or contract awarded by
the Under Secretary, or $500,000, whichever is the
lesser amount. The Under Secretary shall waive the
matching requirement for any institution or consortium
with no endowment, or an endowment that has a current
dollar value lower than $50,000,000.
``(F) Awards.--
``(i) Limitation.--An eligible institution
that receives a grant, cooperative agreement,
or contract under this subsection that exceeds
$2,500,000 shall not be eligible to receive
another grant, cooperative agreement, or
contract.
``(ii) Consortia.--Grants, cooperative
agreements, and contracts may only be awarded
to eligible institutions. Eligible institutions
may seek funding under this subsection for
consortia which may include other eligible
institutions, a State or a State education
agency, local education agencies, institutions
of higher education, community-based
organizations, national nonprofit
organizations, or businesses, including
minority businesses.
``(iii) Planning grants.--The Under
Secretary may provide funds to develop
strategic plans to implement such grants,
cooperative agreements, or contracts.
``(iv) Institutional diversity.--In
awarding grants, cooperative agreements, and
contracts to eligible institutions, the Under
Secretary shall ensure, to the extent
practicable, that awards are made to all types
of institutions eligible for assistance under
this subsection.
``(v) Need.--In awarding funds under this
subsection, the Under Secretary shall give
priority to the institution with the greatest
demonstrated need for assistance.
``(G) Annual report and evaluation.--
``(i) Annual report required from
recipients.--Each institution that receives a
grant, cooperative agreement, or contract
awarded under this subsection shall provide an
annual report to the Under Secretary on its use
of the grant, cooperative agreement, or
contract.
``(ii) Independent assessment.--Not later
than 6 months after the date of enactment of
this subsection, the Under Secretary shall
enter into a contract with the National Academy
of Public Administration to conduct periodic
assessments of the program. The Assessments
shall be conducted once every 3 years during
the 10-year period following the enactment of
this subsection. The assessments shall include
an evaluation of the effectiveness of the
program in improving the education and training
of students, faculty and staff at eligible
institutions that have been awarded grants,
cooperative agreements, or contracts under the
program; an evaluation of the effectiveness of
the program in improving access to, and
familiarity with, digital and wireless
networking technology for students, faculty,
and staff at all eligible institutions; an
evaluation of the procedures established under
paragraph (3)(A); and recommendations for
improving the program, including
recommendations concerning the continuing need for Federal support. In
carrying out its assessments, the National Academy of Public
Administration shall review the reports submitted to the Under
Secretary under clause (i).
``(iii) Report to congress.--Upon
completion of each independent assessment
carried out under clause (ii), the Under
Secretary shall transmit the assessment to
Congress along with a summary of the Under
Secretary's plans, if any, to implement the
recommendations of the National Academy of
Public Administration.
``(H) Definitions.--In this subsection:
``(i) Digital and wireless networking
technology.--The term `digital and wireless
networking technology' means computer and
communications equipment and software that
facilitates the transmission of information in
a digital format.
``(ii) Eligible institution.--The term
`eligible institution' means an institution
that is--
``(I) a historically Black college
or university that is a part B
institution, as defined in section
322(2) of the Higher Education Act of
1965 (20 U.S.C. 1061(2)), an
institution described in section
326(e)(1)(A), (B), or (C) of that Act
(20 U.S.C. 1063b(e)(1)(A), (B), or
(C)), or a consortium of institutions
described in this subparagraph;
``(II) a Hispanic-serving
institution, as defined in section
502(a)(5) of the Higher Education Act
of 1965 (20 U.S.C. 1101a(a)(5));
``(III) a tribally controlled
college or university, as defined in
section 316(b)(3) of the Higher
Education Act of 1965 (20 U.S.C.
1059c(b)(3));
``(IV) an Alaska Native-serving
institution under section 317(b) of the
Higher Education Act of 1965 (20 U.S.C.
1059d(b));
``(V) a Native Hawaiian-serving
institution under section 317(b) of the
Higher Education Act of 1965 (20 U.S.C.
1059d(b)); or
``(VI) an institution of higher
education (as defined in section 365 of
the Higher Education Act of 1965 (20
U.S.C. 1067k)) with an enrollment of
needy students (as defined in section
312(d) of the Higher Education Act of
1965 (20 U.S.C. 1058(d)).
``(iii) Institution of higher education.--
The term `institution of higher education' has
the meaning given the term in section 101 of
the Higher Education Act of 1965 (20 U.S.C.
1001).
``(iv) Local educational agency.--The term
`local educational agency' has the meaning
given the term in section 9101 of the
Elementary and Secondary Education Act of 1965
(20 U.S.C. 7801).
``(v) Minority business.--The term
`minority business' includes HUBZone small
business concerns (as defined in section 3(p)
of the Small Business Act (15 U.S.C. 632(p)).
``(vi) Minority individual.--The term
`minority individual' means an American Indian,
Alaskan Native, Black (not of Hispanic origin),
Hispanic (including persons of Mexican, Puerto
Rican, Cuban and Central or South American
origin), or Pacific Islander individual.
``(vii) State.--The term `State' has the
meaning given the term in section 9101 of the
Elementary and Secondary Education Act of 1965
(20 U.S.C. 7801).
``(viii) State educational agency.--The
term `State educational agency' has the meaning
given the term in section 9101 of the
Elementary and Secondary Education Act of 1965
(20 U.S.C. 7801).''.
SEC. 3. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated to the Technology
Administration of the Department of Commerce to carry out section 5(g)
of the Stevenson-Wydler Technology Innovation Act of 1980--
(1) $250,000,000 for fiscal year 2004;
(2) $250,000,000 for fiscal year 2005;
(3) $250,000,000 for fiscal year 2006;
(4) $250,000,000 for fiscal year 2007; and
(5) $250,000,000 for fiscal year 2008.
A:
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Minority Serving Institution Digital and Wireless Technology Opportunity Act of 2003 (sic)- Amends the Stevenson-Wydler Technology Innovation Act of 1980 to direct the Secretary of Commerce to establish a Minority Serving Institution Digital and Wireless Technology Opportunity Program to assist eligible educational institutions in acquiring, and augmenting use of, digital and wireless networking technologies to improve the quality and delivery of educational services at such institutions. Defines as eligible institutions: (1) historically Black colleges or universities, (2) a Hispanic-, Alaskan Native-, or Native Hawaiian-serving institution; (3) a tribally controlled college or university; or (4) an institution with a sufficient enrollment of needy students as defined under the Higher Education Act of 1965. Outlines authorized assistance activities. Directs the Under Secretary of Commerce for Technology to: (1) establish an advisory council to advise on the best approaches toward maximum Program participation by eligible institutions; and (2) ensure that grant awards are made to all types of eligible institutions
Requires Program assessment every three years by the National Academy of Public Administration.
Requires: (1) each institution receiving assistance to report annually to the Under Secretary on the use of such funds; and (2) the Under Secretary to report assessment results to Congress.
Authorizes appropriations for FY 2004 through 2008 for the Program.
Acknowledges and recognizes the significant achievements and contributions of African-American scientists, mathematicians, and inventors.
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task1658_billsum_summarization
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Definition: In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Input: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Climate Change Center and
Clearinghouse Act of 2008''.
SEC. 2. FINDINGS.
The Congress finds the following:
(1) There are 26.8 million small business concerns in the
United States, and they are the backbone of the American
economy. However, small business concerns face overwhelming
obstacles in addressing climate change issues, such as reducing
their carbon footprint while balancing business needs to remain
economically competitive.
(2) The United States Government is the largest purchaser
of goods and services in the world and plays a large role in
influencing the overall business marketplace. In 2006, the
United States Government spent over $417 billion on goods and
services in 8.3 million separate contract actions. Small
business concerns won approximately $80 billion in contracts
which is about 21.5 percent of the remaining prime contracts.
(3) The Small Business Act of 1953 specified that small
business concerns should be given every opportunity to compete
fairly for the award of Federal contracts. Congress has long
recognized the value of small business concerns because they
are important sources of job creation and economic growth;
however, small business concerns are typically disadvantaged in
competing against large firms.
(4) The United States Environmental Protection Agency has
created a directory to help small business concerns access
financial services by State or service type (i.e. loans,
consulting, credit, etc.) to help small business concerns
achieve energy efficiency through their Energy Star Small
Business--Financial Resources Directory.
(5) The fusion of a powerful purchasing mechanism with
green business practices provides a small business concern with
significant incentives and opportunities for market penetration
of environmentally preferable products, for the development of
green services, and for the adoption of green practices in
their own facilities.
(6) Many small business concerns have taken the first step
in incorporating sustainable practices into their own business,
however small business concerns face obstacles in comparing the
cost, performance, and life cycle environmental impacts of
alternatives. Most small business concerns do not have the
scientific and technical capability to fully assess the issues
and choices to address the impact of climate change. In
addition, small business concerns offering green products and
services often face barriers to market acceptance of
environmentally preferable products and services when competing
with products or service practices that have long-standing
market penetration.
(7) It is vital for the competitiveness of the United
States that small business concerns, including small, minority-
owned, women-owned, historically underutilized businesses
(HUBZones), and veteran-owned small business concerns be
provided greater opportunity to become a procurement source for
goods and services to Federal agencies. It is also critical
that small business concerns be encouraged to develop and
supply environmentally sound products and services.
(8) By utilizing new energy efficient technologies and
whole building design practices, small business concerns can
save in long-term operating costs, become more competitive,
improve the productivity and health of employees, and reduce
their carbon footprint.
(9) In the National Small Business Association's 2006
energy survey, the majority of owners of small business
concerns said they have been affected by rising energy prices
and that reducing energy costs would increase profitability. At
the same time, over half of these entrepreneurs have not
invested in energy efficient programs for their small business
concerns.
(10) There are many ways to increase energy efficiency. For
example, an owner of a small business concern who replaces
twenty 100-watt incandescent bulbs with 27-watt compact
fluorescent bulbs would pay $400 up-front, but save $980 over
one year.
(11) Today, buildings account for more than a third of the
carbon emissions in the United States. Whole building design
practices, also known as green buildings, have a positive
effect on the reduction of green house gases and the health of
the environment, increase production of workers, and improve
the water supply for communities. Studies have shown--
(A) a 2 to 16 percent increase in productivity in
buildings that incorporate whole building design
practices; and
(B) that an up-front investment of 2 percent in
whole building design practices, on average, results in
life cycle savings of 20 percent of the total
construction costs.
(12) Some of the tools that a small business concern could
use to design are--
(A) green roofs, vegetated roof systems that
passively perform no less than eight highly beneficial
and cost-saving functions;
(B) daylighting, because people respond,
concentrate, and think better with diffuse, full-
spectrum light provided by the sun;
(C) on-site renewable energy, produced from fuels
that have a stable, predictable supply such as solar,
wind, biomass, and ground sources;
(D) natural ventilation, which can replace all or
part of mechanical ventilation systems, improving
indoor air quality and occupant comfort; and
(E) integrated design, the method by which the
design team identifies systems early in the process to
provide a coordinated implementation of efficiency and
building methods, realizing an exponential gain in
savings and comfort.
SEC. 3. OFFICE OF ENVIRONMENT, ENERGY, AND CLIMATE CHANGE.
The Small Business Act (15 U.S.C. 631 et seq.) is amended by
redesignating section 37 as section 38, and by inserting after section
36 the following:
``SEC. 38. OFFICE OF ENVIRONMENT, ENERGY, AND CLIMATE CHANGE.
``(a) Establishment.--There is established within the Small
Business Administration an office to be known as the Office of
Environment, Energy, and Climate Change headed by an Assistant
Administrator for Environment, Energy, and Climate Change, who shall be
appointed by, and report to, the Administrator of the Small Business
Administration.
``(b) Duties.--The Office of Environment, Energy, and Climate
Change shall--
``(1) oversee and administer the Climate Change Center and
Clearinghouse established under subsection (c);
``(2) promote energy efficiency efforts for small business
concerns;
``(3) promote efforts to reduce energy costs of small
business concerns; and
``(4) oversee efforts by small business concerns to develop
renewable energy technologies.
``(c) Climate Change Center and Clearinghouse.--
``(1) Establishment.--There is established within the
Office of Environment, Energy, and Climate Change an office to
be known as the Climate Change Center and Clearinghouse
(hereinafter in this section referred to as the `Center').
``(2) Duties of the center.--The Center shall--
``(A) provide scientific, economic, and technical
information to small business concerns on--
``(i) assessing and managing the technical,
economic, and business impacts of climate
change; and
``(ii) cost savings and revenue gains made
possible through carbon credit trading
opportunities and Federal and State renewable
energy and energy efficiency tax relief
programs, purchase incentives, and rebate
programs;
``(B) ensure that the information described in
subparagraph (A) is available to small business
concerns by--
``(i) placing the information on a website
accessible by small business concerns; and
``(ii) developing and carrying out
nationwide workshops for small business
concerns, with such workshops recorded and made
available to small business concerns on a
website and, if practicable, broadcast live on
the internet;
``(C) coordinate any efforts which are undertaken
by the Department of Energy's Ombudsman, the
Environmental Protection Agency's Small Business
Ombudsman, the National Institute of Standards and
Technology's Manufacturing Extension Partnership, the
Small Business and Agriculture Regulatory Enforcement
Ombudsman, the Office of Small and Disadvantaged
Business Utilization within each Federal agency having
procurement powers, and other appropriate Federal
departments and agencies to provide technical,
scientific, and engineering support to small business
concerns for the purpose of maintaining competitiveness
while--
``(i) developing green products or
services;
``(ii) implementing green business
practices; or
``(iii) reducing the amount of pollution
produced by the small business concern;
``(D) develop a baseline study--
``(i) that provides a broad analysis that
aggregates small business energy consumption
and emissions;
``(ii) that includes, but is not limited
to, an analysis of the energy consumption and
greenhouse gas emissions from processes,
practices, and product developments of small
business concerns;
``(iii) the development of which the Center
shall coordinate with similar efforts
undertaken by other Federal agencies; and
``(iv) which upon completion is made
available to the public on a website.
``(E) raise awareness among small business concerns
of the information, technical support, and network
opportunities made available through the Energy Star
Program to reduce energy waste and energy costs;
``(F) develop a carbon footprint website that
contains--
``(i) educational and technical information
on how small business concerns can reduce their
carbon footprint;
``(ii) links to tools and information
relating to carbon footprints available on
other websites; and
``(iii) a carbon footprint calculator which
can calculate a rough estimate of a small
business concern's carbon emissions based on,
but not limited to, the concern's electricity
usage, heating fuel usage, and fleet mileage;
and
``(G) develop a marketing plan and coordinate with
the Office of Small Business Development Centers to
raise awareness among small business concerns of the
Center's duties and available resources.
``(3) Duties of the heads of departments and agencies.--The
head of each Federal department or agency shall provide
information to the Center, upon request, unless otherwise
prohibited by law.
``(d) Interagency Working Group.--
``(1) In general.--The President shall establish an
interagency working group, which shall be co-chaired by the
Assistant Administrator for Environment, Energy, and Climate
Change and the Administrator of the Environmental Protection
Agency and shall include representatives from--
``(A) the National Institute of Standards and
Technology;
``(B) the Department of Energy;
``(C) the Department of Transportation;
``(D) the Office of Small Business Development
Centers;
``(E) small business concerns; and
``(F) any additional agency that the President may
designate.
``(2) Advisors.--The co-chairs of the interagency working
group may appoint representatives from environmental groups and
groups concerned with climate change to advise the working
group.
``(3) Duties.--The interagency working group shall--
``(A) establish goals and priorities for the
Center; and
``(B) provide for interagency coordination,
including budget coordination, of activities undertaken
by the Center.
``(e) Definitions.--
``(1) Green products or services and green business
practices.--The Administrator of the Small Business
Administration shall, in consultation with the Environmental
Protection Agency, the General Services Administration, and
other appropriate Federal departments and agencies, specify a
detailed definition for the terms `green products or services'
and `green business practices' for purposes of this section.
``(2) Greenhouse gas.--For purposes of this section, the
term `greenhouse gas' means--
``(A) carbon dioxide;
``(B) methane;
``(C) nitrous oxide;
``(D) hydrofluorocarbons;
``(E) perfluorocarbons; or
``(F) sulfur hexafluoride.
``(f) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this
section.''.
Output:
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Climate Change Center and Clearinghouse Act of 2008 - Amends the Small Business Act to establish: (1) the Office of Environment, Energy, and Climate Change within the Small Business Administration (SBA); and (2) the Climate Change Center and Clearinghouse within such Office.
Requires the Office to: (1) oversee and administer the Center; (2) promote energy efficiency efforts for, and efforts to reduce energy costs of, small businesses; and (3) oversee efforts by small businesses to develop renewable energy technologies.
Requires the Center to: (1) provide information to small businesses on assessing and managing the impacts of climate change and on cost savings and revenue gains possible through carbon credit trading opportunities and federal and state renewable energy and energy efficiency tax relief programs, purchase incentives, and rebate programs; (2) ensure that such information is provided to small businesses on an accessible website and through nationwide workshops; (3) coordinate federal agency efforts to provide support to small businesses for the purpose of maintaining competitiveness while developing green products or services, implementing green business practices, or reducing pollution; (4) develop a baseline study that provides a broad analysis that aggregates small business energy consumption and emissions; (5) raise awareness among small businesses of the information, technical support, and network opportunities made available through the Energy Star Program to reduce energy waste and energy costs; (6) develop a carbon footprint website that contains information on how small business concerns can reduce their carbon footprint, links to other carbon footprint websites, and a calculator for obtaining an estimate of a small business's carbon emissions based on electricity usage, heating fuel usage, and fleet mileage; and (7) develop a marketing plan.
Directs: (1) the President to establish an interagency working group to establish goals and priorities for the Center and to provide for interagency coordination of Center activities; and (2) the Administrator of SBA to specify a detailed definition for the terms "green products or services" and "green business practices."
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Detailed Instructions: In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Q: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Muscogee Nation of Florida Federal
Recognition Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) the Muscogee Nation of Florida is composed of lineal
descendants of persons who were historically part of the Creek
Confederacy, which relocated from Daleville, Alabama, and other
areas of southern Alabama to the State of Florida between 1812
and 1887;
(2) those Creek persons settled in the north Florida
panhandle in autonomous communities (referred to in the
constitution of the Muscogee Nation as ``Townships''),
continuing the lifestyle and traditions practiced by the
historic Creek Nation of Alabama and Georgia;
(3)(A) on dissolution of the Creek Confederacy, the
ancestors of current members of the Muscogee Nation of Florida
relocated and reestablished home sites, traditions, ceremonial
centers, tribal government (including through the traditional
appointment of tribal leaders), and tribal economy in rural
areas of the State of Florida;
(B) the relocation described in subparagraph (A) did not
prevent the Nation from--
(i) continuing to exercise the governing powers of
the Nation;
(ii) providing services to members of the Nation;
or
(iii) enjoying the communal lifestyle of the
Nation; and
(C) some members of the Nation remain on original home
sites of their Creek ancestors;
(4) members of the Nation--
(A) participated in the 1814 Treaty of Ft. Jackson
and the Apalachicola Treaty of October 11, 1832; and
(B) were included in the Abbott-Parsons Creek
Census, dated 1832 and 1833;
(5) members of the Nation have established an ancestral
claim to land taken from the Nation by General Andrew Jackson
in the aftermath of the War of 1812 pursuant to the 1814 Treaty
of Ft. Jackson;
(6) beginning in 1971, the Secretary of the Interior
distributed to members of the Nation in 3 actions per capita
payments for land claim settlements;
(7)(A) in 1974, the State of Florida established the
Northwest Florida Creek Indian Council to manage issues
relating to Creek Indians in northwest Florida; and
(B) in 1978, the Council held an election for
representatives to the tribal government known as the ``Florida
Tribe of Eastern Creek Indians'', which is now the Muscogee
Nation of Florida;
(8) the community of Bruce in Walton County, Florida, has
been a governing center for the Nation for more than 150 years;
(9) in the community of Bruce, the Nation--
(A) beginning in the early 1860s, used and
maintained the Antioch Cemetery, which remains in use
by members of the Nation as of the date of enactment of
this Act;
(B) between 1895 and 1947, maintained a school that
was attended by members of the Nation;
(C) in 1912, established a church that is
recognized by the Methodist Conference as a Native
American church; and
(D) maintained a ceremonial area on Bruce Creek
that was attended until the late 1920s;
(10) the ceremonial area of the Nation, as in existence on
the date of enactment of this Act--
(A) is located in the community of Blountstown,
Florida, one of the reservations referred to in the
Apalachicola Treaty of October 11, 1832; and
(B) is the site of continuing ceremonies, such as
Green Corn, and traditional events;
(11) local governments have recognized the community of
Bruce as the center of tribal government of the Nation; and
(12) during the 30-year period preceding the date of
enactment of this Act, the Nation has received Federal, State,
and local grants, and entered into contracts, to provide
services and benefits to members of the Nation.
SEC. 3. DEFINITIONS.
In this Act:
(1) Member.--The term ``member'' means--
(A) an individual who is an enrolled member of the
Nation as of the date of enactment of this Act; and
(B) an individual who has been placed on the
membership rolls of the Nation in accordance with this
Act.
(2) Nation.--The term ``Nation'' means the Muscogee Nation
of Florida (formerly known as the ``Florida Tribe of Eastern
Creek Indians'').
(3) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(4) Tribal council.--The term ``Tribal Council'' means the
governing body of the Nation.
SEC. 4. FEDERAL RECOGNITION.
(a) Recognition.--
(1) In general.--Federal recognition is extended to the
Nation.
(2) Applicability of laws.--All laws (including
regulations) of the United States of general applicability to
Indians or nations, Indian tribes, or bands of Indians
(including the Act of June 18, 1934 (25 U.S.C. 461 et seq.))
that are not inconsistent with this Act shall be applicable to
the Nation and members.
(b) Federal Services and Benefits.--
(1) In general.--On and after the date of enactment of this
Act, the Nation and members shall be eligible for all services
and benefits provided by the Federal Government to federally
recognized Indian tribes without regard to--
(A) the existence of a reservation for the Nation;
or
(B) the location of the residence of any member on
or near any Indian reservation.
(2) Service area.--For the purpose of the delivery of
Federal services to members, the service area of the Nation
shall be considered to be--
(A) the community of Bruce in Walton County,
Florida; and
(B) an area in the State of Florida in which
members reside that is bordered--
(i) on the west by the Escambia River; and
(ii) on the east by the St. Marks River.
SEC. 5. CONSTITUTION AND BYLAWS.
(a) In General.--The constitution and bylaws of the Nation shall be
the constitution and bylaws of the Tribal Council dated January 21,
2001 (including amendments), as submitted to the Secretary for approval
on recognition.
(b) New Constitution and Bylaws.--On receipt of a written request
of the Tribal Council, the Secretary shall hold a referendum for
members for the purpose of adopting a new constitution and bylaws, in
accordance with section 16 of the Act of June 18, 1934 (25 U.S.C. 476).
SEC. 6. TRIBAL COUNCIL.
The Tribal Council--
(1) shall represent the Nation and members; and
(2) may--
(A) enter into any contract, grant agreement, or
other agreement with any Federal department or agency;
(B) carry out or administer such programs as the
Tribal Council determines to be appropriate to carry
out the contracts and agreements; and
(C) designate a successor in interest pursuant to a
new constitution or bylaw of the Nation adopted under
section 5(b).
SEC. 7. MEMBERSHIP ROLL.
The membership roll of the Nation shall be determined in accordance
with the membership criteria established by the ordinance of the Nation
numbered 04-01-100 and dated February 7, 2004.
SEC. 8. LAND IN TRUST.
The Secretary is authorized to take land in trust on behalf of the
Muscogee Nation of Florida pursuant to part 151 of title 25, Code of
Federal Regulations.
A:
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Muscogee Nation of Florida Federal Recognition Act This bill extends federal recognition to the Muscogee Nation of Florida, which makes its members eligible for the services and benefits provided to members of federally recognized Indian tribes. The service area of the tribe, for the purpose of delivering federal services to members, is the community of Bruce in Walton County, Florida, and an area in Florida in which members reside that is bordered on the west by the Escambia River and on the east by the St. Marks River. The constitution and bylaws of the tribe must be the constitution and bylaws of the tribe's Tribal Council dated January 21, 2001, including amendments. The Department of the Interior, upon receipt of a written request of the Tribal Council, must hold a referendum for members to adopt a new constitution and bylaws. The role and duties of the Tribal Council are specified. The membership roll of the tribe must be determined in accordance with the membership criteria established by the ordinance of the tribe numbered 04-01-100 and dated February 7, 2004. Interior may take land into trust on behalf of the tribe.
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Instructions: In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Input: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Mobilized Reserve Savings Account
Act''.
SEC. 2. DEDUCTION FOR CONTRIBUTIONS TO SAVINGS ACCOUNTS OF ARMED FORCES
RESERVES.
(a) In General.--Part VII of subchapter B of chapter 1 of the
Internal Revenue Code of 1986 (relating to additional itemized
deductions for individuals) is amended by redesignating section 223 as
section 224 and by inserting after section 222 the following new
section:
``SEC. 223. CONTRIBUTIONS TO ARMED FORCES RESERVE SAVINGS ACCOUNTS.
``(a) Deduction Allowed.--
``(1) In general.--In the case of an individual who is a
qualified reservist, there shall be allowed as a deduction for
the taxable year an amount equal to the contributions of the
individual to an Armed Forces reserve savings account of the
individual for the taxable year.
``(2) Maximum amount.--The amount allowable as a deduction
under subsection (a) to any individual for a taxable year shall
not exceed the lesser of--
``(A) $5,000, or
``(B) $25,000, reduced by the aggregate
contributions by such individual to Armed Forces
reserve savings accounts for all preceding taxable
years.
``(b) Qualified Reservist.--For purposes of this section, the term
`qualified reservist' means an individual who, on the last day of the
taxable year, is a member of a reserve component of the Armed Forces.
``(c) Armed Forces Reserve Savings Account.--For purposes of this
section, the term `Armed Forces reserve savings account' means a trust
created or organized in the United States for the exclusive benefit of
an individual and the individual's beneficiaries, but only if the
written governing instrument creating the trust meets the following
requirements:
``(1) No contribution will be accepted unless it is in
cash.
``(2) The trustee is a bank (as defined in section 408(n))
or another person who demonstrates to the satisfaction of the
Secretary that the manner in which that person will administer
the trust will be consistent with the requirements of this
section.
``(3) No part of the trust assets will be invested in life
insurance contracts.
``(4) The assets of the trust will not be commingled with
other property except in a common trust fund or common
investment fund.
``(5) The interest of an individual in the balance of the
individual's account is nonforfeitable.
``(d) Tax Treatment of Distributions.--
``(1) In general.--Except as otherwise provided in this
subsection, any amount paid or distributed out of an Armed
Forces reserve savings account shall be included in the gross
income of the payee or distributee for the taxable year in
which the payment or distribution is received in the manner
provided under section 72.
``(2) Excess contributions returned before due date of
return.--Paragraph (1) shall not apply to the distribution of
any contribution paid during a taxable year to an Armed Forces
reserve savings account to the extent that such contribution
exceeds the amount allowable as a deduction under subsection
(a) if--
``(A) such distribution is received on or before
the day prescribed by law (including extensions of
time) for filing such individual's return for such
taxable year,
``(B) no deduction is allowed under subsection (a)
with respect to such excess contribution, and
``(C) such distribution is accompanied by the
amount of net income attributable to such excess
contribution.
Any net income described in subparagraph (C) shall be included
in the gross income of the individual for the taxable year in
which such excess contribution was made.
``(3) Rollover contribution.--
``(A) In general.--Paragraph (1) shall not apply to
any amount paid or distributed from an Armed Forces
reserve savings account to the account holder to the
extent the amount received is paid to another such
account for the benefit of such holder not later than
the 60th day on which the holder receives the payment
or distribution.
``(B) Limitation.--If an individual receives more
than 1 payment or distribution during any 12-month
period, this paragraph shall not apply to any such
payment or distribution to the individual if this
paragraph previously applied to any such payment or
distribution.
``(4) Additional tax on certain distributions.--
``(A) In general.--The tax imposed by this chapter
on the account holder for any taxable year in which
there is a payment or distribution from an Armed Forces
reserve account which is includible in gross income
shall be increased by 10 percent of the amount which is
so includible.
``(B) Exceptions related to military service.--
Subparagraph (A) shall not apply if the payment or
distribution is made--
``(i) during any period during which the
account holder is serving on active duty to
which called or ordered under a provision of
law referred to in section 101(a)(13)(B) of
title 10, United States Code, or
``(ii) after the account holder ceases to
be a member of a reserve component of the Armed
Forces or is transferred to the retired list of
such a reserve component.
For purposes of clause (i), a payment made during the
60-day period immediately preceding or following the
period described in clause (i) shall be treated as made
during the period so described.
``(C) Exceptions for disability or death.--
Subparagraph (A) shall not apply if the payment or
distribution is made after the account holder becomes
disabled within the meaning of section 72(m)(7) or
dies.
``(5) Investment in collectibles treated as
distributions.--Rules similar to the rules of section 408(m)
shall apply for purposes of this section.
``(e) Tax Treatment of Accounts.--
``(1) Exemption from tax.--An Armed Forces reserve savings
account is exempt from taxation under this subtitle unless such
account has ceased to be an Armed Forces reserve savings
account by reason of paragraph (2). Notwithstanding the
preceding sentence, any such account is subject to the taxes
imposed by section 511 (relating to imposition of tax on
unrelated business income of charitable, etc. organizations).
``(2) Loss of exemption of account where individual engages
in prohibited transaction.--
``(A) In general.--If the individual for whose
benefit an Armed Forces reserve savings account is
established or any individual who contributes to such
account engages in any transaction prohibited by
section 4975 with respect to the account, the account
shall cease to be an Armed Forces reserve savings
account as of the first day of the taxable year (of the
individual so engaging in such transaction) during
which such transaction occurs.
``(B) Account treated as distributing all its
assets.--In any case in which any account ceases to be
an Armed Forces reserve savings account by reason of
subparagraph (A) as of the first day of any taxable
year, paragraph (1) of subsection (d) shall apply as if
there was a distribution on such first day in an amount
equal to the fair market value (on such first day) of
all assets in the account (on such first day).
``(3) Effect of pledging account as security.--If, during
any taxable year, the individual for whose benefit an Armed
Forces reserve savings account is established uses the account
or any portion thereof as security for a loan, the portion so
used shall be treated as distributed to the individual so using
such portion.
``(f) Special Rules.--
``(1) Time when contributions deemed made.--A taxpayer
shall be deemed to have made a contribution to an Armed Forces
reserve savings account on the last day of the preceding
taxable year if the contribution is made on account of such
taxable year and is made not later than the time prescribed by
law for filing the return for such taxable year (not including
extensions thereof).
``(2) Death and divorce.--Rules similar to the rules of
sections 401(a)(9), 401(a)(11), and 408(d)(6) shall apply for
purposes of this section.
``(3) Community property laws.--This section shall be
applied without regard to any community property laws.
``(g) Reports.--The trustee of an Armed Forces reserve savings
account shall make such reports regarding such account to the Secretary
and to the account holder with respect to contributions, distributions,
and such other matters as the Secretary may require under regulations.
The reports required by this subsection shall be filed at such time and
in such manner and furnished to such individuals at such time and in
such manner as may be required by those regulations.''
(b) Allowance of Deduction in Computing Adjusted Gross Income.--
Subsection (a) of section 62 of such Code (defining adjusted gross
income) is amended by inserting after paragraph (18) the following new
paragraph:
``(19) Contributions to armed forces reserve savings
accounts.--The deduction allowed by section 223(a).''
(c) Tax on Excess Contributions.--Section 4973 of such Code
(relating to tax on excess contributions to certain tax-favored
accounts and annuities) is amended--
(1) in subsection (a), by striking ``or'' at the end of
paragraph (3), by inserting ``or'' at the end of paragraph (4),
and by inserting after paragraph (4) the following new
paragraph:
``(5) an Armed Forces reserve savings account (as defined
in section 223(c)),'', and
(2) by adding at the end the following new subsection:
``(g) Excess Contributions to an Armed Forces Reserve Savings
Account.--For purposes of this section, in the case of an Armed Forces
reserve savings account, the term `excess contributions' means the sum
of--
``(1) the aggregate amount contributed for the taxable year
to the account which is not allowable as a deduction under
section 223 for such taxable year, and
``(2) the amount determined under this subsection for the
preceding taxable year, reduced by--
``(A) the distributions out of the accounts which
were included in gross income under section 223(d)(1)
for the taxable year, over
``(B) the amount contributed to the accounts for
the taxable year.
For purposes of this subsection, any contribution which is
distributed out of the Armed Forces reserve savings account in
a distribution to which section 223(d)(2) applies shall be
treated as an amount not contributed.''.
(d) Tax on Prohibited Transactions.--Section 4975 of such Code
(relating to prohibited transactions) is amended--
(1) by adding at the end of subsection (c) the following
new paragraph:
``(6) Special rule for armed forces reserve savings
accounts.--An individual for whose benefit an Armed Forces
reserve savings account is established and any contributor to
such account shall be exempt from the tax imposed by this
section with respect to any transaction concerning such account
(which would otherwise be taxable under this section) if, with
respect to such transaction, the account ceases to be an Armed
Forces reserve savings account by reason of the application of
section 223 to such account.'', and
(2) in subsection (e)(1), by striking ``or'' at the end of
subparagraph (E), by redesignating subparagraph (F) as
subparagraph (G), and by inserting after subparagraph (E) the
following new subparagraph:
``(F) an Armed Forces reserve savings account
described in section 223, or''.
(e) Failure To Provide Reports on Armed Forces Reserve Savings
Accounts.--Paragraph (2) of section 6693(a) of such Code (relating to
failure to provide reports on certain tax-favored accounts or
annuities) is amended by striking ``and'' at the end of subparagraph
(C), by striking the period at the end of subparagraph (D) and
inserting ``, and'', and by adding at the end the following new
subparagraph:
``(E) section 223(g) (relating to Armed Forces
reserve savings accounts).''.
(f) Conforming Amendment.--The table of sections for part VII of
subchapter B of chapter 1 of such Code is amended by striking the item
relating to section 223 and inserting the following new items:
``Sec. 223. Contributions to Armed Forces
reserve savings accounts.
``Sec. 224. Cross reference.''
(g) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after the date of the enactment of
this Act.
Output:
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Mobilized Reserve Savings Account Act - Amends the Internal Revenue Code to allow a qualified armed forces reservist to deduct annual contributions to an Armed Forces reserve savings account (as defined by this Act). Limits annual contributions to the lesser of $5,000, or $25,000 reduced by previous contributions to such accounts.Treats account distributions from deductible contributions as taxable income. Provides an additional ten percent tax unless the distribution is made: (1) while the account holder is serving on active duty (including the 60-day period immediately preceding or following such period); or (2) after the account holder ceases to be a member of a reserve component or is transferred to such component's retired list.Exempts an Armed Forces reserve savings account from taxation unless such account has ceased to be an Armed Forces reserve savings account due to a prohibited transaction by a contributor or a person for whose benefit such account was established.
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In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Let me give you an example: SECTION 1. LIABILITY OF BUSINESS ENTITIES PROVIDING USE OF FACILITIES
TO NONPROFIT ORGANIZATIONS.
(a) Definitions.--In this section:
(1) Business entity.--The term ``business entity'' means a
firm, corporation, association, partnership, consortium, joint
venture, or other form of enterprise.
(2) Facility.--The term ``facility'' means any real
property, including any building, improvement, or appurtenance.
(3) Gross negligence.--The term ``gross negligence'' means
voluntary and conscious conduct by a person with knowledge (at
the time of the conduct) that the conduct is likely to be
harmful to the health or well-being of another person.
(4) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the health
or well-being of another person.
(5) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 and exempt from
tax under section 501(a) of such Code; or
(B) any not-for-profit organization organized and
conducted for public benefit and operated primarily for
charitable, civic, educational, religious, welfare, or
health purposes.
(6) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such State,
territory, or possession.
(b) Limitation on Liability.--
(1) In general.--Subject to subsection (c), a business
entity shall not be subject to civil liability relating to any
injury or death occurring at a facility of the business entity
in connection with a use of such facility by a nonprofit
organization if--
(A) the use occurs outside of the scope of business
of the business entity;
(B) such injury or death occurs during a period
that such facility is used by the nonprofit
organization; and
(C) the business entity authorized the use of such
facility by the nonprofit organization.
(2) Application.--This subsection shall apply--
(A) with respect to civil liability under Federal
and State law; and
(B) regardless of whether a nonprofit organization
pays for the use of a facility.
(c) Exception for Liability.--Subsection (b) shall not apply to an
injury or death that results from an act or omission of a business
entity that constitutes gross negligence or intentional misconduct,
including any misconduct that--
(1) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in section
2331 of title 18) for which the defendant has been convicted in
any court;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court; or
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and subsection
(e), this Act preempts the laws of any State to the extent that
such laws are inconsistent with this Act, except that this Act
shall not preempt any State law that provides additional
protection from liability for a business entity for an injury
or death with respect to which conditions under subparagraphs
(A) through (C) of subsection (b)(1) apply.
(2) Limitation.--Nothing in this Act shall be construed to
supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--This Act shall
not apply to any civil action in a State court against a business
entity in which all parties are citizens of the State if such State
enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply to such civil action in the State; and
(3) containing no other provision.
The answer to this example can be: Shields a business entity from civil liability relating to any injury or death occurring at a facility of that entity in connection with a use of such facility by a nonprofit organization if: (1) the use occurs outside the scope of business of the business entity; (2) such injury or death occurs during a period that such facility is used by such organization; and (3) the business entity authorized the use of such facility by the organization.
Makes this Act inapplicable to an injury or death that results from an act or omission of a business entity that constitutes gross negligence or intentional misconduct, including misconduct that: (1) constitutes a hate crime or a crime of violence or act of international terrorism for which the defendant has been convicted in any court; or (2) involves a sexual offense for which the defendant has been convicted in any court or misconduct for which the defendant has been found to have violated a Federal or State civil rights law.
Preempts State laws to the extent that such laws are inconsistent with this Act, except State law that provides additional protection from liability. Specifies that this Act shall not be construed to supersede any Federal or State health or safety law.
Makes this Act inapplicable to any civil action in a State court against a business entity in which all parties are citizens of the State if such State, citing this Act's authority and containing no other provision, enacts a statute declaring the State's election that this Act shall not apply to such action in the State.
Here is why: This Bill focuses on shielding business entities from civil liability relating to an injury or death depending on the conditions of injury, hence the generated summary is correct.
OK. solve this:
That this Act may be
cited as the ``Hispanic American Affairs Act of 1993''.
statement of purpose
Sec. 2. It is the purpose of this Act to--
(1) assure that Federal programs and resources are reaching
all Mexican Americans, Puerto Rican Americans, Cuban Americans,
and all other Hispanic Americans and are providing the
assistance needed by such individuals;
(2) assure that the laws, policies, and practices of the
Federal Government provide equal opportunities for Hispanic
Americans in all areas, including the areas of employment,
education, health, housing, community development, economic
development, and grant and contract procurement; and
(3) seek out and develop new programs and resources that
may be necessary to handle problems that are unique to Hispanic
Americans.
establishment of office
Sec. 3. There is established in the Executive Office of the
President the Office of Hispanic American Affairs (hereinafter referred
to as the ``Office''). The Office shall be headed by a Director
(hereinafter referred to as the ``Director'') who shall be appointed by
the President, by and with the advice and consent of the Senate.
duties of the director
Sec. 4. (a) The Director shall--
(1) advise Federal departments and agencies regarding
appropriate action to be taken to help assure that Federal
programs are providing the assistance needed by Hispanic
Americans;
(2) advise Federal departments and agencies on the
development and implementation of comprehensive and coordinated
policies, plans, and programs which focus on the special
problems and needs of Hispanic Americans including economic
development, education, housing, and health care programs and
advise such departments and agencies on the priorities of such
policies, plans, and programs;
(3) advise and assist Hispanic American groups and
individuals in receiving assistance available under law;
(4) establish and maintain a Hispanic American information
clearinghouse which shall collect, analyze, and disseminate
information concerning the social and economic conditions
encountered by Hispanic individuals;
(5) carry out the functions relating to equal employment
opportunity for Hispanic Americans transferred to the Director
under section 8; and
(6) appraise the laws, policies, and performance of the
Federal Government with respect to the achievement or denial of
equal opportunities for Hispanic Americans, and report such
appraisal annually to the President and the Congress in the
report required under section 11.
(b) In carrying out the functions of the Director, the Director
may--
(1) conduct, directly or by grant or contract, such
surveys, studies, research, and demonstration and technical
assistance projects;
(2) establish such relationships with State and local
governments and the private sector as may be appropriate; and
(3) promote the participation of State and local
governments and the private sector as may be appropriate to
identify and assist in solving the special problems of Hispanic
Americans.
(c) The Director shall utilize the Special Assistants for Hispanic
American Affairs established in each Federal department or agency under
section 12 to carry out the functions transferred under section 8.
advisory task forces
Sec. 5. (a) The Director may appoint one or more advisory task
forces from among persons who are representative of and involved in the
affairs of the Mexican American, Puerto Rican American, and Cuban
American communities, and of other elements of the Hispanic American
community. Each such task force shall--
(1) advise the Director with respect to the functions of
the Director under this Act;
(2) be subject to the provisions of the Federal Advisory
Committee Act; and
(3) each year and at the time of completion of work of the
task force, transmit to Congress and the President a report
concerning the activities of the task force.
(b) Each member of an advisory task force appointed under
subsection (a) who is not otherwise employed by the United States
Government shall receive compensation at a rate equal to the daily
maximum rate prescribed for a position above GS-15 under the General
Schedule under section 5108 of title 5, United States Code, for each
day, including traveltime, such member is engaged in the actual
performance of duties as a member of a task force. A member of a task
force who is an officer or employee of the United States Government
shall serve without additional compensation. All members of a task
force shall be reimbursed for travel, subsistence, and other necessary
expenses incurred by them in the performance of their duties.
(c) The Director shall provide staffing and support to any task
force appointed under subsection (a) in order to assist the members of
the task force in carrying out their duties.
administrative provisions
Sec. 6. (a) In carrying out the provisions of this Act, the
Director is authorized--
(1) to appoint such personnel as the Director considers
necessary without regard to the provisions of title 5, United
States Code, governing appointments in the competitive service,
and to pay such personnel without regard to the provisions of
chapter 51 and subchapter III of chapter 53 of such title
relating to classification and General Schedule pay rates;
(2) to employ experts and consultants in accordance with
the provisions of section 3109 of such title, at rates of pay
which do not exceed the maximum rate prescribed for a position
above GS-15 of the General Schedule under section 5108 of such
title;
(3) to promulgate such rules, regulations, and procedures
as may be necessary to carry out the functions of the Office,
and to delegate authority for the performance of any function
to any officer or employee of the Office under the direction
and supervision of the Director;
(4) to utilize, with their consent, the services,
equipment, personnel, information, and facilities of other
Federal departments and agencies and of State, local, and
private agencies and instrumentalities, with or without
reimbursement therefor;
(5) to enter into agreements with other Federal departments
and agencies as may be appropriate;
(6) to operate such regional offices as may be necessary to
carry out the provisions of this Act;
(7) without regard to the provisions of section 3324 of
title 31, United States Code, to enter into and perform such
contracts, leases, cooperative agreements, or other
transactions as may be necessary in the conduct of the
functions of the Office, with any public agency or with any
person, and make payments (in advance, by transfer, or
otherwise) and grants to any public agency or private nonprofit
organization;
(8)(A) to accept voluntary and uncompensated services,
without regard to the provisions of section 1342 of title 31,
United States Code;
(B) to accept volunteer service in accordance with section
3111 of title 5, United States Code; and
(9) to request such information, data, and reports from any
Federal department or agency as the Director may from time to
time require and as may be produced consistent with other law.
(b) Upon request of the Director, the head of each Federal
department or agency shall promptly make the services, equipment,
personnel, facilities, and information of the department or agency
(including suggestions, estimates, and statistics) available to the
Office to the greatest extent practicable.
(c) Upon request of the Director, the head of each Federal
department or agency shall promptly detail any of the personnel of the
department or agency to the Office. Any such detail shall be made on a
reimbursable basis.
coordination
Sec. 7. In carrying out the provisions of this Act, the Director
shall provide leadership and coordination for all Federal departments
and agencies, particularly the offices established under section 12,
and shall provide such guidance to Federal departments and agencies as
the President determines is appropriate in implementing this Act. Each
department or agency shall issue appropriate rules and regulations to
further the purposes of this Act.
transfers of functions from the office of personnel management
Sec. 8. All functions of the Office of Personnel Management under
section 717 of the Civil Rights Act of 1964 and Executive Order 11478,
issued August 8, 1969, which the Director of the Office of Management
and Budget determines relate to equal employment opportunity for
Hispanic individuals, commonly known as the Hispanic Employment
Program, are transferred to the Director.
transfer of personnel and property
Sec. 9. (a) All personnel, liabilities, contracts, property, and
records as are determined by the Director of the Office of Management
and Budget to be employed, held, or used primarily in connection with
any function transferred under this Act, are transferred to the Office.
(b)(1) Except as provided in paragraph (2), personnel engaged in
functions transferred under this Act shall be transferred in accordance
with applicable laws and regulations relating to the transfer of
functions.
(2) The transfer of personnel pursuant to subsection (a) shall be
without reduction in classification or compensation for one year after
such transfer.
transfer matters
Sec. 10. (a) All laws relating to any office, agency, or function
transferred under this Act shall, insofar as such laws are applicable,
remain in full force and effect. All orders, determinations, rules, and
regulations made or issued in connection with any function transferred
by this Act, and in effect at the time of the transfer, shall continue
in effect to the same extent as if such transfer had not occurred,
until modified, superseded, or repealed.
(b) The provisions of this Act shall not affect any proceedings
pending at the time this section takes effect before any agency, or
part thereof, functions of which are transferred by this Act, but such
proceedings, to the extent that they relate to functions so transferred
shall be continued before the Office.
(c) No action or other proceeding commenced by or against any
office or agency or any officer of the United States acting in the
official capacity of such officer shall abate by reason of any transfer
made pursuant to this Act, but the court, on any motion or supplemental
petition filed at any time within twelve months after such transfer
takes effect which shows a necessity for the survival of such action or
other proceeding to obtain a settlement of the question involved, may
allow the action or proceeding to be maintained by or against the
appropriate office or agency or officer of the United States.
annual report
Sec. 11. Within six months after the end of each fiscal year, the
Director shall submit a report to the President and the Congress
concerning the activities of the Office during the preceding fiscal
year. Such report shall include the appraisal of Federal performance in
achieving equal opportunity for Hispanic Americans required under
section 4(a)(6) and recommendations for legislative action relating to
the achievement of the purposes of this Act.
offices in various executive agencies
Sec. 12. (a) The President shall establish and maintain an Office
of Hispanic American Affairs in the following Federal departments and
agencies:
(1) the Department of State;
(2) the Department of Treasury;
(3) the Department of Defense and each military department;
(4) the Department of Justice;
(5) the Department of the Interior;
(6) the Department of Agriculture;
(7) the Department of Commerce;
(8) the Department of Labor, including programs of the
Office of Federal Contract Compliance;
(9) the Department of Health and Human Services;
(10) the Department of Housing and Urban Development;
(11) the Department of Transportation;
(12) the Department of Energy;
(13) the Department of Education;
(14) the Department of Veterans' Affairs;
(15) the Office of Personnel Management;
(16) the Federal Communications Commission;
(17) the Small Business Administration;
(18) the National Aeronautics and Space Administration;
(19) the National Science Foundation;
(20) the Federal Home Loan Bank Board;
(21) the Equal Employment Opportunity Commission;
(22) the Postal Rate Commission;
(23) the Environmental Protection Agency;
(24) the General Services Administration;
(25) the United States Postal Service; and
(26) such other Federal departments or agencies as the
President may designate.
(b) Each Office of Hispanic American Affairs established under
subsection (a) shall be headed by a Special Assistant for Hispanic
American Affairs, who shall be appointed by the head of the Federal
department or agency in which the office is located. The Special
Assistant for Hispanic American Affairs designated within each
department or agency shall assist the Director in carrying out within
each department or agency the functions transferred under section 8.
(c) The Special Assistant for Hispanic American Affairs of each
department or agency may participate in all policy planning and
development for all programs of the department or agency to insure the
consideration of factors impacting on the various Hispanic communities.
The head of each Federal department or agency shall insure the
participation of the Special Assistant for Hispanic American Affairs in
the review of all pertinent and relevant rules, regulations, and
guidelines, and other management directives to assure that the laws,
policies, and practices of the Federal Government are providing equal
opportunities for Hispanics in all areas, including the areas of
education, health, housing, community development, economic
development, grant and contract procurement, and employment. The
Special Assistant for Hispanic American Affairs shall make
recommendations to the head of the Federal department or agency
concerning problems and special needs that are unique to Hispanics, and
shall be available to advise and assist Hispanic groups and individuals
who seek assistance or services from the department or agency.
duties of the secretary of commerce
Sec. 13. The Secretary of Commerce shall take necessary steps to
insure that existing information clearinghouse functions within the
Department of Commerce encompass the collection and dissemination of
information in easily accessible form concerning the social, economic,
employment, health, and housing needs and conditions of the Hispanic
population of the Nation.
ban on partisan political activities
Sec. 14. No funds authorized to carry out this Act shall be used to
finance any activities designed to influence the outcome of any
election to Federal office or any voter registration activity, or to
pay the salary of the chairperson or any employee of a political
committee after the date on which such persons engage in such activity,
as determined by the Office of Personnel Management. For the purposes
of this section, the term ``election'' has the same meaning as in
section 301(1) of the Federal Election Campaign Act of 1971 (2 U.S.C.
431(1)), the term ``Federal office'' has the same meaning as in section
301(3) of such Act (2 U.S.C. 431(3)), and the term ``political
committee'' has the same meaning as in section 301(4) of such Act (2
U.S.C. 431(4)).
limitation on contract authority
Sec. 15. The authority of the Director to enter into contracts
under this Act shall be to such extent or in such amounts as are
provided in appropriation Acts.
compensation of director
Sec. 16. Section 5316 of title 5, United States Code, is amended by
adding at the end thereof the following:
``Director, Office of Hispanic American Affairs.''.
authorization of appropriations
Sec. 17. There are authorized to be appropriated such sums as may
be necessary to carry out this Act.
effective date
Sec. 18. The provisions of this Act shall take effect upon the date
of enactment of this Act, except that the provisions of sections 8
through 10 shall take effect on the date which is 60 days after the
date of enactment of this Act or on such earlier date as the President
shall specify by Executive order.
Answer:
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Hispanic American Affairs Act of 1993 - Establishes in the Executive Office of the President the Office of Hispanic American Affairs to be headed by a Director.
Makes it the duty of the Director to advise Federal departments and agencies regarding, and assist Hispanic Americans in receiving, the various types of assistance available under law for Hispanic Americans. Requires the Director to establish a Hispanic American information clearinghouse and carry out transferred functions relating to equal employment opportunity for Hispanic Americans. Mandates annual reports by the Director to the President and the Congress appraising equal opportunities for Hispanic Americans.
Requires the President to establish an Office of Hispanic American Affairs (to be headed by a Special Assistant for Hispanic American Affairs) in various specified executive departments and agencies. Makes these Special Assistants responsible for advising and assisting American Hispanics who seek assistance or services from the department or agency.
Requires the Secretary of Commerce to take necessary steps to insure that existing information clearinghouse functions within the Department of Commerce encompass the collection and dissemination of information related to the needs of Hispanic Americans.
Authorizes appropriations.
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Instructions: In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Input: SECTION 1. SHORT TITLE.
This Act may be cited as the ``National Commemorative Events
Advisory Act''.
SEC. 2. FINDINGS.
The Congress finds that--
(1) the preparation and consideration of the multitude of
bills proposing particular days, weeks, months, or years for
recognition through Presidential proclamation unduly burdens
the Congress and consumes an inordinate amount of time;
(2) such proposals could be more efficiently considered by
a commission whose sole function would be to review proposals
for national commemorative events and to make positive or
negative recommendations thereon to the President;
(3) such a commission would streamline the process by which
such proposals are currently considered and save the Congress
considerable time and resources which could be devoted to
matters of more pressing national concern; and
(4) such a commission would better ensure the impartial
review of proposals for national commemorative events generated
by a wide variety of constituent groups.
SEC. 3. ESTABLISHMENT AND MEMBERSHIP.
(a) In General.--There shall be established a commission to be
known as the ``President's Advisory Commission on National
Commemorative Events'' (hereinafter in this Act referred to as the
``Commission'').
(b) Members.--The Commission shall be composed of 11 members, as
follows:
(1) 2 members shall be appointed by the Speaker of the
House of Representatives.
(2) 2 members shall be appointed by the President pro
tempore of the Senate.
(3) 7 members shall be appointed by the President. Members
under this paragraph shall represent, insofar as possible, a
wide range of educational, geographical, and professional
backgrounds. A Member of Congress may not be appointed under
this paragraph.
All members must be citizens of the United States.
(c) Terms.--(1) Each member shall be appointed for a term of 2
years, except as provided in paragraph (2).
(2) Of the members first appointed under subsection (b)(3)--
(A) 3 shall be appointed for 1 year, and
(B) 4 shall be appointed for 2 years,
as designated by the President.
(3) If a member was appointed to the Commission as a Member of
Congress and the member ceases to be a Member of Congress, that member
may continue as a member for not longer than the 30-day period
beginning on the date that member ceases to be a Member of Congress.
(d) Vacancies.--A vacancy shall be filled in the manner in which
the original appointment was made. A vacancy in the Commission shall
not affect its powers. Any member appointed to fill a vacancy occurring
before the expiration of the term for which the member's predecessor
was appointed shall be appointed only for the remainder of such term.
(e) Chairman.--The Chairman of the Commission shall be designated
by the President from among the members under subsection (b)(3). The
term of office of the Chairman shall be 2 years.
(f) Quorum.--6 members of the Commission shall constitute a quorum.
Action by a quorum shall be necessary for the Commission to issue a
recommendation under section 6(d).
(g) Meetings.--The Commission shall meet on at least a quarterly
basis. Meetings shall be held in the District of Columbia.
(h) Pay.--(1) Except as provided in paragraph (2), each member of
the Commission shall be paid the daily equivalent of the maximum rate
of basic pay payable for grade GS-15 of the General Schedule for each
day, including traveltime, during which such member is performing
duties of the Commission.
(2) Members of the Commission who are full-time officers or
employees of the United States or Members of Congress may not receive
additional pay by reason of their service on the Commission.
(i) Travel Expenses.--While away from their homes or regular places
of business in the performance of services for the Commission, members
of the Commission shall be allowed travel expenses, including a per
diem allowance in lieu of subsistence, in the same manner as persons
employed intermittently in the Government service are allowed travel
expenses under section 5703 of title 5 of the United States Code.
SEC. 4. DIRECTOR; STAFF.
(a) Authority.--The Commission may appoint and fix the pay of a
Director and such staff as the Commission considers appropriate.
(b) Inapplicability of Certain Civil Service Laws.--The Director
and staff of the Commission may be appointed without regard to the
provisions of title 5, United States Code, governing appointments in
the competitive service, and may be paid without regard to the
provisions of chapter 51 and subchapter III of chapter 53 of that title
relating to classification and General Schedule pay rates, except that
an individual so appointed may not receive pay in excess of the maximum
rate of basic pay payable for grade GS-15 of the General Schedule.
(c) Staff of Federal Agencies.--Upon request of the Chairman, the
head of any Federal department or agency may detail, on a reimbursable
basis, any of the personnel of that department or agency to the
Commission to assist it in carrying out its duties under this Act.
SEC. 5. POWERS OF THE COMMISSION.
(a) Hearings.--The Commission may, for the purpose of carrying out
this Act, hold such hearings, take such testimony, and receive such
evidence, as it considers appropriate.
(b) Gifts.--The Commission may accept, use, and dispose of gifts or
donations of services or property, but not from a source having a
direct interest in any matter before the Commission.
(c) Mails.--The Commission may use the United States mails in the
same manner and under the same conditions as other departments and
agencies of the United States.
(d) Administrative Support Services.--The Administrator of General
Services shall provide to the Commission, on a reimbursable basis, such
administrative support services as the Commission may request.
SEC. 6. DUTIES OF THE COMMISSION.
(a) Criteria.--The Commission shall establish criteria for
recommending to the President that a proposed commemorative event be
approved or disapproved.
(b) Submission of Proposals.--The Commission shall establish and
publish in the Federal Register procedures for submitting proposals for
national commemorative events to the Commission.
(c) Review of Proposals.--The Commission shall review all proposals
submitted to it in accordance with subsection (b).
(d) Recommendation to the President.--The Commission shall issue a
recommendation to the President for approval or disapproval of each
proposal submitted to it in accordance with subsection (b). Each
recommendation shall be accompanied by a brief explanation of the
reasons why such recommendation was made.
SEC. 7. EFFECTIVE DATE; COMMENCEMENT AND TERMINATION PROVISIONS.
(a) Effective Date.--This Act shall take effect at the beginning of
the One Hundred Third Congress.
(b) Commencement; Termination.--(1) Members of the Commission shall
be appointed, and the Commission shall first meet, within 90 days after
the effective date of this Act.
(2) The Commission shall terminate 5 years after the date on which
it first meets.
Output:
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National Commemorative Events Advisory Act - Establishes the President's Advisory Commission on National Commemorative Events to: (1) establish criteria for recommending to the President that a proposed commemorative event be approved or disapproved; (2) review proposals for national commemorative events submitted in accordance with procedures published by the Commission; and (3) issue recommendations to the President concerning each proposal reviewed.
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In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Input: Consider Input: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Orphan Works Act of 2006''.
SEC. 2. LIMITATION ON REMEDIES IN CASES INVOLVING ORPHAN WORKS.
(a) Limitation on Remedies.--Chapter 5 of title 17, United States
Code, is amended by adding at the end the following new section:
``Sec. 514. Limitation on remedies in cases involving orphan works
``(a) Limitation on Remedies.--
``(1) Conditions.--Notwithstanding sections 502 through
505, in an action brought under this title for infringement of
copyright in a work, the remedies for infringement shall be
limited under subsection (b) if the infringer sustains the
burden of proving, and the court finds, that--
``(A) before the infringing use of the work began,
the infringer, a person acting on behalf of the
infringer, or any person jointly and severally liable
with the infringer for the infringement of the work--
``(i) performed and documented a reasonably
diligent search in good faith to locate the
owner of the infringed copyright; but
``(ii) was unable to locate the owner; and
``(B) the infringing use of the work provided
attribution, in a manner reasonable under the
circumstances, to the author and owner of the
copyright, if known with a reasonable degree of
certainty based on information obtained in performing
the reasonably diligent search.
``(2) Definitions; requirements for searches.--
``(A) Owner of infringed copyright.--For purposes
of paragraph (1), the `owner' of an infringed copyright
in a work is the legal or beneficial owner of, or any
party with authority to grant or license, an exclusive
right under section 106 applicable to the infringement.
``(B) Requirements for reasonably diligent
search.--(i) For purposes of paragraph (1), a search to
locate the owner of an infringed copyright in a work--
``(I) is `reasonably diligent' only if it
includes steps that are reasonable under the
circumstances to locate that owner in order to
obtain permission for the use of the work; and
``(II) is not `reasonably diligent' solely
by reference to the lack of identifying
information with respect to the copyright on
the copy or phonorecord of the work.
``(ii) The steps referred to in clause (i)(I) shall
ordinarily include, at a minimum, review of the
information maintained by the Register of Copyrights
under subparagraph (C).
``(iii) A reasonably diligent search includes the
use of reasonably available expert assistance and
reasonably available technology, which may include, if
reasonable under the circumstances, resources for which
a charge or subscription fee is imposed.
``(C) Information to guide searches.--The Register
of Copyrights shall receive, maintain, and make
available to the public, including through the
Internet, information from authoritative sources, such
as industry guidelines, statements of best practices,
and other relevant documents, that is designed to
assist users in conducting and documenting a reasonably
diligent search under this subsection. Such information
may include--
``(i) the records of the Copyright Office
that are relevant to identifying and locating
copyright owners;
``(ii) other sources of copyright ownership
information reasonably available to users;
``(iii) methods to identify copyright
ownership information associated with a work;
``(iv) sources of reasonably available
technology tools and reasonably available
expert assistance; and
``(v) best practices for documenting a
reasonably diligent search.
``(b) Limitations on Remedies.--The limitations on remedies in a
case to which subsection (a) applies are the following:
``(1) Monetary relief.--
``(A) General rule.--Subject to subparagraph (B),
an award for monetary relief (including actual damages,
statutory damages, costs, and attorney's fees) may not
be made, other than an order requiring the infringer to
pay reasonable compensation for the use of the
infringed work.
``(B) Exceptions.--(i) An order requiring the
infringer to pay reasonable compensation for the use of
the infringed work may not be made under subparagraph
(A) if--
``(I) the infringement is performed without
any purpose of direct or indirect commercial
advantage and primarily for a charitable,
religious, scholarly, or educational purpose,
and
``(II) the infringer ceases the
infringement expeditiously after receiving
notice of the claim for infringement,
unless the copyright owner proves, and the court finds,
that the infringer has earned proceeds directly
attributable to the infringement.
``(ii) If the infringer fails to negotiate in good
faith with the owner of the infringed work regarding
the amount of reasonable compensation for the use of
the infringed work, the court may award full costs,
including a reasonable attorney's fee, against the
infringer under section 505, subject to section 412.
``(2) Injunctive relief.--
``(A) General rule.--Subject to subparagraph (B),
the court may impose injunctive relief to prevent or
restrain the infringing use, except that, if the
infringer has met the requirements of subsection (a),
the relief shall, to the extent practicable, account
for any harm that the relief would cause the infringer
due to its reliance on having performed a reasonably
diligent search under subsection (a).
``(B) Special rule for new works.--In a case in
which the infringer recasts, transforms, adapts, or
integrates the infringed work with the infringer's
original expression in a new work of authorship, the
court may not, in granting injunctive relief, restrain
the infringer's continued preparation or use of that
new work, if the infringer--
``(i) pays reasonable compensation to the
owner of the infringed copyright for the use of
the infringed work; and
``(ii) provides attribution to the owner of
the infringed copyright in a manner that the
court determines is reasonable under the
circumstances.
``(C) Treatment of parties not subject to suit.--
The limitations on remedies under this paragraph shall
not be available to an infringer that asserts in an
action under section 501(b) that neither it nor its
representative acting in an official capacity is
subject to suit in Federal court for an award of
damages to the copyright owner under section 504,
unless the court finds that such infringer has--
``(i) complied with the requirements of
subsection (a) of this section;
``(ii) made a good faith offer of
compensation that was rejected by the copyright
owner; and
``(iii) affirmed in writing its willingness
to pay such compensation to the copyright owner
upon the determination by the court that such
compensation was reasonable under paragraph (3)
of this subsection.
``(D) Construction.--Nothing in subparagraph (C)
shall be deemed to authorize or require, and no action
taken pursuant to subparagraph (C) shall be deemed to
constitute, an award of damages by the court against
the infringer.
``(E) Rights and privileges not waived.--No action
taken by an infringer pursuant to subparagraph (C)
shall be deemed to waive any right or privilege that,
as a matter of law, protects such infringer from being
subject to suit in Federal court for an award of
damages to the copyright owner under section 504.
``(3) Reasonable compensation.--In establishing reasonable
compensation under paragraph (1) or (2), the owner of the
infringed copyright has the burden of establishing the amount
on which a reasonable willing buyer and a reasonable willing
seller in the positions of the owner and the infringer would
have agreed with respect to the infringing use of the work
immediately before the infringement began.
``(c) Preservation of Other Rights, Limitations, and Defense.--This
section does not affect any right, limitation, or defense to copyright
infringement, including fair use, under this title. If another
provision of this title provides for a statutory license when the
copyright owner cannot be located, that provision applies in lieu of
this section.
``(d) Copyright for Derivative Works.--Notwithstanding section
103(a), the infringing use of a work in accordance with this section
shall not limit or affect the copyright protection for a work that uses
the infringed work.''.
(b) Conforming Amendment.--The table of sections for chapter 5 of
title 17, United States Code, is amended by adding at the end the
following new item:
``514. Limitation on remedies in cases involving orphan works''.
(c) Effective Date.--The amendments made by this section shall
apply only to infringing uses that commence on or after June 1, 2008.
SEC. 3. REPORT TO CONGRESS ON AMENDMENTS.
The Register of Copyrights shall, not later than December 12, 2014,
report to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the Senate on the
implementation and effects of the amendments made by section 2,
including any recommendations for legislative changes that the Register
considers appropriate.
SEC. 4. INQUIRY ON REMEDIES FOR SMALL COPYRIGHT CLAIMS.
(a) In General.--The Register of Copyrights shall conduct an
inquiry with respect to remedies for copyright infringement claims
seeking limited amounts of monetary relief, including consideration of
alternatives to disputes currently heard in the United States district
courts. The inquiry shall cover infringement claims to which section
514 of title 17, United States Code (as added by section 2 of this
Act), apply, and other infringement claims under title 17, United
States Code.
(b) Procedures.--The Register of Copyrights shall publish notice of
the inquiry under subsection (a), providing a period during which
interested persons may submit comments on the inquiry, and an
opportunity for interested persons to participate in public roundtables
on the inquiry. The Register shall hold the public roundtables at such
times as the Register considers appropriate.
(c) Report to Congress.--The Register of Copyrights shall, not
later than 1 year after the date of the enactment of this Act, prepare
and submit to the Committee on the Judiciary of the House of
Representatives and the Committee on the Judiciary of the Senate a
report on the inquiry conducted under this section, including such
recommendations that the Register considers appropriate.
Output: Orphan Works Act of 2006 - Limits the remedies available in a copyright infringement action if the infringer proves that: (1) the infringer performed and documented a reasonably diligent search in good faith to locate the copyright owner before using the work, but was unable to locate the owner; and (2) the infringing use of the work provided attribution to the author and owner of the copyright, if known.
Requires the Register of Copyrights to make information available from authoritative sources to assist users in conducting and documenting a reasonably diligent search.
Permits an award of reasonable compensation for the use of the infringed work, except if: (1) the infringement is performed without any commercial advantage and for primarily a charitable, religious, scholarly, or educational purpose; and (2) the infringer ceases the infringement expeditiously after receiving notice of the claim for infringement.
Allows the court to impose injunctive relief to prevent or restrain the infringing use, but such relief shall account for harm caused to the infringer due to reliance on having performed a reasonably diligent search. Prohibits the court from imposing injunctive relief that restrains the continued preparation or use of a new work that recasts, transforms, adapts, or integrates the infringed work with the infringer's original expression in a new work of authorship if the infringer pays reasonable compensation and provides attribution to the copyright owner.
Requires the Register of Copyrights to conduct an inquiry with respect to remedies for copyright infringement claims seeking limited amounts of monetary relief, including consideration of alternatives to disputes currently heard in the U.S. district courts.
Input: Consider Input: SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
This Act may be cited as the ``Wildland Firefighters Health
Protection Act''.
SEC. 2. DEFINITIONS.
For the purposes of this Act--
(1) the term ``wildland firefighter'' means an employee of
a Federal land management agency, the duties of whose position
are primarily to perform work directly related to the
prevention, control, suppression, and management of wildfires,
including--
(A) an employee of a Federal land management agency
who is assigned to support wildland fire suppression
activities; and
(B) an employee who is transferred to a supervisory
or administrative position from a position of wildland
firefighter (as defined by the preceding provisions of
this paragraph);
(2) the term ``Federal land management agency'' means--
(A) within the Department of the Interior, the
Bureau of Land Management, the Bureau of Indian
Affairs, the National Park Service, and the Fish and
Wildlife Service; and
(B) within the Department of Agriculture, the
Forest Service; and
(3) the term ``employee'' has the meaning given such term
by section 2105 of title 5, United States Code.
SEC. 3. CLASSIFICATION OF WILDLAND FIREFIGHTERS.
(a) Requirements.--
(1) In general.--Within 30 days after the date of the
enactment of this Act, the Office of Personnel Management, in
cooperation with the Federal land management agencies, shall
commence development of a separate and distinct wildland
firefighter occupational series that will more accurately
reflect the variety of duties performed by wildland
firefighters.
(2) Designation.--The official title assigned to any
occupational series established pursuant to paragraph (1) shall
include the designation of ``Wildland Firefighter''.
(3) Positions described.--Paragraph (1) applies with
respect to any class or other category of positions that
consists primarily or exclusively of forestry technician
positions, range technician positions, or any other positions
the duties and responsibilities of which include--
(A) significant wildfire preparedness and
suppression activities; or
(B) activities necessary to meet any other
emergency incident to which assigned.
(4) Consultation.--Congress encourages the Office of
Personnel Management to consult with recognized employee
organizations, employee associations, and any other groups that
represent Federal wildland firefighters in carrying out this
subsection.
(b) Hazardous Duty Differential Not Affected.--Section 5545(d)(1)
of title 5, United States Code, is amended by striking all after
``except'' and inserting an em dash and the following:
``(A) an employee in an occupational series
covering positions for which the primary duties are
wildland firefighting, as determined by the Office; and
``(B) in such other circumstances as the Office may
by regulation prescribe; and''.
(c) Employees Currently in 401 Series.--Any individual who, as of
the date of the enactment of this Act, holds a position of wildland
firefighter shall have the option of either remaining in the 401 series
(as in effect on such date under chapter 51 of title 5, United States
Code) or being included in the new wildland firefighter series, as
established pursuant to subsection (a).
SEC. 4. PAY AND BENEFITS.
(a) In General.--In the case of a wildland firefighter, for full-
time, part-time, and intermittent tours of duty, hours of work
officially ordered or approved in excess of 40 hours per week or 8
hours per day shall be considered overtime work, inclusive of all time
the firefighter is away from their official duty station assigned to an
emergency incident, in support of an emergency incident, or pre-
positioned for emergency response, and shall be compensable as work
time in accordance with section 5542(a) of title 5, United States Code,
as amended by subsection (b)(1).
(b) Requirements.--
(1) Amendment to title 5.--Section 5542(a) of title 5,
United States Code, is amended by adding at the end (as a flush
left sentence) the following:
``Notwithstanding paragraphs (1) and (2), for a wildland firefighter
assigned to an emergency incident, assigned in support of an emergency
incident, or pre-positioned for emergency response, the overtime hourly
rate of pay is an amount equal to one and one-half times the hourly
rate of the basic pay of the employee, and that entire amount is
premium pay.''.
(2) Fair labor standards act of 1938.--For the purpose of
applying the provisions of the Fair Labor Standards Act of 1938
(29 U.S.C. 201, et seq.) with respect to wildland firefighters,
no violation referred to in such provisions shall be considered
to have occurred if the requirements described in paragraph (1)
are met.
(c) Portal-to-Portal Compensation Pilot Program.--
(1) Funding.--There is authorized to be appropriated
$25,000,000 to initiate a portal-to-portal pilot program under
this subsection, commencing with the 2013 wildfire season. Any
sums required in addition to amounts appropriated pursuant to
the preceding sentence may be secured from the existing
wildfire suppression budget for the fiscal year in which the
season occurs.
(2) Duration.--The pilot program shall be carried out by
the Department of the Interior and the Department of
Agriculture for a period not to exceed 3 calendar years
beginning as of the start of the 2013 wildfire season.
(3) Report.--No later than 90 days after the completion of
the pilot program, the Secretary of the Interior and the
Secretary of Agriculture shall submit to Congress a joint
report on the effectiveness of the pilot program. Such report
shall address the effect of the program with respect to--
(A) recruitment and retention of wildland
firefighters; and
(B) any cost savings.
(4) Additional requirements.--To ensure adequate funding
and to realize maximum wildfire suppression savings, the
Secretary of the Interior and the Secretary of Agriculture
shall take appropriate measures to ensure that total funding
for non-Federal fire suppression personnel and other resources,
by their respective Departments--
(A) for the first year of the pilot program, do not
exceed 90 percent of their combined non-Federal fire
suppression costs for the 2011 and 2012 wildfire
seasons;
(B) for the second year of the pilot program, do
not exceed 75 percent of their combined non-Federal
fire suppression costs for the 2011 and 2012 wildfire
seasons; and
(C) for the third year of the pilot program, do not
exceed 65 percent of their combined non-Federal fire
suppression costs for the 2011 and 2012 wildfire
seasons.
(d) Hazardous Duty Differential To Be Treated as Part of a Wildland
Firefighter's Base Pay for Retirement Purposes.--
(1) In general.--Section 8331(3) of title 5, United States
Code is amended--
(A) in subparagraph (G), by striking ``and'' at the
end;
(B) in subparagraph (H), by inserting ``and'' at
the end; and
(C) by adding after subparagraph (H) the following:
``(I) with respect to a wildland firefighter (as
defined by section 2 of the Wildland Firefighters
Health Protection Act), any pay differential received
under section 5545(d);''.
(2) Conforming amendment.--Such section 8331(3) is further
amended, in the matter following subparagraph (I) (as added by
paragraph (1)(C)), by striking ``subparagraphs (B) through (H)
of this paragraph'' and inserting ``subparagraphs (B) through
(I),''.
(e) Hazardous Duty Differential.--
(1) In general.--In the administration of section 5545(d)
of title 5, United States Code, the Office of Personnel
Management shall take such measures as may be necessary to
ensure that, under the schedule or schedules of pay
differentials for duty involving unusual physical hardship or
hazard, a pay differential of 25 percent shall be payable to an
individual while serving as a member of a wildland firefighting
crew.
(2) Definition.--For purposes of this subsection, the term
``wildland firefighting crew'' includes ground (hand crew,
hotshot, engine, and other fire apparatus personnel) and
airborne (smoke jumper or helitack) firefighting personnel on
the fire line of any wildfire or prescribed fuel treatment burn
or fire, as further defined in regulations of the Office of
Personnel Management.
(f) Benefits for Seasonal Wildland Firefighters.--
(1) Provisions relating to life insurance.--Section 8716(b)
of title 5, United States Code, is amended--
(A) in paragraph (2), by striking ``or'' at the
end;
(B) in paragraph (3), by striking the period at the
end and inserting ``; or''; and
(C) by adding after paragraph (3) the following:
``(4) a wildland firefighter within the meaning of section
2 of the Wildland Firefighters Health Protection Act.''.
(2) Provisions relating to health benefits.--Section
8913(b) of title 5, United States Code, is amended--
(A) in paragraph (3), by striking ``or'' at the
end;
(B) in paragraph (4), by striking the period at the
end and inserting ``; or''; and
(C) by adding after paragraph (4) the following:
``(5) a wildland firefighter within the meaning of section
2 of the Wildland Firefighters Health Protection Act.''.
(g) Buy Back of Civilian Time After 1989.--
(1) In general.--Any individual who is subject to the
Federal Employees' Retirement System as a firefighter (within
the meaning of section 8401 of title 5, United States Code) on
the date of the enactment of this Act shall be entitled to have
any qualifying firefighter service treated as creditable
service under section 8411 of such title.
(2) Qualifying firefighter service.--For purposes of this
subsection, the term ``qualifying firefighter service'' means,
in connection with an individual, any service--
(A) which was performed by such individual, as a
wildland firefighter, after 1989 and before the date of
the enactment of this Act; and
(B) for which such individual was not allowed to
receive retirement credit by reason of section 8347(g)
or 8402(c) of such title 5.
(3) Deposit requirement.--Credit for a period of service
may not be given under this subsection unless the individual
involved makes a deposit, in such manner as the Office of
Personnel Management may by regulation require, equal to the
employee contributions that would have been required (in the
case of a firefighter) for such period under section 8334(c) or
8422(a) of such title 5, with interest.
(4) Certification.--The Office of Personnel Management
shall accept the certification of the Secretary of the Interior
or the Secretary of Agriculture, as the case may be, concerning
whether an individual performed qualifying firefighter service
and the length of the period of such service the individual
performed.
Output: Wildland Firefighters Health Protection Act - Defines "wildland firefighter" as an employee of a federal land management agency who performs work directly related to the prevention, control, suppression, and management of wildfires, including an employee who is assigned to support wildland fire suppression activities and an employee who is transferred to a supervisory or administrative position.
Directs the Office of Personnel Management (OPM), in cooperation with such agencies, to commence development of a separate wildland firefighter occupational series that will more accurately reflect the variety of duties performed.
Requires a wildland firefighter's hours of work officially ordered or approved in excess of 40 hours per week or 8 hours per day to be considered overtime work. Makes time the firefighter is away from his or her official duty station assigned to an emergency incident, in support of an emergency incident, or pre-positioned for emergency response compensable as work time. Includes hazardous duty differentials as basic pay for retirement purposes.
Prohibits OPM from excluding wildland firefighters from federal employees' group life insurance (FEGLI) and from federal health care benefits.
Input: Consider Input: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protect Our Workers from
Exploitation and Retaliation Act'' or the ``POWER Act''.
SEC. 2. VICTIMS OF SERIOUS LABOR AND EMPLOYMENT VIOLATIONS OR CRIME.
(a) Protection for Victims of Labor and Employment Violations.--
Section 101(a)(15)(U) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(15)(U)) is amended--
(1) in clause (i)--
(A) by amending subclause (I) to read as follows:
``(I) the alien--
``(aa) has suffered substantial
abuse or harm as a result of having
been a victim of criminal activity
described in clause (iii);
``(bb) has suffered substantial
abuse or harm related to a violation
described in clause (iv);
``(cc) is a victim of criminal
activity described in clause (iii) and
would suffer extreme hardship upon
removal; or
``(dd) has suffered a violation
described in clause (iv) and would
suffer extreme hardship upon
removal;'';
(B) in subclause (II), by inserting ``, or a labor
or employment violation resulting in a workplace claim
described in clause (iv)'' before the semicolon at the
end;
(C) in subclause (III)--
(i) by striking ``or State judge, to the
Service'' and inserting ``, State, or local
judge, to the Department of Homeland Security,
to the Equal Employment Opportunity Commission,
to the Department of Labor, to the National
Labor Relations Board''; and
(ii) by inserting ``, or investigating,
prosecuting, or seeking civil remedies for a
labor or employment violation related to a
workplace claim described in clause (iv)''
before the semicolon at the end; and
(D) in subclause (IV)--
(i) by inserting ``(aa)'' after ``(IV)'';
and
(ii) by adding at the end the following:
``or
``(bb) a workplace claim described in
clause (iv) resulted from a labor or employment
violation;'';
(2) in clause (ii)(II), by striking ``and'' at the end;
(3) in clause (iii), by striking ``or'' at the end and
inserting ``and''; and
(4) by adding at the end the following:
``(iv) in the labor or employment violation related
to a workplace claim, the alien--
``(I) has filed, is a material witness in,
or is likely to be helpful in the investigation
of, a bona fide workplace claim (as defined in
section 274A(e)(10)(C)(iii)(II)); and
``(II) reasonably fears, has been
threatened with, or has been the victim of, an
action involving force, physical restraint,
retaliation, or abuse of the immigration or
other legal process against the alien or
another person by the employer in relation to
acts underlying the workplace claim or related
to the filing of the workplace claim; or''.
(b) Temporary Protection for Victims of Crime, Labor, and
Employment Violations.--Notwithstanding any other provision of law, the
Secretary of Homeland Security may permit an alien to temporarily
remain in the United States and grant the alien employment
authorization if the Secretary determines that the alien--
(1) has filed for relief under section 101(a)(15)(U) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(U)); or
(2)(A) has filed, or is a material witness to, a bona fide
workplace claim (as defined in section 274A(e)(10)(B)(iii)(II)
of such Act, as added by section 3(b)); and
(B) has been helpful, is being helpful, or is likely to be
helpful to--
(i) a Federal, State, or local law enforcement
official;
(ii) a Federal, State, or local prosecutor;
(iii) a Federal, State, or local judge;
(iv) the Department of Homeland Security;
(v) the Equal Employment Opportunity Commission;
(vi) the Department of Labor;
(vii) the National Labor Relations Board; or
(viii) other Federal, State, or local authorities
investigating, prosecuting, or seeking civil remedies
related to the workplace claim.
(c) Conforming Amendments.--Section 214(p) of the Immigration and
Nationality Act (8 U.S.C. 1184(p)) is amended--
(1) in paragraph (1), by inserting ``or investigating,
prosecuting, or seeking civil remedies for workplace claims
described in section 101(a)(15)(U)(iv)'' after ``section
101(a)(15)(U)(iii)'' each place such term appears;
(2) in paragraph (2)(A), by striking ``10,000'' and
inserting ``30,000''; and
(3) in paragraph (6)--
(A) by inserting ``or workplace claims described in
section 101(a)(15)(U)(iv)'' after ``described in
section 101(a)(15)(U)(iii)''; and
(B) by inserting ``or workplace claim'' after
``prosecution of such criminal activity''.
(d) Adjustment of Status for Victims of Crimes.--Section 245(m)(1)
of the Immigration and Nationality Act (8 U.S.C. 1255(m)(1)) is amended
by inserting ``or an investigation or prosecution regarding a workplace
claim'' after ``prosecution''.
(e) Change of Nonimmigrant Classification.--Section 384(a)(1) of
the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(8 U.S.C. 1367(a)(1)) is amended--
(1) in subparagraph (E), by striking ``physical or mental
abuse and the criminal activity'' and inserting ``abuse and the
criminal activity or workplace claim'';
(2) in subparagraph (F), by adding ``or'' at the end; and
(3) by inserting after subparagraph (F) the following:
``(G) the alien's employer,''.
SEC. 3. LABOR ENFORCEMENT ACTIONS.
(a) Removal Proceedings.--Section 239(e) of the Immigration and
Nationality Act (8 U.S.C. 1229(e)) is amended--
(1) in paragraph (1)--
(A) by striking ``In cases where'' and inserting
``If''; and
(B) by inserting ``or as a result of information
provided to the Department of Homeland Security in
retaliation against individuals for exercising or
attempting to exercise their employment rights or other
legal rights'' after ``paragraph (2)''; and
(2) in paragraph (2), by adding at the end the following:
``(C) At a facility about which a workplace claim
has been filed or is contemporaneously filed.''.
(b) Unlawful Employment of Aliens.--Section 274A(e) of the
Immigration and Nationality Act (8 U.S.C. 1324a(e)) is amended by
adding at the end the following:
``(10) Conduct in enforcement actions.--
``(A) Enforcement action.--If the Department of
Homeland Security undertakes an enforcement action at a
facility about which a workplace claim has been filed
or is contemporaneously filed, or as a result of
information provided to the Department in retaliation
against employees for exercising their rights related
to a workplace claim, the Department shall ensure
that--
``(i) any aliens arrested or detained who
are necessary for the investigation or
prosecution of workplace claim violations or
criminal activity (as described in subparagraph
(T) or (U) of section 101(a)(15)) are not
removed from the United States until after the
Department--
``(I) notifies the appropriate law
enforcement agency with jurisdiction
over such violations or criminal
activity; and
``(II) provides such agency with
the opportunity to interview such
aliens; and
``(ii) no aliens entitled to a stay of
removal or abeyance of removal proceedings
under this section are removed.
``(B) Protections for victims of crime, labor, and
employment violations.--
``(i) Stay of removal or abeyance of
removal proceedings.--An alien against whom
removal proceedings have been initiated under
chapter 4 of title II, who has filed a
workplace claim, who is a material witness in
any pending or anticipated proceeding involving
a bona fide workplace claim, or who has filed
for relief under section 101(a)(15)(U), shall
be entitled to a stay of removal or an abeyance
of removal proceedings and to employment
authorization until the resolution of the
workplace claim or the denial of relief under
section 101(a)(15)(U) after exhaustion of
administrative appeals, whichever is later,
unless the Department establishes, by a
preponderance of the evidence in proceedings
before the immigration judge presiding over
that alien's removal hearing, that--
``(I) the alien has been convicted
of a felony; or
``(II) the workplace claim was
filed in bad faith with the intent to
delay or avoid the alien's removal.
``(ii) Duration.--Any stay of removal or
abeyance of removal proceedings and employment
authorization issued pursuant to clause (i)
shall remain valid until the resolution of the
workplace claim or the denial of relief under
section 101(a)(15)(U) after the exhaustion of
administrative appeals, and shall be extended
by the Secretary of Homeland Security for a
period of not longer than 3 additional years
upon determining that--
``(I) such relief would enable the
alien asserting a workplace claim to
pursue the claim to resolution;
``(II) the deterrent goals of any
statute underlying a workplace claim
would be served; or
``(III) such extension would
otherwise further the interests of
justice.
``(iii) Definitions.--In this paragraph:
``(I) Material witness.--
Notwithstanding any other provision of
law, the term `material witness' means
an individual who presents a
declaration from an attorney
investigating, prosecuting, or
defending the workplace claim or from
the presiding officer overseeing the
workplace claim attesting that, to the
best of the declarant's knowledge and
belief, reasonable cause exists to
believe that the testimony of the
individual will be relevant to the
outcome of the workplace claim.
``(II) Workplace claim.--The term
`workplace claim' means any written or
oral claim, charge, complaint, or
grievance filed with, communicated to,
or submitted to the employer, a
Federal, State, or local agency or
court, or an employee representative
related to the violation of applicable
Federal, State, and local labor laws,
including laws concerning wages and
hours, labor relations, family and
medical leave, occupational health and
safety, civil rights, or
nondiscrimination.''.
SEC. 4. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out this Act and the amendments made by this Act.
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Output: Protect Our Workers from Exploitation and Retaliation Act or the POWER Act This bill amends the Immigration and Nationality Act to expand the nonimmigrant U-visa category (crime victims and their immediate family members) to include an alien who: has suffered substantial abuse or harm resulting from a workplace violation claim; is a victim of specified criminal activity or a workplace violation and would suffer extreme hardship upon removal; has been helpful in a workplace violation investigation; or has filed, is a material witness in, or is likely to be helpful in the investigation of, a workplace claim and reasonably fears, or has been the victim of, employer retaliation. An alien who is a material witness in a workplace claim and who has been helpful in a related law enforcement action may remain and work temporarily in the United States. In a Department of Homeland Security workplace enforcement action a detained alien: (1) who is necessary as a witness shall not be removed until the appropriate law enforcement agency is notified and has an opportunity to interview such individual, and (2) who is entitled to a stay or abeyance of removal shall not be removed. An alien in removal proceedings who is a witness in a workplace claim or who has filed for U-visa status shall be entitled to a stay or abeyance of removal and permitted to work until the claim's disposition unless the alien has been convicted of a felony or filed a bad faith claim.
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Definition: In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Input: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Armed Forces Tax Fairness Act of
2002''.
SEC. 2. SPECIAL RULE FOR MEMBERS OF UNIFORMED SERVICES AND FOREIGN
SERVICE IN DETERMINING EXCLUSION OF GAIN FROM SALE OF
PRINCIPAL RESIDENCE.
(a) In General.--Subsection (d) of section 121 of the Internal
Revenue Code of 1986 (relating to exclusion of gain from sale of
principal residence) is amended by adding at the end the following new
paragraph:
``(10) Members of uniformed services and foreign service.--
``(A) In general.--At the election of an individual
with respect to a property, the running of the 5-year
period described in subsection (a) with respect to such
property shall be suspended during any period that such
individual or such individual's spouse is serving on
qualified official extended duty as a member of the
uniformed services or of the Foreign Service.
``(B) Maximum period of suspension.--The 5-year
period described in subsection (a) shall not be
extended more than 5 years by reason of subparagraph
(A).
``(C) Qualified official extended duty.--For
purposes of this paragraph--
``(i) In general.--The term `qualified
official extended duty' means any extended duty
while serving at a duty station which is at
least 150 miles from such property or while
residing under Government orders in Government
quarters.
``(ii) Uniformed services.--The term
`uniformed services' has the meaning given such
term by section 101(a)(5) of title 10, United
States Code, as in effect on the date of the
enactment of this paragraph.
``(iii) Foreign service.--The term `member
of the Foreign Service' has the meaning given
the term `member of the Service' by paragraph
(1), (2), (3), (4), or (5) of section 103 of
the Foreign Service Act of 1980, as in effect
on the date of the enactment of this paragraph.
``(iv) Extended duty.--The term `extended
duty' means any period of active duty pursuant
to a call or order to such duty for a period in
excess of 180 days or for an indefinite period.
``(D) Special rules relating to election.--
``(i) Election limited to 1 property at a
time.--An election under subparagraph (A) with
respect to any property may not be made if such
an election is in effect with respect to any
other property.
``(ii) Revocation of election.--An election
under subparagraph (A) may be revoked at any
time.''.
(b) Effective Date; Special Rule.--
(1) Effective date.--The amendment made by this section
shall take effect as if included in the amendments made by
section 312 of the Taxpayer Relief Act of 1997.
(2) Waiver of limitations.--If refund or credit of any
overpayment of tax resulting from the amendment made by this
section is prevented at any time before the close of the 1-year
period beginning on the date of the enactment of this Act by
the operation of any law or rule of law (including res
judicata), such refund or credit may nevertheless be made or
allowed if claim therefor is filed before the close of such
period.
SEC. 3. RESTORATION OF FULL EXCLUSION FROM GROSS INCOME OF DEATH
GRATUITY PAYMENT.
(a) In General.--Subsection (b)(3) of section 134 of the Internal
Revenue Code of 1986 (relating to certain military benefits) is amended
by adding at the end the following new subparagraph:
``(C) Exception for death gratuity adjustments made
by law.--Subparagraph (A) shall not apply to any
adjustment to the amount of death gratuity payable
under chapter 75 of title 10, United States Code, which
is pursuant to a provision of law enacted before
December 31, 1991.''.
(b) Conforming Amendment.--Subparagraph (A) of section 134(b)(3) of
such Code is amended by striking ``subparagraph (B)'' and inserting
``subparagraphs (B) and (C)''.
(c) Effective Date.--The amendments made by this section shall
apply with respect to deaths occurring after September 10, 2001.
SEC. 4. EXCLUSION FOR AMOUNTS RECEIVED UNDER DEPARTMENT OF DEFENSE
HOMEOWNERS ASSISTANCE PROGRAM.
(a) In General.--Section 132(a) of the Internal Revenue Code of
1986 (relating to the exclusion from gross income of certain fringe
benefits) is amended by striking ``or'' at the end of paragraph (6), by
striking the period at the end of paragraph (7) and inserting ``, or''
and by adding at the end the following new paragraph:
``(8) qualified military base realignment and closure
fringe.''.
(b) Qualified Military Base Realignment and Closure Fringe.--
Section 132 of such Code is amended by redesignating subsection (n) as
subsection (o) and by inserting after subsection (m) the following new
subsection:
``(n) Qualified Military Base Realignment and Closure Fringe.--For
purposes of this section, the term `qualified military base realignment
and closure fringe' means 1 or more payments under the authority of
section 1013 of the Demonstration Cities and Metropolitan Development
Act of 1966 (42 U.S.C. 3374) to offset the adverse effects on housing
values as a result of a military base realignment or closure.''.
(c) Effective Date.--The amendments made by this section shall
apply to payments made after the date of the enactment of this Act.
SEC. 5. EXPANSION OF COMBAT ZONE FILING RULES TO CONTINGENCY
OPERATIONS.
(a) In General.--Section 7508(a) of the Internal Revenue Code of
1986 (relating to time for performing certain acts postponed by reason
of service in combat zone) is amended--
(1) by inserting ``or when deployed outside the United
States away from the individual's permanent duty station while
participating in an operation designated by the Secretary of
Defense as a contingency operation (as defined in section
101(a)(13) of title 10, United States Code) or which became
such a contingency operation by operation of law'' after
``section 112'',
(2) by inserting in the first sentence ``or at any time
during the period of such contingency operation'' after ``for
purposes of such section'',
(3) by inserting ``or operation'' after ``such an area'',
and
(4) by inserting ``or operation'' after ``such area''.
(b) Conforming Amendments.--
(1) Section 7508(d) of such Code is amended by inserting
``or contingency operation'' after ``area''.
(2) The heading for section 7508 of such Code is amended by
inserting ``or contingency operation'' after ``combat zone''.
(3) The item relating to section 7508 of such Code in the
table of sections for chapter 77 is amended by inserting ``or
contingency operation'' after ``combat zone''.
(c) Effective Date.--The amendments made by this section shall
apply to any period for performing an act which has not expired before
the date of the enactment of this Act.
SEC. 6. MODIFICATION OF MEMBERSHIP REQUIREMENT FOR EXEMPTION FROM TAX
FOR CERTAIN VETERANS' ORGANIZATIONS.
(a) In General.--Subparagraph (B) of section 501(c)(19) of the
Internal Revenue Code of 1986 (relating to list of exempt
organizations) is amended by striking ``or widowers'' and inserting ``,
widowers, or ancestors or lineal descendants''.
(b) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after the date of the enactment of
this Act.
SEC. 7. CLARIFICATION OF THE TREATMENT OF CERTAIN DEPENDENT CARE
ASSISTANCE PROGRAMS.
(a) In General.--Section 134(b) of the Internal Revenue Code of
1986 (defining qualified military benefit) is amended by adding at the
end the following new paragraph:
``(4) Clarification of certain benefits.--For purposes of
paragraph (1), such term includes any dependent care assistance
program (as in effect on the date of the enactment of this
paragraph) for any individual described in paragraph (1)(A).''.
(b) Conforming Amendments.--
(1) Section 134(b)(3)(A) of such Code (as amended by
section 3) is further amended by inserting ``and paragraph
(4)'' after ``subparagraphs (B) and (C)''.
(2) Section 3121(a)(18) of such Code is amended by striking
``or 129'' and inserting ``, 129, or 134(b)(4)''.
(3) Section 3306(b)(13) of such Code is amended by striking
``or 129'' and inserting ``, 129, or 134(b)(4)''.
(4) Section 3401(a)(18) of such Code is amended by striking
``or 129'' and inserting ``, 129, or 134(b)(4)''.
(c) Effective Date.--The amendments made by this section shall
apply to taxable years beginning after December 31, 2001.
(d) No Inference.--No inference may be drawn from the amendments
made by this section with respect to the tax treatment of any amounts
under the program described in section 134(b)(4) of the Internal
Revenue Code of 1986 (as added by this section) for any taxable year
beginning before January 1, 2002.
SEC. 8. PROTECTION OF SOCIAL SECURITY.
The amounts transferred to any trust fund under title II of the
Social Security Act shall be determined as if this Act had not been
enacted.
Passed the House of Representatives October 9, 2002.
Attest:
Clerk.
107th CONGRESS
2d Session
H. R. 5557
_______________________________________________________________________
AN ACT
To amend the Internal Revenue Code of 1986 to provide a special rule
for members of the uniformed services and Foreign Service in
determining the exclusion of gain from the sale of a principal
residence and to restore the tax exempt status of death gratuity
payments to members of the uniformed services, and for other purposes.
Output:
|
Armed Forces Tax Fairness Act of 2002 - (Sec. 2) Amends the Internal Revenue Code (the Code) to suspend, for members of the uniformed services or of the Foreign Service serving on "qualified official extended duty" (any extended duty while serving at a duty station which is at least 150 miles from the principal residence or while residing under Government orders in Government quarters), the five-year period utilized in determining exclusion of gain from the sale of such residence. Limits the extension of such period to not more than five years.(Sec. 3) Restores in full the tax-exempt status of death gratuity payments to members of the armed services.(Sec. 4) Excludes from gross income any fringe benefit qualifying as a "qualified military base realignment and closure fringe."(Sec. 5) Expands the applicability of rules concerning time for the performance of certain acts under the Code (filing, payment, and etc.) which may be postponed because of service in a combat zone to include service away from a service member's permanent duty station while participating in an operation designated by the Secretary of Defense as a contingency operation.(Sec. 6) Permits ancestors and lineal descendants of past or present members of the armed forces to be taken into account in determining whether a veterans' organization is exempt from tax.(Sec. 7) Includes dependent care assistance within the definition of a qualified military benefit which shall be excluded from gross income, thus excluding such assistance from gross income for uniformed service members and former members.(Sec. 8) Exempts distributions from an education individual retirement account from the ten percent additional tax for non-educational use: (1) if made for an account holder at the United States Military Academy, the United States Naval Academy, the United States Air Force Academy, the United States Coast Guard Academy, or the United States Merchant Marine Academy; and (2) to the extent that the distribution does not exceed the costs of advanced education.(Sec. 9) Suspends the tax-exempt status of a designated terrorist organization (as defined by this Act). Denies: (1) deductions for contributions made to such an organization; and (2) administrative or judicial challenge to such suspension or denial. Provides for refund or credit in a case of erroneous designation.(Sec. 10) Provides a business or trade deduction of up to $1,500 for itemizers and non-itemizers for unreimbursed overnight travel, meals, and lodging expenses of National Guard and Reserve members who must travel more than 100 miles from home and stay overnight as part of their official duties.(Sec. 11) Directs the Internal Revenue Service (IRS) to establish user fees for ruling letters, opinion letters, determination letters, and similar requests. Exempts certain pension plan requests. Sets forth average fee determination provisions.(Sec. 12) Authorizes the IRS to enter into partial payment installment agreements with taxpayers.Requires review of such agreements at least every two years.
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task1658_billsum_summarization
|
NIv2
|
zs_opt
| 2
|
train
|
In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Q: SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ensuring Fairness for Fishermen
Act''.
SEC. 2. PAYMENT OF COSTS, FEES, AND EXPENSES INCURRED BY CERTAIN
PREVAILING PARTIES.
(a) Use of Sums Received as Fines, Penalties, and Forfeitures.--
Section 311(e) of the Magnuson-Stevens Fishery Conservation and
Management Act (16 U.S.C. 1861(e)) is amended--
(1) by redesignating paragraph (2) as paragraph (3) and
moving such paragraph 2 ems to the left, so that the left
margin of such paragraph is aligned with the left margin of
such section; and
(2) by inserting after paragraph (1) the following new
paragraph:
``(2)(A) Payment shall be made from the sums described in paragraph
(1) in the case of any amount awarded--
``(i) under section 504 of title 5, United States Code, to
a prevailing party other than the United States in an
adjudication by the Secretary under section 308 of this Act,
notwithstanding any provision to the contrary in such section
504;
``(ii) under section 2412 of title 28, United States Code,
to a prevailing party other than the United States--
``(I) in a civil action for review of action by the
Secretary in an adjudication under section 308 of this
Act, notwithstanding any provision to the contrary in
such section 2412; or
``(II) in a civil forfeiture action under section
310 of this Act, notwithstanding any provision to the
contrary in such section 2412; and
``(iii) under subsection (d) of section 309 of this Act to
a defendant who is a substantially prevailing party in a
criminal action under such section.
``(B) If the sums described in paragraph (1) available to the
Secretary or the Secretary of the Treasury on the date of the award of
an amount described in subparagraph (A) are not sufficient to pay the
full amount awarded, payment shall be made under such subparagraph to
the extent of the availability of such sums, and the remainder of the
amount shall be paid--
``(i) in the case of an award described in clause (i),
(ii)(I), or (ii)(II) of such subparagraph, as provided under
section 504 of title 5 or section 2412 of title 28, United
States Code, as the case may be, without regard to this
paragraph; or
``(ii) in the case of an award described in clause (iii) of
such subparagraph, out of any general appropriation for payment
of judgments against the United States.''.
(b) Attorney Fees of Substantially Prevailing Criminal
Defendants.--Section 309 of such Act (16 U.S.C. 1859) is amended by
adding at the end the following new subsection:
``(d) Attorney Fees of Substantially Prevailing Defendants.--A
defendant who is a substantially prevailing party in a criminal action
under this section may be awarded reasonable attorney fees.''.
SEC. 3. CERTAIN USES OF SUMS RECEIVED AS FINES, PENALTIES, AND
FORFEITURES NO LONGER AUTHORIZED.
(a) In General.--Section 311(e)(1) of the Magnuson-Stevens Fishery
Conservation and Management Act (16 U.S.C. 1861(e)(1)) is amended--
(1) by striking subparagraph (B);
(2) by striking subparagraph (C); and
(3) by striking subparagraph (F).
(b) Conforming Amendments.--Such section is further amended--
(1) in subparagraph (D)--
(A) by adding ``and'' at the end; and
(B) by redesignating such subparagraph as
subparagraph (B); and
(2) in subparagraph (E)--
(A) by striking ``; and'' and inserting a period;
(B) by redesignating such subparagraph as
subparagraph (C); and
(C) by moving such subparagraph 2 ems to the left,
so that the left margin of such subparagraph is aligned
with the left margin of subparagraph (B), as
redesignated by paragraph (1)(B).
SEC. 4. EFFECTIVE DATE.
(a) In General.--Except as otherwise provided, the amendments made
by this Act take effect on the date of the enactment of this Act.
(b) Attorney Fees of Substantially Prevailing Criminal
Defendants.--
(1) In general.--The amendment made by section 2(b) applies
with respect to criminal actions brought on or after the date
of the enactment of this Act.
(2) Payment in case of pre-enactment criminal actions
brought after establishment of asset forfeiture fund.--
(A) In general.--Not later than 180 days after the
date of the enactment of this Act, the Secretary of
Commerce shall establish a process for making payments
from the amount set aside under subparagraph (B) of
reasonable attorney fees to defendants who are
substantially prevailing parties in criminal actions
brought under section 309 of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C.
1859) during the period beginning on November 28, 1990,
and ending on the day before the date of the enactment
of this Act. Such process shall--
(i) require application by a defendant
seeking such a payment; and
(ii) provide for the proration of such
payments if the amount so set aside is
insufficient to provide for payment of all such
fees for all such defendants.
(B) Funds set aside.--Not later than 180 days after
the date of the enactment of this Act, from the sums
described in section 311(e)(1) of the Magnuson-Stevens
Fishery Conservation and Management Act (16 U.S.C.
1861(e)(1)) that the Secretary of Commerce determines
are available, the Secretary shall set aside an amount
the Secretary considers fair and appropriate to be used
for payments under this paragraph.
(c) Certain Uses of Sums Received as Fines, Penalties, and
Forfeitures No Longer Authorized.--
(1) Rewards for provision of information.--The amendment
made by section 3(a)(1) does not apply to payment of rewards
for information that was provided before the date of the
enactment of this Act.
(2) Investigation and enforcement expenses.--The amendment
made by section 3(a)(2) does not apply to payment of expenses
incurred before the date of the enactment of this Act.
(3) Reimbursement to federal and state agencies.--The
amendment made by section 3(a)(3) does not apply to payment of
reimbursements under agreements entered into before the date of
the enactment of this Act.
A:
|
Ensuring Fairness for Fishermen Act - Amends the Magnuson-Stevens Fishery Conservation and Management Act to require the payment of costs, fees, and expenses incurred by certain prevailing parties in proceedings under such Act from sums received as fines, penalties, and forfeitures.
Directs the Secretary of Commerce to establish a process for paying attorneys' fees to defendants who are substantially prevailing parties in criminal actions brought under such Act during the period beginning on November 28, 1990, and ending on the day before the date of the enactment of this Act.
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task1658_billsum_summarization
|
NIv2
|
zs_opt
| 4
|
test
|
Part 1. Definition
In this task, you are given text for US Congressional and California state bills, your task is to generate a summary for this bill.
Part 2. Example
SECTION 1. LIABILITY OF BUSINESS ENTITIES PROVIDING USE OF FACILITIES
TO NONPROFIT ORGANIZATIONS.
(a) Definitions.--In this section:
(1) Business entity.--The term ``business entity'' means a
firm, corporation, association, partnership, consortium, joint
venture, or other form of enterprise.
(2) Facility.--The term ``facility'' means any real
property, including any building, improvement, or appurtenance.
(3) Gross negligence.--The term ``gross negligence'' means
voluntary and conscious conduct by a person with knowledge (at
the time of the conduct) that the conduct is likely to be
harmful to the health or well-being of another person.
(4) Intentional misconduct.--The term ``intentional
misconduct'' means conduct by a person with knowledge (at the
time of the conduct) that the conduct is harmful to the health
or well-being of another person.
(5) Nonprofit organization.--The term ``nonprofit
organization'' means--
(A) any organization described in section 501(c)(3)
of the Internal Revenue Code of 1986 and exempt from
tax under section 501(a) of such Code; or
(B) any not-for-profit organization organized and
conducted for public benefit and operated primarily for
charitable, civic, educational, religious, welfare, or
health purposes.
(6) State.--The term ``State'' means each of the several
States, the District of Columbia, the Commonwealth of Puerto
Rico, the Virgin Islands, Guam, American Samoa, the Northern
Mariana Islands, any other territory or possession of the
United States, or any political subdivision of any such State,
territory, or possession.
(b) Limitation on Liability.--
(1) In general.--Subject to subsection (c), a business
entity shall not be subject to civil liability relating to any
injury or death occurring at a facility of the business entity
in connection with a use of such facility by a nonprofit
organization if--
(A) the use occurs outside of the scope of business
of the business entity;
(B) such injury or death occurs during a period
that such facility is used by the nonprofit
organization; and
(C) the business entity authorized the use of such
facility by the nonprofit organization.
(2) Application.--This subsection shall apply--
(A) with respect to civil liability under Federal
and State law; and
(B) regardless of whether a nonprofit organization
pays for the use of a facility.
(c) Exception for Liability.--Subsection (b) shall not apply to an
injury or death that results from an act or omission of a business
entity that constitutes gross negligence or intentional misconduct,
including any misconduct that--
(1) constitutes a crime of violence (as that term is
defined in section 16 of title 18, United States Code) or act
of international terrorism (as that term is defined in section
2331 of title 18) for which the defendant has been convicted in
any court;
(2) constitutes a hate crime (as that term is used in the
Hate Crime Statistics Act (28 U.S.C. 534 note));
(3) involves a sexual offense, as defined by applicable
State law, for which the defendant has been convicted in any
court; or
(4) involves misconduct for which the defendant has been
found to have violated a Federal or State civil rights law.
(d) Superseding Provision.--
(1) In general.--Subject to paragraph (2) and subsection
(e), this Act preempts the laws of any State to the extent that
such laws are inconsistent with this Act, except that this Act
shall not preempt any State law that provides additional
protection from liability for a business entity for an injury
or death with respect to which conditions under subparagraphs
(A) through (C) of subsection (b)(1) apply.
(2) Limitation.--Nothing in this Act shall be construed to
supersede any Federal or State health or safety law.
(e) Election of State Regarding Nonapplicability.--This Act shall
not apply to any civil action in a State court against a business
entity in which all parties are citizens of the State if such State
enacts a statute--
(1) citing the authority of this subsection;
(2) declaring the election of such State that this Act
shall not apply to such civil action in the State; and
(3) containing no other provision.
Answer: Shields a business entity from civil liability relating to any injury or death occurring at a facility of that entity in connection with a use of such facility by a nonprofit organization if: (1) the use occurs outside the scope of business of the business entity; (2) such injury or death occurs during a period that such facility is used by such organization; and (3) the business entity authorized the use of such facility by the organization.
Makes this Act inapplicable to an injury or death that results from an act or omission of a business entity that constitutes gross negligence or intentional misconduct, including misconduct that: (1) constitutes a hate crime or a crime of violence or act of international terrorism for which the defendant has been convicted in any court; or (2) involves a sexual offense for which the defendant has been convicted in any court or misconduct for which the defendant has been found to have violated a Federal or State civil rights law.
Preempts State laws to the extent that such laws are inconsistent with this Act, except State law that provides additional protection from liability. Specifies that this Act shall not be construed to supersede any Federal or State health or safety law.
Makes this Act inapplicable to any civil action in a State court against a business entity in which all parties are citizens of the State if such State, citing this Act's authority and containing no other provision, enacts a statute declaring the State's election that this Act shall not apply to such action in the State.
Explanation: This Bill focuses on shielding business entities from civil liability relating to an injury or death depending on the conditions of injury, hence the generated summary is correct.
Part 3. Exercise
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Support Theaters in America Growth
and Expansion Act'' or the ``STAGE Act''.
SEC. 2. EXPENSING OF QUALIFIED PRODUCTIONS.
(a) Extension.--Subsection (f) of section 181 of the Internal
Revenue Code of 1986 is amended by striking ``December 31, 2013'' and
inserting ``December 31, 2015''.
(b) Application to Live Productions.--
(1) In general.--Paragraph (1) of section 181(a) of the
Internal Revenue Code of 1986 is amended by inserting ``, and
any qualified live theatrical production,'' after ``any
qualified film or television production''.
(2) Conforming amendments.--Section 181 of such Code is
amended--
(A) by inserting ``or any qualified live theatrical
production'' after ``qualified film or television
production'' each place it appears in subsections
(a)(2), (b), and (c),
(B) by inserting ``or qualified live theatrical
productions'' after ``qualified film or television
productions'' in subsection (f), and
(C) by inserting ``and live theatrical'' after
``film and television'' in the heading.
(c) Qualified Live Theatrical Production.--Section 181 of the
Internal Revenue Code of 1986 is amended--
(1) by redesignating subsections (e) and (f), as amended by
subsections (a) and (b), as subsections (f) and (g),
respectively, and
(2) by inserting after subsection (d) the following new
subsection:
``(e) Qualified Live Theatrical Production.--For purposes of this
section--
``(1) In general.--The term `qualified live theatrical
production' means any production described in paragraph (2) if
75 percent of the total compensation of the production is
qualified compensation (as defined in subsection (d)(3)).
``(2) Production.--
``(A) In general.--A production is described in
this paragraph if such production is a live staged
production of a play (with or without music) which is
derived from a written book or script and is produced
or presented by a commercial entity in any venue which
has an audience capacity of not more than 3,000 or a
series of venues the majority of which have an audience
capacity of not more than 3,000.
``(B) Touring companies, etc.--In the case of
multiple live staged productions--
``(i) for which the election under this
section would be allowable to the same
taxpayer, and
``(ii) which are--
``(I) separate phases (within the
meaning of section 469(g)(4)(B)) of a
production, or
``(II) separate simultaneous
stagings of the same production in
different geographical locations (not
including multiple performance
locations of any one touring
production),
each such live staged production shall be treated as a
separate production.
``(C) Exception.--A production is not described in
this paragraph if such production includes or consists
of any performance of conduct described in section
2257(h)(1) of title 18, United States Code.''.
(d) Effective Dates.--
(1) In general.--The amendments made by this section shall
apply to productions commencing after December 31, 2013.
(2) Commencement.--For purposes of paragraph (1), the date
on which a qualified live theatrical production commences is
the date of the first public performance of such production for
a paying audience.
SEC. 3. DISPOSITIONS OF INTEREST IN THEATRICAL PRODUCTIONS AS PASSIVE
ACTIVITY.
(a) In General.--Subsection (g) of section 469 of the Internal
Revenue Code of 1986 is amended by adding at the end the following new
paragraph:
``(4) Special rule for interest in qualified live
theatrical productions.--
``(A) In general.--In the case of an interest in a
qualified live theatrical production (as defined in
section 181(e)(1)) as a passive activity--
``(i) each phase of such production shall
be treated separately for purposes of this
subsection, and
``(ii) the termination of any phase of such
production in which the taxpayer holds an
interest as a passive activity shall be treated
as a disposition of such taxpayer's entire
interest in such passive activity.
``(B) Phase.--For purposes of subparagraph (A), the
term `phase' with respect to any qualified live
theatrical production refers to each of the following,
but only if each of the following is treated as a
separate activity by the taxpayer for all purposes of
this title:
``(i) The initial staging of a live
theatrical production.
``(ii) Subsequent additional stagings or
touring of such production which are produced
by the same producer as the initial staging.
``(iii) Disposition of copyrights,
licensing rights, or subsidiary rights in
connection with such production.''.
(b) Effective Date.--The amendment made by this section shall apply
to taxable years beginning after December 31, 2013.
Answer:
|
Support Theaters in America Growth and Expansion Act or the STAGE Act - Amends the Internal Revenue Code, with respect to the expensing of the costs of qualified film and television productions, to: (1) extend through 2015 provisions allowing such expensing, (2) allow such expensing for the costs of certain live theatrical productions, and (3) provide for the tax treatment of dispositions of an interest in a live theatrical production as a passive activity.
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task1658_billsum_summarization
|
NIv2
|
fs_opt
| 7
|
validation
|
You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
[EX Q]: Speaker 1: Hi.
Speaker 2: Hey, oh, so, um...how'd you make out last night?
Speaker 1: That, that is funny. That is painfully funny. No, wait. Wait, yeah, that's just painful
Speaker 3: Wait a minute. I thought last night was great.
Speaker 1: Yeah, it was, but...I get home, ok, and I see Julie's saline solution on my night table. And I'm thinking to myself, oh my god, what the hell am I doing? I mean, here I am, I am with Julie, this incredible, great woman, who I care about and who cares about me, and I'm like, what, am I just gonna throw all that away?
Speaker 4: You got all that from saline solution?
Speaker 3: We are talking about Rachel here. You and Rachel.
Speaker 1: Believe me, I've been dreaming about me and Rachel for ten years now. But now, I'm with Julie, so it's like me and Julie, me and Rachel, me and Julie, me and..... Rachel. Rachel, Rachel.
Speaker 5: Hey, you.
Speaker 1: How are you?
Speaker 5: Good. How are you?
Speaker 1: Good. Julie is or was dating which Speaker?
[EX A]: Speaker 1
[EX Q]: Speaker 1: Okay you two are asking the court for an annulment?
Speaker 2: Yes your honor, and here are, are forms, all filled out.
Speaker 1: So based on your petition you are seeking an annulment on the grounds that Mr. Geller is mentally unstable.
Speaker 3: Fine, I'm mentally unstable.
Speaker 1: And based on the fact that Mr. Geller is intravenous drug user.
Speaker 3: What?!
Speaker 2: Uh yes, heroin and crack.
Speaker 3: Crack isn't even an intravenous drug!
Speaker 2: Well, you would know.
Speaker 1: Now it also says here that you lied about your sexual preference before marriage?
Speaker 3: Oh, come on!
Speaker 2: Ross, please, I found the magazines!
Speaker 1: And finally that you were unable to consummate the marriage. Well, that makes sense since you're gay and addicted to heroin.
Speaker 3: Okay, I'm sorry, this is insane! I-I-I'm not addicted to heroin, I'm not gay, and there is no problem with my ability to consummate anything! Look, I'll consummate this marriage right here, right now!
Speaker 1: That won't be necessary.
Speaker 3: And when we were dating we consummated like bunnies!
Speaker 2: Ugh!
Speaker 1: Now if you were two involved in a serious relationship, that really creates a problem.
Speaker 2: Ross! Your honor, rest assured relationship ended like two years ago! And could you strike "Consummated like bunnies" from the record?
Speaker 1: Is there, anything in this record that is actually true?
Speaker 2: Well, yes, we got married in Vegas and uh, and the names I think.
Speaker 1: Well, based on what I heard, you two certainly don't qualify for an annulment. If you two don't want to be together you'll have to file for divorce Speaker 3 is or was dating which Speaker?
[EX A]: Speaker 2
[EX Q]: Speaker 1: Wow, I am so glad I'm not Monica right now.
Speaker 2: Tell me about it. So what, what's your magic number?
Speaker 1: Uhhhooo.
Speaker 2: C'mon, you know everyone I've been with. All, both of them.
Speaker 1: Well, there's you.
Speaker 2: Better not be doin' these in order.
Speaker 1: Ok, uh, Billy Dreskin, Pete Carney, Barry, and uh, oh, Paolo.
Speaker 2: Oh yes, the weenie from Torino.
Speaker 1: Oh honey, are you jealous of Paolo? Oh, c'mon, I'm so much happier with you than I ever was with him.
Speaker 2: Really?
Speaker 1: Oh please. That Paolo thing was barely a relationship. All it really was was just, ya know, meaningless animal sex. Ok, ya know, that sounded soooo much better in my head. Billy Dreskin is or was dating which Speaker?
[EX A]:
|
Speaker 1
|
task907_dialogre_identify_relationships
|
NIv2
|
fs_opt
| 6
|
train
|
Detailed Instructions: You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
See one example below:
Problem: 'Speaker 1: Hi!
Speaker 2: Hi.
Speaker 1: Oh, I'm so glad you called. I feel like it's always me calling you. So, what's up? Is everything okay with Phoebe?
Speaker 2: It will be...in a minute. Listen, Tim you're a really great guy.
Speaker 1: It's because I'm with you.
Speaker 2: Aw. I'm just-I'm in a place in my life right now where I...I...
Speaker 1: Whoops. Sorry. This just in. Oh, it's 9-1-1 from the restaurant, that means Monica needs me right away.
Speaker 2: Oh-oh no she doesn't! I know what that is. You can stay.
Speaker 1: Awww, I'll miss you too Pheebs. And I will be holding you, right here.
Speaker 2 is or was dating which Speaker?'
Solution: Speaker 1
Explanation: Speaker 2 is giving clues to Speaker 1 about issues in their relationship.
Problem: Speaker 1: Well then we still have a problem.
Speaker 2: Yeah!
Speaker 3: With what?
Speaker 1: Well, we're trying to find someone to perform our wedding and they're all either boring or annoying or y'know, can't stop staring at the ladies.
Speaker 3: Oo! You should have one of us do it!
Speaker 1: Phoebe, we're getting married, married; not sixth grade married.
Speaker 3: No! No! It's-it's uh a real thing! Anyone can get ordained on the Internet and perform like weddings and stuff!
Speaker 1: Are you serious?
Speaker 3: Yes! A friend of mine did it and it's totally legal!
Speaker 4: I call it!!
Speaker 3: What?! No! It was my idea!
Speaker 2: Guys thank you very much but neither of you is marrying us.
Speaker 4: Does calling it not mean anything anymore?!
Speaker 2: We are going to have a legitimate member of the clergy! And when I say legitimate I mean, gay and in control of his saliva! Speaker 2 is or was dating which Speaker?
Solution:
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Speaker 1
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task907_dialogre_identify_relationships
|
NIv2
|
fs_opt
| 4
|
train
|
You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
One example is below.
Q: 'Speaker 1: Hi!
Speaker 2: Hi.
Speaker 1: Oh, I'm so glad you called. I feel like it's always me calling you. So, what's up? Is everything okay with Phoebe?
Speaker 2: It will be...in a minute. Listen, Tim you're a really great guy.
Speaker 1: It's because I'm with you.
Speaker 2: Aw. I'm just-I'm in a place in my life right now where I...I...
Speaker 1: Whoops. Sorry. This just in. Oh, it's 9-1-1 from the restaurant, that means Monica needs me right away.
Speaker 2: Oh-oh no she doesn't! I know what that is. You can stay.
Speaker 1: Awww, I'll miss you too Pheebs. And I will be holding you, right here.
Speaker 2 is or was dating which Speaker?'
A: Speaker 1
Rationale: Speaker 2 is giving clues to Speaker 1 about issues in their relationship.
Q: Speaker 1: Hey!
Speaker 2: It's almost our anniversary!
Speaker 1: I know. Can you believe it? One year ago today I was just your annoying friend Chandler.
Speaker 3: Awww! Now you're just my annoying friend Chandler.
Speaker 1: Huh. Speaker 2 is or was dating which Speaker?
A:
|
Speaker 1
|
task907_dialogre_identify_relationships
|
NIv2
|
fs_opt
| 9
|
train
|
Teacher:You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Teacher: Now, understand the problem? Solve this instance: Speaker 1: Okay you two are asking the court for an annulment?
Speaker 2: Yes your honor, and here are, are forms, all filled out.
Speaker 1: So based on your petition you are seeking an annulment on the grounds that Mr. Geller is mentally unstable.
Speaker 3: Fine, I'm mentally unstable.
Speaker 1: And based on the fact that Mr. Geller is intravenous drug user.
Speaker 3: What?!
Speaker 2: Uh yes, heroin and crack.
Speaker 3: Crack isn't even an intravenous drug!
Speaker 2: Well, you would know.
Speaker 1: Now it also says here that you lied about your sexual preference before marriage?
Speaker 3: Oh, come on!
Speaker 2: Ross, please, I found the magazines!
Speaker 1: And finally that you were unable to consummate the marriage. Well, that makes sense since you're gay and addicted to heroin.
Speaker 3: Okay, I'm sorry, this is insane! I-I-I'm not addicted to heroin, I'm not gay, and there is no problem with my ability to consummate anything! Look, I'll consummate this marriage right here, right now!
Speaker 1: That won't be necessary.
Speaker 3: And when we were dating we consummated like bunnies!
Speaker 2: Ugh!
Speaker 1: Now if you were two involved in a serious relationship, that really creates a problem.
Speaker 2: Ross! Your honor, rest assured relationship ended like two years ago! And could you strike "Consummated like bunnies" from the record?
Speaker 1: Is there, anything in this record that is actually true?
Speaker 2: Well, yes, we got married in Vegas and uh, and the names I think.
Speaker 1: Well, based on what I heard, you two certainly don't qualify for an annulment. If you two don't want to be together you'll have to file for divorce Speaker 3 is or was dating which Speaker?
Student:
|
Speaker 2
|
task907_dialogre_identify_relationships
|
NIv2
|
zs_opt
| 6
|
train
|
Detailed Instructions: You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Problem:Speaker 1: Who's cell phone is that? It's just so annoying; everywhere you go.
Speaker 2: I think it's coming from your bag.
Speaker 1: I never get calls!! Hello?
Speaker 3: Hi, it's Eric. From the Halloween party, Ursula's fiance.
Speaker 1: Oh my God Eric hi! Wait, how'd you get this number?
Speaker 3: Oh, I have a friend who's a cop and he got it for me.
Speaker 1: Wow! What an incredible violation-and wonderful surprise.
Speaker 3: Uh listen, I just-I thought you should know I broke up with Ursula.
Speaker 1: Oh you did? He did it! He did it!
Speaker 4: Wow! What did he do?
Speaker 1: Shhh! I'm talking.
Speaker 3: Anyway, I was wondering if, you were the sort of person who...eats lunch.
Speaker 1: Are you asking me out? 'Cause it would be kinda weird since you just broke up with my sister.
Speaker 3: Yeah uh...okay. I'm-I'm sorry. Bye.
Speaker 1: No! Wait! I was just saying that so you'd think I was a good person. Fight for me.
Speaker 3: Uhh, I won't take no for an answer.
Speaker 1: Not great, but we can work on it at lunch. Okay, I can be at your apartment in two hours.
Speaker 3: Great! But wh-wh-How do you know where I live?
Speaker 1: I've got friends too. Okay, bye.
Speaker 3: Bye. Ursula is or was dating which Speaker?
Solution:
|
Speaker 3
|
task907_dialogre_identify_relationships
|
NIv2
|
zs_opt
| 8
|
train
|
Detailed Instructions: You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Problem:Speaker 1: ...And so then I realized. All this stuff I had been doing. proposing to Joshua, lying to Ross about why I couldn't come to the wedding. Was all just a way of...
Speaker 2: Oh, oh oh!! I'm sorry, can I interrupt? You know I just want to say..That you are a horrible, horrible person.
Speaker 1: Ehh, pardon me?
Speaker 2: You say you love this man, yet you're about to ruin the happiest day of his life. I'm afraid I have to agree with you friend Pheebs.. This is a..this is a...terrible, terrible plan.
Speaker 1: But he has to know how I feel!
Speaker 2: But why? He loves this...this Emily person. No good can come of this.
Speaker 1: Well I-I think your wrong.
Speaker 2: Oh-no. And by the way, it seems to be perfectly clear that you were on a break. Ross is or was dating which Speaker?
Solution:
|
Speaker 1
|
task907_dialogre_identify_relationships
|
NIv2
|
zs_opt
| 8
|
train
|
Definition: You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Input: Speaker 1: Damnit Ross, get your butt out of the bathroom.
Speaker 2: Calm down, I'm blow drying.
Speaker 1: Blow drying what, you have no hair.
Speaker 3: What's goin' on?
Speaker 1: Your boyfriend has been in there for over an hour. I can't believe it, it's like I'm living with him again. He's here when I go to sleep, he's here when I wake up, he's here when I want to use the shower, ughh. It's like I'm sixteen all over again .
Speaker 3: Well, you're not sixteen, you're both adults now.
Speaker 1: GET OUT YOU DUFUS!!
Speaker 3: Or ya know, he's rubber and you're glue.
Speaker 2: All yours.
Speaker 1: I hope you cleaned your hair out of the drain.
Speaker 2: I hope you cleaned your hair out of the drain.
Speaker 1: Shut up.
Speaker 2: Shut up.
Speaker 1: Cut it out.
Speaker 2: Mi-mi-mii.
Speaker 3: I've never wanted you more. Speaker 2 is or was dating which Speaker?
Output:
|
Speaker 3
|
task907_dialogre_identify_relationships
|
NIv2
|
zs_opt
| 2
|
train
|
Definition: You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Input: Speaker 1: Hi, Mike's place.
Speaker 2: Hey, it's Mike.
Speaker 1: Ooh, that was fast.
Speaker 2: Oh, err... no, she's not here yet. You know, I think I'm just gonna take off and break up with her over the phone...
Speaker 1: Yeah, you can't do that! Oh, come on Mike, strap on a pair. Why don't you just tell her that we got back together. You know, women appreciate honesty. We also appreciate gentle spanking once in a while. Just F.Y.I.
Speaker 2: One more thing... There... might be a picture of Precious on my coffee table.
Speaker 1: Her name is Precious? Is she a purebreed or did you pick her up at the pound?
Speaker 2: Anyway, I just wanna give you a heads up.
Speaker 1: Okay, oh and you know, if she gets upset, just scratch her tummy and give her a liver snout.
Speaker 3: Hi, I'm Precious, who are you?
Speaker 1: I... I'm Phoebe.
Speaker 3: Phoebe? Mike's ex-girlfriend Phoebe, the love of his life? That Phoebe?
Speaker 1: Enchant Speaker 3 is or was dating which Speaker?
Output:
|
Speaker 2
|
task907_dialogre_identify_relationships
|
NIv2
|
zs_opt
| 2
|
train
|
You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Ex Input:
Speaker 1:Check it out! Cup hat! Cup banner! Cup chandelier! And the thing that started it all, the cup!
Speaker 2: Great job with the cups, Pheebs!
Speaker 3: Why don't you just go out with her!
Speaker 1: And did you notice the ice? Look! We have it all! We have crushed! Cubed! And dry! Watch! Ahhh! Mystical!
Speaker 2: Awesome!
Speaker 3: Chandler! Everyone--no one's eating my Tuscan finger food 'cause they're all filling up on Phoebe's snow cones!
Speaker 2: There are snow cones! Snow cones! Yuck!
Speaker 3: Y'know...go! Go! Right there!
Speaker 2: Thank you! Thank you! Speaker 3 is or was dating which Speaker?
Ex Output:
Speaker 2
Ex Input:
Speaker 1: Ross, thank God.
Speaker 2: Pheebs? What, why are you whispering?
Speaker 1: I ate a bug.
Speaker 1: Listen Ross, we ran out of gas, and we don't know where we are, so we can't get a tow truck.
Speaker 2: Oh, now you want a favour?
Speaker 1: Yes, please.
Speaker 2: Well, oh, I'm sorry your car broke down Pheebs, but I'm a little too busy with some of my real friends right now, but please call to let me know you got home safely okay?
Speaker 3: Phoebe, hang on a second. Here, take my car, go pick up your friends.
Speaker 2: No, I'm not gonna pick them up.
Speaker 3: Listen, we both know you're gonna do it 'cause you're not a jerk. Okay? So you can either sulk here for a half hour and then go pick them up, or save us both time and sulk in the car.
Speaker 2: No, Rachel doesn't want me to....
Speaker 3: Look, I-I-I am sorry that Rachel dumped you 'cause she fell in love with that Mark guy, and you are the innocent victim in all of this, but don't punish your friends for what Rachel did to you.
Speaker 2: Yeah, you're right.
Speaker 3: Phoebe hang on a second Ross wants to say something. What? You slept with someone else?!
Speaker 2: We were on a break!!! Okay!! We were, we were..., yeah. Where are you? I'll find you.
Speaker 3: You slept with another woman?
Speaker 2: Oh, you-you're-you're one to talk. Rachel is or was dating which Speaker?
Ex Output:
Speaker 2
Ex Input:
Speaker 1: Hi!
Speaker 2: Hi! All right, let's go shoppin'!!
Speaker 1: Um, y'know, before we go ah, there's something I need to say.
Speaker 2: Oh, okay.
Speaker 1: I've kinda of had this ah, this crush on you. But since you were with Ross, I-I didn't do anything about it. But, now that you're not, I'd really like to ask you out sometime. So-so that's-that's what I'm doing, now.
Speaker 2: Wow! Umm.... Ross is or was dating which Speaker?
Ex Output:
|
Speaker 2
|
task907_dialogre_identify_relationships
|
NIv2
|
fs_opt
| 1
|
test
|
You are given a dialog between 2 or more individuals. Within the dialog, there will be clues that indicate two individuals were or are dating. You will be prompted at the end to answer which Speaker (or named individual) is dating which other Speaker (or named individual).
Example: 'Speaker 1: Hi!
Speaker 2: Hi.
Speaker 1: Oh, I'm so glad you called. I feel like it's always me calling you. So, what's up? Is everything okay with Phoebe?
Speaker 2: It will be...in a minute. Listen, Tim you're a really great guy.
Speaker 1: It's because I'm with you.
Speaker 2: Aw. I'm just-I'm in a place in my life right now where I...I...
Speaker 1: Whoops. Sorry. This just in. Oh, it's 9-1-1 from the restaurant, that means Monica needs me right away.
Speaker 2: Oh-oh no she doesn't! I know what that is. You can stay.
Speaker 1: Awww, I'll miss you too Pheebs. And I will be holding you, right here.
Speaker 2 is or was dating which Speaker?'
Example solution: Speaker 1
Example explanation: Speaker 2 is giving clues to Speaker 1 about issues in their relationship.
Problem: Speaker 1: Hey! Has anyone seen my shirt? It's a button down, like a, like a faded salmon?
Speaker 2: You mean your pink shirt?
Speaker 1: Faded salmon color.
Speaker 2: No, I-I haven't seen your pink shirt.
Speaker 1: Great! Great. Then I must've left it at Mona's. I knew it!
Speaker 3: Well, I'm sure you get another one at Ann Taylor's.
Speaker 1: That's my favorite shirt! Okay? I love that shirt!
Speaker 4: Well just ask Mona to give it back!
Speaker 1: I don't know. I mean I-I guess I could. It's just that we didn't really end things such good terms. And if I go over there I'd be ignoring the one thing she asked me to do when we broke up, jump up my own ass and die. Mona is or was dating which Speaker?
|
Solution: Speaker 1
|
task907_dialogre_identify_relationships
|
NIv2
|
fs_opt
| 5
|
validation
|
input: Please answer the following: I know that the answer to the question "What type of land mass are the boroughs?" is in "New York City is located on one of the world's largest natural harbors, and the boroughs of Manhattan and Staten Island are (primarily) coterminous with islands of the same names, while Queens and Brooklyn are located at the west end of the larger Long Island, and The Bronx is located at the southern tip of New York State's mainland. This situation of boroughs separated by water led to the development of an extensive infrastructure of bridges and tunnels. Nearly all of the city's major bridges and tunnels are notable, and several have broken or set records.". Can you tell me what it is?
++++++++++
output: islands
Please answer this: I know that the answer to the question "What was made impassable during Elchibey's presidency besides bridges" is in "On July 16, 1989, the Popular Front of Azerbaijan held its first congress and elected Abulfaz Elchibey, who would become President, as its Chairman. On August 19, 600,000 protesters jammed Baku’s Lenin Square (now Azadliq Square) to demand the release of political prisoners. In the second half of 1989, weapons were handed out in Nagorno-Karabakh. When Karabakhis got hold of small arms to replace hunting rifles and crossbows, casualties began to mount; bridges were blown up, roads were blockaded, and hostages were taken.". Can you tell me what it is?
++++++++
Answer: roads
Problem: I know that the answer to the question "what time period is mentioned first?" is in "The Dutch East India Company (1800) and British East India Company (1858) were dissolved by their respective governments, who took over the direct administration of the colonies. Only Thailand was spared the experience of foreign rule, although, Thailand itself was also greatly affected by the power politics of the Western powers. Colonial rule had a profound effect on Southeast Asia. While the colonial powers profited much from the region's vast resources and large market, colonial rule did develop the region to a varying extent.". Can you tell me what it is?
A: 1800
Problem: Given the question: I know that the answer to the question "Reclaimed water is used for what purpose in regards to crops?" is in "In an effort to conserve water, Tucson is recharging groundwater supplies by running part of its share of CAP water into various open portions of local rivers to seep into their aquifer. Additional study is scheduled to determine the amount of water that is lost through evaporation from the open areas, especially during the summer. The City of Tucson already provides reclaimed water to its inhabitants, but it is only used for "applications such as irrigation, dust control, and industrial uses." These resources have been in place for more than 27 years, and deliver to over 900 locations.". Can you tell me what it is?
++++++++++++++++++++++++++++++++
The answer is:
irrigation
input question: I know that the answer to the question "Practically speaking, what do some individuals have difficulty obtaining?" is in "These statistics point to the complexities surrounding the lack of health/nutrition literacy and reveal the degree to which they are embedded in the social structure and interconnected with other problems. Among these problems are the lack of information about food choices, a lack of understanding of nutritional information and its application to individual circumstances, limited or difficult access to healthful foods, and a range of cultural influences and socioeconomic constraints such as low levels of education and high levels of poverty that decrease opportunities for healthful eating and living.". Can you tell me what it is????
output answer: healthful foods
input question: I know that the answer to the question "Who was a pioneer for release?" is in "During the initial punk era, a variety of entrepreneurs interested in local punk-influenced music scenes began founding independent record labels, including Rough Trade (founded by record shop owner Geoff Travis) and Factory (founded by Manchester-based television personality Tony Wilson). By 1977, groups began pointedly pursuing methods of releasing music independently , an idea disseminated in particular by the Buzzcocks' release of their Spiral Scratch EP on their own label as well as the self-released 1977 singles of Desperate Bicycles. These DIY imperatives would help form the production and distribution infrastructure of post-punk and the indie music scene that later blossomed in the mid-1980s.". Can you tell me what it is????
output answer:
|
Buzzcocks
|
adversarial_qa_dbidaf_tell_what_it_is
|
P3
|
fs_opt
| 8
|
train
|
Q: I know that the answer to the question "What kind of weakness was aimed at by the pressed format?" is in "Some recordings, such as books for the blind, were pressed at 16 2⁄3 rpm. Prestige Records released jazz records in this format in the late 1950s; for example, two of their Miles Davis albums were paired together in this format. Peter Goldmark, the man who developed the 33 1⁄3 rpm record, developed the Highway Hi-Fi 16 2⁄3 rpm record to be played in Chrysler automobiles, but poor performance of the system and weak implementation by Chrysler and Columbia led to the demise of the 16 2⁄3 rpm records. Subsequently, the 16 2⁄3 rpm speed was used for narrated publications for the blind and visually impaired, and were never widely commercially available, although it was common to see new turntable models with a 16 rpm speed setting produced as late as the 1970s.". Can you tell me what it is?
A: blind
Question: I know that the answer to the question "Who told Elizabeth about her father's death?" is in "During 1951, George VI's health declined and Elizabeth frequently stood in for him at public events. When she toured Canada and visited President Harry S. Truman in Washington, D.C., in October 1951, her private secretary, Martin Charteris, carried a draft accession declaration in case the King died while she was on tour. In early 1952, Elizabeth and Philip set out for a tour of Australia and New Zealand by way of Kenya. On 6 February 1952, they had just returned to their Kenyan home, Sagana Lodge, after a night spent at Treetops Hotel, when word arrived of the death of the King and consequently Elizabeth's immediate accession to the throne. Philip broke the news to the new Queen. Martin Charteris asked her to choose a regnal name; she chose to remain Elizabeth, "of course". She was proclaimed queen throughout her realms and the royal party hastily returned to the United Kingdom. She and the Duke of Edinburgh moved into Buckingham Palace.". Can you tell me what it is?
Answer: Philip
[Q]: I know that the answer to the question "The most current edition was created when?" is in "The first Code of Canon Law, 1917, was mostly for the Roman Rite, with limited application to the Eastern Churches. After the Second Vatican Council, (1962 - 1965), another edition was published specifically for the Roman Rite in 1983. Most recently, 1990, the Vatican produced the Code of Canons of the Eastern Churches which became the 1st code of Eastern Catholic Canon Law.". Can you tell me what it is?
****
[A]: 1990
input: Please answer the following: I know that the answer to the question "What generation has faster data signaling?" is in "A January 2013 press release from the USB group revealed plans to update USB 3.0 to 10 Gbit/s. The group ended up creating a new USB version, USB 3.1, which was released on 31 July 2013, introducing a faster transfer mode called SuperSpeed USB 10 Gbit/s, putting it on par with a single first-generation Thunderbolt channel. The new mode's logo features a "Superspeed+" caption (stylized as SUPERSPEED+). The USB 3.1 standard increases the data signaling rate to 10 Gbit/s in the USB 3.1 Gen2 mode, double that of USB 3.0 (referred to as USB 3.1 Gen1) and reduces line encoding overhead to just 3% by changing the encoding scheme to 128b/132b. The first USB 3.1 implementation demonstrated transfer speeds of 7.2 Gbit/s.". Can you tell me what it is?
++++++++++
output: Gen2
Please answer this: I know that the answer to the question "How many points did England score against Germany?" is in "England failed to qualify for the World Cup in 1974, 1978 and 1994. The team's earliest exit in the competition itself was its elimination in the first round in 1950, 1958 and most recently in the 2014 FIFA World Cup, after being defeated in both their opening two matches for the first time, versus Italy and Uruguay in Group D. In 1950, four teams remained after the first round, in 1958 eight teams remained and in 2014 sixteen teams remained. In 2010, England suffered its most resounding World Cup defeat (4–1 to Germany) in the Round of 16, after drawing with the United States and Algeria and defeating Slovenia 1–0 in the group stage.". Can you tell me what it is?
++++++++
Answer: 1
Question: I know that the answer to the question "How many larges ships are in operation?" is in "With the deactivation of USS Enterprise in December 2012, the U.S. fleet comprises 10 supercarriers. The House Armed Services Seapower subcommittee on 24 July 2007, recommended seven or maybe eight new carriers (one every four years). However, the debate has deepened over budgeting for the $12–14.5 billion (plus $12 billion for development and research) for the 100,000 ton Gerald R. Ford-class carrier (estimated service 2016) compared to the smaller $2 billion 45,000 ton America-class amphibious assault ships, which are able to deploy squadrons of F-35Bs. The first of this class, USS America, is now in active service with another, USS Tripoli, under construction and 9 more are planned.". Can you tell me what it is?
Answer:
|
10
|
adversarial_qa_dbidaf_tell_what_it_is
|
P3
|
fs_opt
| 2
|
train
|
I know that the answer to the question "Where do fewer high school aged students go for secondary education?" is in "A comprehensive school is a state school that does not select its intake on the basis of academic achievement or aptitude. This is in contrast to the selective school system, where admission is restricted on the basis of selection criteria. The term is commonly used in relation to England and Wales, where comprehensive schools were introduced on an experimental basis in the 1940s and became more widespread from 1965. About 90% of British secondary school pupils now attend comprehensive schools. They correspond broadly to the public high school in the United States and Canada and to the German Gesamtschule.[citation needed]". Can you tell me what it is?
The answer to this question is:
|
selective school system
|
adversarial_qa_dbidaf_tell_what_it_is
|
P3
|
zs_noopt
| 7
|
train
|
input question: I know that the answer to the question "Who owned Palawan Island?" is in "Palawan Island, between Borneo and Mindoro, the fifth largest and western-most Philippine Island, was invaded on 28 February with landings of the Eighth Army at Puerto Princesa. The Japanese put up little direct defense of Palawan, but cleaning up pockets of Japanese resistance lasted until late April, as the Japanese used their common tactic of withdrawing into the mountain jungles, dispersed as small units. Throughout the Philippines, U.S. forces were aided by Filipino guerrillas to find and dispatch the holdouts.". Can you tell me what it is????
output answer: Philippines
I know that the answer to the question "What do gymnasts have to overcome with their muscle force?" is in "A higher flight phase results in a higher vertical ground reaction force. Vertical ground reaction force represents external force which the gymnasts have to overcome with their muscle force and has an impact on the gymnasts linear and angular momentum. Another important variable that affects linear and angular momentum is time the landing takes Gymnasts can alter the shape of the area by increasing the time taken to perform the landing. Gymnasts can achieve this by increasing hip, knee and ankle amplitude. With the increase of height, the amplitude in ankles knees and hips rise the bars.". Can you tell me what it is?
----
Answer: external force
Q: I know that the answer to the question "who was the patent holding company?" is in "During 1889, Thomas Edison had business interests in many electricity-related companies: Edison Lamp Company, a lamp manufacturer in East Newark, New Jersey; Edison Machine Works, a manufacturer of dynamos and large electric motors in Schenectady, New York; Bergmann & Company, a manufacturer of electric lighting fixtures, sockets, and other electric lighting devices; and Edison Electric Light Company, the patent-holding company and the financial arm backed by J.P. Morgan and the Vanderbilt family for Edison's lighting experiments. In 1889, Drexel, Morgan & Co., a company founded by J.P. Morgan and Anthony J. Drexel, financed Edison's research and helped merge those companies under one corporation to form Edison General Electric Company which was incorporated in New York on April 24, 1889. The new company also acquired Sprague Electric Railway & Motor Company in the same year.". Can you tell me what it is?
A: Edison Electric Light Company
Question: I know that the answer to the question "What symbolizes Saint George on the British flag?" is in "Red is one of the most common colors used on national flags. The use of red has similar connotations from country to country: the blood, sacrifice, and courage of those who defended their country; the sun and the hope and warmth it brings; and the sacrifice of Christ's blood (in some historically Christian nations) are a few examples. Red is the color of the flags of several countries that once belonged to the former British Empire. The British flag bears the colors red, white, and blue; it includes the cross of Saint George, patron saint of England, and the saltire of Saint Patrick, patron saint of Ireland, both of which are red on white. The flag of the United States bears the colors of Britain, the colors of the French tricolore include red as part of the old Paris coat of arms, and other countries' flags, such as those of Australia, New Zealand, and Fiji, carry a small inset of the British flag in memory of their ties to that country. Many former colonies of Spain, such as Mexico, Colombia, Ecuador, Cuba, Puerto Rico, Peru, and Venezuela, also feature red-one of the colors of the Spanish flag-on their own banners. Red flags are also used to symbolize storms, bad water conditions, and many other dangers. Navy flags are often red and yellow. Red is prominently featured in the flag of the United States Marine Corps.". Can you tell me what it is?
Answer: the cross
[Q]: I know that the answer to the question "Years ago, how could I have made my way between the major parks in the city?" is in "Oklahoma City has a major park in each quadrant of the city, going back to the first parks masterplan. Will Rogers Park, Lincoln Park, Trosper Park, and Woodson Park were once connected by the Grand Boulevard loop, some sections of which no longer exist. Martin Park Nature Center is a natural habitat in far northwest Oklahoma City. Will Rogers Park is home to the Lycan Conservatory, the Rose Garden, and Butterfly Garden, all built in the WPA era. Oklahoma City is home to the American Banjo Museum, which houses a large collection of highly decorated banjos from the early 20th century and exhibits on the history of the banjo and its place in American history. Concerts and lectures are also held there.". Can you tell me what it is?
****
[A]: Grand Boulevard loop
Problem: Given the question: I know that the answer to the question "During the Paleocene, which land masses had not yet divided into two pieces?" is in "In many ways, the Paleocene continued processes that had begun during the late Cretaceous Period. During the Paleocene, the continents continued to drift toward their present positions. Supercontinent Laurasia had not yet separated into three continents. Europe and Greenland were still connected. North America and Asia were still intermittently joined by a land bridge, while Greenland and North America were beginning to separate. The Laramide orogeny of the late Cretaceous continued to uplift the Rocky Mountains in the American west, which ended in the succeeding epoch. South and North America remained separated by equatorial seas (they joined during the Neogene); the components of the former southern supercontinent Gondwana continued to split apart, with Africa, South America, Antarctica and Australia pulling away from each other. Africa was heading north toward Europe, slowly closing the Tethys Ocean, and India began its migration to Asia that would lead to a tectonic collision and the formation of the Himalayas.". Can you tell me what it is?
++++++++++++++++++++++++++++++++
The answer is:
|
Europe and Greenland were still connected. North America and Asia were still intermittently joined
|
adversarial_qa_dbidaf_tell_what_it_is
|
P3
|
fs_opt
| 7
|
train
|
input question: I know that the answer to the question "Which team won the 1968 final?" is in "Everton's second successful era started when Harry Catterick was made manager in 1961. In 1962–63, his second season in charge, Everton won the League title and in 1966 the FA Cup followed with a 3–2 win over Sheffield Wednesday. Everton again reached the final in 1968, but this time were unable to overcome West Bromwich Albion at Wembley. Two seasons later in 1969–70, Everton won the League championship, nine points clear of nearest rivals Leeds United. During this period, Everton were the first English club to achieve five consecutive years in European competitions—seasons 1961–62 to 1966–67.". Can you tell me what it is????
output answer: West Bromwich Albion
I know that the answer to the question "Which rookie player, whose last name starts with a B, was added to the Cubs in 2015?" is in "On November 2, 2014, the Cubs announced that Joe Maddon had signed a five-year contract to be the 54th manager in team history. On December 10, 2014, Maddon announced that the team had signed free agent Jon Lester to a 6-year, $155 million contract. Many other trades and acquisitions occurred during the off season. The opening day lineup for the Cubs contained five new players including rookie right fielder Jorge Soler. Rookies Kris Bryant and Addison Russell were in the starting lineup by mid-April, and rookie Kyle Schwarber was added in mid-June. The Cubs finished the 2015 season with a record of 97–65, third best in the majors. On October 7, in the 2015 National League Wild Card Game, Jake Arrieta pitched a complete game shutout and the Cubs defeated the Pittsburgh Pirates 4–0.". Can you tell me what it is?
----
Answer: Kris Bryant
Q: I know that the answer to the question "who could use the name nanori" is in "For example, the full name of Oda Nobunaga would be "Oda Kazusanosuke Saburo Nobunaga" (織田上総介三郎信長), in which "Oda" is a clan or family name, "Kazusanosuke" is a title of vice-governor of Kazusa province, "Saburo" is a formal nickname (yobina), and "Nobunaga" is an adult name (nanori) given at genpuku, the coming of age ceremony. A man was addressed by his family name and his title, or by his yobina if he did not have a title. However, the nanori was a private name that could be used by only a very few, including the Emperor.". Can you tell me what it is?
A: a very few, including the Emperor
Question: I know that the answer to the question "To calculate local time what do systems use to get their data?" is in "However, even if UTC is used internally, the systems still require information on time zones to correctly calculate local time where it is needed. Many systems in use today base their date/time calculations from data derived from the IANA time zone database also known as zoneinfo.". Can you tell me what it is?
Answer: IANA time zone database
[Q]: I know that the answer to the question "What does the "S" in "OAS" stand for?" is in "Further conventions were adopted at the regional level under the aegis of the Organization of American States (OAS or OEA), the African Union, and in 2003, at the universal level under that of the United Nations Convention against Corruption.". Can you tell me what it is?
****
[A]: States
Problem: Given the question: I know that the answer to the question "Besides people what else can pain policy be made for" is in "Physical pain is an important political topic in relation to various issues, including pain management policy, drug control, animal rights or animal welfare, torture, and pain compliance. In various contexts, the deliberate infliction of pain in the form of corporal punishment is used as retribution for an offence, or for the purpose of disciplining or reforming a wrongdoer, or to deter attitudes or behaviour deemed unacceptable. In some cultures, extreme practices such as mortification of the flesh or painful rites of passage are highly regarded.". Can you tell me what it is?
++++++++++++++++++++++++++++++++
The answer is:
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animal rights or animal welfare
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adversarial_qa_dbidaf_tell_what_it_is
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P3
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fs_opt
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train
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Q:I know that the answer to the question "What will my children not have to pay if I only leave them 250,000 upon passing in the state of Tennessee?" is in "The Tennessee income tax does not apply to salaries and wages, but most income from stock, bonds and notes receivable is taxable. All taxable dividends and interest which exceed the $1,250 single exemption or the $2,500 joint exemption are taxable at the rate of 6%. The state's sales and use tax rate for most items is 7%. Food is taxed at a lower rate of 5.25%, but candy, dietary supplements and prepared food are taxed at the full 7% rate. Local sales taxes are collected in most jurisdictions, at rates varying from 1.5% to 2.75%, bringing the total sales tax to between 8.5% and 9.75%, one of the highest levels in the nation. Intangible property is assessed on the shares of stock of stockholders of any loan company, investment company, insurance company or for-profit cemetery companies. The assessment ratio is 40% of the value multiplied by the tax rate for the jurisdiction. Tennessee imposes an inheritance tax on decedents' estates that exceed maximum single exemption limits ($1,000,000 for deaths in 2006 and thereafter).". Can you tell me what it is?
A:
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inheritance tax
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adversarial_qa_dbidaf_tell_what_it_is
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zs_noopt
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input: Please answer the following: I know that the answer to the question "What caused revenue to fall?" is in "During this period, the island enjoyed increased revenues through the sale of flax, with prices peaking in 1951. However, the industry declined because of transportation costs and competition from synthetic fibres. The decision by the British Post Office to use synthetic fibres for its mailbags was a further blow, contributing to the closure of the island's flax mills in 1965.". Can you tell me what it is?
++++++++++
output: transportation costs and competition from synthetic fibres
input: Please answer the following: I know that the answer to the question "Pre-civil war Battery weed can be found in what part of Gateway National Recreation Area" is in "Gateway National Recreation Area contains over 26,000 acres (10,521.83 ha) in total, most of it surrounded by New York City, including the Jamaica Bay Wildlife Refuge in Brooklyn and Queens, over 9,000 acres (36 km2) of salt marsh, islands, and water, including most of Jamaica Bay. Also in Queens, the park includes a significant portion of the western Rockaway Peninsula, most notably Jacob Riis Park and Fort Tilden. In Staten Island, the park includes Fort Wadsworth, with historic pre-Civil War era Battery Weed and Fort Tompkins, and Great Kills Park, with beaches, trails, and a marina.". Can you tell me what it is?
++++++++++
output: Fort Wadsworth
input: Please answer the following: I know that the answer to the question "What conclusion does the passage make about the main topic?" is in "Richard Hurd believed that Burke's imitation was near-perfect and that this defeated his purpose: an ironist "should take care by a constant exaggeration to make the ridicule shine through the Imitation. Whereas this Vindication is everywhere enforc'd, not only in the language, and on the principles of L. Bol., but with so apparent, or rather so real an earnestness, that half his purpose is sacrificed to the other". A minority of scholars have taken the position that, in fact, Burke did write the Vindication in earnest, later disowning it only for political reasons.". Can you tell me what it is?
++++++++++
output: A minority of scholars have taken the position that, in fact, Burke did write the Vindication in earnest, later disowning it only for political reasons
input: Please answer the following: I know that the answer to the question "Rifampicin is an?" is in "Treatment of TB uses antibiotics to kill the bacteria. Effective TB treatment is difficult, due to the unusual structure and chemical composition of the mycobacterial cell wall, which hinders the entry of drugs and makes many antibiotics ineffective. The two antibiotics most commonly used are isoniazid and rifampicin, and treatments can be prolonged, taking several months. Latent TB treatment usually employs a single antibiotic, while active TB disease is best treated with combinations of several antibiotics to reduce the risk of the bacteria developing antibiotic resistance. People with latent infections are also treated to prevent them from progressing to active TB disease later in life. Directly observed therapy, i.e., having a health care provider watch the person take their medications, is recommended by the WHO in an effort to reduce the number of people not appropriately taking antibiotics. The evidence to support this practice over people simply taking their medications independently is poor. Methods to remind people of the importance of treatment do, however, appear effective.". Can you tell me what it is?
++++++++++
output:
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antibiotics
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adversarial_qa_dbidaf_tell_what_it_is
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P3
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fs_opt
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[Q]: I know that the answer to the question "This system's brand is?" is in "The system displays the What's New screen by default instead of the [Games] menu (or [Video] menu, if a movie was inserted) when starting up. What's New has four sections: "Our Pick", "Recently Played", latest information and new content available in PlayStation Store. There are four kinds of content the What's New screen displays and links to, on the sections. "Recently Played" displays the user's recently played games and online services only, whereas, the other sections can contain website links, links to play videos and access to selected sections of the PlayStation Store.". Can you tell me what it is?
****
[A]: PlayStation
[Q]: I know that the answer to the question "A natural hole or depression on the Earth's surface that can contain water can also be referred to as a ?" is in "The Xiongnu, a nomadic steppe confederation, defeated the Han in 200 BC and forced the Han to submit as a de facto inferior partner, but continued their raids on the Han borders. Emperor Wu of Han (r. 141–87 BC) launched several military campaigns against them. The ultimate Han victory in these wars eventually forced the Xiongnu to accept vassal status as Han tributaries. These campaigns expanded Han sovereignty into the Tarim Basin of Central Asia, divided the Xiongnu into two separate confederations, and helped establish the vast trade network known as the Silk Road, which reached as far as the Mediterranean world. The territories north of Han's borders were quickly overrun by the nomadic Xianbei confederation. Emperor Wu also launched successful military expeditions in the south, annexing Nanyue in 111 BC and Dian in 109 BC, and in the Korean Peninsula where the Xuantu and Lelang Commanderies were established in 108 BC.". Can you tell me what it is?
****
[A]: Basin
[Q]: I know that the answer to the question "What role did Arabs have on the Islamification of Southeast Asia?" is in "There are several theories to the Islamisation process in Southeast Asia. Another theory is trade. The expansion of trade among West Asia, India and Southeast Asia helped the spread of the religion as Muslim traders from Southern Yemen (Hadramout) brought Islam to the region with their large volume of trade. Many settled in Indonesia, Singapore, and Malaysia. This is evident in the Arab-Indonesian, Arab-Singaporean, and Arab-Malay populations who were at one time very prominent in each of their countries. The second theory is the role of missionaries or Sufis.[citation needed] The Sufi missionaries played a significant role in spreading the faith by introducing Islamic ideas to the region. Finally, the ruling classes embraced Islam and that further aided the permeation of the religion throughout the region. The ruler of the region's most important port, Malacca Sultanate, embraced Islam in the 15th century, heralding a period of accelerated conversion of Islam throughout the region as Islam provided a positive force among the ruling and trading classes.". Can you tell me what it is?
****
[A]: Arab-Indonesian, Arab-Singaporean, and Arab-Malay populations who were at one time very prominent in each of their countries
[Q]: I know that the answer to the question "When does a wrestler need to find a new character when they leave?" is in "An individual wrestler may sometimes use their real name, or a minor variation of it, for much of their career, such as Angelo Poffo, Ernie Ladd, Verne Gagne, Bret Hart, and Randy Orton. Others can keep one ring name for their entire career (cases in point include Chris Jericho, Shawn Michaels, CM Punk and Ricky Steamboat), or may change from time to time to better suit the demands of the audience or company. Sometimes a character is owned and trademarked by the company, forcing the wrestler to find a new one when they leave (although a simple typeset change, such as changing Rhyno to Rhino, can usually get around this), and sometimes a character is owned by the wrestler. Sometimes, a wrestler may change their legal name in order to obtain ownership of their ring name (examples include Andrew Martin and Warrior). Many wrestlers (such as The Rock and The Undertaker) are strongly identified with their character, even responding to the name in public or between friends. It's actually considered proper decorum for fellow wrestlers to refer to each other by their stage names/characters rather than their birth/legal names, unless otherwise introduced. A professional wrestling character's popularity can grow to the point that it makes appearances in other media (see Hulk Hogan and El Santo) or even give the performer enough visibility to enter politics (Antonio Inoki and Jesse Ventura, among others).". Can you tell me what it is?
****
[A]:
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character is owned and trademarked by the company
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adversarial_qa_dbidaf_tell_what_it_is
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P3
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fs_opt
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I know that the answer to the question "What are some things the University of Technology, Mauritius focuses on to improve the economic and social development of Mauritius?" is in "The only technical university in Mauritius is the University of Technology, Mauritius with its main campus situated in La Tour Koenig, Pointe aux Sables. It has a specialized mission with a technology focus. It applies traditional and beyond traditional approaches to teaching, training, research and consultancy. The university has been founded with the aim to play a key role in the economic and social development of Mauritius through the development of programmes of direct relevance to the country’s needs, for example in areas like technology, sustainable development science, and public sector policy and management.". Can you tell me what it is?
The answer to this question is:
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technology, sustainable development science, and public sector policy and management
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adversarial_qa_dbidaf_tell_what_it_is
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I know that the answer to the question "What is between the drawing rooms?" is in "The palace measures 108 metres (354 ft) by 120 metres (390 ft), is 24 metres (79 ft) high and contains over 77,000 m2 (830,000 sq ft) of floorspace. The floor area is smaller than the Royal Palace of Madrid, the Papal Palace in Rome, the Louvre in Paris, the Hofburg Palace in Vienna, or the Forbidden City. There are 775 rooms, including 19 state rooms, 52 principal bedrooms, 188 staff bedrooms, 92 offices, and 78 bathrooms. The principal rooms are contained on the piano nobile behind the west-facing garden façade at the rear of the palace. The centre of this ornate suite of state rooms is the Music Room, its large bow the dominant feature of the façade. Flanking the Music Room are the Blue and the White Drawing Rooms. At the centre of the suite, serving as a corridor to link the state rooms, is the Picture Gallery, which is top-lit and 55 yards (50 m) long. The Gallery is hung with numerous works including some by Rembrandt, van Dyck, Rubens and Vermeer; other rooms leading from the Picture Gallery are the Throne Room and the Green Drawing Room. The Green Drawing Room serves as a huge anteroom to the Throne Room, and is part of the ceremonial route to the throne from the Guard Room at the top of the Grand Staircase. The Guard Room contains white marble statues of Queen Victoria and Prince Albert, in Roman costume, set in a tribune lined with tapestries. These very formal rooms are used only for ceremonial and official entertaining, but are open to the public every summer.". Can you tell me what it is?
A:
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Music Room
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adversarial_qa_dbidaf_tell_what_it_is
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zs_opt
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validation
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Please answer this: Read the following paragraph and extract the answer for the question: At what college was the final live performance of the band that's second album was named Closer? Joy Division toured Continental Europe in January 1980. Although the schedule was demanding, Curtis experienced only two grand mal seizures, both in the final two months of the tour. That March, the band recorded their second album, Closer, with Hannett at London's Britannia Row Studios. That month they released the "Licht und Blindheit" single, with "Atmosphere" as the A-side and "Dead Souls" as the B-side, on the French independent label Sordide Sentimental.A lack of sleep and long hours destabilised Curtis's epilepsy, and his seizures became almost uncontrollable. He often had seizures during performances, which some audience members believed was part of the performance. The seizures left him feeling ashamed and depressed, and the band became increasingly worried about Curtis's condition. On 7 April, Curtis attempted suicide by overdosing on his anti-seizure medication, phenobarbitone. The following evening, Joy Division were scheduled to play a gig at the Derby Hall in Bury. Curtis was too ill to perform, so at Gretton's insistence the band played a combined set with Alan Hempsall of Crispy Ambulance and Simon Topping of A Certain Ratio singing on the first few songs. When Topping came back towards the end of the set, some audience members threw bottles at the stage. Curtis's ill health led to the cancellation of several other gigs that April. Joy Division's final live performance was held at the University of Birmingham's High Hall on 2 May, and included their only performance of "Ceremony", one of the last songs written by Curtis. Hannett's production has been widely praised. However, as with Unknown Pleasures, both Hook and Sumner were unhappy with the production. Hook said that when he heard the final mix of "Atrocity Exhibition" he was disappointed that the abrasiveness had been toned down. He wrote; "I was like, head in hands, 'Oh fucking hell, it's happening again ... Martin had fucking melted the guitar with his Marshall Time Waster. Made it sound like someone strangling a cat and, to my mind,...
++++++++
Answer: University of Birmingham
Problem: Read the following paragraph and extract the answer for the question: What was the name of the person that was persuaded by McKinlay and mamen to send a trailbreaking group to set up an advance camp on Wrangel Island? Bartlett's decision to deposit stores on the ice ensured that an ice camp, known as "Shipwreck Camp", was more or less established by the time Karluk sank. Two shelters had been built, one a snow igloo with a canvas roof, the other constructed from packing cases. To the latter was added a kitchen with a large stove rescued from Karluk's engine room. A small, separate shelter was built for the five Inuit, and a rough perimeter created from coal bags and assorted containers. In McKinlay's words, the camp provided "substantial and comfortable houses on which we could rely for shelter for a long time." Stores were plentiful, and the party was able to eat well. Much of the time in the first days of the camp was spent preparing and adjusting clothing and sleeping gear, in readiness for the forthcoming march to Wrangel Island. The ice drift was slowly moving the camp in the direction of the island, but as yet there was insufficient daylight to attempt the march.Amid this activity Mackay and Murray, now joined by the anthropologist Henri Beuchat, played little part in the general life of the camp and expressed their determination to leave it, independently, as soon as possible. Bartlett wanted to wait for the longer daylight hours of February before attempting the march, but was persuaded by McKinlay and Mamen to send a trailbreaking group to set up an advance camp on Wrangel Island. A party of four, led by Karluk's first officer Alexander Anderson and including crew members Charles Barker, John Brady and Edmund Golightly, left Shipwreck Camp on 21 January with instructions from Bartlett to establish their camp at or near Berry Point on the north shore of Wrangel Island. On 4 February Bjarne Mamen, who accompanied the party as a scout, returned to Shipwreck Camp and reported that he had left the group a few miles short of land that was evidently not Wrangel Island, and was probably Herald Island, 38 miles (61 km) from their intended destination. This was the last sighting of Anderson's party; their ultimate fate was...
A: Bartlett
Problem: Given the question: Read the following paragraph and extract the answer for the question: What are the last names of the people who are blown up? David Burke is a former policeman who was ruined when he refused to cooperate with state crime investigators. He has asked Earl Slater, a hard-bitten, racist, ex-con, to help him rob an upstate bank, promising him $50,000 if the robbery is successful. Burke also recruits Johnny Ingram, a nightclub entertainer. He doesn't want the job but is addicted to gambling and is deeply in debt. Slater, who is supported by his girlfriend, Lorry, learns that Ingram is black and refuses the job. Later, he realizes that he needs the money, and joins Ingram and Burke in the enterprise. Tensions between Ingram and Slater increase as they near completion of the crime. Burke is seen by a police officer leaving the scene of the raid, and is mortally wounded in the ensuing shootout with local police. He commits suicide, shooting himself to avoid capture. Slater is cavalier about Burke's death, which infuriates Ingram. Slater and Ingram begin to fight each other even as they try to evade the police. Ingram and Slater escape and run into a nearby fuel storage depot. They chase each other onto the top of the fuel tanks. When they exchange gunfire, the fuel tanks ignite, causing a large explosion. Afterward, their burned corpses are indistinguishable from each other. The last scene focuses on a sign at the entrance of the fuel storage depot saying, "Stop, Dead End".
++++++++++++++++++++++++++++++++
The answer is:
Slater
Q: Read the following paragraph and extract the answer for the question: What was the name of the Bach Church when Bach was the organist? Bach is believed to have written Christ lag in Todes Banden in 1707. He was a professional organist aged 22, employed from 1703 in Arnstadt as the organist of the New Church (which replaced the burned Bonifatiuskirche, today known as the Bach Church). At age 18, he had inspected the new organ built by Johann Friedrich Wender, was invited to play one Sunday, and was hired. The organ was built on the third tier of a theatre-like church. Bach's duties as a church musician involved some responsibility for choral music, but the exact year he began composing cantatas is unknown. Christ lag in Todes Banden is one of a small group of cantatas that survive from his early years. According to the musicologist Martin Geck, many details of the score reflect "organistic practice".In Arnstadt, the Kantor (church musician) Heindorff was responsible for church music in the Upper Church (Liebfrauenkirche), and the New Church where Bach was the organist. He typically conducted music in the Upper Church and would appoint a choir prefect for vocal music in the New Church. Wolff notes that "subjecting his works to the questionable leadership of a prefect" was not what Bach would have done. Therefore, most cantatas of the period are not for Sunday occasions, but restricted to special occasions such as weddings and funerals. Christ lag in Todes Banden is the only exception, but was most likely composed not for Arnstadt but for an application to a more important post at the Divi Blasii church in Mühlhausen.
A:
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New Church
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Question: Read the following paragraph and extract the answer for the question: What is the name of the person that essentially sidestepped thematic interaction and kept sonata form only as an "outline"? Tchaikovsky struggled with sonata form. Its principle of organic growth through the interplay of musical themes was alien to Russian practice. The traditional argument that Tchaikovsky seemed unable to develop themes in this manner fails to consider this point; it also discounts the possibility that Tchaikovsky might have intended the development passages in his large-scale works to act as "enforced hiatuses" to build tension, rather than grow organically as smoothly progressive musical arguments.According to Brown and musicologists Hans Keller and Daniel Zhitomirsky, Tchaikovsky found his solution to large-scale structure while composing the Fourth Symphony. He essentially sidestepped thematic interaction and kept sonata form only as an "outline," as Zhitomirsky phrases it. Within this outline, the focus centered on periodic alternation and juxtaposition. Tchaikovsky placed blocks of dissimilar tonal and thematic material alongside one another, with what Keller calls "new and violent contrasts" between musical themes, keys, and harmonies. This process, according to Brown and Keller, builds momentum and adds intense drama. While the result, Warrack charges, is still "an ingenious episodic treatment of two tunes rather than a symphonic development of them" in the Germanic sense, Brown counters that it took the listener of the period "through a succession of often highly charged sections which added up to a radically new kind of symphonic experience" (italics Brown), one that functioned not on the basis of summation, as Austro-German symphonies did, but on one of accumulation.Partly due to the melodic and structural intricacies involved in this accumulation and partly due to the composer's nature, Tchaikovsky's music became intensely expressive. This intensity was entirely new to Russian music and prompted some Russians to place Tchaikovsky's name alongside that of Dostoyevsky. German musicologist Hermann Kretzschmar credits Tchaikovsky in his later symphonies with offering "full images of life, developed...
Answer:
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Tchaikovsky
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[Q]: Read the following paragraph and extract the answer for the question: What is the full name of the vineyard name after a public wig? In addition to a produce market in Cornville, Arizona; Keenan, whose grandparents and great-uncle made wine in Northern Italy, owns Merkin Vineyards and Caduceus Cellars, based in the unincorporated area of Page Springs/Cornville, Arizona, southwest of Sedona, where he resides. While the winery is named after an ancient symbol for commerce (caduceus), the vineyard is named after a pubic wig (merkin). He is also a partner of Stronghold Vineyards, "an 80-acre site dedicated to producing affordable wines in the state", located in the small, unincorporated area known as Kansas Settlement in Sulfur Springs Valley, Arizona. Keenan's mother died in 2003, at the age of 59, due to complications from an aneurysm. Following her death, he scattered her ashes across one of his vineyards, and later named one of his wines after her, honoring her memory with his Cabernet Sauvignon "Nagual del Judith".In a statement released in April 2009, Keenan stated: I am standing on a metaphorical plateau. The view from here suggests that I/we still have many mountains to negotiate. It has already been a long journey. But the successes and failures have been in balance. Which would suggest that I/we have chosen the correct path. I hold in my hands the evidence to support this statement. With tears in my eyes, I present to you the very first 100 percent Arizona Caduceus wine. Nagual del Judith, named after my late mother, Judith Marie. I think there are a lot of misconceptions with some people that, all of a sudden, I was born when my first band came out. I actually had a life before that, and there were a lot of accomplishments. [The book] will kind of chronicle why it is I got to where I am, and why I got to where you knew about me. Keenan's authorized biography, A Perfect Union of Contrary Things, was released on November 8, 2016.
****
[A]: Merkin Vineyards
input: Please answer the following: Read the following paragraph and extract the answer for the question: Who kills seven flies at once while at work? Set during the Middle Ages in Europe, a king is seeking a brave warrior to kill a giant which has been terrorizing the small kingdom. There is much discussion in the village, but no one is willing to take on the task. Nearby in the same village, a young peasant tailor kills seven flies at once while at his work, and accidentally interjects several other peasants' discussion of the problems with the giant to brag loudly about his accomplishment: Peasant (to his friends): "Say, did you ever kill a giant?" Mickey (interjecting unwittingly): "I killed seven with one blow!"Gossip that Mickey has killed seven giants with one blow quickly spreads around the kingdom. The king summons Mickey, and asks if he really "killed seven at one blow". Mickey goes into an elaborate re-telling of how he killed the seven (flies, not giants as the king believes), which impresses the king enough to appoint Mickey "Royal High Killer of the Giant". Upon learning the misunderstanding, all of Mickey's confidence disappears and he attempts to stammer his way out of the assignment. The king offers Mickey both vast riches and the hand of his only daughter, Princess Minnie, in marriage if he can kill (or at least subdue) the giant. Smitten with the princess, Mickey proclaims that he'll "cut [the giant] down to my size", and sets off for the giant's lair. After only a few minutes, however, he is ready to turn back and give up, but the townspeople and Minnie are counting on him. "Gosh," Mickey sighs to himself, wondering what to do. "I dunno how to catch a giant."
++++++++++
output: Mickey
Problem: Read the following paragraph and extract the answer for the question: What is the first name of the person who was appointed organist and chamber musician in Weimar? As far as we know, the earliest cantatas of Johann Sebastian Bach were performed in Mühlhausen from 1706 to 1708. He was employed as an organist there, but he occasionally composed cantatas, mostly for special occasions. The cantatas were based mainly on biblical texts and hymns, such as Aus der Tiefen rufe ich, Herr, zu dir, BWV 131 (a psalm setting), and the Easter chorale cantata Christ lag in Todes Banden, BWV 4. Bach was next appointed organist and chamber musician in Weimar on 25 June 1708 at the court of the co-reigning dukes in Saxe-Weimar, Wilhelm Ernst and his nephew Ernst August. He initially concentrated on the organ, composing major works for the instrument, including the Orgelbüchlein, the Toccata and Fugue in D minor, BWV 565, and the Prelude and Fugue in E major, BWV 566. He was promoted to Konzertmeister on 2 March 1714, an honour that entailed performing a church cantata monthly in the Schlosskirche. The first cantatas he composed in the new position were Himmelskönig, sei willkommen, BWV 182, for Palm Sunday, Weinen, Klagen, Sorgen, Zagen, BWV 12 for Jubilate Sunday, and Erschallet, ihr Lieder, BWV 172, for Pentecost. Mostly inspired by texts by the court poet, Salomo Franck, they contain recitatives and arias. When Johann Samuel Drese, the Kapellmeister (director of music), died in 1716, Bach hoped in vain to become his successor. Bach looked for a better position and found it as Kapellmeister at the court of Leopold, Prince of Anhalt-Köthen. However, the duke in Weimar did not dismiss him and arrested him for disobedience. He was released on 2 December 1717.In Köthen, Bach found an employer who was an enthusiastic musician himself. The court was Calvinist, therefore Bach's work from this period was mostly secular, including the orchestral suites, the cello suites, the sonatas and partitas for solo violin, and the Brandenburg Concertos. He composed secular cantatas for the court for occasions such as New Year's Day and the prince's birthday, including Die Zeit, die Tag und Jahre macht, BWV...
A:
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Johann
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train
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Please answer the following question: Read the following paragraph and extract the answer for the question: What is the first name of the wife of the director of Vienna Hofoper? By the summer of 1906, Mahler had been director of the Vienna Hofoper for nine years. Throughout this time his practice was to leave Vienna at the close of the Hofoper season for a summer retreat, where he could devote himself to composition. Since 1899 this had been at Maiernigg, near the resort town of Maria Wörth in Carinthia, southern Austria, where Mahler built a villa overlooking the Wörthersee. In these restful surroundings Mahler completed his Symphonies No. 4, No. 5, No. 6 and No. 7, his Rückert songs and his song cycle Kindertotenlieder ("Songs on the Death of Children").Until 1901, Mahler's compositions had been heavily influenced by the German folk-poem collection Des Knaben Wunderhorn ("The Youth's Magic Horn"), which he had first encountered around 1887. The music of Mahler's many Wunderhorn settings is reflected in his Symphonies No. 2, No. 3 and No. 4, which all employ vocal as well as instrumental forces. From about 1901, however, Mahler's music underwent a change in character as he moved into the middle period of his compositional life. Here, the more austere poems of Friedrich Rückert replace the Wunderhorn collection as the primary influence; the songs are less folk-related, and no longer infiltrate the symphonies as extensively as before. During this period Symphonies No. 5, No. 6 and No. 7 were written, all as purely instrumental works, portrayed by Mahler scholar Deryck Cooke as "more stern and forthright ..., more tautly symphonic, with a new granite-like hardness of orchestration".Mahler arrived at Maiernigg in June 1906 with the draft manuscript of his Seventh Symphony; he intended to spend time revising the orchestration until an idea for a new work should strike. The composer's wife Alma Mahler, in her memoirs, says that for a fortnight Mahler was "haunted by the spectre of failing inspiration"; Mahler's recollection, however, is that on the first day of the vacation he was seized by the creative spirit, and plunged immediately into composition of the work that would become his...
Answer:
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Alma
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quoref_Read_And_Extract_
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P3
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zs_opt
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train
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Please answer the following question: Read the following paragraph and extract the answer for the question: Whose music did John Barbirolli champion when it was out of fashion? Elgar's recordings were released on 78-rpm discs by both HMV and RCA Victor. After World War II, the 1932 recording of the Violin Concerto with the teenage Menuhin as soloist remained available on 78 and later on LP, but the other recordings were out of the catalogues for some years. When they were reissued by EMI on LP in the 1970s, they caused surprise to many by their fast tempi, in contrast to the slower speeds adopted by many conductors in the years since Elgar's death. The recordings were reissued on CD in the 1990s.In November 1931, Elgar was filmed by Pathé for a newsreel depicting a recording session of Pomp and Circumstance March No. 1 at the opening of EMI's Abbey Road Studios in London. It is believed to be the only surviving sound film of Elgar, who makes a brief remark before conducting the London Symphony Orchestra, asking the musicians to "play this tune as though you've never heard it before." A memorial plaque to Elgar at Abbey Road was unveiled on 24 June 1993.A late piece of Elgar's, the Nursery Suite, was an early example of a studio premiere: its first performance was in the Abbey Road studios. For this work, dedicated to the wife and daughters of the Duke of York, Elgar once again drew on his youthful sketch-books. In his final years, Elgar experienced a musical revival. The BBC organised a festival of his works to celebrate his seventy-fifth birthday, in 1932. He flew to Paris in 1933 to conduct the Violin Concerto for Menuhin. While in France, he visited his fellow composer Frederick Delius at his house at Grez-sur-Loing. He was sought out by younger musicians such as Adrian Boult, Malcolm Sargent and John Barbirolli, who championed his music when it was out of fashion. He began work on an opera, The Spanish Lady, and accepted a commission from the BBC to compose a Third Symphony. His final illness, however, prevented their completion. He fretted about the unfinished works. He asked Reed to ensure that nobody would "tinker" with the sketches and attempt a completion of the symphony,...
A:
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Elgar
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quoref_Read_And_Extract_
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P3
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zs_noopt
| 8
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train
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Answer the following question: Read the following paragraph and extract the answer for the question: What is the first name of the person who arrived in Calcutta in 1858? In late 1854 or early 1855 James Robertson married Beato's sister, Leonilda Maria Matilda Beato. They had three daughters, Catherine Grace (b. 1856), Edith Marcon Vergence (b. 1859), and Helen Beatruc (b. 1861).In 1855 Felice Beato and Robertson travelled to Balaklava, Crimea, where they took over reportage of the Crimean War following Roger Fenton's departure. Beato was ostensibly Robertson's assistant, however the unpredictable conditions of a war-zone forced Beato to assume a more active role. In contrast to Fenton's depiction of the dignified aspects of war, Beato and Robertson showed the destruction and death. They photographed the fall of Sevastopol in September 1855, producing about 60 images. Their Crimean images dramatically changed the way that war was reported and depicted.In February 1858 Beato arrived in Calcutta and began travelling throughout Northern India to document the aftermath of the Indian Rebellion of 1857. During this time he produced possibly the first-ever photographic images of corpses. It is believed that for at least one of his photographs taken at the palace of Sikandar Bagh in Lucknow he had the skeletal remains of Indian rebels disinterred or rearranged to heighten the photograph's dramatic impact (see events at Taku Forts). He was also in the cities of Delhi, Cawnpore, Meerut, Benares, Amritsar, Agra, Simla, and Lahore. Beato was joined in July 1858 by his brother Antonio, who later left India, probably for health reasons, in December 1859. Antonio ended up in Egypt in 1860, setting up a photographic studio in Thebes in 1862.
Answer:
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Felice
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quoref_Read_And_Extract_
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P3
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zs_noopt
| 5
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train
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Answer the following question: Read the following paragraph and extract the answer for the question: Who was jeered by a crowd of 2,000 to 4,000 people? Around 6:30 pm the soldiers of the 6th Regiment began assembling. Their armory, located on Front Street across from the Phoenix Shot Tower, consisted of the second and third floors of a warehouse, with the only exit being a narrow stairway through which no more than two men could walk abreast.The men were met with jeers by a crowd of 2,000 to 4,000. This escalated into paving stones thrown through the door and windows of the building. Soldiers who subsequently arrived were beaten and driven away. Additional police were sent for in hopes of clearing the way and relieving the troops of the need to use force against the crowd, but those who arrived were unable to effect any order, and were forced to shelter in the armory along with the soldiers.Shortly after 8:00 pm, Colonel Peters ordered three companies of 120 men of the 6th to move as commanded by the governor and General Herbert to Camden Station. As they exited, they were assaulted by stones from the crowd, believing those of the 6th Regiment were armed only with blank cartridges. The troops returned fire, with live ammunition as they were equipped, and the frightened crowd retreated west across Fayette Street Bridge.Given the ongoing clashes, the men of the 6th Regiment, Company B, being the last of the formation to leave the armory, marched south, by way of Front Street, and then west along Baltimore Street, in order to avoid the crowds.The crowd regained their resolve and, as the body marched near Harrison and Frederick streets, they were attacked in the rear and made to halt by the pressing of the crowd. Without orders, some soldiers fired on the crowd, killing one and wounding between one and three. The crowd shrank back and the soldiers were allowed continue until they had advanced to the offices of the Baltimore American newspaper, near Holliday Street, where an order was given to halt and two volleys fired into the crowd. They were forced to halt a third time as they turned onto Charles Street, and again fired on the crowd near Light Street. There...
Answer:
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the 6th Regiment
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quoref_Read_And_Extract_
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P3
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zs_noopt
| 5
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train
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Given the question: Read the following paragraph and extract the answer for the question: Who produced the single that had an initial pressing of 1,000 copies? In January 1980, Michael Stipe met Peter Buck in Wuxtry Records, the Athens record store where Buck worked. The pair discovered that they shared similar tastes in music, particularly in punk rock and protopunk artists like Patti Smith, Television, and the Velvet Underground. Stipe said, "It turns out that I was buying all the records that [Buck] was saving for himself." Through mutual friend Kathleen O'Brien, Stipe and Buck then met fellow University of Georgia students Mike Mills and Bill Berry, who had played music together since high school and lived together in Georgia. The quartet agreed to collaborate on several songs; Stipe later commented that "there was never any grand plan behind any of it". Their still-unnamed band spent a few months rehearsing in a deconsecrated Episcopal church in Athens, and played its first show on April 5, 1980, supporting The Side Effects at O'Brien's birthday party held in the same church, performing a mix of originals and 1960s and 1970s covers. After considering Twisted Kites, Cans of Piss, and Negro Eyes, the band settled on "R.E.M." (which is an acronym for rapid eye movement, the dream stage of sleep), which Stipe selected at random from a dictionary.The band members eventually dropped out of school to focus on their developing group. They found a manager in Jefferson Holt, a record store clerk who was so impressed by an R.E.M. performance in his hometown of Chapel Hill, North Carolina, that he moved to Athens. R.E.M.'s success was almost immediate in Athens and surrounding areas; the band drew progressively larger crowds for shows, which caused some resentment in the Athens music scene. Over the next year and a half, R.E.M. toured throughout the Southern United States. Touring was arduous because a touring circuit for alternative rock bands did not then exist. The group toured in an old blue van driven by Holt, and lived on a food allowance of $2 each per day.During April 1981, R.E.M. recorded its first single, "Radio Free Europe", at producer Mitch Easter's Drive-In...
The answer is:
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Mitch Easter
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quoref_Read_And_Extract_
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P3
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zs_opt
| 6
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train
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Question: Read the following paragraph and extract the answer for the question: Who pays money to the bar singer for sex? Dr. Henry Jekyll, a kind English doctor in Victorian London, is certain that within each man lurks impulses for both good and evil. He is desperately in love with his fiancée Muriel Carew and wants to marry her immediately. But her father, Brigadier General Sir Danvers Carew, orders them to wait. One night, while walking home with his colleague, Dr. John Lanyon, Jekyll spots a bar singer, Ivy Pierson, being attacked by a man outside her boarding house. Jekyll drives the man away and carries Ivy up to her room to attend to her. Ivy tries to seduce Jekyll but, though he is tempted, he leaves with Lanyon. When Sir Danvers takes Muriel to Bath, Jekyll begins to experiment with drugs that he believes will unleash his evil side. After imbibing a concoction of these drugs, he transforms into Edward Hyde—an impulsive, violent, amoral man who indulges his every desire. Hyde finds Ivy in the music hall where she works. He offers to financially support her in return for her company. They stay at her boarding house where Hyde sexually abuses and psychologically manipulates her. When Hyde reads in the paper that Sir Danvers and Muriel are planning to return to London, Hyde leaves Ivy but threatens her that he'll return when she least expects it. Overcome with guilt, Jekyll sends £50 to Ivy. On the advice of her landlady, Ivy goes to see Dr. Jekyll and recognizes him as the man who saved her from abuse that night. She tearfully tells him about her situation with Hyde, and Jekyll reassures her that she will never see Hyde again. But the next night, while walking to a party at Muriel's where the wedding date is to be announced, Jekyll spontaneously changes into Hyde. Rather than attend the party, Hyde goes to Ivy's room and murders her.
Answer:
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Edward Hyde
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quoref_Read_And_Extract_
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P3
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zs_opt
| 4
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test
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Read the following paragraph and extract the answer for the question: What is the last name of the person who announced that his All-Starr Band would tour the Pacific Rim during 2013? In 2010 Starr self-produced and released his fifteenth studio album, Y Not, which included the track "Walk with You" and featured a vocal contribution from McCartney. Later that year, he appeared during Hope for Haiti Now: A Global Benefit for Earthquake Relief as a celebrity phone operator. On 7 July 2010, he celebrated his 70th birthday at Radio City Music Hall with another All-Starr Band concert, topped with friends and family joining him on stage including Ono, his son Zak, and McCartney.Starr recorded a cover of Buddy Holly's "Think It Over" for the 2011 tribute album Listen to Me: Buddy Holly. In January 2012, he released the album Ringo 2012. Later that year, he announced that his All-Starr Band would tour the Pacific Rim during 2013 with select dates in New Zealand, Australia and Japan; it was his first performance in Japan since 1996, and his debut in both New Zealand and Australia. In January 2014, Starr joined McCartney for a special performance at the 56th Annual Grammy Awards in Los Angeles, where they performed the song "Queenie Eye". That summer he toured Canada and the US with an updated version of the Twelfth All-Starr Band, featuring multi-instrumentalist Warren Ham instead of saxophonist Mark Rivera. In July, Starr became involved in "#peacerocks", an anti-violence campaign started by fashion designer John Varvatos, in conjunction with the David Lynch Foundation. In September 2014, he won at the GQ Men of the Year Awards for his humanitarian work with the David Lynch Foundation.In January 2015, Starr tweeted the title of his new 11-track studio album, Postcards from Paradise. The album came just weeks in advance of Starr's induction into the Rock and Roll Hall of Fame, and was released on 31 March 2015 to mixed to positive reviews. Later that month, Ringo and his band announced a forthcoming Summer 2016 Tour of the US. Full production began in June 2016 in Syracuse.On 7 July 2017 (his 77th birthday), he released a new single entitled "Give More Love," followed by, on 15 September 2017 (by...
Answer:
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Starr
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quoref_Read_And_Extract_
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P3
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zs_opt
| 1
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validation
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
Example Input: AMENDMENT NO. 1
Dated as of November 11, 2005
Reference is hereby made to that certain fully executed Wireless Content License Agreement Number 12965 dated as of December 16, 2004 (Agreement), between TWENTIETH CENTURY FOX LICENSING & MERCHANDISING, division of Fox Entertainment Group, Inc. (Fox), as Administrator for Twentieth Century Fox Film Corporation (Trademark Licensor) and Glu Mobile, Inc. f/k/a Sorrent, Inc. (Licensee).
The parties agree to modify the Agreement as follows:
1. PARTIES
(a) FOX ASSIGNMENT OF AGREEMENT: Pursuant to Twentieth Century Fox Licensing and Merchandising's assignment of rights and obligations through an assignment dated as of October 1, 2005 by and between Twentieth Century Fox Licensing and Merchandising and Fox Mobile Entertainment Inc., Fox Mobile Entertainment, Inc. is hereby substituted for Twentieth Century Fox Licensing and Merchandising as Fox under the Agreement.
(b) LICENSEE CHANGE OF NAME: The parties hereby acknowledge that Licensee's change of name from Sorrent, Inc. to Glu Mobile, Inc.
2. WIRELESS PRODUCTS
(a) IN HER SHOES: Consistent with Paragraph 1(a)(ii), Exhibit A is amended to include the Property In Her Shoes as a Targeted Release. Subject to talent restrictions with respect to the use of likeness in merchandising and specifically excluding, without limitation, any use of the likeness of Cameron Diaz for any content intended for sale, Licensee shall develop the following Wireless Product in conjunction with In Her Shoes: one (1) 2-D casual-style puzzle game. (IN HER SHOES Wireless Product)
(i) IN HER SHOES Porting: Licensee shall work with Fox's United Kingdom office to determine the appropriate porting and support a potential release of the Wireless Product developed in connection with IN HER SHOES.
(ii) IN HER SHOES GUARANTEE AND ROYALTY: There shall be no Individual Property Guarantee attributable to the Targeted Release IN HER SHOES. Licensee may recoup the Guarantee Forfeiture Payment (as defined in Paragraph 3 of this Amendment below) from the sales of the IN HER SHOES Wireless Product. At such time that ***** percent (*****%) of the Guarantee Forfeiture Payment is recouped by Licensee, Fox shall earn and Licensee shall pay to Fox Royalties at the rate of ***** percent (*****%) of Licensee's gross receipts from Licensee's sale, license, distribution or other exploitation of the IN HER SHOES Wireless Product.
***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.
Source: GLU MOBILE INC, S-1/A, 3/19/2007
(iii) FOX INTELLECTUAL PROPERTY: Consistent with Paragraph 11(b) of the Agreement all music developed and used in connection with the IN HER SHOES Wireless Product shall be owned exclusively by Fox.
(b) IDIOCRACY: Consistent with Paragraph 1(a)(ii), Exhibit A is amended to include the Property Idiocracy as a Targeted Release. Licensee shall develop the following Wireless Product in conjunction with Idiocracy: one (1) game entitled OW, MY ##@@@s (IDIOCRACY Wireless Product).
(i) IDIOCRACY GUARANTEE AND ROYALTY: There shall be no Individual Property guarantee attributable to the targeted Release IDIOCRACY. Licensee may recoup the guarantee Forfeiture Payment (as defined in Paragraph 3 of this Amendment below) from the sales of the IDIOCRACY Wireless Product. At such time that ***** percent (*****%) of the Guarantee Forfeiture Payment is recouped by Licensee, Fox shall earn and Licensee shall pay to Fox Royalties at the rate of ***** percent (*****%) of Licensee's gross receipts from Licensee's sale, license, distribution or other exploitation of the IDIOCRACY Wireless Product.
(c) ICE AGE 2:
(i) ICE AGE 2 WIRELESS PRODUCTS: Licensee shall develop and distribute the following Wireless Products in connection with the property ICE AGE 2: (i) 1 Java Game; (ii) 1 Java Application ('Screensaver') where feasible; (iii) up to 5 MMS; (iv) up to 10 Wallpapers; (v) and up to 5 Voicetones (ICE AGE 2 Wireless Products) in each of the following five (5) languages: English, French, German, Italian, Spanish, with Portuguese, Greek, Dutch and Swedish to be made available where practicable. Licensee shall have the non-exclusive right and license to develop and distribute ICE AGE 2 Wireless Products during the Term of the Agreement for all Wireless Products set forth in this Paragraph 2(c) except the Game, for which Licensee shall have the exclusive right and license to develop and distribute until December 31, 2006. For the avoidance of doubt, Licensee's right and license to develop and distribute the Game in connection with the Property ICE AGE 2 shall become non-exclusive after December 31, 2006.
(A) ICE AGE 2 RESERVATION OF RIGHTS: Fox hereby reserves the right to develop, publish and/or distribute (or grant a third party the right to develop, publish, and/or distribute) any wireless products or wireless content or any nature which may be derived from the property ICE AGE 2. Notwithstanding the foregoing, in no event will Fox develop, publish and/or distribute games derived from the Property ICE AGE 2 prior to January 1, 2007.
(ii) ICE AGE 2 GUARANTEE AND ROYALTY: In addition to any outstanding Guarantee payments which Licensee shall pay to Fox as set forth in Paragraph 3 of this Amendment below, Licensee shall pay to Fox a minimum recoupable guarantee of ***** dollars (US$*****) on or before ***** (ICE AGE 2 Guarantee), and
***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.
Source: GLU MOBILE INC, S-1/A, 3/19/2007
Fox shall earn, and Licensee shall pay the applicable Major Release Royalties as set forth in Paragraph 7(a)(i) of the Agreement in connection with the property ICE AGE 2. For the avoidance of doubt, there shall be no cross- collateralization of the Royalties collected from Licensee's sale, license, distribution or other exploitation of the Wireless Products derived from the Property ICE AGE 2, with the Royalties collected from any other Wireless Products released by Licensee under this Agreement.
(d) KINGDOM OF HEAVEN VIDEO RIGHTS:
(i) Exhibits A and C are amended to replace Untitled Ridley Scott Film with KINGDOM OF HEAVEN. Exhibit C is further amended to include the KOH Video Clips as defined in Paragraph 3(b) below, with the minimum number of clips to be determined by Fox.
(ii) Paragraph 1(a) of the Agreement is amended to provide that Fox grants Licensee a worldwide, exclusive (except as otherwise may be provided in the Agreement), non-transferable right and license to distribute video clips for the property KINGDOM OF HEAVEN (KOH Video Clips). Notwithstanding the foregoing, Fox retains the right to develop and distribute promotional KOH Video Clips for the purpose of marketing the Property and DVD, which shall consist of different video clips than those developed for Licensee's distribution. Licensee's term of exclusivity with respect to the KOH Video Clips shall expire on October 29, 2005, and Licensee's right and license to distribute the KOH Video Clips shall expire twelve (12) months after the initial theatrical release of the Property KINGDOM OF HEAVEN. Fox shall produce the KOH Video Clips, and Licensee shall reimburse Fox for all production costs associated with such production of the KOH Video Clips, which costs may not be used by Licensee to recoup Licensee's Guarantee payable to Fox under the Agreement.
(iii) Paragraph 7 of the Agreement is amended to provide that with respect to the KOH Video Clips, Fox shall be entitled to receive an amount equal to ***** percent (*****%) of ***** percent (*****%) of the Gross Receipts derived from the distribution of the KOH Video Clips from the first dollar Licensee earns (KOH Video Clips Revenue). With respect to KOH Video Clips which Licensee distributes to VGSL, VGSL will remit directly to Fox, Fox's contractual share (pursuant to the VGSL Agreement ) of such VGSL Revenue. Fox will remit all VGSL Revenue to Licensee and such VGSL Revenue shall be treated as Gross Receipts for the purpose of this Agreement, and pursuant to this Amendment, Licensee shall remit to Fox the KOH Video Clips Revenue derived from the VGSL Revenue. The KOH Video Clips Revenue remitted by Licensee to Fox may not be used by Licensee to recoup the Individual Property Guarantee for KINGDOM OF HEAVEN as set forth in Paragraph 6(b)(i) of the Agreement.
3. GUARANTEE PAYMENT: Consistent with paragraph 15(c) of the Agreement, Licensee shall forfeit the Guarantee paid to date of ***** dollars
***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.
Source: GLU MOBILE INC, S-1/A, 3/19/2007
(US$*****), and shall immediately pay the remaining Guarantee of ***** dollars (US$*****), equaling a total Guarantee payment by Licensee to Fox of ***** dollars (US$*****) (Guarantee Forfeiture Payment). The Guarantee Forfeiture Payment may be recouped from Licensee's sales of the IN HER SHOES Wireless Product and the IDIOCRACY Wireless Product, as set forth in Paragraphs 2(a)(ii) and 2(b)(i) of this Amendment. Furthermore, pursuant to Paragraph 2(c)(ii) of this Amendment, Licensee shall pay to Fox an additional minimum recoupable guarantee of ***** dollars (US$*****).
4. DIRECT-TO-CONSUMER DISTRIBUTION: Fox hereby reserves the right to distribute all Wireless Products through Fox's direct-to-consumer distribution channels, for which Fox shall retain a Distribution Fee as defined in Paragraph 4(a) of this Amendment.
(a) DISTRIBUTION FEE FOR DIRECT-TO-CONSUMER DISTRIBUTION: Should Fox or its assigns choose to distribute the Wireless Products through Fox's and its assigns' direct-to-consumer distribution channels, Fox or its assigns shall deduct a percentage of Fox's Gross Receipts (defined as monies received by or credited to Fox or its assigns from Fox's or its assigns' direct-to-consumer distribution channels, for the download of the Wireless Products by end users, or the sale or download of Wireless Products to end users) collected from the sale of such Wireless Products (Distribution Fee) in the amount of ***** percent (*****%) of Fox's Gross Receipts. After Fox or its assigns deducts its Distribution Fee, it shall remit the remainder to Licensee and Licensee shall pay to Fox or its assigns or such other party as Fox or its assigns may designate in writing, Royalties in the amounts set forth in the Agreement or this Amendment.
5. MUTUTAL RELEASE: With the exception of Licensee's Royalties payment obligations with respect to all Wireless Products released as of the date of this Amendment, and the obligations set forth in this Amendment, neither party shall have any further obligation under the Agreement, and all claims arising under the Agreement shall be mutually released.
***** The omitted portions of this exhibit have been filed with the Securities and Exchange Commission pursuant to a request for confidential treatment under Rule 406 promulgated under the Securities Act of 1933.
Source: GLU MOBILE INC, S-1/A, 3/19/2007
By signing in the places indicated below, the parties hereto accept and agree to all of the terms and conditions hereof.
Glu Mobile, Inc. f/k/a Sorrent, Inc. Fox Mobile Entertainment, Inc. (Fox) (Licensee) By: /s/ Paul Zuzelo By: /s/ Jamie Samson Name: Paul Zuzelo Jamie Samson Its: Chief Administrative Officer Its: Senior Vice President Date: November 18, 2005 Date: 11/18/05
Source: GLU MOBILE INC, S-1/A, 3/19/2007
Question: Highlight the parts (if any) of this contract related to Non-Transferable License that should be reviewed by a lawyer. Details: Does the contract limit the ability of a party to transfer the license being granted to a third party?
Example Output: 6689
Example Input: EXHIBIT 10.6
EXHIBIT 10.06
WATCHGUARD TECHNOLOGIES, INC. DISTRIBUTOR AGREEMENT
This Agreement is made and entered into effective as of November 5, 1997 (the effective Date), by and between WatchGuard Technologies, Inc., a Delaware corporation (WGT), and European Micro (Distributor). WGT and Distributor agree as follows:
Section 1. Definitions
Add-On Software Modules means those computer software programs that (a) provide additional functionality and may be integrated with the existing Hardware and other Software, (b) may be legally exported to the Territory without any export license and (c) WGT elects to include in Exhibit A at a mutually agreed discount percentage.
Distributor Cost means the purchase price payable by Distributor for each Product at the discount from WGT's then current WatchGuard Price List, as such discount is set forth in Exhibit A.
Documentation means any and all manuals, user guides, end-user license agreement, limited hardware warranty, on-line help files, on-line menus and other in program printed text regarding the Product prepared by or for WGT in connection with the Product.
Gross Purchases means the gross purchase price Distributor pays WGT for the Product, excluding any taxes or pass through charges and net of any credits or returns.
Guaranteed Minimum Purchases means the guaranteed minimum purchase amounts set forth in Exhibit A.
Hardware means the hardware identified on Exhibit A, together with any Updates to such hardware. WGT reserves the right to add to or delete hardware from Exhibit A and to modify the hardware during the Term.
Product means the combination of Hardware, Software and Documentation together as part of the same product package (including any Add-On Software Modules and any Updates thereto), in all cases carrying the WatchGuard Trademark.
Quarter means any period of three (3) consecutive calendar months that begins on January 1, April 1, July 1 or October 1, during the Term.
Software means the computer programs identified on Exhibit A, in object code only, together with any Updates to such programs. WGT reserves the right to add or delete Software from Exhibit A and to modify the Software during the Term.
Term means the period of time determined in accordance with Section 5.
Territory means the geographic area described in Exhibit A.
Trademarks means the trademarks and trade names of WGT identified in Exhibit A.
Update means any minor modification, minor upgrade or minor enhancement of the Product (excluding any new version of the Product) that WGT publishes and elects to make available to Distributor via BBS, FTP site or other reasonable means. WGT is not obligated to make or release any update.
Section 2. Relationship of the Parties
2.1 Appointment. Subject to and in accordance with the provisions of this Agreement, WGT hereby appoints Distributor, and Distributor hereby accepts WGT's appointment, as a nonexclusive distributor of the Product to resellers in the Territory during the Term, as long as Distributor makes the Guaranteed Minimum Purchases pursuant to Section 4.
2.2 License Grant. Subject to the terms and conditions of this Agreement, WGT grants to Distributor a nontransferable license to do the following in the Territory during the Term:
(a) market and distribute the Product to resellers;
(b) demonstrate the Product to potential resellers;
(c) use the Product internally for the sole purpose of providing this product support specified in paragraph 4.1(c);
(d) use and display the Trademarks in connection with marketing and distributing the Product in the Territory pursuant to paragraphs (a) and (b) above.
2.3 No Exclusivity. Distributor's appointment and the rights granted hereunder are nonexclusive. WGT may, at its sole option, appoint other distributors of the Product in the Territory at any time during the Term and expressly reserves the right to license the Product directly or indirectly to
end-users, third party original equipment manufacturers or other hardware bundlers, value-added resellers or other resellers for sublicense or resale in the Territory.
Section 3. Compensation
3.1 Support services. As full compensation for the support services described in Exhibit C and provided during the Term, Distributor will pay WGT the Support Fee set forth in Exhibit A. Payment of the Support Fee is due and payable upon execution of this Agreement by wire transfer of immediately payable funds to the bank and account set forth in paragraph 3.4, and then annually by invoice from WGT on the anniversary of the execution of the Agreement.
2
3.2 Price. Distributor will pay WGT for each Product Distributor orders an amount equal to WGT's then current WatchGuard Price List in effect on the date of receipt by WGT of Distributor's order, subject to the applicable discount set forth in Exhibit A. WGT may, from time to time, change its WatchGuard Price List, provided that any such change will not be effective under this Agreement unless and until the expiration of forty-five (45) days after WGT gives Distributor written notices of the change.
3.3 Guaranteed Minimum Purchases. During the Term, Distributor will make Gross Purchases in an amount at least equal to the cumulative Guaranteed Minimum Purchase amounts through committed orders placed pursuant to paragraph 3.5 and calling for shipment on or before the dates set forth in Exhibit A.
3.4 Invoices. WGT will issue invoices for the Products ordered by Distributor and all other amounts payable to WGT under this Agreement. Distributor will pay WGT the full amount invoiced within thirty (30) days after the date of WGT's invoice, unless provided otherwise on the applicable invoice, in the lawful money of the United States of America to WGT by wire transfer of immediately available funds to WGT's bank account number 1141139, at the Commerce Bank of Washington, 601 Union Street, Suite 3600, Seattle, WA 98101, ABA routing number 125008013.
3.5 Orders. Distributor will place orders for the Product from WGT by completing, signing and submitting to WGT a written order for the same, in a form acceptable to WGT, via facsimile, mail or other means. Distributor shall submit such order at least thirty (30) days in advance of the delivery date set forth in each order. All orders will be subject to acceptance by WGT through written acceptance or shipment of the Product subject to the order.
Section 4. General Obligations of the Parties.
4.1 Obligations of Distributor. Distributor will use its best efforts aggressively to develop sales of the Product in the Territory. In furtherance thereof, Distributor will:
(a) keep on hand a reasonable inventory of the Product sufficient to allow for prompt delivery of the Product to resellers;
(b) establish a program to market the Product, including, but not limited to, participating regularly in local and regional trade shows, conventions or like events in the Territory, and conducting regular local promotional and other marketing efforts for the Product;
(c) provide quality product support to resellers, including, but not limited to, providing appropriate installation and application advice and prompt follow-up service and advice to resellers of the Product upon request;
(d) provide a support center to resellers, including, but not limited to, a hotline service to answer reseller questions and to receive and track complaints and any reports of claimed errors in the Product;
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(e) provide quality product technical and sales training to resellers;
(f) respond promptly to sales leads or referrals furnished by WGT or by other distributors or dealers of WGT;
(g) have a designated number of employees attend such technical and sales training programs as set forth in Exhibit C;
(h) maintain and furnish periodically, as WGT may reasonably request, complete and accurate records of each sale or other distribution of each Product sold or distributed by Distributor (e.g., showing the date of sale, Zip code of the customer, the Product serial number and the applicable Product license key(s)) under this Agreement;
(i) promptly advise WGT of each complaint that Distributor may receive or becomes aware of concerning the Product or any portion thereof (including, but not limited to, warranty claims). Distributor will promptly investigate all such complaints and will give immediate attention to and use its best efforts to promptly, courteously and equitably respond to, adjust and settle (without incurring any obligation or liability on behalf of WGT) all
complaints received by Distributor from any customer, potential customer or anyone else arising out of or in connection with Distributor's sale of any Product, or the performance of any services. In handling any complaints, Distributor will use its best efforts to maintain and promote good public relations for WGT;
(j) secure and maintain, in the name of WGT, any and all registrations, permits, licenses, approvals and other governmental actions required to import, handle, market, sell, demonstrate, use and distribute the Product in the Territory, provide to WGT quarterly progress reports on such action, and provide WGT copies of all registrations, permits, licenses, approvals, certificates, correspondence and other documentation related to such action;
(k) hire, train, coordinate and maintain a qualified staff of sufficient size and with a level and mix of capabilities as are reasonably necessary to accomplish the goals contemplated under this Agreement;
(l) avoid deceptive, misleading or unethical conduct which are or might be detrimental to WGT or its Product, and refrain from making any representation, warranty or guarantee to any reseller with respect to specifications, features or capabilities of the Product that is inconsistent with the literature distributed by WGT or this Agreement;
(m) conduct its business in a manner under its own control, provided that Distributor will at all times comply with all applicable laws and regulations and will not engage in, or permit its employees or agents to engage in, any activities or practices which could reflect negatively upon the reputation or prospects of WGT or the Product or expose WGT to any liability of any nature whatsoever; and
4.2 Obligations of WGT, WGT will:
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(a) provide Distributor with sixty (60) days advance notice in the event that it discontinues production of any Product;
(b) provide Distributor with the training and product support services described in Exhibit C; and
(c) furnish Distributor with such demonstration Product, promotional literature, data, information and other items as WGT deems appropriate for Distributor's promotion, marketing and sale of the Product. WGT will use such items only for the purpose of performing its obligations under this Agreement.
4.3 Forecasts. Distributor's forecast of Product purchases for the Term is set forth on Exhibit D. At least fifteen (15) days before the beginning of each Quarter during the Term, Distributor will furnish WGT with a rolling revised forecast of Product orders for the remainder of the Term.
Section 5. Term and Termination.
5.1 Term. The Term will commence on the Effective Date of this Agreement and will remain in effect, unless sooner terminated under paragraphs 5.2, 5.3, or 5.4, until the termination date specified in Exhibit A.
The Term will automatically renew for successive additional periods of one (1) year each, provided that: (a) Distributor has made all Guaranteed Minimum Purchases and has complied with the marketing requirements under paragraph 4.1(b); (b) the parties have agreed in writing upon the Guaranteed Minimum Purchase amounts and Product price discounts for the next subsequent one (1) year renewal period; (c) neither party provided the other party with notice of such party's intention not to renew this Agreement at least thirty (30) days prior to any year's Expiration Date; and (d) neither party provided the other party with such notice as may be required pursuant to paragraphs 5.2, 5.3 or 5.4.
5.2 Termination by WGT. Upon the occurrence of any of the following, WGT may terminate the Term by giving Distributor written notice of such termination for:
(a) any failure of Distributor to comply with the marketing requirements under paragraph 4.1(b);
(b) any material change in the general management, ownership or control of Distributor, including without limitation the sale, transfer or relinquishment by Distributor of any substantial interest in the ownership of the business to be carried on by Distributor under this Agreement, unless such change is approved in advance and in writing by an officer of WGT;
(c) any assignment or attempted assignment of this Agreement by Distributor without the prior written consent of WGT;
(d) any solicitation by Distributor for the sale of the Product to resellers located outside the Territory;
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(e) the insolvency of Distributor, the filing of a petition in bankruptcy by or against Distributor, the appointment of a receiver for Distributor or Distributor's property, the execution of an assignment by Distributor of all or substantially all of its assets for the benefit of its creditors, or the conviction of Distributor or any principal or manager of Distributor for any crime tending to adversely affect the ownership or operation of Distributor's business;
(f) any failure by Distributor to perform any of its other obligations under this Agreement where such failure continues for thirty (30) days after written notice thereof by WGT to Distributor; or
(g) WGT giving Distributor ninety (90) days' advance written notice of termination at any time after the expiration of the Initial Term.
5.3 Failure to Make Guaranteed Minimum Purchases. Upon any failure by Distributor to make Gross Purchases in sufficient amounts to meet or exceed the applicable cumulative Guaranteed Minimum Purchases, WGT may, at its sole option and effective upon notice to Distributor, terminate this Agreement. Distributor shall pay WGT fifty percent (50%) of the unpaid balance of cumulative Guaranteed Minimum Purchase amounts as liquidated damages. The parties acknowledge and agree that it would be difficult or impossible to calculate WGT's actual damages arising from Distributor's failure to timely pay all of the Guaranteed Minimum Purchases. Therefore, the parties have agreed upon the above payment of liquidated damages in lieu of WGT's claim for actual damages from such breach.
5.4 Termination by Distributor. Upon the occurrence of any of the following, Distributor may terminate the Term by giving WGT written notice of such termination;
(a) the insolvency of WGT, the filing of a petition by or against WGT, the appointment of a receiver for WGT or WGT's property, or the execution of an assignment by WGT of all or substantially all of its assets for the benefit of its creditors;
(b) any failure by WGT to perform any of its obligations under this Agreement where such failure continues for thirty (30) days after written notice thereof by Distributor to WGT; or
(c) for convenience whether or not extended beyond the Initial Term, provided Distributor gives WGT thirty (30) days' advance written notice and, within such thirty (30) day period, Distributor pays to WGT a lump-sum payment equal to fifty (50%) of the unpaid balance of cumulative Guaranteed Minimum Purchase amounts.
5.5 Effect of Termination. Any termination pursuant to paragraphs 5.2, 5.3, or 5.4 will be without prejudice to any other right or remedy afforded to either party under this Agreement or any applicable law (e.g., in the case of any breach or default by the other party), and will not affect any rights or obligations which have arisen prior to the date of such termination. In the event of termination, Distributor will:
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(a) immediately cease to demonstrate, market, sublicense and distribute the Product in the Territory;
(b) cease use of all Trademarks of WGT;
(c) return to WGT within twenty (20) days following the expiration or termination of the Term, any and all (i) demonstration Product provided to Distributor; (ii) Products not already paid for in full by Distributor; and (iii) promotional literature, data, information and other items received by Distributor under this Agreement; and
(d) furnish WGT with such information relating to the marketing, sale or distribution of the Product in the Territory as WGT may reasonably request (including, but not limited to, information as to calls or the status of any negotiations for the sale of the Product, or any sales or service records).
Upon the expiration or termination of the Term, the license granted under Section 2 of this Agreement will terminate. Any end-user licenses of the Software granted under the terms of this Agreement will survive the end of the Term in accordance with the terms of the applicable end-user license agreement.
5.6 Acknowledgment. Any expiration or termination of the Term will be final and absolute. Except as expressly set forth in paragraphs 5.3 and 5.5(c), Distributor waives any right, either express or implied by applicable law or otherwise, to the renewal of this Agreement or to any damages or compensation for any expiration or termination of the Term in accordance with this Section 5. Each of the parties have considered the possibility of such expiration or termination and the possibility of loss and damage resulting therefrom in making expenditures pursuant to the performance of this Agreement. It is the express intent and agreement of the parties that neither will be liable to the other for damages, except as expressly set forth in paragraphs 5.3 and 5.5(c), or otherwise by reason of the expiration or termination of the Term as provided for herein.
6.0 Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or
failure to perform as required by this Agreement (other than for payment under Section 3), as a result of any cause or condition beyond such party's reasonable control.
7.0 Entire Agreement. This Agreement is subject to the provisions of WGT's Standard Distributor Terms attached hereto as Exhibit B and by this reference incorporated into and as part of this Agreement. This Agreement is also subject to any additional terms or licenses executed by WGT and Distributor and attached as Exhibits, including any Special Terms and Conditions specified in Exhibit A. This Agreement sets forth the entire agreement, and supersedes any and all prior agreements, among the parties related to the Product. WGT will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) and that is proffered by Distributor or otherwise appears in any order, receipt, acceptance, confirmation, correspondence, or otherwise, unless WGT specifically agrees to such provision in a written instrument signed by WGT. No
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modifications of any of the provisions of this Agreement will be valid unless set forth in a written instrument signed by both parties. Any remedy by WGT set forth in this Agreement is in addition to any other remedy afforded to WGT under any other contract, by law, or otherwise.
IN WITNESS THEREOF, the parties have executed this Agreement as of the date first above written.
Distributor: WatchGuard Technologies, Inc.
By: /s/ LAURENCE GILBERT By: /s/ WATCHGUARD ------------------------- ------------------------------
Title: MANAGING DIRECTOR Title: VP/SALES
Date Signed: NOVEMBER 5, 1997 Date Signed: NOVEMBER 3, 1997
Address: 20/24 Church Street Required Signature: Altrincham, Cheshire WA14 4DW, ENGLAND By: ------------------------------- Title: Executive Vice-President Sales
Date Signed: ---------------------
Address: 316 Occidental Avenue South Suite 300 Seattle, Washington 98104
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FULL SERVICE MASTER DISTRIBUTOR SCHEDULE EXHIBIT A
PRODUCTS:
Distributor will be entitled to order the following products (which includes hardware and software) at the following discounts of WGT's then current WatchGuard Price List:
- ------------------------------------------------------------------------------- DISCOUNT FROM WGT'S PRODUCT THEN CURRENT WATCHGUARD PRICE LIST - ------------------------------------------------------------------------------- WatchGuard Security System 40% plus additional 10% on the remaining undiscounted amount, i.e., 46%
- ------------------------------------------------------------------------------
EXCHANGE FEE: $10 per CD SUPPORT FEE: $25,000 per year
CUMULATIVE GUARANTEED MINIMUM PURCHASES DATE OF ORDER (U.S. DOLLARS) - -------------------------------------------------- --------------------------- Upon contract signing $100,000.00 1st subsequent Quarter-end, Sept. 30, 1997 $100,000.00 2nd subsequent Quarter-end, Dec. 31, 1997 $167,000.00 3rd subsequent Quarter-end, Mar. 31, 1997 $234,000.00 4th subsequent Quarter-end, Jun 30, 1997 $300,000.00
TERMINATION DATE: September 30, 1997 TRADEMARKS:
/bullet/ WatchGuard(TM)
/bullet/ WatchGuard(TM) Technologies
/bullet/ WatchGuard(TM) SchoolMate
/bullet/ Firebox(TM)
TERRITORY:
/bullet/ Europe
SPECIAL TERMS AND CONDITIONS
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These Special Terms and Conditions are part of the Distributor Agreement between WatchGuard Technologies, Inc. (WGT) and Distributor (collectively, the Agreement). Terms that are defined in the Distributor Agreement will have the same meaning when used in these Special Terms and Conditions.
Section A.1 By joint agreement between WGT and Distributor, Distributor may engage in end user sales in the Territory.
If it is agreed that Distributor may engage in end user sales, Distributor may distribute, license and sell up to 20% of the Product purchased from WGT directly to end-users in the Territory. Further, Distributor agrees that high end-users satisfaction is a condition of its continued authorization by WGT. To ensure high end-user satisfaction, Distributor shall: (a) provide quality first level support to its end-user customers; (b) promptly report to WGT all suspected and actual problems with any WGT product; (c) assist WGT in tracing WGT Products to particular end users to distribute critical WGT Product information, locate WGT Products for safety reasons, or to be discover unauthorized marketing or infringing acts; (d) avoid deceptive, misleading or unethical conduct which are or might be detrimental to WGT or its WGT product; and (e) refrain from marking any representation, warranty or guarantee to end users with respect to the specifications, features or capabilities of the WGT Product that is inconsistent with the literature distributed by WGT or this Agreement.
Section A.2 Distributor is legally organized under the jurisdiction of a country belonging to the European Union.
If Distributor is organized under the jurisdiction of the country belonging to the European Union, the following clause is hereby appended to Section 1(c) of the Standard Distributor Terms:
PROVIDED HOWEVER, the foregoing restriction is not intended to preclude Distributor from fulfilling, and Distributor may fulfill, unsolicited orders for Product received from outside the Territory but within the European Union (and Distributor shall provide WGT written notice of any such Sales);
Section A.3 As a Full Service Master Distributor, Distributor agrees to sign up a minimum of 10 new WatchGuard resellers in the Territory within the Initial Term of the Agreement.
- -------------------------------------------- --------------------------------- Distributor: WatchGuard Technologies, Inc.:
By: /s/ LAURENCE GILBERT By: /s/ WATCHGUARD -------------------------- ----------------------------- Title: MANAGING DIRECTOR Title: SENIOR VICE PRESIDENT/SALES Date Signed: NOVEMBER 5, 1997 Date Signed: NOVEMBER 3, 1997 -------------------------------------------- ---------------------------------
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STANDARD DISTRIBUTOR TERMS EXHIBIT B
These Standard Distributor Terms are part of the Distributor Agreement between WatchGuard Technologies, Inc. (WGT) and Distributor (collectively, the Agreement). Terms that are defined in the Distributor Agreement will have the same meaning when used in these Standard Distributor Terms.
1. Reservation of Rights. The Software is licensed, not sold, to Distributor. PARAGRAPH 2.2 LICENSE GRANT of the Distributor Agreement sets forth the entirety of Distributor's rights to use, market, distribute, demonstrate and otherwise deal with the Product. All rights in and to the Product not expressly granted to Distributor under this Agreement are hereby expressly reserved to WGT without restriction. Without limiting the generality of the foregoing, Distributor will comply with the following:
(a) Distributor will distribute the Product to resellers only pursuant to a reseller agreement that substantially conforms to the term of this
Agreement;
(b) Distributor will not market, demonstrate or distribute the Product outside the Territory and Distributor will not supply the Product to any reseller that Distributor knows or has reason to know (i) intends to distribute the Product outside the Territory or (ii) intends to use or install the Product outside the Territory;
(c) Distributor will market, sell and distribute the Product only in its original, unopened package as received from WGT under the terms of the end-user license agreement and limited hardware warranty, as applicable, originally included in the Product package;
(d) Distributor will not modify or make copies of the Product or translate or port the Software into any other computer or human language;
(e) Distributor will not disassemble, reverse engineer, decompile or repackage all or any component of the Product or otherwise attempt to discover any portion of the source code or trade secrets related to the Product;
(f) Distributor will not remove, alter, distort, cover or modify any notice of copyright, trademark or other proprietary right appearing in or on any item included with the Product or its packaging; and
(g) Distributor will not register, attempt to register or assist anyone else to register, directly or indirectly, the Trademarks or any copyright or other proprietary rights associated with the Product in the Territory or elsewhere other than in the name of WGT, without WGT's prior written consent.
2. Protection Against Unauthorized Use. Distributor will promptly notify WGT of any unauthorized use of the Product or the Trademarks which comes to Distributor's attention. In
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the event of any such unauthorized use by Distributor's employees, agents or representatives, Distributor will use its best efforts to terminate such unauthorized use and to retrieve any copy of the Product in the possession or control of the person or entity engaging in such unauthorized use. Distributor will immediately notify WGT of any legal proceeding initiated by Distributor in connection with such unauthorized use. WGT may, at its option and expense, participate in any proceeding and, in such event, Distributor will provide such authority, information and assistance related to such proceeding as WGT may reasonably request to protect WGT's interests.
3. Use of Trademarks. WGT reserves all rights in and to the Trademarks and all other trademarks and trade names used by WGT in connection with the Products, but WGT grants to Distributor the nonexclusive right to use and display the Trademarks during the Term to promote and identify the Product in the Territory in connection with this Agreement. Distributor will comply with the trademark guidelines and procedures established by WGT in Distributor's use of the Trademarks including without limitation use of the trademark and copyright symbols as specified by WGT from time to time. When using the Trademarks, Distributor will include a statement acknowledging that the Trademarks are owned by WGT. Distributor hereby acknowledges that the goodwill associated with its use of the Trademarks inures solely and exclusively to WGT and that Distributor does not acquire any rights in the Trademarks as a result of such use. Distributor will not use the Trademarks or any confusingly similar name, marks, logos, designs or artwork as part of Distributor's name, trade name, trademark or artwork without WGT's prior written consent.
4. Independent Contractor. Distributor is an independent contractor, not an employee, agent or franchisee of WGT. Distributor will not represent or hold itself out as an employee, agent or franchisee of WGT. Distributor does not have any authority to, and will not, create or assume any license, warranty or other obligation, express or implied, on behalf of WGT. This Agreement will not be interpreted or construed as creating or evidencing any association, joint venture or partnership between the parties or as imposing any partnership or franchisor obligation or liability on either party.
5. Delivery. WGT will deliver all Products ordered by Distributor F.O.B. carrier at WGT's shipping location as determined by WGT from time to time, on or before the delivery date set forth in each accepted order. Distributor will pay or reimburse WGT for all shipping charges, premiums for freight insurance, inspection fees, duties, import and export fees, assessments, transportation and other costs incurred by WGT to transport the Product to the shipping destination.
6. Resale. Distributor represents that all Products acquired under this Agreement are acquired solely for demonstration, licensing or sale (as applicable) and distribution to resellers or end-users in the Territory without intervening use by Distributor. Distributor acknowledges that the prices set forth in this Agreement have been established in reliance upon such representation and that different prices may apply to any Products acquired for any other purpose. Upon WGT's request, Distributor will furnish WGT evidence of such resale (including but not limited to satisfactory evidence of exemption from retail sales, use or similar taxes that may otherwise apply to transactions under this Agreement).
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7. Software Update Exchange. Once each Quarter during the Term of this Agreement, Distributor shall have the right to exchange any prior version of the Software then in Distributor's inventory for an equivalent quantity of Software containing Updates, subject to Distributor paying WGT an Exchange Fee set forth in Exhibit A, for each copy of the Software exchanged hereunder. WGT will invoice Distributor for and Distributor shall pay all Exchange Fees as provided in Exhibit A. WGT will deliver all such exchanged Software Updates in accordance with paragraph 5. Distributor shall return to WGT the copies of the prior versions of the Software exchanged under this paragraph 7 at Distributor's expense.
8. Records; Audit. During the Term and for twenty-four (24) months thereafter, Distributor will keep and maintain accurate accounts and records regarding the Products sold and Product license keys delivered to resellers and end-users under this Agreement. Upon WGT's request, Distributor will provide access to such records for examination, reproduction, and audit by WGT or its representatives. Any such audit will be conducted at such times and in such a manner so as not to unreasonably interfere with Distributor's normal operations. If any such audit discloses that Distributor is deficient in its compliance with the terms and conditions of this Agreement, Distributor will immediately pay to WGT any deficiency, plus interest at the rate of one and one-half percent (1.5%) per month running from the date originally due until the date paid. Acceptance of any payment by WGT will be without prejudice to WGT's rights to an audit under this paragraph 8 or any other rights or remedies afforded to WGT under any other provision of this Agreement or applicable law.
9. Taxes. The Guaranteed Minimum Purchases and other amounts specified in this Agreement do not include sales, use or value added taxes, customs fees, duties or other governmental taxes or charges. Distributor will pay all such taxes and charges. In the event Distributor is required under any applicable law to withhold any taxes or duties from the amounts specified under this Agreement, payment of the amounts specified under this Agreement will be net of such withholding taxes or duties. Distributor will pay the amount of all such withholding taxes and duties and supply WGT with information concerning the amount and type of tax withheld and any certificates concerning payments of such withholding taxes.
10. Interest. Any amount not paid when due will be subject to finance charges at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law; whichever is less, determined and compounded on a daily basis from the date due until the date paid. Payment of such finance charges will not excuse or cure Distributor's breach or default for late payment. If WGT retains a collection agency, attorney or other person or entity to collect overdue payments, all collection costs, including but not limited to reasonable attorney's fees, will be payable by Distributor.
11. Confidentiality. Any information received by Distributor in performance of this Agreement relating to the business affairs, customers, markets, finances, methods, Product, technology, trade secrets or proprietary rights of WGT will be treated as confidential and proprietary information of WGT. Distributor will not disclose such information, unless the information is in the public domain at the time of disclosure through no fault of Distributor or WGT consents to the disclosure in writing. Distributor will disclose such information only to its
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employees whose duties justify their need to know such information and who have agreed to copy with Distributor's confidentiality obligations hereunder.
12. Ownership. The Product involves valuable patent, copyright, trade secret, trade name, trademark and other proprietary rights of WGT. No title to or ownership of such proprietary rights is transferred to Distributor under this Agreement or by use of any trademark, copyright or other proprietary right. WGT reserves all of its copyright, trade secret and other proprietary rights in the Product. Distributor will not infringe, violate or contest and will take appropriate steps and precautions for the protection of, such proprietary rights.
13. Implementation. Distributor will take at WGT's expense, all action during or after the Term that is reasonably requested by WGT for the implementation of the ownership provisions of this Agreement or to evidence, perfect or protect WGT's ownership of this Product and the proprietary rights associated with ownership of the Product (including, without limitation, the execution, acknowledgment and delivery of instruments of conveyance, patent, copyright, trademark or other proprietary rights registration applications or other documents.)
14. Warranty; Returns. WGT will permit Distributor and end-users purchasing through resellers to return any defective Product in accordance with the limited warranty contained in the applicable end-user license agreement or limited hardware warranty, as applicable, provided that the Distributor and end-user have compiled with the applicable warranty terms and conditions. In order to receive the remedy provided for hereunder, Distributor shall
deliver to WGT a sample of the Product which Distributor finds to be defective in workmanship or materials, or damaged in shipment prior to Distributor assuming the risk of loss or damage , along with a written explanation of the alleged defect within thirty (30) days from the later of Distributor's initial receipt of such Product from WGT or from the delivery of such Product to an end-user. In the event WGT verifies a defect reported by Distributor and such defect affects more than one (1) Product, then at WGT's option, Distributor shall either certify destruction of all defective Products or return all Products which it alleges are defective to WGT. Distributor, reseller or the end user will be responsible for transportation charges for such Product units sent to WGT's facilities for service. Provided that WGT is able to verify the presence of the reported defect in such units, transportation charges, via a mode of transportation chosen by WGT, shall be borne by WGT to return the Product units from WGT's location to the Distributor, reseller or the end-user's location. Upon verification of a defect in one or more Products returned in accordance with the foregoing, or upon Distributor's certification that it has destroyed any defective Product in compliance with WGT's instructions, WGT will, at its option, either issue a credit to Distributor in the amount of the purchase price paid or payable for such Product by Distributor or replace the defective Product with an identical (non-defective) Product. Such remedy will be exclusive and in full satisfaction of Distributor's claims hereunder. WGT does not warrant that the Products are free form all bugs, errors, defects, design flaws or omissions. The warranties in this Agreement apply only to the latest version of each Product made available by WGT to Distributor. Such warranties will not apply to any Product which WGT determines has been subject to misuse, neglect, improper installation, repair, alteration or damage by Distributor, reseller or an end-user or any other individual or entity, or modification by any such individual or entity except with the prior express authorization of WGT. WGT's obligations
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under this paragraph will not apply to the extent arising out of any use or combination of the Product with any other products, goods, services or other items furnished by Distributor or anyone other than WGT, or to any modification or change of the Product not made by WGT. The foregoing warranties and rights may be asserted by Distributor only and not by Distributor's resellers.
15. Infringement. WGT will defend and indemnify Distributor against any judicial proceeding based upon infringement of any U.S. patent or US. copyright by the Product to the extent that such proceeding arises from or in connection with a component of the Product manufactured or developed by WGT and not any third party, provided that Distributor notifies WGT of such proceeding promptly after Distributor receives notice thereof, WGT has control over the defense and settlement of the proceeding, Distributor provides such assistance in the defense and settlement of the proceeding as WGT may reasonably request, and Distributor complies with any settlement or court order made in connection with such proceeding (e.g., as to the future use of any infringing Product). WGT's obligations under this paragraph will not apply to any infringement to the extent arising out of any use or combination of the Product with any other products, goods, services or other items furnished by Distributor or anyone other than WGT or to any modification or change of the Product not made by WGT.
16. Disclaimer and Release. THE WARRANTIES OF WGT AND THE REMEDIES OF DISTRIBUTOR SET FORTH IN PARGRAPHS 14 AND 15 ARE EXCLUSIVE AND IN SUBSTITUTION FOR, AND DISTRIBUTOR HEREBY WAIVES, RELEASES AND DISCLAIMS. ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF WGT AND ALL OTHER RIGHTS, REMEDIES AND CLAIMS OF DISTRIBUTOR, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY DEFECT, DEFICIENCY OR NONCONFORMITY IN ANY PRODUCT OR OTHER ITEM FURNISHED BY OR ON BEHALF OF WGT UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE; IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USEAGE OF TRADE; ANY OBLIGATION, LIABLITY, RIGHT, REMEDY OR CLAIM IN TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABLITY, STRICKT LIABILITY OR OTHER THEORY; AND CLAIM OF INFRINGEMENT.
17. Representations. Distributor will be solely responsible for any representations or warranties Distributor may make to any reseller with respect to the Product or any products, goods, services or other items provided by Distributor. Except to the extent inconsistent with paragraph 15, Distributor releases and will defend, indemnify and hold harmless WGT and its officers, directors, employees, agents and representatives from any and all claims, losses, damages, liens, liabilities, costs and expenses (including, but not limited, reasonable attorneys' fees) incurred or asserted by any reseller or otherwise arising out of or in connection with (a) any misrepresentation, negligent or tortious act or omission, or breach of or default under this Agreement by Distributor or by anyone else acting for or on behalf of Distributor in connection with the promotion, distribution or other dealings with respect to the Product; (b) any reseller or end-user's use of the Product or any products or services of
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Distributor; or (c) any representations and warranties made by Distributor that are inconsistent with or in addition to the warranties made in WGT's end-user license agreement or limited hardware warranty, as applicable, accompanying each copy of the Product.
18. Limitations of Liability. EXCEPT AS PROVIDED IN PARAGRAPH 15, WGT'S LIABILITY(WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE WHETHER ACTIVE, PASSIVE, IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY) UNDER THIS AGREEMENT OR WITH REGARD TO ANY PRODUCT OR OTHER ITEMS FURNISHED UNDER THIS AGREEMENT WILL IN NO EVENT EXCEED THE COMPENSATION PAID TO WGT CONCERNING SUCH PRODUCT UNDER THIS AGREEMENT.
19. Consequential Damages. IN NO EVENT WILL WGT BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), TO DISTRIBUTOR OR TO ANY RESELLER OF DISTRIBUTOR, END-USER OR OTHER PERSON OR ENTITY FOR COST OF COVER OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFIT, BUSINESS OR DATA) ARISING OUT OF ITS PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT OR THE USE OF, INABIILTY TO USE OR RESULTS OF USE OF THE PRODUCT.
20. Compliance with Laws. In performing this Agreement, Distributor will comply with all applicable laws, regulations and other requirements, now or hereafter in effect, of government authorities having jurisdiction.
21. Export. Without limiting anything else herein, Distributor will not export or re-export, directly or indirectly, the WGT Product to any country to which export or re-export of such items is prohibited by the U.S. Export Administration Act, regulations of the U.S. Department of Commerce and other export controls of the U.S., as they may be amended without first obtaining an appropriate written authorization from the U.S. Office of Export Licensing or its successor. At the time of execution of this Agreement, Distributor is prohibited from exporting or re-exporting , directly or indirectly, the WGT Product to the following countries: Cuba, Libya, North Korea, Iran, Iraq, Ruwanda, Sudan, Syria and the Federal Republic of Yugoslavia (Serbia and Montenegro). Notwithstanding the foregoing list, Distributor is not relieved from its obligations to comply with the foregoing export control laws, as such laws may be amended from time to time. Distributor shall also comply with all other foreign or local governmental export and import control laws, regulations and rules.
22. Government Approvals. Distributor will obtain at its expense all licenses, permits and other governmental approvals; will provide all notices; and will pay all duties, taxes and other charges required for the license, export, re-export and import of the Product distributed by the Distributor; the license of the Software distributed by Distributor; and the implementation of this Agreement.
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23. Nonwaiver. The failure of either party to insist upon or enforce strict performance of any of the provisions of this Agreement or to exercise any rights or remedies under this Agreement will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provisions, rights or remedies in that or any other instance; rather, the same will be and remain in full force and effect.
24. Assignment. Distributor will not assign all or any part of this Agreement or any of its rights under this Agreement without the prior written consent of WGT. Subject to the foregoing, this Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.
25. Survival. Paragraphs 1, 2, 3, 13 through 23 and all accrued obligations to pay, together with all other provisions of this Agreement which may reasonably be interpreted or construed as surviving the expiration or termination of the Term, will survive the expiration or termination of the Term.
26. Notices. Any notice or other communication under this Agreement given by either party to the other will be in writing and delivered either (a) in person or by first-class, registered or certified mail or a recognized overnight delivery service, return receipt requested, postage prepaid or (b) by facsimile and then acknowledged as received by return facsimile by the intended recipient. Notices will be deemed received only upon actual receipt. Notices will be directed to the intended recipient at the address specified below its signature on the signature page of this Agreement. Either party may change its address by giving the other party notice of such change in accordance with this paragraph.
27. No Conflict. Distributor represents and warrants to WGT that Distributor is free to enter into and perform this Agreement without thereby being in breach of or default under the terms of any other contract, commitment or understanding.
28. Interpretation. The English language of this Agreement will govern any interpretation of or dispute regarding the terms of this Agreement. Paragraph captions are for convenience of reference and do not alter or limit the terms of this Agreement. The parties hereto have expressly required that the present Agreement and its Exhibits be drawn up on the English language. / Les parties aux presentes ont expressement exige que la presente conventions et se Annexes solent redigees en la langue anglaise.
29. Governing Law; Venue. This Agreement will be governed by and interpreted in accordance with the local laws of the State of Washington, U.S.A., without regard to its conflicts of law provisions and not including the provisions of the 1980 U.N. Convention in Contracts for the International Sale of Goods. Distributor irrevocably consents, and submits to the jurisdiction of the Federal and State courts of and located in King County, in the State of Washington, U.S.A. Distributor will not commence or prosecute any suit, claim, or proceeding arising under this Agreement other than in the courts identified in the preceding sentence. Any remedy of WGT set forth in this Agreement is in addition to any other remedy afforded to WGT under this Agreement, any other contract, by law or otherwise.
17
SUPPORT SERVICES AND PROCEDURES EXHIBIT C
SUPPORT SERVICES:
WGT will provide the following training and product support programs to Distributor:
A. Training.
Promptly after execution of this Agreement, WGT will conduct a one day technical and sales training program for three (3) of Distributor's employees. Such training will be held at Distributor's facilities. Distributor will be responsible for all costs and expenses incurred by Distributor's personnel in attending, receiving or securing training provided by WGT.
B. Product Support Services.
WGT will provide the following product support services to Distributor for the Term of the Agreement:
1. Telephone Support. Reasonable telephone and electronic mail support for the Software will be available in response to a request from Distributor during WGT's normal business hours (6:00 a.m. to 5:00 p.m., Monday through Friday, Pacific Standard Time), excluding holidays that WGT recognizes. Only Distributor's designated, approved personnel will communicate with WGT's customer support specialists.
2. Submitting a Service Request. To submit a request for service, Distributor has two service options:
(a) over the phone, the Distributor will dial WGT's service number as supplied to Distributor by WGT. When a support specialist answers the phone, Distributor will be prepared to discuss the problem with the support specialist.
(b) via electronic mail as supplied to Distributor by WGT, whereby a service request can be submitted to WGT's electronic mail system.
In order to submit a service request, either telephonically or electronically, Distributor will employ the following procedures:
(a) provide a clear description that fully explains what the problem is, and when the problem occurs;
(b) provide a diagnostic trace, sample code or file of the failure symptom that has been recorded on the user's system; and
(c) describe the steps taken to resolve the problem.
18
3. Priority. WGT will respond to problems with the Software in accordance with the following priority schedule:
Priority One (P-1) is reserved for critical and severe Software problems which cause the Software to fail or act in a manner which causes the Software to be unusable.
Priority Two (P-2) is reserved for Software problems which cause a major component of the Software to become unusable but the overall Software continues to function.
Priority Three (P-3) is reserved for Software problems which cause minimal disruption to normal operations of the Software and can be avoided with a simple work-around process.
Priority Four (P-4) is reserved for all other problems of lesser severity.
4. Response Time: Upon receipt of a service request, a WGT customer support specialist will contact Distributor's designated, approved personnel within the following response times to discuss the problem:
P-1 - respond within two (2) hours (subject to WGT's normal business hours) of
receipt of a P-1 problem and use all commercially reasonable and diligent efforts to create a fix or work-around as soon as practicable considering the nature of the problem.
P-2 - respond within four (4) hours (subject to WGT's normal business hours) of receipt of a P-2 problem and use all commercially reasonable and diligent efforts to create a fix or work-around as soon as practicable considering the nature of the problem.
P-3 - respond within twenty-four (24) hours (subject to WGT's normal business hours) of receipt of a P-3 problem and use all commercially reasonable efforts to create a fix or work-around which may be included in the next Update.
P-4 - respond within five (5) business days (subject to WGT's normal business hours) of receipt of a P-4 problem and target a fix in a future Update.
WGT will make any corrections available to Distributor via BBS, FTP site or other reasonable means.
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DISTRIBUTOR'S FORECAST EXHIBIT D
Quarter 1: ____________, 19__ through ____________, 19__ $__________
Quarter 2: ____________, 19__ through ____________, 19__ $__________
Quarter 3: ____________, 19__ through ____________, 19__ $__________
Quarter 4: ____________, 19__ through ____________, 19__ $__________
20
Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
Example Output: 29401
Example Input: Exhibit 10.11 ***Certain portions of this exhibit have been omitted based on a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, as amended. The omitted portions have been filed separately with the Securities and Exchange Commission. STRATEGIC ALLIANCE AGREEMENT This Strategic Collaboration Agreement (Agreement), effective as of the 23rd day of September, 2016 (Effective Date), is entered into by and between The University of Texas M. D. Anderson Cancer Center, with a place of business located at 1515 Holcombe Blvd., Houston, TX 77030, USA (MD Anderson), a member institution of The University of Texas System (System) and Adaptimmune LLC, with a place of business located at 2001 Market Street, Philadelphia, PA 1903, USA (Adaptimmune); and Adaptimmune Limited, with a place of business at 101 Milton Park, Abingdon, Oxfordshire, OX14 4RY (Adaptimmune Limited) (MD Anderson and Adaptimmune each a Party and collectively the Parties). WITNESSETH Whereas Adaptimmune and Adaptimmune Limited are biotechnology companies involved in the field of research, development and marketing of pharmaceutical products and therapies, including the sponsorship of clinical trials. Whereas MD Anderson is a comprehensive cancer research, treatment, and prevention center, with scientists and technicians in substantive fields relating to cancer research. Whereas the Parties hereby wish to establish a strategic alliance, as further described herein, (Alliance) whereby Adaptimmune will provide funding and in-kind support for: (a) one or more preclinical studies (Pre-clinical Studies); and (b) one or more clinical and related correlative studies (Clinical Studies) to be conducted by MD Anderson pursuant to this Agreement (each such Clinical Study or Pre-clinical Study, a Study, and all such Clinical Studies and Pre-clinical Studies, the Studies.). Now therefore, in consideration of the premises and the mutual covenants and conditions hereinafter recited, the Parties do hereby agree as follows: 1. Subject and Scope of Agreement 1.1 The initial scope of the Alliance will consist of the Studies described in Exhibit I, the details of which are to be mutually agreed upon by the JSC from time to time in accordance with Sections 1.5 - 1.8 below). The Studies and/or the scope of the Alliance may be replaced and/or changed as agreed upon by the JSC. Adaptimmune shall have responsibility for IND filing and monitoring unless otherwise agreed by JSC. The Alliance Funding (defined in Section 1.3 below) will cover enrollment of a minimum of *** Clinical Study subjects into Clinical Studies (with Clinical Studies in this context excluding any screening Study or long term follow-up Study) (Minimum Patient Numbers). MD Anderson represents and undertakes that (a) *** and (b) that the *** (together (a) and (b) being the ***): 1.2 Adaptimmune shall be the sponsor of any Clinical Study. MDACC shall be responsible for the conduct of each Study in accordance with the relevant protocol and/or workscope. The Agreement shall govern the performance of Studies by MD Anderson and one or more Principal Investigator(s) on basis of
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 1
Study specific documents (Study Orders) as agreed upon by the Parties. This Agreement shall apply to all Studies set out in the Study Orders performed by MD Anderson and the MD Anderson principal investigator(s) responsible for the performance of such Studies (Principal Investigator(s)) upon execution of Study Orders during the term of this Agreement. Each Study Order shall be substantially in the form attached as Exhibit III to this Agreement and shall detail the specifics of the Study to be performed under such Study Order including, without limitation, (i) the detailed Protocol or workscope, (ii) the Principal Investigator and (iii) identify any project-specific resources or support provided by Adaptimmune. In the event of any conflict of terms of this Agreement and the terms of a Study Order, the terms of this Agreement shall govern, unless the Study Order specifically and expressly supersedes this Agreement with respect to a specific term, and then only with respect to the particular Study Order and specific term. If there is any discrepancy or conflict between the terms contained in a Protocol or workscope and this Agreement and/or the relevant Study Order, the terms of the Protocol or workscope shall govern and control with respect to clinical/scientific matters and the terms of the Agreement and/or the relevant Study Order in that order shall govern and control with respect to all other matters, e.g., legal and financial matters. 1.3 Adaptimmune agrees to commit funding in an amount of at least nineteen million six hundred and forty four thousand Dollars US ($19,644,000) for the performance of the Studies as set out in Exhibit I during the term (Alliance Funding). The JSC may allocate and/or re-allocate funds to Studies as necessary and agreed by JSC. The basic per patient estimate for Clinical Studies is as follows: for screening Clinical Studies: $***, for long term follow-up Clinical Studies: $*** and for other Clinical Studies: $***. If the Parties extend the term by mutual agreement as set forth herein, the Parties shall negotiate in good faith the amount of future Study funding commitments by Adaptimmune applicable to such extended term. In the event a Study is terminated early, then in relation to any funds allocated to such Study, the Parties shall promptly discuss and agree upon a replacement of that Study with a new study of similar scope that is of mutual scientific interest to the Parties and that is approved by the JSC, and that will be funded by the Alliance Funding. If there is any Alliance Funding at the expiration or termination of this Agreement, it will be allocated to studies, research or tests agreed by the JSC, and such Alliance Funding will be payable in accordance with agreed milestones relevant to such agreed studies, research or tests. The Parties understand that the compensation being paid to MD Anderson under this Agreement constitutes the fair market value of the services to be provided hereunder. Neither MD Anderson nor Principal Investigator shall seek or accept reimbursement from any third-party payor for any Study items or procedures supplied by or paid for by Adaptimmune under this Agreement. MD Anderson acknowledges that Adaptimmune may be obligated to disclose all payments made hereunder, including the provision of non-monetary items of value, as may be required under Applicable Law, including the Physician Payments Sunshine Act, passed as Section 6002 of the 2010 Patient Protection and Affordable Care Act and, to the extent required by Applicable Laws, agrees to keep and maintain relevant records of such and, upon Adaptimmune's reasonable request, provide such records to Adaptimmune to the extent such information is not already in Adaptimmune's possession, but only to the extent required for Adaptimmune to comply with its legally required reporting obligations. MD Anderson consents to such disclosure, to the extent such disclosure is required for Adaptimmune to comply with Applicable Laws. MD Anderson shall ensure that the Principal Investigator provides in a timely manner all such reasonable information to Adaptimmune necessary for Adaptimmune to comply with any disclosure requirements to the extent required by and in accordance with 21 C.F.R. Part 54, including but not limited to, any information required to be disclosed in connection with any financial relationship between Adaptimmune and the Principal Investigators and sub-investigators involved in the Study, as well as any immediate family members thereof. MD Anderson will ensure that Principal Investigator promptly updates any provided information if any relevant changes occur during the performance of any Study and for one year following completion of any Study.
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 2
No amounts paid under this Agreement are intended to be for, nor shall they be construed as, an offer or payment made in exchange for any explicit or implicit agreement to purchase, prescribe, recommend, or provide a favorable formulary status, for any Adaptimmune product or service. Any such compensation will be consistent with fair market value in arms-length transactions and will not be determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the Parties for which payment may be made in whole or in part under Medicare, Medicaid or other Federal health care programs. MD Anderson and Adaptimmune each confirm that in entering into this Agreement they have not accepted any bribes or illegal inducements to enter into this Agreement or to perform any Study and will not accept any bribe or illegal inducement or offer any bribe or illegal inducement in the performance of or for the performance of any Study whether during or after the termination or expiry of this Agreement. 1.4 The nineteen million six hundred and forty four thousand Dollars US ($19,644,000) for the Studies shall be due and payable to MD Anderson according to the schedule outlined in Table 2 in Exhibit II. The JSC retains the right to prioritize and replace Studies as necessary subject to Section 1.6. 1.5 The Parties will establish a Joint Steering Committee (JSC) of equal representation, comprised of three (3) representatives (employees, directors or consultants who are subject to appropriate confidentiality obligations) from each Party, with the representatives of each Party collectively having one vote on all matters to be decided upon by the JSC. Each Party can appoint and replace its representatives in the JSC at its own discretion through timely written notice to the other Party. 1.6 The JSC will have meetings (either in person, by teleconference or via electronic means) at least quarterly. At least one meeting per year will be conducted in person or by videoconference (including the kick-off meeting). The JSC will decide on matters by unanimous vote with each of MD Anderson and Adaptimmune exercising one vote each provided, however, that no action may lawfully be taken at any meeting unless at least two representatives of each Party (including for this purpose any proxy representative appointed as provided below) are present at the meeting. If a member of the JSC is unable to attend a meeting, he or she may appoint, in writing, a proxy to participate and vote in his or her stead. Decisions may also be made by electronic mail, provided such electronic mail is provided by at least two representatives from Adaptimmune and MD Anderson and such electronic mail is acknowledged to be received by the recipient. Although decision will be made by mutual agreement of the JSC, in the event of any disagreement, *** . 1.7 The main task of the JSC will be to oversee the Alliance. In order to achieve the objectives of the Alliance, the JSC will oversee each Study under the Alliance. The JSC will provide technical, scientific, clinical, and regulatory guidance to the Studies and will be responsible for monitoring progress of these Studies. Additional representatives can be invited by the JSC on a case by case basis should discussion of certain topics require so, provided that such guests will be subject to an obligation of confidentiality and non-use at least as strict as Section 5 below. In the event a Study is terminated early or does not initiate, the Parties shall promptly replace that Study with a new study similar in scope that is of mutual scientific interest to the Parties. Once agreed by the JSC, such replacement study will be funded by the Alliance Funding and payable in accordance with agreed milestones for such replacement study.
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 3
1.8 In addition, the JSC will be responsible for coordinating resolution of problems arising in the Studies or in the Alliance as a whole. In the event of any matter to which the JSC cannot reach resolution, or in the event of any dispute arising as to any matter subject to JSC responsibility and save where Adaptimmune has the deciding vote in accordance with Section 1.6 above, such matter or dispute will be escalated to executive management of MD Anderson and Adaptimmune for good faith resolution. Both Parties shall use all reasonable efforts to resolve any matter or dispute on a timely basis. 1.9 MD Anderson represents and certifies that neither MD Anderson nor Principal Investigator will, directly or indirectly, offer or pay, or authorize an offer or payment of, any money or anything of value to any Public Official (defined below) or public entity, with the knowledge or intent that the payment, promise or gift, in whole or in part, will be made in order to improperly influence an official act or decision that will assist Adaptimmune in securing an improper advantage or in obtaining or retaining business or in directing business to any person or entity in relation to the Study. In addition to other rights or remedies under this Agreement or at law, Adaptimmune may terminate the affected Study Order if MD Anderson breaches any of the representations or certifications contained in this Section or if Adaptimmune learns that improper payments are being or have been made to any Public Official by MD Anderson or Investigator. For the purposes of this Agreement, Public Official means any officer or employee of a government, a public international organization or any department or agency thereof, or any person acting in an official capacity, including, for a public agency or enterprise; and any political party or party official, or any candidate for public office. Adaptimmune acknowledges and agrees that MD Anderson is an agency of the State of Texas, and its investigator, employees, and officers do constitute a Public Official, as used in this paragraph, for purposes of this Section. Notwithstanding anything in this Section 1.9, nothing in this Section shall constitute a limitation on MD Anderson's ability to operate within its legal capacity as an agency of the State of Texas, nor shall anything in this Agreement require MD Anderson to violate any law or to refrain from complying with any law applicable to MD Anderson. 2. Responsibilities and Compliance 2.1 Each Clinical Study shall be subject to review and approval of the Study protocol (Protocol) as required by MD Anderson's Institutional Review Board (Institutional Review Board or IRB) and/or any relevant authorities prior to commencement of the Study as may be required in order to comply with Applicable Laws. 2.2 The scope of the Study to be performed shall be set forth in the Protocol(s) or workscope referenced in the Study Order, which shall be incorporated by reference into such Study Order. These Protocol(s)/workscope shall be considered final after being agreed to by MD Anderson and Adaptimmune and, for Clinical Studies, including approval by MD Anderson's IRB. The Principal Investigator for a Clinical Study shall submit the Protocol and reports of the ongoing conduct of the Clinical Study to the IRB as required by the IRB, obtain written approval from the IRB, and inform the IRB of Study closure. 2.3 MD Anderson shall and will ensure that each Principal Investigator shall conduct a Study in accordance with (a) the terms and conditions of this Agreement and the relevant Study Order, (b) the provisions of the Protocol or workscope, as applicable, (c) applicable Good Clinical Practice requirements as incorporated by FDA regulations (GCP), (d) the ethical principles of the Declaration of Helsinki, as applicable, and (e) any and all applicable orders and mandates of relevant authorities (including the FDA) and IRB, and applicable MD Anderson policies. MD Anderson shall ensure that all persons participating in any Study are either employees of MD Anderson or are under legally binding obligations to MD Anderson requiring performance in accordance with the terms of this Agreement and that all persons 4
conducting any Study are properly trained with respect to their tasks performed for the Study. The Study shall be conducted at MD Anderson. Only Adaptimmune shall be entitled to amend or modify the Protocol, which amendments and modification must be approved by the IRB prior to implementation. Neither MD Anderson or Principal Investigator shall be entitled to amend any Protocol for any Study except as necessary to eliminate any immediate hazard to the safety, rights or welfare of the Study patient or unless required by the IRB. Any deviation from the Protocol must be agreed by Adaptimmune in advance unless necessary to eliminate an apparent immediate hazard to the safety, rights or welfare of any Study patient or unless required by the IRB. MD Anderson will promptly report any known deviation to Adaptimmune. 2.4 MD Anderson and Adaptimmune shall comply with all federal, state, and local laws and regulations as well as ethical codes applicable to the conduct of each such Study (Applicable Laws) to the extent, in each case, applicable to the relevant performance of a Party's obligations under this Agreement and any Study Order. 2.5 Prior to the enrollment of any patient into any Clinical Study, MD Anderson and/or Principal Investigator shall forward to Adaptimmune evidence of approval of each Clinical Study by MD Anderson's IRB, and with respect to Studies for which MD Anderson serves as sponsor within the meaning of such term under Applicable Laws and regulations, evidence of approval of the Study by relevant regulatory authorities (or exemption from such regulatory authority/ies review and approval). MD Anderson shall, as required by Applicable Law, obtain from the IRB written evidence of continuing review and approval of the Study and shall provide evidence of such approval to Adaptimmune. 2.6 If, in the course of any Clinical Study at MD Anderson, a Study subject is injured by such Study subject's participation in the Study, MD Anderson and/or Principal Investigator shall inform Adaptimmune of any such injury by fax or email in case of serious and unexpected adverse reactions and/or serious and unexpected adverse events arising from the use of Study Drug as soon as reasonably possible and in any event in accordance with the timescales set out in the Protocol, and/or, if applicable, pregnancies, within the timelines stipulated in the Protocol, or if such is not stipulated in the Protocol, within *** (***) business days following MD Anderson or Principal Investigator becoming aware of such event. 2.7 MD Anderson represents that: (a) it has not been debarred by the FDA pursuant to its authority under Sections 306(a) and (b) of the U.S. Food, Drug, and Cosmetic Act (21 U.S.C.. § 335(a) and (b)) and is not the subject of any investigation or proceeding which may result in debarment by the FDA, and to the extent applicable, it shall not use any Principal Investigator or Study team member in the performance of a Study that has been so debarred or subject to any such investigation or proceeding, and; (b) it is not included in the List of Excluded Individuals/Entities (maintained by the U.S. Department of Health and Human Services Office of Inspector General) or the List of Parties Excluded from Federal Procurement and Non-procurement maintained by the U.S. General Services Administration, and is not the subject of any investigation or proceeding which may result in inclusion in any such list, and to the extent applicable, it shall not use any Principal Investigator or Study team member in the performance of a Study that is so included or the subject of any such investigation or proceeding. MD Anderson agrees to promptly notify Adaptimmune in writing if it becomes aware of any such debarment, exclusion, investigation or proceeding of MD Anderson or, to the extent applicable, any Principal Investigator. 2.8 MD Anderson and Adaptimmune shall comply with all applicable federal, state and local laws pertaining to confidentiality, consent and disclosure of all information or records obtained and reviewed in the course of the Study, and shall permit access to such information or records only as authorized by a relevant Study subject, the IRB, and as authorized by law. Each Party agrees to comply with all provisions of the Health Insurance Portability and Accountability Act (HIPAA) regulations (45 C.F.R.
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 5
Parts 160 and 164) as to the protection and security of Protected Health Information (PHI) to the extent applicable to a Party. Prior to participation of each subject in a Clinical Study, MD Anderson will ensure that (a) it has obtained a signed written informed consent document from the subject (Consent) and (b) it has obtained a signed, written, HIPAA authorization that adequately discloses the circumstances under which the subject's personal data might be disclosed, as applicable, and documents the subject's express written authorization for use and disclosure of the subject's PHI for Study purposes, as applicable, pursuant to the HIPAA regulations (Authorization). MD Anderson will agree to the contents of any Consent or Authorization provided to any Study patient or prospective Study patient with Adaptimmune prior to use in any Clinical Study. Adaptimmune, Adaptimmune Limited and its Joint Research Partners will only obtain, access, use and disclose the individually identifiable health information of each Study Subject in accordance with and to the extent permitted by the IRB, Consent and the Authorization document and in accordance with this Agreement and Applicable Laws. Joint Research Partners, for the purposes of this Agreement, means Adaptimmune Limited's strategic collaboration partner, GlaxoSmithKline (including all companies within the GlaxoSmithKline group of companies) but only to the extent and for the duration that GlaxoSmithKline remains a collaboration partner of Adaptimmune or otherwise takes over control of any Study Drug which is the subject of any Study. Adaptimmune shall have in place with its Joint Research Partners a written agreement with terms at least as stringent as those set out in this Agreement in relation to the obtaining, access, use and disclosure of individually identifiable health information under this Section 2.8 or the receipt, access, use and disclosure of MD Anderson Confidential Information under Section 5. 2.9 MD Anderson and Adaptimmune will promptly notify each other upon identifying any aspect of a Protocol, including information discovered during site monitoring visits, or Study results that may adversely affect the safety, well-being, or medical care of the Study subjects, or that may affect the willingness of Study subjects to continue participation in a Study, influence the conduct of the Study, or that may alter the IRB's approval to continue the Study. MD Anderson will promptly notify the IRB of any such events. If the IRB at any time suspends, qualifies or withdraws approval of the Study, MD Anderson shall promptly notify Adaptimmune, provide a reasonable written explanation of the circumstances leading to such suspension, qualification or withdrawal, and cease the treatment of all Study patients as medically appropriate and if required by the IRB. When Study subject safety or medical care could be directly affected by Study results, then notwithstanding any other provision of this Agreement, MD Anderson will send Study subjects a written communication about such results. *** . 2.10 MD Anderson shall not subcontract any of its or the Principal Investigator's responsibilities under this Agreement without the prior written consent of Adaptimmune. Any consent provided under this Section 2.10 shall not enable the relevant sub-contractor to further subcontract its responsibilities to any other third party. MD Anderson shall ensure that any subcontracting is governed by a binding agreement which imposes on the subcontractor obligations and responsibilities substantially equivalent to those set out in this Agreement, to the extent such apply to the subcontracted activity (including obligations of confidentiality and ownership of Inventions). Regardless of any delegation of duties to any subcontractor, MD Anderson remains obligated to fulfill all MD Anderson obligations to Adaptimmune and Adaptimmune Limited hereunder. 3. Personnel, Materials and Equipment
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3.1 Except as otherwise set forth in this Agreement, MD Anderson shall provide all necessary personnel, facilities, and resources to accomplish their responsibilities under this Agreement and the relevant Study Order. 3.2 Adaptimmune agrees to promptly provide MD Anderson with the required quantities of the drug or therapy under a Study Order that will be utilized in accordance with the provisions of the Protocol or workscope applicable to the Study (Study Drug), Alliance Funding applicable to the Study, and/or support services to the extent required for the conduct of a Study as specified in the Protocol or workscope. Any Study Drug provided by Adaptimmune will be used solely for the applicable Study and solely in accordance with the Protocol or workscope for the relevant Study. MD Anderson will not use such Study Drug outside of the scope of the Study. MD Anderson will not transfer or provide unsupervised access to the Study Drug to any third party for any purpose, without the prior written consent of Adaptimmune. MD Anderson acknowledges that the Study Drug is experimental in nature, and shall exercise prudence and reasonable care in its handling, storage, transportation, disposition and containment of the Study Drug and, if applicable, any other Proprietary Materials provided by Adaptimmune. 3.3. Use of Proprietary Materials. From time to time during the Term, either Party (the Transferring Party) may supply the other Party (the Receiving Party) with proprietary materials of the Transferring Party (other than Study Drug) (Proprietary Materials) for use in the Study as may be further listed in the Study Order. In connection therewith, each Receiving Party hereby agrees that: (a) the Receiving Party will not use the Proprietary Materials for any purpose other than exercising its rights or performing its obligations hereunder; (b) it will use such Proprietary Materials only in compliance with all Applicable Laws; (c) it will not transfer any such Proprietary Materials to any third party without the prior written consent of the Transferring Party; (d) it will not acquire any rights of ownership, or title in or to such Proprietary Materials as a result of such supply by the Transferring Party; and (e) upon the expiration or termination of this Agreement or a Study Order, if requested by the Transferring Party, it will destroy or return any such Proprietary Materials 3.4 Nothing in this Agreement shall be construed to limit the freedom of MD Anderson or of any Principal Investigator or Study team member or Adaptimmune to engage in similar clinical trials or research performed independently under other grants, contracts, or agreements with parties other than Adaptimmune. 3.5 MD Anderson will obtain, prepare, store and ship all Study patient samples required to be collected and shipped under Protocol for any Clinical Study in accordance with and to the extent permitted by Applicable Laws, the Consent, Authorization, the IRB and any applicable Study reference manuals and any reasonable written instructions provided by Adaptimmune. Both Parties shall retain all such samples in accordance with and to the extent permitted by the Consent, Authorization, the IRB and Protocol and only disseminate such samples to third parties to the extent permitted by the Consent and HIPAA Authorization the IRB, Applicable Laws, and the Protocol. Adamptimmune, and service providers for the Study may only use the samples only to the extent permitted by the Consent and HIPAA Authorization documents, the IRB, as necessary to conduct the Study and as permitted by Applicable Laws. 4. Payments 4.1 Payments of Alliance Funding applicable to a Study will be made according to the terms specified in Sections 1.3 and 1.4 above. 5. Confidential Information 7
5.1 In conjunction with each Study, the Parties may wish to disclose confidential information to each other. For purposes of this Agreement, Confidential Information means confidential, non-public information, know-how and data (technical or non-technical) that is disclosed in writing, orally, graphically, in machine readable form, or in any other manner by or on behalf of a disclosing Party to a receiving Party or its Affiliates for purposes of this Agreement or any Study Order (Purpose). Data or Inventions arising in the performance of the Study and which are owned by Adaptimmune will also constitute Confidential Information of Adaptimmune, even where first disclosed by MD Anderson and in each case subject to the publication rights of MD Anderson in Section 12 and subject to Section 7 below. Confidential Information may be disclosed in any form (e.g. oral, written, graphic, electronic or sample) by or on behalf of disclosing Party or its Affiliates, or may be otherwise accessible to receiving Party or its Affiliates. Exchanges of Confidential Information directly between the Affiliates and Joint Research Partners are also covered by this Agreement. Affiliates means any individual, company, partnership or other entity which directly or indirectly, at present or in the future, controls, is controlled by or is under common control of a Party, and control will mean direct or indirect beneficial ownership of at least fifty per cent (50%) of the voting share capital in such company or other business entity, or to hold the effective power to appoint or dismiss members of the management. 5.2 Without disclosing Party's prior written consent, receiving Party will: (a) not use any part of or the whole of the Confidential Information for any purpose other than the Purpose; (b) restrict the dissemination of Confidential Information to individuals within its own organization and disclose the Confidential Information only to those of its officers, employees and Affiliates and Joint Research Partners who have a legitimate need to have access to the Confidential Information, who will be bound by confidentiality and non-use commitments no less restrictive than those of this Agreement, and who will have been made aware of the confidential nature of the Confidential Information; (c) protect the Confidential Information by using the same degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use, dissemination, or publication of the Confidential Information as receiving Party uses to protect its own confidential information of a like nature; (d) preserve the confidentiality of the Confidential Information, not disclose it to any third party, and take all necessary and reasonable precautions to prevent such information from being accessible to any third party; and (f) promptly notify the disclosing Party upon becoming aware of evidence or suspicion of any unauthorized use or disclosure of the Confidential Information. The foregoing obligations will exist for a period of *** (***) years from the date of completion of the last Study in relation to which the Confidential Information is disclosed or used. 5.3 The obligations of confidentiality and non-use listed in this Section 5 will not apply to information: (a) which is in the public domain or public knowledge at the time of disclosure, or which subsequently enters the public domain through no fault of receiving Party; (b) which was rightfully in the possession of receiving Party at the time of disclosure by disclosing Party; (c) which is independently developed by receiving Party without use of disclosing Party's Confidential Information; (d) which the receiving Party receives legally from any third party and which is not subject to an obligation of confidentiality; (e) is communicated to the receiving party's IRB or other scientific committee; (f) is required to be disclosed in order to obtain informed consent from patients or subjects who may wish to enroll in the Study, provided, however, that the information will be disclosed only to the extent necessary and will not be provided in answer to unsolicited inquiries by telephone or to individuals who are not eligible to be Study subjects; or (g) is disclosed to a Study subject for the safety or well-being of the Study subject. The receiving Party may also disclose Confidential Information of any other Party where it is required to disclose such pursuant to Applicable Law; provided, however, that receiving Party will make reasonable efforts, if legally permissible, to (i) notify disclosing Party prior to the disclosure of any part of or the whole of the Confidential Information and (ii) allow disclosing Party the opportunity to
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contest and avoid such disclosure, and provided, further, that receiving Party will disclose only that portion of such Confidential Information that it is legally required to disclose. 5.4 For the purposes of this Section 5, any combination of features disclosed to the receiving Party will not be deemed to be within the foregoing exceptions merely because individual features are. Moreover, specific disclosures made to the receiving Party will not be deemed to be within the foregoing exceptions merely because they are embraced by general disclosures. 5.5 All Confidential Information disclosed to receiving Party pursuant to this Agreement will be and remain the disclosing Party's property. Nothing contained herein will be construed as granting to receiving Party any proprietary right on or in relation to any part of or the whole of the Confidential Information, or any right to use any of the Confidential Information except for the Purpose. Receiving Party will return to disclosing Party all documents and other materials which constitute Confidential Information, as well as all copies thereof, promptly upon request or upon termination of this Agreement (whichever is earlier); provided, however, that receiving Party may keep one copy of the Confidential Information received under this Agreement in its secure files in accordance with the terms of this Agreement for the sole purpose of maintaining a record of the Confidential Information received hereunder and for compliance with this Agreement and/or Applicable Laws. 5.6 Adaptimmune will not require MD Anderson to disclose any Protected Health Information. Notwithstanding the foregoing, if Adaptimmune comes into knowledge or possession of any Protected Health Information (as such term is defined under HIPAA) by or through MD Anderson or any information that could be used to identify any Study subject or other MD Anderson patients or research subjects, Adaptimmune will maintain any such Protected Health Information or other information confidential in accordance with laws and regulations as applicable to MD Anderson, including without limitation HIPAA, will use any such Protected Health Information solely to the extent permitted by Applicable Laws, the IRB and the Consent/Authorization of the patient/research subject, and will not use or disclose any such Protected Health Information or other information in any manner that would constitute a violation of any Applicable Laws or regulation if such use or disclosure was made by MD Anderson. It is intended that MD Anderson will not disclose any Protected Health Information to Adaptimmune under this Agreement. 5.7 Improper use or disclosure of the Confidential Information by receiving Party is likely to cause substantial harm to disclosing Party. Therefore, in the event of a breach, threatened breach, or intended breach of this Agreement by receiving Party, in addition to any other rights and remedies available to it at law or in equity, disclosing Party will be entitled to seek preliminary and final injunctions enjoining and restraining such breach, threatened breach, or intended breach. 6. Clinical Data / Monitoring 6.1 MD Anderson shall maintain complete, accurate and current records with respect to the conduct of any Study as set forth in any Protocol or Study Order, to the extent required by Applicable Laws and regulations (Study Records). All Study Records shall be retained by MD Anderson in accordance with and for the time period as is required by Applicable Law. Prior to any disposal of such Study Records, MD Anderson shall give Adaptimmune thirty (30) days' prior written notice thereof to allow Adaptimmune the opportunity to request in writing, within such time frame, that MD Anderson continue to store such Study Records at Adaptimmune's expense. In relation to Clinical Studies, MD Anderson will keep Adaptimmune reasonably informed of the progress of the Study and respond to any reasonable queries of Adaptimmune in relation to such Study promptly. In relation to Pre-Clinical Studies, oral reports or interim written status reports of the progress of the Studies will be provided by the Principal Investigator to Adaptimmune on a regular basis and at least once every *** (***) months during the
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course of a Study. Significant developments arising out of Studies will be communicated promptly to Adaptimmune. In the context of any Clinical Study, MD Anderson shall timely prepare and submit to Adaptimmune (a) case report forms, as soon as reasonably possible but in any event within *** (***) business days following completion of any Study patient visit; and (b) responses to data resolution queries as soon as reasonably possible and in any event within *** (***) business days following receipt of such query. 6.2 As applicable to and appropriate for a Clinical Study, Adaptimmune may monitor the conduct of a Clinical Study in accordance with Good Clinical Practice requirements of FDA Regulations, and may visit MD Anderson for the purpose of such monitoring. Such monitoring visits shall also enable Adaptimmune to (a) inspect and review any or all Study Records and Study source documents for comparison with case report forms; and (b) audit financial records relating solely to the performance of the Study under this Agreement. During any visit, MD Anderson and Principal Investigator shall reasonably cooperate with Adaptimmune and will use reasonably efforts to promptly provide any reasonably Study Records or Study information requested by Adaptimmune in accordance with this Section. Any such visits shall be scheduled in coordination with MD Anderson and/or Principal Investigator during normal administrative business hours, and shall be subject Adaptimmune's and Adaptimmune Limited's compliance with MD Anderson's reasonable measures for confidentiality, safety and security, and shall also be subject to compliance with generally applicable premises rules at MD Anderson. 6.3 MD Anderson and Principal Investigator shall, during a Study, permit inspections by responsible legal and regulatory authorities with respect to such Clinical Study. To the extent permitted by law and to the extent practicable, MD Anderson shall notify Adaptimmune of such inspection and provide Adaptimmune with an opportunity to be present at such inspection (to the extent reasonably possible). MD Anderson shall, to the extent permitted by Applicable Law, inform Adaptimmune of any findings resulting from any such inspection and MD Anderson shall promptly correct any non-conformances or requests for correction identified as a result of such inspection. MD Anderson shall promptly notify Adaptimmune of, and to the extent permitted by law, provide Adaptimmune with copies of, any inquiries, correspondence or communications with any legal or regulatory authority with authority over any Study, to the extent in each case applicable to any Study or the performance of such Study by MD Anderson. Where MD Anderson intends to respond to any such communication, MD Anderson shall provide, to the extent permitted by law, Adaptimmune with a copy of such response and an opportunity to comment on such response (to the extent reasonably practicable) in advance of the due date for the response. MD Anderson will review any comments provided by Adaptimmune in good faith. 6.4 Notwithstanding any provision of this Section 6, to the extent that MD Anderson is the holder of an Investigational New Drug Application (IND) or other applicable regulatory application or approval for a Study, the provisions of Section 6.2 and 6.3 shall not apply, and MD Anderson shall have the sole responsibility for monitoring, auditing, and reporting for such Study, provided that MD Anderson agrees to reasonably negotiate access to Study documentation and records relevant to the applicable Study Drug and documentation and facilities applicable to the Study upon the request of Adaptimmune and provided that Adaptimmune shall be subject to compliance with MD Anderson's reasonable measures for confidentiality, safety and security, and shall also be subject to compliance with generally applicable premises rules at MD Anderson. 7. Data & Inventions. 7.1 Each Party will retain all right, title and interest in and to its own Background IP and no license to use such Background IP is granted to the other party except for MD Anderson's use of Study Drug in a Study as set forth in Section 3.2 above and in the Protocol and each Party's use of the other Party's
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Proprietary Material as set forth in Section 3.3 above. Background IP means all intellectual property (including rights in Confidential Information) of a Party that: (a) was generated by such Party before the Effective Date; (b) is generated by such Party outside the scope or after expiration of this Agreement or any Study under this Agreement; and in each such case; (c) is owned by such Party, either partially or wholly, or is licensed to, or otherwise controlled by such Party, and which is not an Invention under this Agreement. 7.2 Patient records, research notebooks, all original source documents, Protected Health Information (as such term is defined by HIPAA), MD Anderson's business records, regulatory and compliance documents, original medical records or any information required to be maintained by MD Anderson in accordance with Applicable Laws, that is generated in the conduct of the Studies (collectively, MD Anderson Records) will be owned by MD Anderson. All results, data and work product (excluding MD Anderson Records) generated in the conduct of the Studies (Data) shall be owned by Adaptimmune Limited. MD Anderson shall maintain all such Data as confidential, subject to the publication rights granted in Section 12 below. Data will be promptly disclosed by MD Anderson to Adaptimmune in the form of a Study report or as otherwise reasonably requested by Adaptimmune. Notwithstanding any other provision of this Agreement, MD Anderson shall have the right to use results and Data of the Study for its internal research, academic, and patient care purposes and for publication in accordance with Section 12 below, save that no right or license is granted to MD Anderson under any of Adaptimmune's Background IP. Adaptimmune shall promptly disclose any Data it generates to MD Anderson. 7.3 MD Anderson will provide to Adaptimmune a detailed written disclosure of each patentable invention and/or discovery (and all intellectual property rights therein) conceived and reduced to practice in the conduct of a Study and arising from the performance of a Study (Invention) promptly after a written invention disclosure report for such Invention is received by MD Anderson's Office of Technology Commercialization. 7.4 Inventions shall be owned by the Parties in accordance with the following: (a) *** Adaptimmune Inventions shall be the sole property of Adaptimmune Limited. (b) With respect to any Inventions that are not Adaptimmune Inventions (Other Inventions), where made solely by MD Anderson or its employees and agents, such Inventions will be solely owned by MD Anderson; where made jointly by MD Anderson and Adaptimmune and/or Adaptimmune Limited and their employees and agents will be jointly owned by MD Anderson and Adaptimmune Limited. Inventions that are made solely by Adaptimmune, Adaptimmune Limited or its employees and agents will be solely owned by Adaptimmune Limited. Inventorship will be determined in accordance with United States patent law. 7.5 MD Anderson hereby grants Adaptimmune and Adaptimmune Limited a non-exclusive, worldwide, irrevocable royalty-free license to any Invention in which MD Anderson has an ownership interest, for any purpose. Such license shall include an unrestricted right to sublicense through multiple tiers. MD Anderson also hereby grants to Adaptimmune Limited an exclusive option to negotiate an
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exclusive (subject to MD Anderson's perpetual, irrevocable, no-cost right to use such Invention for non-commercial internal research, academic and patient care purposes), royalty-bearing license to any Invention in which MD Anderson has an ownership interest, provided that Adaptimmune Limited pays all reasonably incurred patent expenses for such Invention in the event Adaptimmune Limited exercises its option. Adaptimmune Limited must exercise its option to negotiate a license to any Invention by notifying MD Anderson in writing within six months' of MD Anderson disclosing such Invention to Adaptimmune (the Option Period). If Adaptimmune Limited fails to timely exercise its option within the Option Period with respect to any Invention, Adaptimmune Limited's right to negotiate a license agreement with respect to such Invention will automatically terminate, and MD Anderson will be free to negotiate and enter into a license with any other party. If Adaptimmune Limited timely exercises its option, the terms of the license shall be negotiated in good faith within six months of the date such option is exercised, or within such time the parties may mutually agree in writing (the Negotiation Period). If, however, Adaptimmune Limited timely exercises its option, but MD Anderson and Adaptimmune Limited are unable to agree upon the terms of the license during the Negotiation Period, Adaptimmune Limited's right to exclusively license such Invention will terminate, and MD Anderson will be free to enter into a license with any other party (subject to the grant of the non-exclusive license above). 7.6. Adaptimmune Limited hereby grants MD Anderson a perpetual, irrevocable, no-cost, non-exclusive, royalty-free license to any Adaptimmune Invention or Other Invention in which Adaptimmune Limited has an ownership interest for MD Anderson's internal non-commercial research, academic and patient care purposes. For clarity the grant of any license under any Invention or assignment of any Invention by either Party does not include any license under any of such Party's Background IP, even where such Background IP dominates or encompasses any Invention. 7.7 As between the Parties, the sole owner of any Invention will have the sole right to prepare, file, prosecute, maintain, enforce and defend all U.S. and foreign patents, registrations and other forms of intellectual property in such Invention but nothing herein will obligate the owner to take any such actions. As between the Parties, Adaptimmune will have the first right to prepare, file, prosecute, maintain, enforce and defend all U.S. and foreign patents, registrations and other forms of intellectual property in any jointly-owned Invention using patent counsel of its choice that is subject to the written approval of MD Anderson not to be unreasonably withheld and at the sole cost and expense of Adaptimmune, with accounting to MD Anderson. Adaptimmune will keep MD Anderson reasonably informed of all such material preparations, filings, material prosecution, material maintenance, material enforcement and defense and will consider MD Anderson's recommendations in good faith (provided such recommendations are provided on a timely basis) If Adaptimmune elects not to file in the United States or not to maintain an application or patent arising from any jointly-owned Invention, Adaptimmune will promptly notify MD Anderson within reasonable time for MD Anderson to file, prosecute or maintain such application or patent, and MD Anderson will have the right to file, prosecute or maintain such application or patent, at MD Anderson's expense. MD Anderson will keep Adaptimmune reasonably informed of all such material preparations, material filings, material prosecution, material maintenance, material enforcement and defense it makes in relation to any jointly-owned Invention. The Parties will reasonably cooperate with each other with respect to matters concerning jointly-owned Inventions to the extent reasonably necessary for filing, prosecuting, maintaining, defending or enforcing any such patents, registrations and other forms of intellectual property protection. MD Anderson will keep Adaptimmune reasonably informed of any material filings, material prosecution, enforcement and defense patents, new patent applications, material registrations or other forms of intellectual property covering Other Inventions. 7.8 ***
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. 8. Term and Termination 8.1 The term of this Agreement shall be five (5) years following the Effective Date or until the Studies are completed, whichever is later, unless extended or unless terminated earlier in accordance with the provisions hereof. In the event of expiration or early termination of this Agreement, the terms and conditions of this Agreement shall remain binding with respect to any ongoing Studies (including any new studies to which any remaining Alliance Funding is allocated under Section 1.3) until completion of the Studies or termination of the respective Study Order/s. 8.2 A Party will have the right to terminate this Agreement if the other Party commits a material breach of the Agreement and fails to cure such breach within thirty (30) days of receiving notice from the non-breaching Party of such breach. Any expiration or termination of this Agreement will not affect any then existing Study Orders, and any then outstanding Study Orders will continue after the expiration or earlier termination of this Agreement in accordance with their respective provisions. Upon any expiration or termination of this Agreement, provisions of this Agreement that are incorporated by reference into any then outstanding Study Orders will survive termination of this Agreement and will continue to apply to such Study Orders until termination or expiration of each such Study Orders in effect at the time this Agreement expires or is terminated. 8.3 A Party may terminate a Study Order: (a) if the other Party commits a material breach of this Agreement or the Study Order and fails to cure such breach within thirty (30) days of receiving notice from the non-breaching Party of such breach; or (b) in the case of any Clinical Studies, due to health and safety concerns related to the Study Drug or procedures in the Study (including regulatory holds due to the health and safety of the Study Subjects); or (c) in the case of MD Anderson and in relation to any Clinical Studies, where IRB requests termination of any Study; or (d) in the case of Adaptimmune, *** set out in Section 1.2 above. The Parties agree that any termination of a Study Order shall allow for: (i) the wind down of the Study to ensure the safety of Study subjects; and (ii) Adaptimmune's final reconciliation of Data related to the Study in addition to Adaptimmune's final monitoring visit. All reasonable fees associated with the wind-down activities and final monitoring visit shall be paid by Adaptimmune, to the extent not covered by Alliance Funding. Termination of one or more Study Orders will not automatically result in the termination of this Agreement or termination of any other Study Orders. Upon termination of a Study Order, MD Anderson will immediately return (at Adaptimmune's cost) any Study Drugs provided by Adaptimmune for such Study as directed by Adaptimmune. 8.4 In case any regulatory or legal authorization necessary for the conduct of the Study is (i) finally rejected or (ii) withdrawn, the relevant Study Order shall terminate automatically at the date of receipt of such final rejection. Termination or cancellation of this Agreement or a Study Order will not affect the rights and obligations of the Parties that have accrued prior to termination, and any provisions of this Agreement or a particular Study Order that by their nature extend beyond expiration or termination will survive the expiration or termination of this Agreement and/or that particular Study Order. In particular, the provisions of Sections 2-13 as applicable will survive any expiration or termination of this Agreement.
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8.5 In the event the Parties cannot reach agreement on a new Principal Investigator pursuant to Section 14.1 or such new Principal Investigator does not agree to the terms of this Agreement and the relevant Study Order, either Party may terminate such Study Order upon notice to the other Party. 8.6 In addition, in order to accommodate the review and approval of this Agreement by the Office of General Counsel of UT System (the OGC), for a period of *** (***) days following the Effective Date (the Limited Unilateral Termination Period), MD Anderson will have the right to terminate this Agreement without cause upon ten (10) days' notice to Adaptimmune; provided, however, that (i) a termination by MD Anderson will be effective if notice of termination is sent by MD Anderson any time within the Limited Unilateral Termination Period even if the ten day notice period extends beyond the Limited Unilateral Termination Period and (ii) the Limited Unilateral Termination Period will expire on the earlier to occur of (x) the end of the sixty days, or (y) written notice to Adaptimmune from MD Anderson that the Agreement has been approved by the OGC. Should MD Anderson terminate this Agreement in accordance with this Section 8.6 then the Parties will use reasonable efforts to ensure that any Clinical Study in relation to which any patient has been screened or enrolled shall continue under a separate clinical trial agreement to be entered into between the Parties as soon as possible after receipt of notice of termination by Adaptimmune. The terms of such clinical trial agreement shall be in substantially similar form to terms agreed for other clinical trial agreements between the Parties and a separate budget shall be agreed pursuant to such clinical trial agreement. 8.7 For each Study, Adaptimmune shall make all payments due for Study performance reasonably incurred or obligated in good faith hereunder which have accrued up to the date of termination of a Study Order or this Agreement, or, in case of a termination of this Agreement or the relevant Study Order pursuant to Section 8.4, up to the date of receipt of such final rejection. 9. Indemnification 9.1 Adaptimmune and Adaptimmune Limited agree to defend, indemnify, and hold harmless MD Anderson, System, each Principal Investigator and its/their Regents, trustees, directors, officers, staff, employees, students, faculty members, and its/their affiliates and contracted clients and other parties as may be listed on a Study Order (Indemnified Party/ies): (a) from and against any and all liability, claims, lawsuits, losses, demands, damages, costs, and expenses as a result of third party claims or judgments (Indemnified Losses) resulting from (i) personal injury (including death) to any person or damage to property to the extent arising from the design or manufacture of the Study Drug, and (ii) the use of the Data or results of the Study by or on behalf of Adaptimmune, Adaptimmune Limited or any Joint Research Partner and (iii) Adaptimmune's or Adaptimmune Limited's negligence in connection with a Study or this Agreement; (b) from and against any Indemnified Losses arising from an injury to a Study subject caused by the Study Drug or any procedure required by the Protocol. The completion or termination of a Study shall not affect Adaptimmune's obligation to indemnify with respect to any claim or suit based upon the aforementioned Indemnified Losses. Notwithstanding the foregoing, Adaptimmune and Adaptimmune Limited will not be responsible for any Indemnified Losses to the extent that they arise from the negligence, intentional misconduct, or malpractice of the Indemnified Parties or of any breach of the terms of this Agreement by any Indemnified Party, it being understood that the proper administration of the Study Drug in accordance with the Protocol (including permitted deviations) shall not constitute negligence, intentional misconduct, or malpractice for the purposes of this Agreement. For clarity, a request for indemnity by any Indemnified Party under this Section 9.1 may only be made against one of Adaptimmune or Adaptimmune Limited. 9.2 To the extent authorized by the constitution and laws of the State of Texas, MD Anderson, agrees indemnify, and hold harmless Adaptimmune and Adaptimmune Limited: (a) from and against any and all
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Indemnified Losses resulting from any negligent or intentional act or omission of MD Anderson in conducting a Study hereunder; (b) failure of MD Anderson or Principal Investigator to comply with Applicable Laws or to adhere to Protocol; or (c) any use by MD Anderson of the results and Data of the Study outside of the performance of any Study. The completion or termination of a Study shall not affect MD Anderson's obligation to indemnify with respect to any claim or suit based upon the aforementioned Indemnified Losses. Notwithstanding the foregoing, MD Anderson will not be responsible for any Indemnified Losses to the extent that they arise from the negligence, intentional misconduct, or malpractice of Adaptimmune or Adaptimmune Limited or from a breach of Agreement by Adaptimmune or Adaptimmune Limited. 9.3 Subject to the statutory duties of the Texas State Attorney General, any indemnified Party shall: (a) notify the indemnifying Party in writing as soon as is reasonably possible after receipt of notice of any and all claims, lawsuits, and demands, or any action, suit, or proceeding giving rise to the right of indemnification; (b) permit the indemnifying Party to retain counsel to represent the named indemnified Party; and (c) permit the indemnifying Party to retain control of any such claims, lawsuits, and demands, including the right to make any settlement, except that the indemnifying Party shall not make any settlement or take any other action which would be deemed to confess wrongdoing by any of the indemnified Parties without the prior written consent of the applicable indemnified Party. 10. Subject Injury Medical Costs 10.1 Adaptimmune shall assume responsibility for reasonable medical expenses incurred by a Study subject for reasonable and necessary treatment if the Study subject experiences an illness, adverse event or injury that is a result of the Study Drug or any procedure required by the Protocol that the subject would not have undergone were it not for such Study subject's participation in the Study. Adaptimmune shall not be responsible for expenses to the extent that they are due to pre-existing medical conditions, underlying disease, or the negligence or intentional misconduct or due to breach of this Agreement by MD Anderson or Principal Investigator. Adaptimmune shall have no obligation to make any payments for any Study patient that is not eligible for inclusion in any Protocol. Any payments for such medical expenses shall be subject to Adaptimmune receiving relevant documentation supporting the claim for such medical expenses. 11. Insurance 11.1 During the term of any Study Order under this Agreement, Adaptimmune Limited shall maintain in full force and effect insurance for its and Adaptimmune's liabilities arising from the Study with limits of not less than $*** per loss and $*** annual aggregate. Adaptimmune shall provide MD Anderson with evidence of such insurance upon request. 11.2 MD Anderson is self-insured pursuant to The University of Texas Professional Medical Liability Benefit Plan under the authority of Chapter 59, Texas Education Code. MD Anderson has and will maintain in force during the term of this Agreement adequate insurance or financial resources to cover its obligations pursuant to this Agreement. 12. Publications
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12.1 Adaptimmune recognizes the value of disseminating research results and accepts that MD Anderson will have the right to publish or otherwise publicly disclose the results and Data of any Study, subject in each case to this Article 12. 12.2 Clinical Studies: In relation to any Clinical Study, Adaptimmune shall have the *** right to publish or publicly disclose any Data or results arising from such Clinical Study including where such publication arises from the submission of data and/or results to the regulatory authorities. Such right to publish shall not include any MD Anderson Records or any public health information protected by HIPAA or where any publication would be in breach of the Consent and/or Authorization. MD Anderson and/or Principal Investigator shall have the right to independently publish or publicly disclose, either in writing or orally, the Data and results of the Clinical Study/ies after the earlier of the (i) first publication (including any multi-site publication) of such Data and/or results; (ii) twelve (12) months after completion of any multi-site study encompassing any Study or if none, six (6) months after completion of Study. MD Anderson shall, at least thirty (30) days ahead of any proposed date for submission, furnish Adaptimmune with a written copy of the proposed publication or public disclosure. Within such thirty (30) day period, Adaptimmune shall review such proposed publication for any Confidential Information of Adaptimmune provided hereunder or patentable Data. Adaptimmune may also comment on such proposed publication and MD Anderson shall consider such comments in good faith during the aforementioned thirty (30) day period. MD Anderson and/or Principal Investigator shall remove Confidential Information of Adaptimmune provided hereunder that has been so identified (other than Data or Study results), provided that Adaptimmune agrees to act in good faith when requiring the deletion of Adaptimmune Confidential Information. In addition Adaptimmune may request delay of publication for a period not to exceed *** (***) days from the date of receipt of request by MD Anderson, to permit Adaptimmune or Adaptimmune Limited or any Joint Research Partner to file patent applications or to otherwise seek to protect any intellectual property rights contained in such publication or disclosure. Upon such request, MD Anderson shall delay such publication until the relevant protection is filed up to a maximum of *** (***) days from date of receipt of request for delay by MD Anderson. 12.3 Pre-Clinical Studies: MD Anderson and/or Principal Investigator shall have the *** right to publish or publicly disclose, either in writing or orally, the Data and results of the Pre-Clinical Study/ies and shall have the sole determination of the authorship and contents, provided that MD Anderson or Principal Investigator, as applicable, shall provide Adaptimmune with a copy of any such proposed publication at least thirty (30) days prior to submission for publication. Within such thirty (30) day period, Adaptimmune shall review such proposed publication for any Confidential Information of Adaptimmune provided hereunder or patentable Data. Adaptimmune may also comment on such proposed publication and MD Anderson shall consider such comments in good faith during the aforementioned thirty (30) day period. MD Anderson and/or Principal Investigator shall remove Confidential Information of Adaptimmune provided hereunder that has been so identified (other than Data or Study results), provided that Adaptimmune agrees to act in good faith when requiring the deletion of Adaptimmune Confidential Information. In addition Adaptimmune may request delay of publication for a period not to exceed *** (***) days from the date of receipt of request by MD Anderson, which delay may be for any reason including but not limited to permit Adaptimmune or Adaptimmune Limited or any Joint Research Partner to file patent applications or to otherwise seek to protect any intellectual property rights contained in such publication or disclosure. Upon such request, MD Anderson shall delay such publication up to a maximum of *** (***) days from date of receipt of request for delay by MD Anderson or, if earlier, where the reason is for the filing of a patent application or other intellectual property right.. 12.4 MD Anderson and/or Principal Investigator shall give Adaptimmune acknowledgment for its sponsorship of a Study in all applicable Study publications. Authorship and acknowledgements for
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scientific publications shall be consistent with the principles embodied in the International Committee of Medical Journal Editors (ICMJE) Uniform Requirements for Manuscripts. 12.5 The sponsor of a Study, within the regulatory meaning of such term, shall register the Study if required by, and in accordance with, Section 801 of the Food and Drug Administration Amendments Act of 2007 on www.clinicaltrials.gov and on any other database required by laws or regulations in accordance with applicable standards regarding scope, form and content and in accordance with ICMJE guidelines such that the Study will be eligible for publication in those publications. 12.6 Nothing in this Agreement shall prevent Adaptimmune or any of its Affiliates from complying with any obligations it has to make disclosure under Applicable Laws or under the rules of any security exchange or listing authority applicable to it. 13. Use of Name/Public Statements/ Press Release/ Disclosure 13.1 Except as expressly set forth in this Agreement, each Party agrees that it will not at any time during the term of this Agreement or following termination of this Agreement use any name of the other Party or any other names, insignia, mark(s), symbol(s), or logotypes associated with the other Party or any variant or variants thereof in any advertising, or promotional materials without the prior written consent of the other Party. 13.2 Except as expressly set forth in this Agreement, to the extent required by law or regulation, or to the extent necessary for MD Anderson or Adaptimmune for the recruitment of subjects to any Study hereunder, the Parties agree to make no public presentations about any Study conducted under this Agreement, and to issue no news releases about any Study, without the prior written consent of the other Party (provided that this statement shall not apply to any information already in the public domain). Any advertisements directed at recruitment of study subjects for a Study must comply with all Applicable Laws, rules and regulations (including the need for IRB review), the confidentiality obligations herein, and shall not include the trademarked insignia, symbol(s), or logotypes, or any variant or variants thereof, of the other Party. Except as required by law or for regulatory purposes, neither Party will use the name (including trademark or other identifier) of the other Party or such other Party's employee or staff member (except in an acknowledgment of sponsorship) in publications, advertising, press releases (except as permitted below in Section 13.3) or for any other commercial purpose without the written approval of the other Party. Adaptimmune will not state or imply in any publication, advertisement, or other medium that any product or service bearing any of Adaptimmune's names or trademarks and/or manufactured, sold or distributed by Adaptimmune has been tested, approved, or endorsed by MD Anderson. Notwithstanding any other provision of this Agreement, each Party and its researchers and employees will have the right, to acknowledge the other Party and its involvement with a Study in scientific or academic publications describing the Study or reporting the results of the Study. 13.3. The Parties agree to have a joint press release after the Effective Date, to be issued at a time mutually agreed by the Parties but in any event within 30 days of Effective Date. The text of such press release is set out at Exhibit IV to this Agreement. Any press release by either Party relating to this Agreement, the Alliance, or any Study shall require the prior review and written approval of the other Party, which approval shall not be unreasonably withheld, delayed or conditioned unless such press release is required to be issued by a Party to the extent required by it to comply with its legally required obligation to any securities exchange on which it is listed. 13.4 Either Party may use the name of the other Party in any document filed with any governmental authority or regulatory agency applicable to a Study, and to comply with any applicable legal or regulatory requirements. Further, each Party is permitted to disclose the other Party's name, the title of 17
the Study, the name of the Principal Investigator, and an overall Study budget amount projected to be paid/actual total amount paid for conducting the Study, provided that this information is presented together as part of mandatory disclosure in accordance with and to the extent required Applicable Law. 14. Principal Investigator 14.1 If a designated Principal Investigator is terminated from a Study, or in the event of the death or other non-availability of the Principal Investigator, MD Anderson shall use reasonable efforts to designate a duly qualified person to act as new Principal Investigator, subject to the reasonable agreement of Adaptimmune. If the Parties are unable to agree on a new Principal Investigator or if the new Principal Investigator is unwilling to agree to the terms and conditions of this Agreement and the relevant Study Order, either Party shall be entitled to terminate the respective Study Order in accordance with Section 8.5. 15. General Provisions 15.1 Warranties. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE RESULTS OF ANY STUDY OR THE STUDY DRUG, OR OF THE MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF SUCH DATA, RESULTS OR STUDY DRUG. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES SUFFERED BY THE OTHER PARTY AS A RESULT OF PERFORMANCE OF ANY STUDY UNDER THIS AGREEMENT. ADAPTIMMUNE REPRESENTS AND WARRANTS THAT EACH STUDY DRUG HEREUNDER SHALL HAVE BEEN MANUFACTURED IN ACCORDANCE WITH CURRENT GOOD MANUFACTURING PRACTICES IN THE UNITED STATES AND THAT AS AT THE EFFECTIVE DATE OF THIS AGREEMENT IT HAS NOT RECEIVED ANY CLAIM THAT USE OF ANY STUDY DRUG IN THE PERFORMANCE OF A STUDY WOULD INFRINGE THE RIGHTS OF ANY THIRD PARTY. ADAPTIMMUNE REPRESENTS THAT AS AT THE EFFECTIVE DATE TO ITS KNOWLEDGE THERE ARE NO KNOWN DEFECTS IN ANY STUDY DRUG; ADAPTIMMUNE UNDERSTANDS AND ACKNOWLEDGES THAT THE DEVELOPMENT AND DISSEMINATION OF SCIENTIFIC KNOWLEDGE IS A FUNDAMENTAL COMPONENT OF MD ANDERSON'S MISSION, AND THAT MD ANDERSON MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES WITH RESPECT TO ANY SPECIFIC RESULTS OF THE STUDIES. 15.2 Assignment. This Agreement and/or any Study Order may not be assigned by either Party except as agreed upon in writing by the other Party. Any assignment or attempt to assign, or any delegation or attempt to delegate, not in accordance with this Section shall be void and without effect. For any permitted assignment, the rights and obligations of the Parties hereunder will inure to the benefit of and be binding upon their permitted successors and assigns. 15.3 Independent Contractors. MD Anderson and Adaptimmune shall be independent parties and nothing contained in this Agreement shall be construed or implied to create an agency or partnership. No Party shall have the authority to agree to or incur expenses on behalf of another except as may be expressly authorized by this Agreement or a Study Order. 15.4 Notices. Any notice or communication required or permitted to be given or made under this Agreement by one of the Parties hereto to the other shall be in writing and shall be deemed to have been sufficiently given or made for all purposes on the date of mailing by certified mail, postage prepaid, overnight courier service, and/or fax to be followed by mailed original addressed to such other Party at its respective address as referenced in the Study Order. 18
15.5 Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby. 15.6 Entirety. This Agreement (including its Exhibits and Appendices) represents the entire agreement of the Parties with respect to the subject matter hereof and it expressly supersedes all previous written and oral communications between the Parties. No amendment, alteration, or modification of this Agreement or any Study Orders attached hereto shall be valid unless executed in writing by authorized signatories of all Parties. 15.7 Waiver. The failure of any Party hereto to insist upon strict performance of any provision of this Agreement or to exercise any right hereunder will not constitute a waiver of that provision or right. 15.8 Force Majeure. In the event that performance of the obligations of a Party hereunder are prevented by events beyond their reasonable control, including, but not limited to, acts of God, regulations or acts of any governmental authority, war, civil commotion, strikes, or other labor disturbances, epidemics, fire, earthquakes, storms or other catastrophes of a similar nature (Force Majeure), the affected Party will promptly notify the other Party of such event using the procedure defined herein, and the Parties shall be relieved of their respective obligations hereunder to the extent that the performance of such obligations is actually prevented thereby. During the existence of any such condition, the affected Party shall, nevertheless, use its best efforts to remove the cause thereof and resume performance of its obligations hereunder. The period of performance shall be extended for the Party who is unable to perform due to Force Majeure reasons by a period of time equal to the length of the period during which the Force Majeure reason exists or for a longer period if required to meet the requirements of the Study Protocol. 15.9 Counterparts. It is understood that this Agreement may be executed in one or more counterpart copies, each of equal dignity, which when joined, shall together constitute one Agreement. In the event of execution by exchange of facsimile or electronic signed copies, the Parties agree that, upon being signed by both Parties, this Agreement shall become effective and binding and that facsimile or .pdf signed copies will constitute evidence of this Agreement. 15.10 Export Control. Notwithstanding any other provision of this Agreement, it is understood that the Parties are subject to, and shall comply with, applicable United States laws, regulations, and governmental requirements and restrictions controlling the export of technology, technical data, computer software, laboratory prototypes, and other commodities, information and items (individually and collectively, Technology and Items), including without limitation, the Arms Export Control Act, the Export Administration Act of 1979, relevant executive orders, and United States Treasury Department embargo and sanctions regulations, all as amended from time to time (Restrictions) and that the Parties' obligations hereunder are contingent on compliance with applicable Restrictions. 15.11 Choice of Law. Any disputes or claims arising under this Agreement shall be governed by the laws of the State of Texas. MD Anderson is an agency of the State of Texas and under the constitution and the laws of the State of Texas possesses certain rights and privileges, is subject to certain limitations and restrictions, and only has such authority as is granted to it under the constitution and laws of the State of Texas. Notwithstanding any provision hereof, nothing in this Agreement is intended to be, nor will it be construed to be, a waiver of the sovereign immunity of the State of Texas or a prospective waiver or restriction of any of the rights, remedies, claims, and privileges of the State of Texas. Moreover, notwithstanding the generality or specificity of any provision hereof, the provisions of this Agreement as they pertain to MD Anderson are enforceable only to the extent authorized by the constitution and laws of the State of Texas; accordingly, to the extent any provision hereof conflicts with the constitution or laws 19
of the State of Texas or exceeds the right, power or authority of MD Anderson to agree to such provision, then that provision will not be enforceable against MD Anderson or the State of Texas. [Signatures of Following Page] 20
In witness whereof, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives to be effective as of the Effective Date. The University of Texas M. D. Anderson Cancer Center
Adaptimmune LLC Date: 9/23/16
Date: 23 September 2016
/s/ Chris McKee
/s/ Helen Tayton-Martin Name Chris McKee, M.H.A
Name Helen Tayton-Martin Title: VP. Business Operations
Title: Authorized Signatory Adaptimmune Limited
Date: 23 September 2016
/s/ James Noble
Name James Noble
Title: CEO
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Exhibit I *** ***
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*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission.
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*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 23
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*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 24
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*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 25
*** . *** . *** : · *** · *** · *** · *** · *** *** . *** *** . *** : ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 26
*** · *** · *** · *** . *** . *** . *** *** . *** . *** . *** . *** *** . *** . *** . ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 27
*** *** : · *** . o *** . o *** . · *** . o *** . o *** . o *** . · *** . · *** . *** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 28
*** . *** *** : · *** · *** · *** · *** *** . *** *** *** . *** 1. *** 2. *** . 3. *** 4. *** 5. *** . 6. *** 7. *** *** . *** *** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 29
*** . *** . ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission.
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*** *** *** ***: ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 31
*** *** ***: ***: ***
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*** ***: ***:*** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 36
*** *** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 37
*** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 38
Exhibit II Table 1 Clinical Study (excluding screening and long term follow- up studies)
Study Start Date
*** ***
*** *** *** *** *** *** *** *** *** *** *** *** *** ***
*** *** *** *** ***
*** *** *** *** ***
*** *** ***
*** *** Table 2-Payment Schedule Clinical Studies (total funding US$13,374,000): Milestone Payment amount (US$) Date on which Payment can be invoiced. Effective Date *** On expiry of Limited Unilateral Termination Period Enrollment of *** Patients in a Cl in ica l S tudy (exc lud ing screening and long term follow- up studies)
*** On notification to Adaptimmune that *** patient is eligible and has been enrolled.
Enrollment of *** Patients in a Cl in ica l S tudy (exc lud ing screening and long term follow- up studies)
*** On notification to Adaptimmune that *** patient is eligible and has been enrolled.
Enrollment of *** Patients in a Cl in ica l S tudy (exc lud ing screening and long term follow- up studies)
*** On notification to Adaptimmune that *** patient is eligible and has been enrolled.
Enrollment of *** Patients in a Cl in ica l S tudy (exc lud ing screening and long term follow- up studies)
*** On notification to Adaptimmune that *** patient is eligible and has been enrolled.
Enrollment of *** Patients in a Cl in ica l S tudy (exc lud ing screening and long term follow- up studies)
*** On notification to Adaptimmune that *** patient is eligible and has been enrolled.
Total A l l iance Funding payable:
13,374,000
Pre-clinical Studies (total funding $6,270,000, including indirect costs of US$***):
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the
th
th
th
th
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Commission. 39
Milestone Payment amount (US$) Date on which Payment can be invoiced. Effective Date *** .
On expiry of Limited Unilateral Termination Period
Completion of each analysis of *** patient samples for *** (Pre-clinical Study 1)
*** Completion of analysis of samples for *** patients, up to a maximum payment of US$*** and provision of results of such analysis to Adaptimmune. (Max. *** patients) Completion of each analysis of *** patient samples arising from *** (Pre-clinical Study 2)
*** Completion of analysis of samples for 50 patients, up to a maximum payment of US$*** and provision of results of such analysis to Adaptimmune. (Max. *** patients) Completion of each analysis of *** patient samples arising from the *** and additional *** Study (Pre-clinical Study 3)
*** Completion of analysis of samples for *** patients, up to a maximum payment of US$*** and provision of results of such analysis to Adaptimmune. (max. *** patients)
TOTAL Alliance Funding payable:
6,270,000
For clarity: milestones and payments of Alliance Funding shall only be payable once the milestones set out above have been met by MD Anderson. There shall be no obligation on Adaptimmune to make such payments where any such milestones have not been met; and no payments of Alliance Funding will be due until expiry of Limited Unilateral Termination Period. All payments will be paid by Adaptimmune within 45 days of receipt of an invoice from MD Anderson. Such invoice shall be addressed to Adaptimmune and sent by electronic mail to accounts@adaptimmune.com with copies to lini.pandite@adaptimmune.com and susan cousounis@adaptimmune.com for Clinical Study payments and with copies to Samik.basu@adaptimmune.com in relation to Pre-clinical Study payments. Payments will be made by Adaptimmune to The University of Texas M. D. Anderson Cancer Center: The University of Texas M. D. Anderson Cancer Center P.O. Box 4390 Houston, Texas 77210-4390 Or if payment is made by wire transfer, wired to the following: *** *** *** *** *** *** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 40
*** ***
*** Portions of this page have been omitted pursuant to a request for Confidential Treatment and filed separately with the Commission. 41
Exhibit III STRATEGIC COLLABORATION AGREEMENT - STUDY ORDER This Study Order (Study Order), effective as of the ___ day of ______(Effective Date of Study Order), is entered into by and between The University of Texas M. D. Anderson Cancer Center, with a place of business located at 1515 Holcombe Blvd., Houston, TX 77030, USA (MD Anderson), a member institution of The University of Texas System (System); Adaptimmune Limited with a place of business at 101 Milton Park, Abingdon, Oxfordshire, OX14 4RY; and Adaptimmune LLC, with a place of business located at 2001 Market Street, Philadelphia, PA 1903, USA (Adaptimmune) (MD Anderson and Adaptimmune each a Party and collectively the Parties). This Study Order is a part of, and is subject to, the terms and conditions of the Strategic Collaboration Agreement entered into between MD Anderson and Adaptimmune dated August ___ 2015 (Agreement). 1. The Parties enter into this Study Order in connection with: the [Pre-Clinical or Clinical]] Study entitled __________________, to be conducted pursuant for Clinical: to Protocol No. [Insert Protocol number] as attached hereto and incorporated herein. for Preclinical: to the workscope attached as Appendix A 2. _______ is the Principal Investigator (as defined in the Agreement) for the Study which will be conducted at MD Anderson. 3. Study Drug for the above referenced Study is ________________. 4. The parties may further exchange the following Proprietary Materials (other than Study Drug) with each other in connection with the Study: _________ being provided by [Insert name of providing party] _________ being provided by [Insert name of providing party] 5. Term: This Study Order will continue until the Study is completed, which is expected to be ________ (__) months after the Effective Date, or until terminated early as provided in the Agreement. 7. Notices. Any notice or other formal communication related to this Agreement must be in writing and will be deemed given only if: (a) delivered in person; or (b) sent by internationally recognized overnight delivery service or air courier guaranteeing next day delivery. Until a change of address is communicated, as provided below, all notices and other communications must be sent to the Parties at the following addresses or facsimile numbers: If to MD Anderson: The University of Texas 42
M. D. Anderson Cancer Center Attn: Vice President, Strategic Industry Ventures 1515 Holcombe Boulevard, Box 1643 Houston, TX 77030 With a copy to: The University of Texas M. D. Anderson Cancer Center Legal Services—Unit 1674 PO Box 301407 Houston, Texas 77230-1407 Attn: Chief Legal Officer And to: [insert investigator information] If to Adaptimmune: [To Be Added] With a copy to: [To Be Added] 12.2 All notices will be effective and will be deemed delivered: (a) if by personal delivery, delivery service or courier, on the date of delivery; and (b) if by electronic facsimile communication, on the date of transmission of the communication. Either Party may change its notice address by sending notice of the change to the other Party in the manner set forth above. 8. Specific superseding terms: N/A. In witness whereof, the Parties hereto have caused this Study Order to be executed by their duly authorized representatives to be effective as of the Effective Date. The University of Texas M. D. Anderson Cancer Center
Adaptimmune LLC
Date:
Date:
43
Name
Name Function:
Function: Adaptimmune Limited
Date:
Name
Title:
READ AND UNDERSTOOD: I confirm that I have received a copy of the Agreement under which this Study Order is issued, and that I have read and understand the Agreement and this Study Order. Principal Investigator
Date:
Name
44
EXHIBIT IV 45
DRAFT RELEASE MD Anderson Cancer Center and Adaptimmune Form Strategic Alliance to Advance Development of Immunotherapies Targeting Multiple Cancers PHILADELPHIA, and HOUSTON, U.S.A. and OXFORD, UK, September XX, 2016 — Adaptimmune Therapeutics plc (Nasdaq: ADAP), a leader in T-cell therapy to treat cancer, and The University of Texas MD Anderson Cancer Center announced today that they have entered into a multi-year strategic alliance designed to expedite the development of novel adoptive T-cell therapies for multiple types of cancer. The alliance pairs MD Anderson's preclinical and clinical teams with Adaptimmune's scientists and proprietary SPEAR® (Specific Peptide Enhanced Affinity Receptor) T-cell technology platform, which enables Adaptimmune to identify targets expressed on solid and hematologic cancers and to develop affinity enhanced T-cell receptors (TCRs) with optimal potency and specificity against them. The teams will collaborate in a number of areas including preclinical and clinical development of Adaptimmune's SPEAR T-cell therapies targeting MAGE-A10 and future clinical stage first and second generation SPEAR T-cell therapies such as MAGE-A4 across a number of cancers, including bladder, lung, ovarian, head and neck, melanoma, esophageal and gastric cancers. The alliance will also drive research and development of other new SPEAR TCR therapies to targets in other tumor types such as breast cancers and facilitate clinical study participation by MD Anderson in other Adaptimmune trials. Access to MD Anderson's tumor repository will guide further target selection and clinical trial design, while its cancer immunology cores and expertise in performing translational medicine studies may help optimize the efficacy and safety of SPEAR T-cell therapies. At MD Anderson, we are focused on providing the best possible care for cancer patients, including implementing important new technologies and treatment modalities, said Elizabeth Mittendorf, M.D., Ph.D., associate professor of Breast Surgical Oncology. David Hong, M.D., associate professor of Investigational Cancer Therapeutics at MD Anderson added, It is our hope this alliance will allow us to address numerous solid tumors and augment the patient's immune system, directing it against tumors based on their specific molecular makeup. We believe that this strategic alliance will provide a strong partnership for the development of multiple new first and subsequent generation SPEAR T-cell therapies against many intractable solid tumors in our near-term clinical programs, commented Rafael Amado, Adaptimmune's chief medical officer. It will also generate invaluable data from patient samples that will help us understand these therapies and design the next generation of studies. We are very proud to form this alliance with the outstanding team of cancer immunologists at MD Anderson, and are confident that together we can move these novel immunotherapeutic candidates forward for patients who are fighting a variety of cancers. About MD Anderson The University of Texas MD Anderson Cancer Center in Houston ranks as one of the world's most respected centers focused on cancer patient care, research, education and prevention. The institution's sole mission is to end cancer for patients and their families around the world. MD Anderson is one of only 45 comprehensive cancer centers designated by the National Cancer Institute (NCI). MD Anderson is ranked No.1 for cancer care in U.S. News & World Report's Best Hospitals survey. It has ranked as one of the nation's top two hospitals since the survey began in 1990, and has ranked first for nine of the 46
past 10 years. MD Anderson receives a cancer center support grant from the NCI of the National Institutes of Health (P30 CA016672). About Adaptimmune Adaptimmune is a clinical stage biopharmaceutical company focused on novel cancer immunotherapy products based on its SPEAR® (Specific Peptide Enhanced Affinity Receptor) T-cell platform. Established in 2008, the company aims to utilize the body's own machinery - the T-cell - to target and destroy cancer cells by using engineered, increased affinity TCRs as a means of strengthening natural patient T-cell responses. Adaptimmune's lead program is a SPEAR T-cell therapy targeting the NY-ESO cancer antigen. Its NY-ESO SPEAR T-cell therapy has demonstrated signs of efficacy and tolerability in Phase 1/2 trials in solid tumors and in hematologic cancer types, including synovial sarcoma and multiple myeloma. Adaptimmune has a strategic collaboration and licensing agreement with GlaxoSmithKline for the development and commercialization of the NY-ESO TCR program. In addition, Adaptimmune has a number of proprietary programs. These include SPEAR T-cell therapies targeting the MAGE-A10 and AFP cancer antigens, which both have open INDs, and a further SPEAR T-cell therapy targeting the MAGE-A4 cancer antigen that is in pre-clinical phase with IND acceptance targeted for 2017. The company has identified over 30 intracellular target peptides preferentially expressed in cancer cells and is currently progressing 12 through unpartnered research programs. Adaptimmune has over 250 employees and is located in Oxfordshire, U.K. and Philadelphia, USA. For more information: http://www.adaptimmune.com Forward-Looking Statements This release contains forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995 (PSLRA). These forward-looking statements involve certain risks and uncertainties. Such risks and uncertainties could cause our actual results to differ materially from those indicated by such forward-looking statements, and include, without limitation: the success, cost and timing of our product development activities and clinical trials and our ability to successfully advance our TCR therapeutic candidates through the regulatory and commercialization processes. For a further description of the risks and uncertainties that could cause our actual results to differ materially from those expressed in these forward-looking statements, as well as risks relating to our business in general, we refer you to our Quarterly Report on Form 10-Q filed with the Securities and Exchange Commission (SEC) on August 8, 2016, and our other SEC filings. The forward-looking statements contained in this press release speak only as of the date the statements were made and we do not undertake any obligation to update such forward-looking statements to reflect subsequent events or circumstances. Adaptimmune Contacts Will Roberts Vice President, Investor Relations T: (215) 825-9306 E: will.roberts@adaptimmune.com Margaret Henry Head of PR T: +44 (0)1235 430036 Mobile: +44 (0)7710 304249 47
E: margaret.henry@adaptimmune.com MD Anderson Contact: Ron Gilmore Rlgilmore1@mdanderson.org Phone: 713-745-1898 48
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Example Output:
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61871
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task598_cuad_answer_generation
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NIv2
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fs_opt
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train
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
Input: Consider Input: Exhibit 10.1
[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.
Execution Copy
COLLABORATIVE RESEARCH, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT
This COLLABORATIVE RESEARCH, DEVELOPMENT AND COMMERCIALIZATION AGREEMENT (this Agreement) is entered into as of June 8, 2018 (the Execution Date), by and between Revolution Medicines, Inc., a corporation organized and existing under the laws of Delaware, having its principal place of business at 700 Saginaw Dr. Redwood City, CA 94063, USA (RevMed), and Aventis, Inc., a corporation organized and existing under the laws of Pennsylvania, having offices at 55 Corporate Drive, Bridgewater, NJ 08807 (Sanofi). Sanofi and RevMed are referred to in this Agreement individually as a Party and collectively as the Parties.
RECITALS
WHEREAS, RevMed has developed expertise in cancer biology and related drug discovery and precision medicine capabilities enabling RevMed to design and optimize drug candidates that inhibit the activity of the cancer target known as Src homology region 2-containing protein tyrosine phosphatase 2;
WHEREAS, Sanofi is a pharmaceutical company working to develop and commercialize novel therapies;
WHEREAS, RevMed and Sanofi desire to establish a collaboration for the research, development and potential commercialization of such drug candidates and biologic compounds that inhibit the activity of such cancer target for the treatment of cancer, and potentially other indications; and
WHEREAS, Sanofi desires to acquire from RevMed, and RevMed desires to grant to Sanofi, certain licenses with regard to SHP2 Inhibitors and Products (as defined below), as further described herein.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, RevMed and Sanofi hereby agree:
Article I.
DEFINITIONS
The terms in this Agreement with initial letters capitalized shall have the meanings set forth below, or the meaning as designated in the indicated places throughout this Agreement.
1.1 Accounting Standards means, with respect to a Party or its Affiliate or Sublicensee, IFRS or GAAP, as such Person uses for its financial reporting obligations, consistently applied.
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.2 Acquired Party Family means in the case of a Change of Control of a Party or its Affiliate, such Party or such Affiliate existing immediately prior to the Change of Control transaction and any subsidiaries thereof (then existing or thereafter created).
1.3 Acquiror Family means in the case of a Change of Control of a Party or any of its Affiliates, the Acquiror and its Affiliates existing immediately prior to the closing of the Change of Control transaction together with any future Affiliates other than the Acquired Party Family.
1.4 Act means the United States Federal Food, Drug, and Cosmetic Act, as amended, and the rules, regulations, guidance, guidelines and requirements promulgated thereunder (including all additions, supplements, extensions and modifications) in effect from time to time.
1.5 Affiliate means, with respect to a Party or other Person, any corporation or other business entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with that Party or other Person for so long as such Party or other Person controls, is controlled by or is under common control with such corporation or other business entity. For the purpose of this definition only, control (including, with correlative meaning, the terms controlled by and under the common control) means the actual power, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such Party or other Person, whether by the ownership of 50% or more of the voting equity of such Party or other Person, by contract or otherwise. Notwithstanding the foregoing, solely with respect to Sections 1.61 (Major Biopharmaceutical Company), and 3.1 (Licenses to Sanofi), Affiliates will not include (a) with respect to an entity, its bona fide venture capital or private equity investors, (b) with respect to an entity, its bona fide institutional investors, provided that such institutional investors routinely make venture capital investments for the potential financial return on such investments and for so long as such institutional investors do not (x) obtain any rights (including options, rights to negotiate, rights of first refusal or other contingent rights) to acquire control of such entity or its assets or (y) enter into or agree to enter into any research, development, commercial, license or other strategic transaction with such entity (each investor in clause (a) and (b), an Excluded Investor), or (c) Affiliates of such venture capital, private equity or institutional investors that do not otherwise qualify as Affiliates of such entity under this Section 1.5 (i.e., for a reason other than by virtue of their status as Affiliates of such investors).
1.6 Ancillary Agreement means the Co-Promotion Agreement, the Pharmacovigilance Agreement, the Profit/Loss Share Agreement, any Supply Agreement, any Quality Agreement and any other agreement entered into between the Parties (or their respective Affiliates) pursuant to this Agreement.
1.7 Antitrust Law means the Hart-Scott-Rodino Antitrust Improvements Act of 1976 and the rules and regulations promulgated thereunder (the HSR Act), the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other Applicable Laws related to merger control or designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade. 2
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.8 Applicable Law means (a) any federal, state, local, foreign or multinational law, statute, standard, ordinance, code, rule, regulation, resolution or promulgation (including written governmental interpretations thereof, the guidance related thereto), (b) any judicial, governmental or administrative order, judgment, decree or ruling by any Governmental Authority, or (c) any license, franchise, permit or similar right granted under any of the foregoing, or any similar provision having the force or effect of law, in each case (a), (b) and (c) that may be in effect from time to time and as applicable to the subject matter and the Persons at issue.
1.9 Business Day means a day other than a Saturday or Sunday or a day on which banking institutions in San Francisco, California or in Paris, France are permitted or required to be closed.
1.10 Calendar Quarter means each successive period of three calendar months commencing on January 1, April 1, July 1 and October 1, except that the first Calendar Quarter of the Term shall commence on the Effective Date and end on the day immediately prior to the first to occur of January 1, April 1, July 1 or October 1 after the Effective Date, and the last Calendar Quarter shall end on the last day of the Term.
1.11 Calendar Year means each successive period of 12 calendar months commencing on January 1 and ending on December 31, except that the first Calendar Year of the Term shall commence on the Effective Date and end on December 31 of the year in which the Effective Date occurs and the last Calendar Year of the Term shall commence on January 1 of the year in which the Term ends and end on the last day of the Term.
1.12 Change of Control means with respect to a Party (a) any sale, exchange, transfer, or issuance to or acquisition in one transaction or a series of related transactions by one or more Third Parties of units and/or shares of equity (as applicable) representing 50% or more of the aggregate ordinary voting power entitled to vote for the election of directors or managers represented by the issued and outstanding units of equity of such Party (or any Affiliate that directly or indirectly controls such Party (such Affiliate, the Parent)), whether such sale, exchange, transfer, issuance or acquisition is made directly or indirectly, by merger or otherwise, or beneficially or of record (collectively, a Stock Sale); (b) a merger or consolidation under Applicable Law of such Party or a Parent with a Third Party, other than a merger or consolidation in which the units and/or shares of equity of such Party or Parent outstanding immediately prior to such merger or consolidation continue to represent, or are converted into or are exchanged for units and/or shares of equity which represent, immediately following such merger or consolidation, 50% or more of the aggregate ordinary voting power of such units and/or shares of equity of the surviving or resulting entity or a parent entity of such surviving or resulting entity, whether direct or indirect (collectively, a Merger); (c) a sale, lease, transfer, exclusive license or other disposition of all or substantially all of the assets of such Party or a Parent to one or more Third Parties in one transaction or a series of related transactions (collectively, the Asset Transfer). Notwithstanding the foregoing, a purchase of shares in a Stock Sale by one or more Third Parties in a bona fide financing transaction the primary purpose of which is to raise working capital for RevMed or to acquire assets from a Third Party (in either case including one or more public offerings) shall not constitute a Change of Control even if such Third Parties collectively negotiate or receive their rights as security holders in such financing transaction(s), except that such exemption shall not apply with respect to any Change of Control that would result in any Major Biopharmaceutical Company having more than 50% of the aggregate ordinary voting power in RevMed or its Parent. The Parent of a Party for purposes of this Section 1.12 shall not include any 3
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
Excluded Investor, provided that the applicable Stock Sale, Merger or Asset Transfer does not result in any Major Biopharmaceutical Company having more than 50% of the aggregate ordinary voting power in, or control over all or substantially all of the assets of, RevMed or its Parent or any surviving or resulting entity or a parent entity of such surviving or resulting entity.
1.13 Clinical Trial means any clinical investigation conducted on human subjects, as that term is defined in FDA regulations at 21 C.F.R. § 312.3. Without limiting the foregoing, Clinical Trial includes any Phase 1 Clinical Trial, Phase 2 Clinical Trial, Phase 3 Clinical Trial, Phase 4 Study or variations of the foregoing.
1.14 Collaboration means the collaboration of the Parties with respect to the Research, Development, Manufacture and Commercialization of Products in the Field, as and to the extent set forth in this Agreement and the Ancillary Agreements.
1.15 Combination Product means any pharmaceutical preparation in final form containing a SHP2 Inhibitor in combination with one or more additional active ingredients, for sale by prescription or any other method either as a fixed dose or unit or as separate doses or units in a single package.
1.16 Commercialization means the marketing, promotion, sale or distribution of Products (or Companion Diagnostics for Products in accordance with this Agreement) in the Field, including: (a) commercial activities conducted in preparation for commercial launch of a Product; (b) strategic marketing, sale force detailing, advertising, medical education and liaison; (c) any Phase 4 Studies, except Required Phase 4 Studies; and (d) all customer support, product distribution, invoicing and other sales activities. Commercialize and Commercializing have a correlative meaning.
1.17 Commercially Reasonable Efforts means: (a) with respect to Sanofi, [***], consistent with [***] that [***], taking into account [***], including [***] and (b) with respect to RevMed, [***], consistent with [***] that [***], taking into account [***], including [***].
1.18 Committee means the JSC, JRDC, JCC, JPC or any subcommittee established under Article II, as applicable.
1.19 Companion Diagnostic means, with respect to a Product, (a) a companion diagnostic approved by the applicable Regulatory Authority that provides information essential to the safe and effective use of such Product or is otherwise necessary for the Regulatory Approval of such Product, or (b) a complementary diagnostic that provides information helpful to the safe and effective use of such Product but is not a companion diagnostic referred to in the foregoing clause (a).
1.20 Competing Product means, other than a Product, any pharmaceutical preparation [***] that satisfies the criteria [***], alone or in combination with one or more additional active ingredients, for sale by prescription or any other method. 4
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.21 Confidential Information of a Party means all proprietary Know-How, unpublished patent applications and other non-public information and data of a financial, commercial, business, operational or technical nature of such Party that is disclosed by or on behalf of such Party, its Affiliates or its or their Sublicensees, or otherwise made available to the other Party, its Affiliates or its or their Sublicensees, prior to, on or after the Effective Date, whether made available orally, in writing or in electronic form in connection with this Agreement or any Ancillary Agreement, including the terms of this Agreement and any Ancillary Agreements, information comprising or relating to concepts, discoveries, inventions, data, designs or formulae in connection with this Agreement or any Ancillary Agreement. All (a) RevMed Licensed Know-How to the extent relating to SHP2 Inhibitors or Products, (b) Joint Program Know-How, and (c) the terms of this Agreement and any Ancillary Agreements, shall be deemed to be the Confidential Information of both Parties (and both Parties shall be deemed to be the Receiving Party and the Disclosing Party with respect thereto). All RevMed Licensed Know-How to the extent relating to RevMed's products and product candidates (other than SHP2 Inhibitors or Products) shall not be deemed Confidential Information of both Parties.
1.22 Control or Controlled means, with respect to any item of Know-How, Patent Right, other intellectual property right or Regulatory Material, a Party has the ability (whether by sole, joint or other ownership interest, license, sublicense or otherwise, and including any such abilities which are contingent) (other than by operation of the licenses granted in this Agreement) to grant a license, sublicense, access or right to use (as applicable) under such item of Know-How, Patent Right, other intellectual property right or Regulatory Material to the other Party on the terms and conditions set forth herein at the time of such grant, in each case without breaching the terms of any agreement with a Third Party.
1.23 Correspondence means that certain letter between Sanofi and RevMed dated as of the Execution Date.
1.24 Decision-Making Committee means each Committee (other than the JPC and JMC).
1.25 Designated Senior Officer means: (a) with respect to RevMed, [***] and, (b) with respect to Sanofi, [***].
1.26 Detail means, with respect to a Co-Promotion Product in the Co-Promotion Territory, a face-to-face contact between a sales representative and a physician or other medical professional licensed or authorized to prescribe drugs, during which a primary position detail or a secondary position detail is made to such person, in each case as measured by each Party's internal recording of such activity in accordance with the Co-Promotion Agreement; provided that such meeting is consistent with and in accordance with the requirements of Applicable Law, this Agreement and the Co- Promotion Agreement. For the avoidance of doubt, the following activities will not constitute Details: e-details; sample drops; reminder details; activities conducted at conventions, exhibit booths, speaker meetings or similar gatherings; and activities performed by market development specialists, managed care account directors and other personnel not performing face-to-face sales calls or not specifically trained with respect to a Co-Promotion Product. The definition of Detail may be further refined in the Co-Promotion Agreement. When used as a verb, Detail means to engage in a Detail. 5
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.27 Development means all development activities for any Product (or a Companion Diagnostic for such Product in accordance with this Agreement) that are directed to obtaining Regulatory Approval(s) of such Product, including: all non-clinical, preclinical and clinical activities conducted in support of Regulatory Approval (including any Required Phase 4 Studies); testing and studies of such Product (including IND-enabling studies and translational research); toxicology, pharmacokinetic and pharmacological studies; manufacture and distribution of such Product for use in Clinical Trials (including comparators, process development and scale up, and Combination Therapies); statistical analyses; assay development; instrument design and development; protocol design and development; quality assurance and control; report writing; the preparation, filing and prosecution of any MAA for such Product; development activities directed to label expansion or obtaining Regulatory Approval for one or more additional indications following initial Regulatory Approval; health economic studies relating to the indication for which the applicable Product is being developed conducted prior to Regulatory Approval; and all regulatory affairs related to any of the foregoing. Develop and Developing have a correlative meaning.
1.28 Dollars means the U.S. dollar, and $ shall be interpreted accordingly.
1.29 Drug Treatment Regimen means either (a) SHP2 Inhibitor monotherapy, or (b) SHP2 Inhibitor Combination Therapy.
1.30 EMA means the European Medicines Agency or any successor entity thereto.
1.31 EU or the European Union means the economic, scientific and political organization of European Union member states as it may be constituted from time to time, which as of the Effective Date consists of: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxemburg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain, Sweden and the United Kingdom, as well as Norway and Iceland. For purposes of this Agreement, the EU shall continue to include each foregoing territory whether or not such territory is a participating member state as of the applicable time.
1.32 Excluded List means any of the United States Department of Health and Human Service's List of Excluded Individuals/Entities or the United States General Services Administration's Lists of Parties Excluded from Federal Procurement and Non-Procurement Programs.
1.33 FCPA means the U.S. Foreign Corrupt Practices Act of 1977, as amended, including the rules and regulations thereunder. A summary of the FCPA and related information can be found at http://www.justice.gov/criminal/fraud/fcpa.
1.34 FDA means the United States Food and Drug Administration or any successor entity thereto.
1.35 FFDCA means the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 301, et. seq., as it may be amended from time to time, and the rules, regulations, guidance, guidelines, and requirements promulgated or issued thereunder.
1.36 Field means any and all uses. 6
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.37 First Commercial Sale means, with respect to any Product in any country or jurisdiction, the first sale for monetary value of such Product to a Third Party for distribution, use or consumption in such country or jurisdiction after Marketing Approval has been obtained for such Product in such country or jurisdiction. Sales prior to receipt of Marketing Approval for such Product, such as so-called treatment IND sales, named patient sales, and compassionate use sales, shall not be construed as a First Commercial Sale.
1.38 FTE means a full time equivalent person year (consisting of [***] hours per year) of work as an employee or contractor [***] hereunder as tracked by each Party using its respective standard practice and methodologies. For clarity, [***] will not constitute FTEs. Notwithstanding the foregoing, the time of a single individual will not account for more than one FTE for a given Calendar Year (or applicable pro-rata portion of an FTE during any Calendar Quarter or other period of less than a Calendar Year).
1.39 FTE Costs means, with respect to a Party for any period, the applicable FTE Rate multiplied by the applicable number of FTEs of such Party performing the applicable activity described hereunder during such period.
1.40 FTE Rate means the applicable rate set forth in Exhibit A of the Correspondence or in any Ancillary Agreement or exhibit thereto, which rate shall be adjusted annually, with each annual adjustment effective as of January 1 of each Calendar Year, with the first such annual adjustment to be made as of January 1, 2019, to correspond with respect to Research, Development, Manufacturing or Commercialization activities under the Collaboration by or on behalf of a Party, [***] preceding each such January 1.
1.41 GAAP means the U.S. generally accepted accounting principles.
1.42 Generic Product means, with respect to a Product, any pharmaceutical or biological product (a) that is sold by a Person other than a Party or its Affiliates or Sublicensees, which Person did not purchase such product in a chain of distribution that included such Party or its Affiliate or Sublicensee as intentional participants, (b) contains, for a pharmaceutical product, the same or a bioequivalent SHP2 Inhibitor or, for a biologic product, a biosimilar or interchangeable SHP2 Inhibitor, to such Product[***].
1.43 Genotype means one or more [***]. In the cases where such [***].
1.44 Good Clinical Practice or GCP means the then-current standards for Clinical Trials for pharmaceuticals, as set forth in the Act or other Applicable Law, and such standards of good clinical practice as are required by the Regulatory Authorities of the European Union and other organizations and Governmental Authorities in countries for which the SHP2 Inhibitor or Product is intended to be Developed, to the extent such standards are not less stringent than United States GCP.
1.45 Good Laboratory Practice or GLP means the then-current standards for laboratory activities for pharmaceuticals, as set forth in the Act or other Applicable Law, and such standards of good laboratory practice as are required by the Regulatory Authorities of the European Union and other organizations and Governmental Authorities in countries for which the applicable SHP2 Inhibitor or Product is intended to be Developed, to the extent such standards are not less stringent than United States GLP. 7
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.46 Good Manufacturing Practice or GMP means the current good manufacturing practices applicable from time to time to the manufacturing of a SHP2 Inhibitor, Product or any intermediate thereof pursuant to Applicable Law.
1.47 Governmental Authority means any multi-national, federal, national, state, provincial, local, municipal or other government authority of any nature (including any governmental division, subdivision, commission, department, bureau, prefecture, agency, branch, office, governmental arbitrator or arbitral body, council, court or other tribunal entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority or power).
1.48 IFRS means the International Financial Reporting Standards.
1.49 Immuno-Oncology Agent means any treatment [***]. For clarity, Immuno-Oncology Agent shall include any treatment that primarily targets [***].
1.50 IND means (a) in the United States, an Investigational New Drug Application, as defined in the Act, that is required to be filed with the FDA before conducting a Clinical Trial (including all supplements and amendments that may be filed with respect to the foregoing); and (b) any foreign counterpart of the foregoing filed with a Regulatory Authority in conformance with the requirements of such Regulatory Authority.
1.51 Indication means a type of cancer for which Regulatory Approval for a Product is being sought that (i) is distinct from other types of cancer by [***].
1.52 Initial R&D Term means the first [***] of the Term.
1.53 Initiation means, with respect to a Clinical Trial of a Product, [***] subject for such Clinical Trial.
1.54 Joint Program Patents means any Patent Right covering or claiming the Joint Program Know-How.
1.55 Joint Program Technology means Joint Program Know-How and Joint Program Patents.
1.56 Knowledge means, with respect to a Party, the actual knowledge of such Party, or what such Party should have known after due inquiry.
1.57 Know-How means any information and materials, including but not limited to discoveries, inventory, information, regulatory filings, processes, formulae, data, databases, protocols, inventions (whether patentable or not), improvements (whether patentable or not), invention disclosures, developments, skills, experience, know-how and trade secrets (whether patentable or not), including without limitation, all chemical, pharmaceutical, toxicological, biochemical, and biological, technical and non-technical data, and information relating to the results of tests, assays, methods, techniques, and processes, and specifications or other documents containing information and related data, and any preclinical, clinical, assay control, manufacturing, regulatory and any other data or information, but excluding any Patent Rights. 8
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.58 Licensed Territory means all countries and territories of the world.
1.59 Line of Therapy means the treatment with a Product [***].
1.60 Losses means any and all liability, loss, damage, injury, costs or expenses (including reasonable attorneys' fees and expenses of litigation) of any kind.
1.61 MAA or Marketing Authorization Application means an application to the appropriate Regulatory Authority for Marketing Approval (but excluding pricing approval) in the Field in any particular jurisdiction (including, without limitation, a New Drug Application in the U.S.) and all amendments and supplements thereto.
1.62 Major Biopharmaceutical Company means (a) any entity that develops or commercializes healthcare products for human consumption that has a fully diluted market capitalization of at least $[***] as measured at the closing price on the last day of the preceding Calendar Quarter during which the measurement is taken or any Affiliate of such entity or (b) any entity that has [***].
1.63 Major Market Countries means the [***].
1.64 Manufacture and Manufacturing mean activities directed to manufacturing, processing, filling, finishing, packaging, labeling, quality assurance testing and release, storing and transporting any Product, SHP2 Inhibitors or any intermediate or component thereof, including manufacturing and analytical development, process and formulation development, process qualification, process validation, scale-up, pre-clinical, clinical and commercial manufacture and analytic development, product characterization, stability testing, quality assurance and quality control, and chemistry, manufacturing and controls.
1.65 Manufacturing Costs means, with respect to a Product, the costs incurred by a Party or its Affiliate or Sublicensee in connection with Manufacturing or purchasing from a Third Party, as applicable, each Product that is either (a) supplied by a Third Party, or (b) manufactured directly by a Party or an Affiliate or Sublicensee of such Party, determined as follows and in accordance with Accounting Standards:
In the case of clause (a) above, Manufacturing Costs means [***]. To the extent any non-refundable or non-creditable value added or similar tax is due with respect to amounts paid to such Third Party for Manufacture of any portion of a Product, such amounts shall be considered Manufacturing Costs under this clause (a).
In the case of clause (b) above, Manufacturing Costs means: (i) [***] and a reasonable allocation of [***], which allocation is made [***]; (ii) [***]; and (iii) a reasonable allocation of [***]. All components of Manufacturing Costs shall be allocated [***].
Such Party may elect, in its sole discretion, to [***] the above Manufacturing Cost definition. 9
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
Third Party payments shall be included on a pass-through basis for purposes of clause (a) or clause (b) above.
1.66 Marketing Approval means all Regulatory Approvals necessary for the commercial sale of a Product in the Field in a given country or regulatory jurisdiction, including pricing and reimbursement approval.
1.67 Material Adverse Event means any event, occurrence, condition, change, circumstance, development, effect or state of facts that has had or would reasonably be expected to have, individually or in the aggregate, materially adverse to [***]; provided, however, that Material Adverse Effect shall not include the effect of any event, occurrence, condition, change, circumstance, development, effect or state of facts arising out of or attributable to any of the following, either alone or in combination: [***], in each case of clauses (i), (ii) or (iv) only to the extent such event, occurrence, condition, change, circumstance, development, effect or state of facts has a disproportionate effect on a Party or its Affiliates as compared to other participants operating in the biopharmaceutical industry in the same markets in which such Party or its Affiliates conduct their businesses.
1.68 NDA means (a) in the United States, a New Drug Application or Biologics License Application that is submitted to the FDA for Regulatory Approval for a Product, and (b) any foreign counterpart of either of the foregoing filed with a Regulatory Authority in conformance with the requirements of such Regulatory Authority.
1.69 Net Sales means, with respect to a Product for any period, the gross amount billed or invoiced by Sanofi, its Affiliates or its or their Sublicensees for the sale of a Product to Third Parties (including Distributors) commencing with the First Commercial Sale of such Product less the following deductions determined in accordance with Accounting Standards from such gross amounts which are actually incurred, allowed, accrued or specifically allocated: (a) [***] (b) [***] (c) [***] (d) [***] (e) [***] (f) [***] (g) [***] (h) [***] (i) [***] and (j) [***]. 10
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
Any of the deductions listed above that involves a payment by such Party, its Affiliates or its or their Sublicensees shall be taken as a deduction in the Calendar Quarter in which the payment is accrued by such entity. For purposes of determining Net Sales, a Product shall be deemed to be sold when [***]. Net Sales shall not include [***]. Such Party's, its Affiliates' or its or their Sublicensees' transfer of any Product to an Affiliate or Sublicensee shall not result in any Net Sales unless the transferee is an end user.
In the event that a Product is sold in any country in the form of a Combination Product, Net Sales of such Combination Product shall be adjusted by [***]; provided that the invoice price [***]. If either such Product that contains the SHP2 Inhibitor(s) as its sole active ingredient or any such product that contains active ingredient(s) other than the SHP2 Inhibitor(s) is not sold separately in a particular country, then the adjustment to Net Sales shall be [***].
In the case of pharmacy incentive programs, hospital performance incentive programs, chargebacks, disease management programs, similar programs or discounts on portfolio product offerings, [***]; provided that [***] shall be done in accordance with Applicable Law, including any price reporting laws, rules and regulations.
Subject to the above, Net Sales shall be calculated [***].
1.70 Non-SHP2 Collaboration Product means for any Drug Treatment Regimen under the Collaboration that is [***].
1.71 Non-SHP2 Same Class Product means, with respect to a Non-SHP2 Collaboration Product, any [***].
1.72 Other SHP2 Inhibitor means any small molecule or biologic compound that (a) satisfies the criteria specified in the SHP2 Inhibitor Criteria and (b) is not a SHP2 Inhibitor that is Controlled by RevMed or its Affiliates.
1.73 Patent Rights means any and all national, regional and international (a) issued patents and pending patent applications (including provisional patent applications), (b) patent applications filed either from the foregoing or from an application claiming priority to the foregoing, including all provisional applications, converted provisionals, substitutions, continuations, continuations-in-part, divisions, renewals and continued prosecution applications, and all patents granted thereon, (c) patents-of-addition, revalidations, reissues, reexaminations and extensions or restorations by existing or future extension or restoration mechanisms, including patent term adjustments, patent term extensions, supplementary protection certificates or the equivalent thereof, (d) inventor's certificates, utility models, petty patents, innovation patents and design patents, (e) other forms of government-issued rights substantially similar to any of the foregoing, including so-called pipeline protection or any importation, revalidation, confirmation or introduction patent or registration patent or patent of additions to any of such foregoing and (f) United States and foreign counterparts of any of the foregoing.
1.74 Permitted Contractors or Researchers means (a) any Third Party independent contractor that RevMed has entered into a written agreement with prior to the Effective Date and which Person is listed on Exhibit B of the Correspondence, (b) any other Third Party to which Sanofi consents in writing as a subcontractor of RevMed pursuant to Section 3.4, and (c) any named Third Party set forth in the Research Plan or Development Plan. 11
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1.75 Person means any individual, partnership, limited liability company, firm, corporation, association, trust, unincorporated organization or other entity.
1.76 Phase 1 Clinical Trial means a Clinical Trial of a Product that generally provides for the first introduction into humans of such Product, with the primary purpose of determining metabolism and pharmacokinetic properties and side effects of such product, in a manner that is generally consistent with 21 C.F.R. § 312.21(a), as amended (or its successor regulation), excluding, for clarity, any investigator-initiated Clinical Trials unless agreed to by the JRDC.
1.77 Phase 2 Clinical Trial means a Clinical Trial of a Product conducted on a sufficient number of subjects for evaluating (and the principal purpose of which is to evaluate) the effectiveness of a pharmaceutical product for its particular intended use and obtaining (and to obtain) information about side effects and other risks associated with the drug, in a manner that is generally consistent with 21 C.F.R. § 312.21(b), as amended (or its successor regulation), or a similar clinical study prescribed by the Regulatory Authorities in a country or jurisdiction outside the United States, to permit the design of further Clinical Trials of such Product, excluding, for clarity, any investigator-initiated Clinical Trials unless agreed to by the JRDC.
1.78 Phase 3 Clinical Trial means a pivotal Clinical Trial of a Product with a defined dose or a set of defined doses of such Product and conducted on a sufficient number of subjects for ascertaining (and that is designed to ascertain) the overall risk-benefit relationship of the Product for its intended use and determining (and to determine) warnings, precautions, and adverse reactions that are associated with such Product in the dosage range to be prescribed, in a manner that is generally consistent with 21 C.F.R. § 312.21(c), as amended (or its successor regulation), or a similar clinical study prescribed by the Regulatory Authorities in a country or jurisdiction outside the United States, which trial is necessary to support Regulatory Approval of such Product, excluding, for clarity, any investigator-initiated Clinical Trials unless agreed to by the JRDC.
1.79 Phase 4 Study means a Clinical Trial or data collection effort with respect to any Product that is commenced after the receipt of Regulatory Approval in the country where such trial is conducted.
1.80 PMDA means Japan's Pharmaceuticals and Medical Devices Agency and any successor thereto.
1.81 Pre-Registrational Meeting means the meeting with the FDA or the equivalent meeting with the EMA or PMDA or other Regulatory Authority (as applicable) to be conducted to discuss the requirements of the FDA, EMA, or PMDA or other Regulatory Authority (as applicable) for a Registration Program for a given Product to support Marketing Approval, e.g., end-of-Phase 2 or pre-Phase 3 meetings.
1.82 Product means any pharmaceutical preparation in final form containing a SHP2 Inhibitor, alone or in the form of a Combination Product. 12
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
1.83 Program Inventions means any Know-How conceived, reduced to practice, developed, made or otherwise generated by or on behalf of a Party or its Affiliates or Sublicensees in connection with the Research, Development, Manufacture or Commercialization of SHP2 Inhibitors or Products under this Agreement or any Ancillary Agreement, including all rights, title and interest in and to the intellectual property rights therein.
1.84 Publication means any release of information, including any presentation, which information (a) has not been disclosed pursuant to Section 11.3 or (b) has not previously been publicly disclosed.
1.85 Registrational Clinical Trial means a Clinical Trial of a Product designed to be adequate to achieve Regulatory Approval of such Product and that would satisfy the requirements of 21 C.F.R 312.21(c), as amended, or corresponding foreign regulations, regardless of whether such trial is referred to as a phase 2b clinical trial, phase 2b/3 clinical trial or phase 3 clinical trial, but excluding, for clarity, any investigator-initiated Clinical Trials.
1.86 Regulatory Approval means, with respect to a country or jurisdiction, any and all approvals (including Marketing Approvals), licenses, registrations or authorizations of any Regulatory Authority necessary to commercially distribute, sell or market a Product in such country or jurisdiction, including, where applicable, (a) pricing or reimbursement approval in such country or jurisdiction, (b) pre- and post-approval marketing authorizations (including any prerequisite Manufacturing approval or authorization related thereto) and (c) labeling approval.
1.87 Regulatory Authority means any applicable Governmental Authority involved in the granting Regulatory Approvals for the Products or otherwise exercising authority with respect to biopharmaceutical products in the applicable country or jurisdiction, including the FDA, the EMA, the PMDA and any corresponding national or regional regulatory authorities.
1.88 Regulatory Exclusivity means any rights or protections which are recognized, afforded or granted by the FDA or any other Regulatory Authority in any country or region of the Territory pursuant to Applicable Laws of such country or region, in association with the marketing authorization of the Product, providing the Product[***] a period of marketing exclusivity, during which a Regulatory Authority recognizing, affording or granting such marketing exclusivity will refrain from either reviewing or approving a marketing authorization application or similar regulatory submission, submitted by a Third Party seeking to market a Generic Product of such Product[***].
1.89 Regulatory Materials all (a) applications (including all INDs), registrations, licenses, authorizations and approvals (including MAAs and Regulatory Approvals), (b) correspondence and reports submitted to or received from Regulatory Authorities (including minutes and official contact reports relating to any communications with any Regulatory Authority) and all supporting documents with respect thereto, including all adverse event files and complaint files, (c) clinical and other data contained, referenced or otherwise relied upon in any of the foregoing, and (d) for clarity, any drug master file.
1.90 Required Phase 4 Studies means any Phase 4 Studies that are required by the applicable Regulatory Authority to be conducted as a condition for Regulatory Approval, including Regulatory Approval for a label expansion, whether or not also required for pricing or reimbursement approval. 13
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1.91 Research means all research activities conducted by or on behalf of either Party or the Parties jointly pursuant to the Research Plan.
1.92 Research and Development Costs means all RevMed R&D Costs and Sanofi R&D Costs.
1.93 Residual Knowledge means intangible Know-How (but, for the avoidance of doubt, not Patents) relating to the Collaboration or otherwise to this Agreement or any Ancillary Agreement that has been retained in the unaided memories of any employees of a Party.
1.94 RevMed Background Know-How means, subject to Section 3.1(b), all Know-How that is (a) Controlled by RevMed or its Affiliates as of the Effective Date or during the Term, excluding the RevMed Sole Program Know-How and Joint Program Know-How; and (b) necessary or useful for the Research, Development, Manufacture, Commercialization or other exploitation of any Product in the Field.
1.95 RevMed Background Patents means, subject to Section 3.1(b), any Patent Right (a) (i) that is Controlled by RevMed or its Affiliates as of the Effective Date; or (ii) that comes into the Control of RevMed or its Affiliates during the Term, excluding the RevMed Sole Program Patents and Joint Program Patents; and [***].
1.96 RevMed Background Technology means RevMed Background Patents and RevMed Background Know-How.
1.97 RevMed Licensed Know-How means RevMed Background Know-How and RevMed Sole Program Know-How.
1.98 RevMed Licensed Patent means RevMed Background Patents and RevMed Sole Program Patents.
1.99 RevMed Licensed Technology means RevMed Background Technology, RevMed Sole Program Technology and RevMed's undivided one- half ownership of the full right, title and interest in and to the Joint Program Technology.
1.100 RevMed R&D Costs means RevMed R&D FTE Costs and RevMed R&D Out-Of-Pocket Costs.
1.101 RevMed R&D FTE Costs means FTE Costs incurred by or on behalf of RevMed or its Affiliates in the Research or Development of Product in the Field in accordance with the Research Plan or Development Plan for such Product, as applicable.
1.102 RevMed R&D Out-Of-Pocket Costs means amounts paid by RevMed in cash to Third Parties for goods and services required in order for RevMed to conduct Research or Development of Product in the Field in accordance with the Research Plan or Development Plan for such Product, as applicable. 14
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1.103 RevMed Sole Program Know-How means all Program Inventions owned solely by RevMed pursuant to Section 10.1(a).
1.104 RevMed Sole Program Patents means any Patent Right covering or claiming the RevMed Sole Program Know-How.
1.105 RevMed Sole Program Technology means RevMed Sole Program Patents and RevMed Sole Program Know-How.
1.106 Sanofi R&D Costs means Sanofi R&D FTE Costs and Sanofi R&D Out-Of-Pocket Costs.
1.107 Sanofi R&D FTE Costs means FTE Costs incurred by or on behalf of Sanofi or its Affiliates in the Research or Development of Product in the Field in accordance with the Research Plan or Development Plan for such Product, as applicable.
1.108 Sanofi R&D Out-Of-Pocket Costs means amount paid by Sanofi in cash to Third Parties for good and services required in order for Sanofi to conduct Research or Development of Product in the Field in accordance with the Research Plan or Development Plan for such Product, as applicable.
1.109 Sanofi Sole Program Know-How means all Program Inventions owned solely by Sanofi pursuant to Section 10.1(a).
1.110 Sanofi Sole Program Patents means any Patent Right covering or claiming the Sanofi Sole Program Know-How.
1.111 SHP1 means [***].
1.112 SHP1 Inhibitor means [***].
1.113 SHP1 Inhibitor Criteria means [***], as set forth in Exhibit C of the Correspondence.
1.114 SHP1-SHP2 Dual Inhibitor means [***].
1.115 SHP1-SHP2 Dual Inhibitor Product means any pharmaceutical preparation in final form containing a SHP1-SHP2 Dual Inhibitor, alone or in combination with one or more additional active ingredients, for sale by prescription, over-the-counter or any other method.
1.116 SHP1-SHP2 Dual Inhibitor Criteria means [***], as set forth in Exhibit D of the Correspondence.
1.117 SHP2 means [***].
1.118 SHP2 Inhibitor Combination Therapy means [***].
1.119 SHP2 Inhibitor means [***]. 15
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1.120 SHP2 Inhibitor Criteria means [***], as set forth in Exhibit E of the Correspondence.
1.121 Study Report means a written report that contains information required by ICH guidelines after the Clinical Trial in question is closed but before database lock for such Clinical Trial.
1.122 Sublicensees means a Person, other than an Affiliate or a Distributor, that is granted a sublicense by a Party or its Affiliate under the license grants in this Agreement.
1.123 Subsidiary means, with respect to a Party, any corporation or other business entity that, directly or indirectly, through one or more intermediaries, is controlled by that Party for so long as such Party controls such corporation or other business entity. For the purpose of this definition only, control (including, with correlative meaning, the terms controlled by and under the common control) means the actual power of such Party, either directly or indirectly through one or more intermediaries, to direct or cause the direction of the management and policies of such corporation or other business entity, whether by the ownership of 50% or more of the voting equity of such corporation or other business entity, by contract or otherwise.
1.124 Targeted Anti-Cancer Agent means, other than an Immuno-Oncology Agent, any molecularly targeted therapy that blocks the growth of cancer [***]. For clarity, Targeted Anti-Cancer Agent includes [***].
1.125 Third Party means any Person other than a Party or an Affiliate of a Party.
1.126 Third Party Claims means all Third Party demands, claims, actions, investigations and proceedings (whether criminal or civil, in contract, tort or otherwise).
1.127 Trademark means any word, name, symbol, color, shape, designation or any combination thereof, including any trademark, service mark, trade name, brand name, sub-brand name, trade dress, product configuration, program name, delivery form name, certification mark, collective mark, logo, tagline, slogan, design or business symbol, that functions as an identifier of source or origin, whether or not registered and all statutory and common law rights therein and all registrations and applications therefor, together with all goodwill associated with, or symbolized by, any of the foregoing.
1.128 Tumor Type means a cancer that differs from another type of cancer in [***].
1.129 United States or U.S. means the United States of America, including its territories and possessions.
1.130 Valid Claim means [***]. 16
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1.131 In addition to the foregoing definitions, the following table identifies the location of the following definitions set forth in various other Sections of, or Exhibits to, the Agreement: Defined Term Section Acquiror Section 15.2(a) Agreement Preamble Alliance Manager Section 2.1 Applicable Reduction Percentage Section 9.3(c)(ii) Asset Transfer Section 1.12 Base Net Sales Section 9.3(c)(ii) Closing Conditions Section 13.6 Co-Promotion Agreement Section 8.7(c) Co-Promotion Option Section 8.7(a) Co-Promotion Product Section 8.7(a) Co-Promotion Territory Section 8.7(a) Combination Therapy Section 5.3(a) Commercialization Plan Section 8.2 Confidentiality Agreement Section 15.9 CREATE Act Section 10.3 Data Package Section 5.2(c) Development Candidate Section 4.3 Development Budget Section 5.2(a) Development Plan Section 5.2(a) [***] Section 5.2(b) Disclosing Party Section 11.1(a) Dispute Section 15.6(a) Distributor Section 8.3 Effective Date Section 3.8 Execution Date Preamble Force Majeure Section 15.1 Indemnification Claim Notice Section 14.3(a) Indemnified Party Section 14.3(a) Indemnifying Party Section 14.3(a) Indemnitee Section 14.3(a) Initial Know-How Section 3.7(a) Joint Commercialization Committee or JCC Section 2.4 Joint Research and Development Committee or JRDC Section 2.3 Joint Steering Committee or JSC Section 2.2 Joint Program Know-How Section 10.1(a) Know-How Index Section 3.7(a) Launch Quarter Section 9.3(c)(ii) Merger Section 1.12 Milestone Event Section 9.2 Milestone Payment Section 9.2 Non-SHP2 Termination Product Section 12.3(c)(ii)(A) Parent Section 1.12 Party or Parties Preamble Pharmacovigilance Agreement Section 6.5 17
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Defined Term Section Product Infringement Section 10.4(a) Product Marks Section 10.5(a) Profit/Loss Share Agreement Section 9.4 Quality Agreement Section 7.3 Receiving Party Section 11.1(a) Remainder Section 10.4(f) Remedial Action Section 6.7 Research Budget Section 4.2(a) Research Plan Section 4.1 [***] Section 4.2(b) RevMed Preamble RevMed Commercialization Costs Section 8.2 RevMed Indemnitee Section 14.2 RevMed Program Invention Section 12.3(c)(ii) RevMed Study Section 5.6(b) Royalty Floor Section 9.3(c)(iii) Royalty Term Section 9.3(b) Sanofi Preamble Sanofi Indemnitee Section 14.1 Sanofi Program Invention Section 12.3(c)(ii) Sanofi Prosecuted Patents Section 10.2(a) [***] Section 12.3(c)(ii) [***] Section 12.3(c)(ii) [***] Section 12.3(c)(ii) SHP1-SHP2 Dual Inhibitor License Rights Section 3.5(a) SHP1-SHP2 Dual Inhibitor Licensing Decision Section 3.5(a) SHP1-SHP2 Dual Inhibitor Licensing Negotiation Period Section 3.5(a) Stock Sale Section 1.12 Supply Agreement Section 7.3 Term Section 12.1 Third Party Right Section 10.7(a) Termination Product Section 12.3(c)(ii)(D) Third Party Right Notification Section 10.7(a) VAT Section 9.7(b)
1.132 Interpretation. In this Agreement, unless otherwise specified:
(a) The words include, includes and including shall be deemed to be followed by the phrase without limitation;
(b) the words will and shall have the same meaning; 18
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(c) the word or shall be interpreted to mean and/or unless the context requires otherwise;
(d) words denoting the singular shall include the plural and vice versa and words denoting any gender shall include all genders;
(e) words such as herein, hereof, and hereunder refer to this Agreement as a whole and not merely to the particular provision in which such words appear; and
(f) the Exhibits and other attachments to this Agreement and the Correspondence form part of the operative provision of this Agreement and references to this Agreement shall include references to such Exhibits and attachments.
Article II.
GOVERNANCE
2.1 Alliance Managers. Each Party hereby appoints the person listed on Exhibit F of the Correspondence to act as its alliance manager under this Agreement as of the Effective Date (the Alliance Manager). Each Party's Alliance Manager shall: (a) serve as the primary contact point between the Parties for the purpose of providing the other Party with information on the progress of such Party's activities under this Agreement; (b) be primarily responsible for facilitating the flow of information and otherwise promoting communication, coordination and collaboration between the Parties; and (c) have the right to attend all Committee meetings, all as non-voting members. Without limiting the foregoing, the Alliance Managers (or their designees) shall be responsible for (i) scheduling meetings of each Decision-Making Committee; (ii) setting agendas for meetings of each Decision-Making Committee with solicited input from members of the respective Committee, and (iii) preparing the draft minutes of such meetings (with such responsibility alternating between the Alliance Managers), which minutes shall provide a description in reasonable detail of the discussion held at the meeting and a list of any actions, decisions or determinations approved by the respective Committee. Each Party may replace its Alliance Manager at any time upon written notice to the other Party.
2.2 Joint Steering Committee. The Parties hereby establish an executive steering committee (the Joint Steering Committee or the JSC).
(a) Composition. The JSC shall consist of three senior executives of each Party, with at least one such senior executive from each such Party holding the position of vice president or above.
(b) Function and Powers. The JSC shall manage the overall Collaboration, and shall in particular:
(i) coordinate the activities of the Parties under this Agreement, including facilitating communications between the Parties with respect to the Research, Development, Manufacture and Commercialization of the SHP2 Inhibitors and Products; 19
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(ii) provide a forum for discussion of matters relating to the Research, Development, Manufacture and Commercialization of the SHP2 Inhibitors and Products presented to the JSC by the other Committees;
(iii) direct and oversee the operation of the JRDC, JCC, JPC and any other joint subcommittee established by JSC, including resolving any disputed matter of the JRDC, JCC, JPC and other subcommittees in accordance with Section 2.10, and promote effective member participation in each such Committee's or subcommittee's operations;
(iv) approve each Research Plan and Development Plan prepared by the JRDC, and the Research Budget and Development Budget therein, respectively, and amendments to the foregoing in accordance with Section 5.2(d);
(v) establish additional subcommittees as appropriate;
(vi) [***]; and
(vii) perform such other duties as are expressly assigned to the JSC in this Agreement, and perform such other functions as appropriate to further the purposes of this Agreement as may be allocated to it by the Parties' written agreement, except where in conflict with any provision of this Agreement.
2.3 Joint Research and Development Committee. The Parties hereby establish a joint research committee (the Joint Research and Development Committee or the JRDC).
(a) Composition. The JRDC shall consist of three representatives of each Party that have knowledge and expertise in the Research and Development of pharmaceutical or biologic products in the Field.
(b) Function and Powers. The JRDC shall have the following responsibilities:
(i) prepare each Research Plan and Development Plan, and the Research Budget and Development Budget therein, respectively, and amendments to the foregoing in accordance with Section 5.2(d);
(ii) oversee the implementation of each Research Plan and Development Plan;
(iii) monitor, coordinate and evaluate the activities and performance of the Parties under each Research Plan and Development Plan[***];
(iv) following completion of early Development activities for a Product, determine whether to further develop such Product for Regulatory Approval;
(v) if the JRDC determines to further Develop a Product for Regulatory Approval, develop the Data Package for such Product in accordance with Section 5.2(c);
(vi) provide a forum for and facilitate communications between the Parties with respect to the Research and Development of the SHP2 Inhibitors and Products; 20
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(vii) review and approve a format for the expense reports to be provided by RevMed to Sanofi pursuant to Section 4.5 and Section 5.5;
(viii) monitor and coordinate all regulatory actions, communications and submissions for the SHP2 Inhibitors and Products allocated to each Party under the Development Plans;
(ix) oversee and coordinate the Manufacturing of the SHP2 Inhibitors and Products for clinical supply in accordance with Article VII, unless the JSC designates a manufacturing committee or subcommittee to perform such activities;
(x) establish other subcommittees, as appropriate, to carry out its functions; and
(xi) perform such other functions as determined by the JSC to further the purposes of this Agreement with respect to the Research and Development of SHP2 Inhibitors and Products, except where in conflict with any provision of this Agreement.
(c) Decision-Making. Notwithstanding anything to the contrary in Section 2.10(a), if the JRDC is unable to reach unanimous agreement on the following matters then such matters shall not be submitted for resolution to the JSC and shall instead be subject to Sanofi's final decision-making power: [***].
2.4 Joint Commercialization Committee. The Parties shall establish a joint commercialization committee (the Joint Commercialization Committee or JCC) no later than the date that is [***] prior to the anticipated submission of the first NDA for the first Product.
(a) Composition. The JCC shall consist of three representatives of each Party that have knowledge and expertise in the commercialization of pharmaceutical or biologic products in the Field.
(b) Function and Powers. The JCC shall monitor and oversee the Commercialization activities (and certain Manufacturing activities as provided hereunder) of the SHP2 Inhibitors and Products and in particular have the following responsibilities:
(i) coordinate the messaging and branding strategy for Products in the United States;
(ii) coordinate the activities of the Parties under the Commercialization Plan and oversee the implementation of the Commercialization Plan;
(iii) if the Co-Promotion Option has been exercised, coordinate the activities of the Parties under the applicable Co-Promotion Agreement and oversee the implementation of such Co-Promotion Agreement;
(iv) review and discuss the Commercialization Plans and amendments thereto in accordance with Section 8.2; 21
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(v) provide a forum for and facilitate communications between the Parties with respect to the Commercialization of the Products in the United States;
(vi) oversee and coordinate the Manufacturing of the SHP2 Inhibitors and Products for commercial supply in the United States in accordance with Article VII, unless the JSC designates a manufacturing committee or subcommittee to perform such activities;
(vii) establish subcommittees, as appropriate, to carry out its functions; and
(viii) perform such other functions as determined by the JSC to further the purposes of this Agreement with respect to the Commercialization of the Products, except where in conflict with any provision of this Agreement.
2.5 Joint Patent Committee. The Parties shall establish a joint patent committee (Joint Patent Committee or JPC).
(a) Composition. The JPC shall be composed of one patent counsel representing Sanofi, one patent counsel representing RevMed, (who may be internal or outside counsel to RevMed), and up to two additional representatives of each Party that have knowledge and expertise in patent prosecution of pharmaceutical or biologic products.
(b) No Power or Authority; Function. The JPC shall not have any power or authority (including decision making) with respect to Collaboration matters. Rather, the JPC shall serve as an information-sharing forum for the Parties with respect to the following:
(i) the filing, prosecution, and maintenance of the RevMed Licensed Patents and Joint Program Patents, including deadlines for responses to patent authorities and Sanofi's proposed timelines for submission of comments to patent authorities;
(ii) any periodic reports or updates for Collaboration-related intellectual property matters as may be requested by the JRDC;
(iii) strategy for patent term extensions to extend exclusivity in the Licensed Territory and for listings in the FDA's Approved Drug Products with Therapeutic Equivalence Evaluations (known as the Orange Book) and its foreign counterparts;
(iv) confer regarding any related information to ensure the Parties' compliance with the 37 C.F.R. 1.56 duty of disclosure as it relates to SHP2 Inhibitors or SHP2 inhibition; and
(v) such other intellectual property-related matters as determined by the JSC to further the purposes of this Agreement, except where in conflict with any provision of this Agreement.
2.6 Joint Manufacturing Committee. The Parties shall establish a joint manufacturing committee (Joint Manufacturing Committee or JMC). 22
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(a) Composition. The JMC shall consist of three representatives of each Party that have knowledge and expertise in the manufacture or supply management of pharmaceutical or biologic products in the Field.
(b) No Power or Authority; Function. The JMC shall not have any power or authority (including decision making) with respect to Collaboration matters. Rather, the JMC shall serve as an information-sharing forum for the Parties with respect to the following:
(i) transfer of the Manufacturing Know-How in accordance with Section 7.2 hereof;
(ii) periodic reports or updates for Collaboration-related Manufacturing matters as may be requested by the JSC;
(iii) logistical strategies, capacity planning and inventory levels for each Product for consistency with the then-current Development Plans and Commercialization Plans for such Product;
(iv) results of regulatory inspections related to Products and steps taken by the concerned Party to address any Manufacturing deficiencies noted;
(v) such other functions as may be agreed upon by the Parties to further the purposes of this Agreement, except where in conflict with any provision of this Agreement.
2.7 Limitation of Committee Authority. Each Committee shall only have the powers expressly assigned to it in this Article II and elsewhere in this Agreement and shall not have the authority to: (a) modify or amend the terms and conditions of this Agreement; (b) waive either Party's compliance with the terms and conditions of this Agreement; or (c) determine any issue in a manner that would conflict with the express terms and conditions of this Agreement.
2.8 Committee Membership and Meetings.
(a) Committee Members. The initial members of each Party on each Committee (other than the JCC) as of the Effective Date are set forth in Exhibit F of the Correspondence. Each Party may replace its representatives on any Committee by written notice to the other Party. Each Committee representative shall have appropriate knowledge and expertise and sufficient seniority within the applicable Party to make decisions arising within the scope of the applicable Committee's responsibilities. A particular individual may serve as a Party's representative on more than one Committee, provided that such individual satisfies the requirements of the preceding sentence for each applicable Committee. Each Party shall appoint one of its representatives on each Committee to act as a co-chairperson of such Committee. The Alliance Managers shall be responsible for calling any regularly scheduled meetings for each Decision-Making Committee on no less than [***] notice and shall also jointly prepare and circulate agendas for each Decision-Making Committee meeting no less than [***] prior to such meeting. In addition, members of each Decision-Making Committee may request that the Alliance Managers schedule and facilitate ad hoc meetings. The Alliance Managers shall jointly prepare and circulate reasonably detailed minutes for each Decision-Making Committee meeting within [***] of such meeting. For the avoidance of doubt, meetings of the JPC shall not require any formal agenda or preparation or circulation of any minutes unless otherwise agreed by the Parties. 23
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(b) Meetings.
(i) Decision-Making Committees. Each Decision-Making Committee shall meet in accordance with a schedule established by mutual written agreement of both Parties, but no less frequently than [***]. Meetings of any Decision-Making Committee will be held in person, at locations to be alternately selected by each Party, with [***] deciding the location for the first such meeting of each Decision-Making Committee. Alternatively, each Decision-Making Committee may meet by means of teleconference, videoconference, or other similar communications equipment; provided, however, to the extent practicable at least [***] meetings of each Decision-Making Committee per [***] should be conducted in-person. A meeting shall be deemed to be in-person as long as one representative of each Party is participating in person; for clarity, other representatives of such Party may participate remotely during an in person meeting as provided under this subsection. Each Party shall be responsible for all of its own expenses of participating in any Decision-Making Committee. No action taken at any meeting of a Decision-Making Committee shall be effective unless at least one representative of each Party is participating.
(ii) JPC and JMC. The JPC and JMC shall hold meetings as agreed upon by both Parties but in no event less frequently than [***]. Meetings of the JPC and JMC will be held by telephone, video conference or similar means in which each participant can hear what is said by, and be heard by, the other participants, unless the Parties agree to meet in person.
(c) Non-Member Attendance. Each Party may from time to time invite a reasonable number of participants, in addition to its representatives, to attend the Committee meetings in a non-voting capacity; provided that if either Party intends to have any Third Party (including any consultant) attend such a meeting, such Party shall provide prior written notice to the other Party and shall ensure that such Third Party is bound by confidentiality and non-use obligations consistent with the terms of this Agreement.
2.9 Continuity of Representation. Notwithstanding the Parties' respective rights to replace its Alliance Manager and members of Committees by written notification to the other Party, each Party shall strive to maintain continuity in the representation of such Alliance Manager and Committee members.
2.10 Decision-Making.
(a) All decisions of each Decision-Making Committee shall be made by unanimous vote, with each Party's representatives collectively having one vote (such vote to be cast by the Party's co-chair to the extent such Party's representatives do not unanimously agree on a decision). If after reasonable discussion and good faith consideration of each Party's view on a particular matter before a Decision-Making Committee, the representatives of the Parties cannot reach an agreement as to such matter within [***] after such matter was brought to such Decision-Making 24
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Committee for resolution or after such matter has been referred to such Decision-Making Committee, such disagreement shall, upon the written request of either Party, be referred to the JSC (in the case of disagreement of the JRDC, JCC or subcommittees of the JSC), or the Designated Senior Officers (in the case of disagreement of the JSC) for resolution, in each case, to discuss such matter in good faith for resolution. If the Designated Senior Officers cannot resolve any matter referred to them by the JSC within [***] after such matter has been referred to them, then such matters shall be finally and definitively resolved as set forth in Section 2.10(b) or otherwise by consensus. The Parties may by mutual written agreement determine to shorten the timeframes specified above in this Section 2.10. If any decision-making authority assigned to any Committee necessarily extends beyond the term of such Committee as set forth in Section 2.11, then such decision making authority shall be automatically transferred to Sanofi.
(b) For any matters submitted for resolution by the Designated Senior Officers, the Designated Senior Officer of Sanofi shall have final decision- making power with respect to such matter; provided that the Designated Senior Officer of Sanofi shall not have the right to exercise its final decision- making authority without RevMed's consent to:
(i) [***]
(ii) [***]
(iii) [***] or
(iv) [***]. Notwithstanding anything to the contrary in this Agreement, except as expressly set forth in Section 4.2(a)(i)(A) and, if applicable, Section 4.2(a)(i)(B), [***]:
A. Sanofi cannot without cause exercise such final decision-making authority to [***] from one of its assigned activities under the applicable Research Plan or Development Plan and [***] similar activity;
B. for any proposal to [***], the JRDC shall first use good faith efforts to [***], a pending amendment thereto or as otherwise determined by the JRDC, that [***]; and
C. if [***] does not occur and if Sanofi [***] by [***] without RevMed's consent, then [***] for a period of [***] in which such [***], provided that RevMed shall use good faith efforts to [***] during [***], and provided further that Sanofi shall not be required to make any such [***] during [***]. Without limiting the foregoing, Sanofi shall be deemed to have cause to [***], for example, in the case of [***].
2.11 Discontinuation of Committees. The activities to be performed by each Committee shall solely relate to governance under this Agreement, and are not intended to be or involve the delivery of services. Each Committee shall continue to exist until the Parties mutually agree to disband such Committee, or if RevMed provides Sanofi with written notification of its decision to discontinue its participation in such Committee; provided that (a) the JPC shall disband upon [***], (b) the JCC shall disband if [***]; (c) the JRDC shall disband upon [***]; and (d) the JMC shall disband upon [***]. If a Committee is so disbanded, such Committee shall have no further obligations under this Agreement and, thereafter, the Alliance Managers shall be the contact persons for the exchange of information under this Agreement and decisions of such 25
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Committee shall be decisions of Sanofi. Upon disbandment of the JRDC, JCC, JPC or JMC or at any time in the JSC's discretion, the JSC may assume from the JRDC, JCC, JPC or JMC any and all of such Committees' respective responsibilities. Notwithstanding anything to the contrary in Section 2.8(b)(i), following substantial completion of RevMed's activities under the Research Plan and Development Plan, the JRDC shall meet no less frequently than [***], provided that there are bona fide agenda items for such meetings. If RevMed undergoes a Change of Control following substantial completion of RevMed's activities under the Research Plan and Development Plan, [***] may, in its sole discretion, [***]. The JSC shall disband if all other Committees have disbanded.
Article III.
LICENSE
3.1 Licenses and Option to Sanofi.
Licenses. Subject to the terms and conditions of this Agreement, RevMed hereby grants to Sanofi an exclusive (even as to RevMed and its Affiliates), royalty-bearing license (which shall be sub-licensable solely as provided in Section 3.4) under the RevMed Licensed Technology, to Research, Develop, Manufacture, use, sell, offer for sale, import and otherwise Commercialize and exploit Products (including, for clarity, any Companion Diagnostics with respect to such Products) in the Field in the Licensed Territory.
(a) Option.
(i) Option. Subject to the terms and conditions of this Agreement, RevMed hereby grants to Sanofi an exclusive option, under the Patent Rights and Know-How claiming or embodied in the [***].
(ii) Exercise. Sanofi may exercise its Option at any time during the Term by providing RevMed with written notice of such exercise. During the Term prior to the Option exercise by Sanofi, RevMed shall provide to Sanofi any additional information Controlled by RevMed that is reasonably requested by Sanofi in order to assist Sanofi in determining whether to exercise its Option. If Sanofi so exercises its Option pursuant to this Section 3.1(b)(ii), [***]. Upon Sanofi's exercise of the Option, [***] accordingly subject to the license granted to Sanofi under Section 3.1(a) and the payment obligations therefor pursuant to this Agreement.
3.2 License to RevMed. Subject to the terms and conditions of this Agreement, Sanofi hereby grants to RevMed a non-exclusive, royalty-free sublicense (which shall only be further sub-licensable (a) to RevMed's Subsidiaries, (b) to the Permitted Contractors or Researchers, and (c) solely with Sanofi's prior written consent, such consent not to be unreasonably withheld, delayed or conditioned, to Third Parties who are not Permitted Contractors or Researchers) under the rights exclusively licensed to Sanofi pursuant to Section 3.1, solely to the extent necessary for RevMed to perform its obligations under this Agreement and the Ancillary Agreements.
3.3 Retained Rights; Residuals. RevMed hereby retains subject to Section 3.5(b), all rights in and to the RevMed Licensed Technology other than the rights expressly licensed to Sanofi thereunder pursuant to Section 3.1. Notwithstanding the foregoing, each Party shall have the right to use [***]. Notwithstanding anything to the contrary in this Agreement, nothing shall [***]. 26
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3.4 Sublicense and Subcontracting Rights. Subject to the terms and conditions of this Agreement:
(a) Subject to Section 3.4(c) below, Sanofi may exercise its rights and perform its obligations under this Agreement by itself or through the engagement of any of its Affiliates without RevMed's consent. For the avoidance of doubt, RevMed shall not have any responsibility for any taxes relating to or arising out of the engagement of Sanofi's Affiliates or Sanofi's use of subcontractors, except for any taxes to the extent that RevMed would have incurred such taxes even in the absence of such engagement of Sanofi's Affiliates or Sanofi's use of subcontractors.
(b) Sanofi shall have the right to grant sublicenses (through multiple tiers) under the rights granted to it under Section 3.1 to one or more Third Parties (i) outside of the United States, and (ii) in the United States; provided that for purposes of subsection (ii), Sanofi shall not sublicense substantially all of the rights granted to it under Section 3.1 in the United States to Third Parties without RevMed's prior written consent, such consent not to be unreasonably withheld, delayed or conditioned.
(c) Subject to the remainder of this Section 3.4(c), (i) Sanofi may subcontract to Third Parties the performance of Sanofi's tasks and obligations with respect to the Research, Development, Manufacture and Commercialization of any Product as Sanofi deems appropriate (ii) RevMed may subcontract to the Permitted Contractors or Researchers listed on Exhibit B of the Correspondence as of the Effective Date the performance of RevMed's tasks and obligations with respect to the Research, Development, Manufacture and Commercialization of any Product, and (iii) RevMed shall not, without the prior written approval of Sanofi, otherwise subcontract to Third Parties the performance of RevMed's tasks and obligations with respect to the Research, Development, Manufacture and Commercialization of any Product. If Sanofi approves a Third Party subcontractor of RevMed following the Effective Date, or such Third Party is named in the Research Plan or the Development Plan, then RevMed, unless otherwise explicitly waived by the Sanofi Alliance Manager, shall enter into a written agreement with such Third Party substantially in a form approved by Sanofi and such Third Party shall be deemed a Permitted Subcontractor or Researcher under this Agreement. Each Party shall remain liable for any action or failure to act by its Affiliates, Sublicensees or subcontractors to whom such Party's obligations under this Agreement have been delegated, subcontracted or sublicensed and which action or failure to act would constitute a breach of this Agreement if such action or failure to act were committed by such Party. Such Party shall require that such Affiliates, Sublicensees and subcontractors agree in writing to comply with the applicable terms and conditions of this Agreement. Without limiting the foregoing, if a Party first engages a subcontractor after the Effective Date to perform any activities assigned to it under this Agreement, such Party shall require that such subcontractor be bound by written obligations of confidentiality and non-use consistent with this Agreement and shall have agreed to assign to the Party engaging such subcontractor (or, if an assignment cannot be made, grant an irrevocable, perpetual, fully-paid, exclusive, royalty-free, worldwide license to such Party, with the right to sublicense through multiple tiers, to Research, Develop, Manufacture, Commercialize and otherwise exploit SHP2 Inhibitors and Products) under all Program Inventions made by such subcontractor in the course of performing such subcontracted work that relate to any Products or their use, manufacture or sale. 27
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3.5 SHP1-SHP2 Dual Inhibitors.
(a) Except pursuant to or as expressly permitted by this Agreement, RevMed shall not, shall cause its Affiliates not to, conduct or agree to conduct, outside of the Collaboration, on its own or together with one or more Third Parties, the Research, Development or Commercialization of any product that contains a SHP2 Inhibitor, including any SHP1-SHP2 Dual Inhibitor that [***]. For purposes of this Section, [***].
(b) If [***] (such determination, the SHP1-SHP2 Dual Inhibitor Licensing Decision and such Third Party's rights, the SHP1-SHP2 Dual Inhibitor License Rights), then prior to commencing any negotiations with any Third Party with regard to any SHP1-SHP2 Dual Inhibitor License Rights, RevMed shall promptly notify Sanofi in writing of such SHP1-SHP2 Dual Inhibitor Licensing Decision and provide to Sanofi a detailed summary of the data then in RevMed's Control regarding the relevant SHP1-SHP2 Dual Inhibitor. Sanofi shall notify RevMed in writing (a Notice of Interest), within [***] after Sanofi's receipt of such notice, if Sanofi desires to enter into negotiations with RevMed of the terms under which Sanofi would obtain SHP1-SHP2 Dual Inhibitor License Rights. If Sanofi provides a Notice of Interest to RevMed within [***], then (i) RevMed shall, upon request of Sanofi, provide Sanofi with reasonable access to all other then-existing Know-How in RevMed's Control that exists in either paper or electronic form and pertains to the relevant SHP1-SHP2 Dual Inhibitor and (ii) the Parties shall negotiate exclusively in good faith and on a commercially reasonable basis the terms of a definitive agreement under which Sanofi would be granted SHP1-SHP2 Dual Inhibitor License Rights for [***] after RevMed receives such Notice of Interest (such period, the SHP1-SHP2 Dual Inhibitor Licensing Negotiation Period). If Sanofi provides such Notice of Interest during [***], then RevMed shall not negotiate with any Third Party the terms under which such Third Party would obtain any development or commercialization rights with respect to a SHP1-SHP2 Dual Inhibitor during the SHP1-SHP2 Dual Inhibitor Licensing Negotiation Period. If (x) Sanofi does not provide a Notice of Interest within [***] or (y) Sanofi does provide a Notice of Interest within [***] but Parties have not entered into an agreement under which Sanofi is granted SHP1-SHP2 Dual Inhibitor License Rights prior to the expiration of the SHP1-SHP2 Dual Inhibitor Licensing Negotiation Period, then RevMed shall have no further obligations to Sanofi with respect to such SHP1-SHP2 Dual Inhibitor Products, and RevMed shall have the right to enter into negotiations and execute an agreement with a Third Party under which such Third Party is granted the SHP1-SHP2 Dual Inhibitor License Rights [***]. For clarity, the Parties' rights and obligations under this Section 3.5(b) shall apply one time only, upon the occurrence of the first SHP1-SHP2 Dual Inhibitor Licensing Decision.
3.6 No Implied Licenses. Except as expressly set forth herein, neither Party shall acquire any license or other intellectual property interest, by implication or otherwise, under or to any trademarks, Patents, Know-How, or other intellectual property rights Controlled by the other Party. For clarity, any exclusive license granted to each Party under any particular Patent Rights or Know-How Controlled by the other Party shall confer exclusivity to the Party obtaining such license only to the extent the Party granting such license Controls the exclusive rights to such Patent Rights or Know-How. 28
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3.7 Technology Transfers.
(a) Initial. As of the Effective Date RevMed shall have included in the electronic dataroom for this Agreement: (i) all Know-How in its Control that is necessary or useful to the Research, Development, Manufacture, Commercialization or other exploitation of the Development Candidate on Exhibit I of the Correspondence that currently exists in either paper or electronic form (the Initial Know-How) and (ii) a complete, accurate and detailed index of all other SHP2 Inhibitors which RevMed, as of the Effective Date, has made or had made and all related Know-How in RevMed's Control, which consists of the data regarding the structure and biochemical and other characteristics of such SHP2 Inhibitors that currently exists in RevMed's database(s) (the Index).
(b) Ongoing. Following the Effective Date, RevMed shall disclose to the JRDC on a [***] basis all RevMed Licensed Know-How created, generated, invented or developed by or on behalf of RevMed under the Collaboration. In addition, upon Sanofi's reasonable written request, RevMed shall deliver to Sanofi updates to the Index, and related RevMed Licensed Know-How, including the data regarding the structure and biochemical and other characteristics of such SHP2 Inhibitors that then exists in RevMed's database(s).
(c) Breach of Section 3.7(a) or 3.7(b) by RevMed. Notwithstanding anything to the contrary in Section 12.2(b), in the event Sanofi believes RevMed has materially breached Section 3.7(a) or 3.7(b), Sanofi shall so notify RevMed in writing. RevMed may, within [***] following receipt of such notice from Sanofi, request that [***].
3.8 Government Approvals.
(a) Efforts. Each of RevMed and Sanofi will use its commercially reasonable good faith efforts to remove promptly any and all impediments to consummation of the transaction contemplated by this Agreement, including obtaining government antitrust clearance, cooperating in good faith with any Governmental Authority investigation, promptly producing any documents and information and providing witness testimony if requested by a Governmental Authority. Notwithstanding anything to the contrary in this Agreement, this Section 3.8 and the term commercially reasonable good faith efforts do not require that either Party (i) offer, negotiate, commit to or effect, by consent decree, hold separate order, trust or otherwise, the sale, divestiture, license or other disposition of any capital stock, assets, rights, products or businesses of RevMed or Sanofi or its Affiliates, (ii) agree to any restrictions on the businesses of RevMed or Sanofi or its Affiliates, or (iii) pay any amount or take any other action to prevent, effect the dissolution of, vacate, or lift any decree, order, judgment, injunction, temporary restraining order, or other order in any suit or proceeding that would otherwise have the effect of preventing or delaying the transaction contemplated by this Agreement (collectively, an Antitrust Remedy), where such Antitrust Remedy would represent a Material Adverse Event for RevMed or Sanofi.
(b) HSR/Antitrust Filings. Each of RevMed and Sanofi will, within [***] after the execution of the Agreement (or such later time as may be agreed to in writing by the Parties) file with the U.S. Federal Trade Commission (FTC) and the Antitrust Division of the U.S. Department of Justice (DOJ) any HSR/Antitrust Filing required of it under the HSR Act and, as soon as practicable, file with the appropriate Governmental Authority any other 29
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HSR/Antitrust Filing required of it under any other Antitrust Law as determined in the reasonable opinion of either Party with respect to the transactions contemplated by the Agreement and Ancillary Agreements. The Parties shall cooperate with one another to the extent necessary in the preparation of any such HSR/Antitrust Filing. Each Party shall be responsible for its own costs, expenses, and filing fees associated with any HSR/Antitrust Filing; provided, however, that Sanofi shall bear solely all fees (other than penalties that may be incurred as a result of actions or omissions on the part of a Party, which penalties shall be the sole financial responsibility of such Party), required to be paid to any Governmental Authority in connection with making any such HSR/Antitrust Filing. In the event that the Parties make an HSR/Antitrust Filing under this Section 3.8, this Agreement shall terminate (i) at the election of either Party, immediately upon notice to the other Party, in the event that the FTC, DOJ or other Governmental Authority obtains a preliminary injunction or final order under Antitrust Law enjoining the transactions contemplated by the Agreement, or (ii) at the election of either Party, immediately upon notice to the other Party, in the event that the Antitrust Clearance Date shall not have occurred on or prior to [***] after the date upon which a HSR/Antitrust Filing has been submitted by each Party to a Governmental Authority in relation to the Agreement. Notwithstanding anything to the contrary contained herein, except for the terms and conditions of this Section 3.8, none of the terms and conditions contained in this Agreement shall be effective until the Effective Date, which is agreed and understood to mean, subject to the Closing Conditions having been fulfilled or waived in accordance with Section 13.6, the later of (A) if a determination is made pursuant to this Section 3.8 that an HSR/Antitrust Filing is not required to be made under any Antitrust Law for this Agreement, the date of such determination, or (B) if a determination is made pursuant to this Section 3.8 that an HSR/Antitrust Filing is required to be made under any Antitrust Law for this Agreement, the Antitrust Clearance Date. As used herein: (1) Antitrust Clearance Date means the earliest date on which the Parties have actual knowledge that all applicable waiting periods under the HSR Act and any comparable waiting periods as required under any other Antitrust Law, in each case with respect to the transaction contemplated by this Agreement have expired or have been terminated; and (2) HSR/Antitrust Filing means (x) a filing by RevMed and a filing by Sanofi with the FTC and the DOJ of a Notification and Report Form for Certain Mergers and Acquisitions (as that term is defined in the HSR Act), together with all required documentary attachments thereto or (y) any comparable filing by RevMed or Sanofi required under any other Antitrust Law, in each case ((x) and (y)) with respect to the transaction contemplated by this Agreement.
(c) Information Exchange. Each of RevMed and Sanofi will, in connection with any HSR/Antitrust Filing, (i) reasonably cooperate with each other in connection with any communication, filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party; (ii) keep the other Party and/or its counsel informed of any communication received by such Party from, or given by such Party to, the FTC, the DOJ or any other U.S. or other Governmental Authority and of any communication received or given in connection with any proceeding by a private party, in each case regarding the transaction contemplated by this Agreement; (iii) consult with each other in advance of any meeting or conference with the FTC, the DOJ or any other Governmental Authority or, in connection with any proceeding by a private party, with any other Person, and to the extent permitted by the FTC, the DOJ or such other Governmental Authority or other Person, give the Parties and/or their counsel the opportunity to attend and participate in such meetings and conferences; and (iv) to the extent practicable, permit the other Party and/or its counsel to review in advance any submission, filing or communication (and documents submitted therewith) 30
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intended to be given by it to the FTC, the DOJ or any other Governmental Authority; provided, that materials may be redacted to remove references concerning the valuation of the business of the disclosing Party or other sensitive information in the judgment of such disclosing Party. RevMed and Sanofi, as each deems advisable and necessary, may reasonably designate any competitively sensitive material to be provided to the other under this Section 3.8 as Antitrust Counsel Only Material. Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will not be disclosed by such outside counsel to employees, officers or directors of the recipient unless express permission is obtained in advance from the source of the materials (RevMed or Sanofi, as the case may be) or its legal counsel.
Article IV.
RESEARCH
4.1 General. Subject to the terms and conditions of this Agreement, the Parties will conduct a research program for the identification, validation and optimization of SHP2 Inhibitors (including without limitation back-up compound chemistry and characterization, pre-clinical studies, and translation and biomarker studies) pursuant to a research plan (such plan, the Research Plan).
4.2 Research Plan.
(a) Research Plan and Budget.
(i) Initial. As of the Effective Date, the Parties have agreed on an initial Research Plan and Research Budget for Calendar Years 2018, 2019 and 2020, which is set forth in Exhibit H of the Correspondence.
A. Calendar Year 2018. The initial Research Plan and Research Budget for Calendar Year 2018 are final and may only be amended or modified by mutual agreement of the Parties (i.e., Sanofi shall not have the unilateral right, either directly or through its participation in the JRDC or the JSC, including by exercising its final decision-making power under Section 2.10(b), [***]).
B. Calendar Years 2019 and 2020. The initial Research Budget for Calendar Years 2019 and 2020 included in Exhibit H of the Correspondence represents, as of the Effective Date, what the Parties believe to be a reasonable estimate of the Research Budget for Calendar Years 2019 and 2020 and shall become final only if the Parties mutually agree in writing with respect to the detailed Research activities and timelines to be set forth in the Research Plan for Calendar Years 2019 and 2020. Upon any such mutual agreement, such Research Plan and Research Budget may only be amended or modified by mutual agreement of the Parties (i.e., Sanofi shall not have the right to exercise its final decision-making power under Section 2.10(b), [***]. If the Parties do not reach such mutual agreement and Sanofi exercises its final decision-making power under Section 2.10(b) [***]. For clarity, if the Parties mutually agree upon activities under the Research Plan for a Research Budget equal to or greater than that set forth in Exhibit H of the Correspondence then Section 4.5(b) shall apply and Sanofi shall be responsible for 80% of the Research and Development Costs and RevMed shall be responsible for 20% of the Research and Development Costs, provided that Sanofi shall be responsible for [***]% of the Research and Development Costs associated with [***]. 31
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C. Calendar Year 2021 and Beyond. The Research Plan and Research Budget for Calendar Year 2021 and any Calendar Year after 2021 shall be subject in all respects to the governance set forth in Article II (including Sanofi's final decision-making power under Section 2.10(b) and the procedure for amendments set forth in Section 4.2(a)(ii)).
(ii) Amendments. From time to time after the Effective Date, the JRDC may propose any amendment to the Research Plan, which shall be made in good faith, based on scientific and regulatory judgment. The Research Plan shall set forth: (a) the Research activities to be conducted by either Party; (b) the estimated timelines for such Research activities; and (c) a detailed budget setting forth the estimated RevMed R&D Costs to be incurred in connection with such activities (the Research Budget). If the terms of the Research Plan contradict, or create inconsistencies or ambiguities with, the terms of this Agreement, then the terms of this Agreement shall govern.
(b) Conduct of Research. Each Party shall perform all Research activities under this Agreement in compliance with all Applicable Law (including GMP, GLP and GCP). In furtherance and not in limitation of the foregoing, RevMed shall use diligent efforts to conduct its activities under each Research Plan in accordance with the terms of such Research Plan (including timelines), as the same may be amended from time to time (and which basis for comparison shall be tolled until any then-contemplated or pending amendments are completed or for the duration of any bona fide dispute between the Parties with respect to a Research Plan or amendment thereto), and this Agreement. If Sanofi believes RevMed has materially breached its obligation in the foregoing sentences with respect to any Product, Sanofi shall so notify RevMed in writing. If either RevMed agrees or it is determined in accordance with [***], that RevMed has committed a material breach of its obligations under this Section 4.2(b) with respect to such Product, the JRDC shall, within [***] after such agreement on or determination of material breach, meet in person or by teleconference to discuss such material breach and specify reasonable actions that RevMed should take to cure such material breach. If RevMed fails to commence within [***] after such discussion occurs such actions recommended by the JRDC, or fails to cure any such material breach within [***] after the JRDC meets (or such longer timeframe as the JRDC decides is necessary to complete the actions specified by the JRDC), then Sanofi shall have the right, without prejudice to any other rights or remedies Sanofi may have under this Agreement or otherwise at law or in equity, [***]. In such case, RevMed shall, [***], (i) make available [***], (ii) provide [***], and (iii) otherwise provide [***].
4.3 Designation of Development Candidates As of the Effective Date, the Parties agree that the SHP2 Inhibitor set forth on Exhibit I of the Correspondence is deemed a Development Candidate (defined below) under this Agreement. From time to time, either Party may nominate one or more additional SHP2 Inhibitors to the JRDC for consideration as a candidate for Development under a Development Plan (the Development Candidate). Such nomination (and approval thereof by the JRDC) shall be made prior to the initiation of the IND-enabling studies for such SHP2 Inhibitor(s), unless otherwise permitted by the JRDC. Promptly after such nomination, each Party shall present to the JRDC the data and results it has obtained with respect to such SHP2 Inhibitor(s) as well as, if requested by the other Party, written records maintained 32
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by or on behalf of such Party or its Affiliates with respect to the discovery or development history of such SHP2 Inhibitor. The JRDC shall determine whether such SHP2 Inhibitor(s) shall be approved as a Development Candidate under this Agreement. The JRDC may also request that further Research activities be conducted with respect to such SHP2 Inhibitor(s) (under an amended Research Plan), after which activities such SHP2 Inhibitor(s) may be reconsidered for nomination as a Development Candidate. If the JRDC (or Designated Senior Officers, as applicable) approve a particular SHP2 Inhibitor as a Development Candidate, then the Parties shall proceed to conduct further Development of such SHP2 Inhibitor (including IND-enabling studies, other pre-clinical and non-clinical studies, and clinical studies) pursuant to a Development Plan (as further described in Section 5.2) and under the oversight of the JRDC. In addition, at any time after a SHP2 Inhibitor is designated as a Development Candidate, if requested by Sanofi, RevMed shall make available written records (such as lab notebooks) maintained by or on behalf of RevMed or its Affiliates with respect to the discovery and/or development history of such SHP2 Inhibitor or any Product under Development that contains such SHP2 Inhibitor, provided that such request shall not be made more than once for each SHP2 Inhibitor or each Product, as applicable, except for cause.
4.4 Research Records and Reports. Each Party shall maintain complete, current and accurate records of all Research activities conducted by it hereunder, and all data and other information resulting from such activities. Such records shall fully and properly reflect all work done and results achieved in the performance of the Research activities in good scientific manner appropriate for regulatory and patent purposes. Each Party shall keep the other Party reasonably informed as to its progress in the conduct of the Research activities through meetings of the JRDC. Upon written request from the JRDC, each Party shall submit to the JRDC a written summary (in slide format unless otherwise agreed by the Parties) of its Research activities since its prior report.
4.5 Research Costs.
(a) Calendar Years 2018, 2021 and All Calendar Years After 2021. Sanofi shall be responsible for 100% of the Research and Development Costs for Calendar Years 2018, 2021 and all Calendar Years after 2021. Sanofi will reimburse RevMed for any RevMed R&D Costs incurred by or on behalf of RevMed after the Execution Date in the performance of its activities under the Research Plan, provided that such RevMed R&D Costs are incurred per the Research Budget for such activities as approved by the JSC and [***] set forth in the Research Budget for the particular Calendar Quarter. Promptly following the end of each Calendar Quarter during which RevMed is responsible for activities under the Research Plan, but in no event later than [***] following the end of such Calendar Quarter, RevMed will provide to Sanofi a detailed expense report in form approved by the JRDC with respect to the RevMed R&D Costs incurred by or on behalf of RevMed during such Calendar Quarter consistent with the previous sentence (including, if requested by Sanofi in writing, copies of receipts or invoices from Third Parties for all RevMed R&D Out-of-Pocket Costs) together with an invoice for the same, provided that[***]. Sanofi will reimburse RevMed in Dollars all undisputed amounts within such expense reports under this Section 4.5 within [***] following receipt of the invoice therefor. RevMed shall invoice Sanofi for costs under this Section 4.5 on an accrual basis. 33
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(b) Calendar Years 2019 and 2020. Subject to Section 4.2(a)(i)(B), Sanofi shall be responsible for 80% of the Research and Development Costs for Calendar Years 2019 and 2020 and RevMed shall be responsible for 20% of the Research and Development Costs for Calendar Years 2019 and 2020 (provided that such Research and Development Costs are incurred per the Research Budget for such activities as approved by the JSC and [***] set forth in the Research Budget for the particular Calendar Quarter). Research and Development Costs shall initially be borne by the Party incurring the cost or expense. Promptly following the end of each Calendar Quarter during Calendar Years 2019 and 2020, but in no event later than [***] following the end of such Calendar Quarter, each Party will provide to the JRDC a detailed expense report in form approved by the JRDC with respect to the Research and Development Costs incurred by or on behalf of such Party during such Calendar Quarter consistent with the previous sentence (including, if requested by Sanofi in writing, copies of receipts or invoices from Third Parties for all RevMed R&D Out-of-Pocket Costs). The Party that incurs more than its share of the total Research and Development Costs during any such Calendar Quarter shall deliver an invoice to the other Party for an amount of cash sufficient to reconcile to the invoicing Party's agreed percentage of Research and Development Costs. Such other Party will reimburse the invoicing Party in Dollars all undisputed amounts within such expense reports under this Section 4.5 in accordance with Section 9.5 mutatis mutandis.
Article V.
DEVELOPMENT
5.1 General. Subject to the terms and conditions of this Agreement, the Parties will collaborate on the Development of the Products in the Field for Regulatory Approval under the direction of the JRDC and pursuant to the Development Plan, as set forth in more detail below.
5.2 Development.
(a) Development Plan and Budget. As of the Effective Date, the Parties have agreed on an initial Development Plan and Development Budget (each as defined below), which is set forth in Exhibit J of the Correspondence. After the Effective Date, for the Development Candidate listed in Exhibit J of the Correspondence, and at the time any other SHP2 Inhibitor is designated as a Development Candidate by the JRDC, the JRDC shall prepare and approve a Development plan for Products containing such SHP2 Inhibitor through Regulatory Approval of the Product from the FDA, EMA, or PMDA, as applicable, that includes the items described below (the Development Plan). The Development Plan for each Product shall set forth the timeline and details of: (i) all clinical Development activities to be conducted by the Parties that are designed to generate data sufficient to present to the FDA, EMA, and PMDA or other Regulatory Authority at the Pre-Registrational Meetings; (ii) the protocol synopsis for each Clinical Trial included in such Development Plan; (iii) a Manufacturing plan for the Manufacturing of the Product for such Clinical Trials; (iv) all additional clinical Development activities to be conducted by the Parties that are designed to generate data sufficient to seek Regulatory Approval of the Product from the FDA, EMA, or PMDA, as applicable, for the indication(s) to be pursued; (v) any other Development activities to be performed in order to obtain Regulatory Approval by the FDA, EMA, PMDA or the Regulatory Authority of any other jurisdiction; (vi) a detailed budget setting forth the estimated RevMed R&D Costs to be incurred in connection with such activities (the Development Budget); and (vi) the Party responsible for conducting each Development activity under such Development Plan. 34
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(b) Conduct of Development. Each Party shall perform all Development activities under this Agreement in compliance with all Applicable Law (including GMP, GLP and GCP). In furtherance and not in limitation of the foregoing, RevMed shall use diligent efforts to conduct its activities under each Development Plan in accordance with the terms of such Development Plan (including timelines), as the same may be amended from time to time (and which basis for comparison shall be tolled until any then-contemplated or pending amendments are completed or for the duration of any bona fide dispute between the Parties with respect to a Development Plan or amendment thereto), and this Agreement. If either RevMed agrees or it is determined in accordance with [***] that RevMed has committed a material breach of its obligations under this Section 5.2(b) with respect to any Clinical Trial of a Product, the JSC shall, within [***] after such agreement on or determination of material breach, meet in person or by teleconference to discuss such material breach and specify reasonable actions that RevMed should take to cure such material breach. If RevMed fails to commence within [***] after such discussion occurs such actions recommended by the JSC, or fails to cure any such material breach within [***] after the JSC meets (or such longer timeframe as the JSC decides is necessary to complete the actions specified by the JSC), then Sanofi shall have the right, without prejudice to any other rights or remedies Sanofi may have under this Agreement or otherwise at law or in equity[***]. In such case, RevMed shall, [***], (i) make available [***], (ii) provide [***], (iii) provide [***], and (iv) otherwise provide [***].
(c) Pre-Registrational Meeting. After obtaining early Development data and results under the Development Plan for a particular Product, in the event the JRDC determines to further Develop such Product for Marketing Approval, the JRDC shall develop a package setting forth such data and results, a planned regulatory strategy for the Development of such Product for a defined indication in the Field, the protocol synopses for each Registrational Clinical Trial included in the applicable Registration Program, any other Development activities to be conducted in support of such regulatory strategy, any other materials as may be required by the FDA, EMA, or PMDA or other Regulatory Authority for the Pre-Registrational Meetings for the applicable Products, and the Party responsible for conducting each Development activity under such package (the Data Package). After developing such Data Package, the Parties shall conduct the Pre-Registrational Meetings as set forth in Section 6.3(a).
(d) Development Plan Amendments. From time to time during the Term, the JRDC shall prepare amendments, as appropriate, to the then-current Development Plan. Subject to the foregoing, the JRDC shall have the right to approve amendments to the Development Plan, with final decision-making authority as provided in Section 2.10. Once approved by the JRDC, such amended Development Plan shall replace the prior Development Plan.
5.3 Combination Therapies.
(a) The JRDC shall discuss whether to include in the Development Plan for a Product the Development of such Product for use with other products to the extent not already provided for in the Development Plan (each, a Combination Therapy), including products developed or sold by a Third Party or that are in the public domain. Subject to this Section 5.3, each Party shall have the right to propose to the JRDC studies for co-development of Products with other products under the applicable Development Plan. 35
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(b) The Development Plan shall address the conduct of any Clinical Trial for a Combination Therapy and shall (i) specify which Party will be responsible for each activity for the Development of such Combination Therapy and (ii) specify which Party will be responsible for obtaining supplies of the Product or other product in such Combination Therapy as necessary. The JRDC shall review and approve the terms of any agreement with a Third Party in connection with any supply or other aspect of Development of such Combination Therapy.
5.4 Conflicts. If the terms of a Development Plan contradict, or create inconsistencies or ambiguities with, the terms of this Agreement, then the terms of this Agreement shall govern.
5.5 Development Costs.
(a) Sanofi will reimburse RevMed for RevMed R&D Costs incurred by or on behalf of RevMed after the Execution Date in the performance of its activities under the Development Plan, as applicable, provided that such RevMed R&D Costs are incurred per the Development Budget, as applicable, for such activities as approved by the JSC and do not exceed [***]% of the applicable amounts set forth in the Development Budget for the particular Calendar Quarter. Promptly following the end of each Calendar Quarter during which RevMed is responsible for activities under any Development Plan, but in no event later than [***] following the end of such Calendar Quarter, RevMed will provide to Sanofi a detailed expense report in form approved by the JRDC with respect to the RevMed R&D Costs incurred by or on behalf of RevMed during such Calendar Quarter consistent with the previous sentence (including, if requested by Sanofi in writing, copies of receipts or invoices from Third Parties for all RevMed Out-of-Pocket Costs) together with an invoice for the same, provided that [***]. Sanofi will reimburse RevMed in Dollars all undisputed amounts within such expense reports under this Section 5.5 within [***] following receipt of the invoice therefor. RevMed shall invoice Sanofi for costs under this Section 5.5 on an accrual basis.
5.6 RevMed Studies.
(a) RevMed or its Affiliates may propose to the JRDC that the Parties conduct a Clinical Trial of a Product in the Field that is not included in the Development Plan for such Product, in which case RevMed shall present the proposed design and projected costs of such Clinical Trial to the JRDC. If Sanofi agrees to include such Clinical Trial and related costs in the Development Plan and Development Budget for such Product, the Parties shall prepare an updated Development Plan and Development Budget and such Clinical Trial shall become part of the Collaboration and subject to this Agreement.
(b) In the event Sanofi, through the JRDC, decides not to pursue a Clinical Trial that RevMed presents in accordance with Section 5.6(a), then (i) the matter will be escalated pursuant to Section 2.10 and (ii) notwithstanding anything to the contrary in Section 2.10(b), if such matter remains unresolved after the matter is escalated to Designated Senior Officers, then RevMed, subject to this Section 5.6(b), may elect to conduct such study, on its own and at its own expense, provided that if such study [***], RevMed shall not have the right to conduct such study unless Sanofi agrees in writing that RevMed may conduct such study (any such study so conducted, a RevMed Study). For purposes of determining whether subsections (x), (y) or (z) apply, RevMed shall, prior to commencing a RevMed Study, submit to the JRDC for comment and review 36
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the protocol for such RevMed Study. Any disagreement among the JRDC members as to whether subsections (x), (y) or (z) apply shall be submitted for resolution to the Designated Senior Officers, provided that if the Designated Senior Officers do not agree on such matter, then RevMed shall not conduct such study. Provided that RevMed is permitted to conduct a RevMed Study, RevMed shall report to the JRDC on an ongoing basis any and all data arising from a RevMed Study (the RevMed Study Data) and provide the JRDC with updates and any other information pertaining to any RevMed Study as may be requested by the JRDC.
A. Sanofi shall have rights to use, at no additional cost, any RevMed Study Data in its performance of its obligations and exercise of its rights under the Collaboration except in connection with filing of MAAs for the Indication and Product Treatment Regimen that were the subject of such RevMed Study.
B. If Sanofi wishes to use, or actually uses, RevMed Study Data in support of filing a MAA for the Indication and Product Treatment Regimen that were the subject of such RevMed Study, it shall notify RevMed in writing and shall make a buy-in payment to RevMed in Dollars equal to [***] within [***] after the date that Sanofi receives a detailed invoice from RevMed setting forth [***]. In such case the RevMed Study shall be deemed a Clinical Trial under the Collaboration for all purposes, including that all Know-How conceived, reduced to practice, developed, made or otherwise generated by or on behalf of RevMed or its Affiliates in the course of the RevMed Study activities shall be deemed Program Inventions hereunder.
C. Each Party shall have rights to use RevMed Study Data for internal research and development outside the scope of the Collaboration.
5.7 Diligence. Consistent with [***] or as otherwise agreed by the Parties, Sanofi shall use Commercially Reasonable Efforts [***] to file and seek approval for an MAA for at least one Product in all of such countries or, in the case of the Major Market Countries in the European Union, through the centralized European Union approval process. If Sanofi materially breaches its obligation set forth in this Section 5.7, [***].
5.8 Development Records. Each Party shall maintain complete, current and accurate records of all Development activities conducted by it hereunder, and all data and other information resulting from such activities, for at least [***] after the expiration or termination of this Agreement in its entirety or for such longer period as may be required by Applicable Law. Such records shall fully and properly reflect all work done and results achieved in the performance of the Development activities in good scientific manner appropriate for regulatory and patent purposes. Each Party shall document all non-clinical studies and Clinical Trials for Products in formal written study reports in accordance with Applicable Law and national and international guidelines (e.g., GCP, GLP, and GMP). Each Party shall have the right to review and copy such records maintained by the other Party at reasonable times and to obtain access to the original to the extent necessary for regulatory and patent purposes or for other legal proceedings.
5.9 Data Exchange and Development Reports. In addition to adverse event and safety data reporting obligations pursuant to Section 6.5, each Party shall promptly provide the other Party with copies of all data and results generated by or on behalf of such Party in the course of performing the Development activities hereunder, including, in each case of data arising from 37
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Clinical Trials for Products, or in such form as the JRDC may agree from time to time. Each Party shall provide the JRDC with regular reports detailing its Development activities for the Products, and the results of such activities at each regularly scheduled JRDC meeting. The Parties shall discuss the status, progress and results of each Party's Development activities at such JRDC meetings.
5.10 Clinical Samples. The Party who sponsors the applicable Clinical Trial of SHP2 Inhibitors shall retain and archive all clinical samples obtained by such Party in the course of such Clinical Trial, and shall provide the other Party reasonable access to such retained clinical samples.
Article VI.
REGULATORY
6.1 Regulatory Responsibilities. Subject to the Parties' cooperation as set forth in Section 6.3, and except as otherwise set forth in a Development Plan or this Article VI, Sanofi shall have the sole right and responsibility to perform all regulatory activities under the Collaboration (including conducting all correspondence and communications with Regulatory Authorities and filing all Marketing Authorization Applications and other filings with Regulatory Authorities). The Development Plan shall set forth the regulatory strategy for seeking Regulatory Approval for the Products in the Field by the FDA, EMA and other Regulatory Authorities in the Major Market Countries.
6.2 Regulatory Materials and Database. All INDs in existence as of the Effective Date related to a Product shall be solely owned and held in the name of RevMed or its Affiliate for so long as necessary for RevMed to conduct any Clinical Trial for such Product it is responsible for under the Development Plan for such Product. Following the Effective Date, each Party shall file and hold the IND and NDA for all Products in Clinical Trials conducted by it. Once RevMed has completed conducting all Clinical Trials for a Product assigned to it under the Development Plan for such Product, RevMed agrees to assign, and hereby does assign, to Sanofi all of its rights, title and interests in and to all Regulatory Approvals (including INDs and NDAs) for such Product.
6.3 Cooperation. For each Product, each Party shall cooperate reasonably with the other Party with respect to all regulatory activities under the Research Plan or Development Plans relating to the Products. Without limiting the foregoing, for such activities, each Party:
(a) shall meet and discuss with the other Party through the JRDC the timing, strategy and presentation of the Pre-Registrational Meeting with the goal of developing the Registration Program and setting the regulatory path to obtain Regulatory Approval for the Product from the FDA, EMA, and PMDA;
(b) shall consult with each other with respect to the preparation of the Data Package;
(c) shall consult with the other Party through the JRDC regarding material regulatory matters pertaining to all Regulatory Materials of the Products in the United States, European Union and the Major Market Countries outside the European Union, including plans, strategies, filings, reports, updates and supplements in connection therewith and perform its responsibilities in connection with the preparation of the portion of such Regulatory Materials allocated to such Party for preparation in the Development Plan; 38
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(d) shall provide the other Party with drafts of any Regulatory Materials for the Products to be submitted by such Party to any Regulatory Authority in the United States, European Union and the Major Market Countries outside the European Union within a reasonable time (but in no event less than [***], unless impractical) prior to submission for review and comment, and shall consider in good faith any comments received from the other Party;
(e) shall provide the other Party with copies in electronic format (e.g., eCTD format) of any Regulatory Materials submitted to and any correspondence received from any Regulatory Authority in the United States, European Union and the Major Market Countries outside the European Union pertaining to the Products promptly after its submission or receipt by such Party; and
(f) shall provide the other Party written minutes or other records of any material oral discussions with any Regulatory Authority in the European Union and the Major Market Countries outside the European Union pertaining to the Products promptly after any such discussion.
If any Regulatory Material to be provided under this Section 6.3 was originally created in a language other than the English language, if requested by the receiving Party, the providing Party shall provide an English translation along with the original document to the receiving Party at the receiving Party's cost if such translation would not normally be made by the providing Party in accordance with its standard operating procedures.
6.4 Meetings with Regulatory Authorities. The Development Plan shall set forth which Party shall lead and present at each meeting or teleconference with Regulatory Authorities for the applicable Product, provided that, notwithstanding the foregoing, RevMed shall lead and present at such meetings or teleconferences with respect to any RevMed Studies and for Clinical Trials conducted under RevMed's IND while RevMed remains the holder of such IND. The Party leading such regulatory interactions shall provide the other Party with advance notification of any in-person meeting or teleconference with the Regulatory Authorities that relates to the Development of any Product as promptly as possible after such meeting has been scheduled, but in no event less than [***] before the meeting is scheduled to occur. The Party leading such regulatory interactions shall, as applicable, seek permission from the Regulatory Authority for representatives of the other Party to attend any such meeting or teleconference, and such other Party shall have the right, but not the obligation, to have its representatives attend (but, unless otherwise requested by the Party responsible for such meeting, not participate in) such meetings.
6.5 Adverse Events Reporting. Following the Effective Date, but in any case prior to the Initiation of the first Clinical Trial for a Product or earlier upon the written request of either Party, the Parties shall enter into a pharmacovigilance agreement setting forth the worldwide pharmacovigilance procedures for the Parties with respect to the Products, such as safety data sharing, adverse events reporting and safety profile monitoring (the Pharmacovigilance Agreement). Such procedures shall be in accordance with, and enable the Parties to fulfill, local and national regulatory reporting obligations under Applicable Law. Each Party shall be responsible for reporting quality complaints, adverse events and safety data related to the Products 39
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to the applicable Regulatory Authorities in its territory, as well as responding to safety issues and to all requests of Regulatory Authorities related to the Products in its territory, in each case at its own cost. The initial global safety database shall be established by RevMed using its Permitted Contractors or Researchers, and RevMed shall, at RevMed's sole cost and expense, transfer such global safety database to Sanofi upon Sanofi's written request reasonably in advance of the desired transfer date, which transfer date shall be no later than [***] prior to the initiation of Sanofi's first Clinical Trial for a Product and in the form requested by Sanofi. Prior to such transfer RevMed shall provide to Sanofi all safety information obtained by RevMed for the Products prior to Sanofi's assumption of the global safety database. Each Party agrees to comply with its respective obligations under the Pharmacovigilance Agreement and to cause its Affiliates, and Sublicensees to comply with such obligations.
6.6 Notification of Threatened Action. Each Party shall immediately notify the other Party of any information it receives regarding any threatened or pending action, inspection or communication by any Regulatory Authority, which may affect the safety or efficacy claims of any Product or the continued marketing of any Product. Upon receipt of such information, the Parties shall promptly consult with each other in an effort to arrive at a mutually acceptable procedure for taking appropriate action.
6.7 Remedial Actions. Each Party shall notify the other immediately, and promptly confirm such notice in writing, if it obtains information indicating that any Product may be subject to any recall, corrective action, market withdrawal or other similar regulatory action with respect to the Product taken by virtue of Applicable Law (a Remedial Action). The Parties shall fully assist each other in gathering and evaluating such information as is necessary to determine the necessity of conducting a Remedial Action. Each Party shall, and shall ensure that its Affiliates, Sublicensees, (sub)contractors and Distributors shall, maintain adequate records to permit the Parties to trace the Manufacture, distribution and use of the Products, as required by Applicable Law. Sanofi shall have sole discretion with respect to any matters relating to any Remedial Action in the Licensed Territory, including the decision to commence such Remedial Action and the control over such Remedial Action, at its sole cost and expense; provided that to the extent such Remedial Action results from (a) the breach of RevMed's obligations hereunder or under any Ancillary Agreement or (b) the negligence, recklessness or willful misconduct of RevMed or its Affiliate, in each case, RevMed shall bear the costs and expenses of such Remedial Action.
6.8 Compassionate Use. Promptly after the Pre-Registrational Meeting with the FDA, EMA, and PMDA for a particular Product (or in the case in which a Product is only being developed for the US or the EU, but not both, after the applicable FDA, EMA or PMDA Pre-Registrational Meeting) or at a time otherwise agreed by the Parties, the JRDC shall decide on a procedure for managing Product requests for compassionate use.
6.9 Audit Vendors & Contractors. Each Party shall have in place standard operating procedures for their vendor management processes (including with respect to compliance). Each Party shall notify the other Party of any inspections of such Party or any of its Affiliates or subcontractors conducted by any Regulatory Authority or other government entity and any related findings to the extent that such inspections relate to the activities conducted hereunder. In addition, Sanofi shall have the right to conduct customary reviews and audits of RevMed and its Affiliates and subcontractors (provided that, with respect to Permitted Contractors or Researchers that 40
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RevMed entered into a written agreements with prior to the Effective Date, such right of Sanofi shall be to the extent RevMed has the right to permit Sanofi to do so under such written agreements, and provided further, that RevMed shall use Commercially Reasonable Efforts to secure such right for Sanofi where one does not exist).
Article VII.
MANUFACTURING AND SUPPLY
7.1 General. The Manufacture of the SHP2 Inhibitors and Products, including all process and formulation development in connection therewith, including Chemistry, Manufacturing and Controls (CMC) activities, shall be overseen and coordinated by (a) RevMed for clinical supply related to Phase 1 Clinical Trials, and Phase 2 Clinical Trials that are not Registrational Clinical Trials, and (b) Sanofi for supply of all Clinical Trials other than those set forth in clause (a) and all supply associated with Commercialization. If requested by the JMC, each Party shall provide reports summarizing its Manufacturing activities and the results of such activities.
7.2 Transfer of Manufacturing Know-How. Upon Sanofi's request, RevMed shall transfer to Sanofi or its designee Know-How Controlled by RevMed that is necessary or useful to enable the Manufacture of each SHP2 Inhibitor that is nominated or designated as a Development Candidate pursuant to Section 4.3, Development Candidate and Product, including regulatory starting materials and key starting materials, as set forth in this Section 7.2. Sanofi may also request such Know-How for backup SHP2 Inhibitors that Sanofi is considering for nomination or designation as a Development Candidate, and RevMed shall transfer such Know-How to Sanofi (to the extent any exists). RevMed shall (a) at [***] cost, provide copies or samples of relevant documentation (including, but not limited to, documentation listed in Exhibit K of the Correspondence), materials and other embodiments of such Know-How, (b) at [***] cost (calculated on [***]), make available RevMed's qualified technical employees, and use Commercially Reasonable Efforts to make available the qualified technical personnel of RevMed's independent manufacturing contractors, in each case, on a reasonable basis to consult with Sanofi or its designee with respect to such Know-How, and (c) if requested by Sanofi, at [***] cost, use Commercially Reasonable Efforts to support Sanofi in the establishment of its own supply agreements with Third Party suppliers of RevMed.
7.3 Supply Agreement. In each case where one Party shall Manufacture Product for the other Party for clinical use or commercial use, (with the cost and expense of the commercial supply of Product for the U.S. being subject to Section 9.4), the Parties shall negotiate in good faith to enter into a supply agreement (a Supply Agreement) and a quality agreement (a Quality Agreement) for such Manufacture on commercially reasonable terms. Such Supply Agreement shall cover the documentation and other quality requirements for the acceptance of previously manufactured supply of Product for use by the other Party. The price charged by the manufacturing Party under any Supply Agreement shall be equal to [***] unless otherwise agreed by the Parties. 41
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Article VIII.
COMMERCIALIZATION
8.1 General. Subject to Section 8.7 and unless otherwise delegated to RevMed by the JCC, Sanofi shall have the sole right and responsibility, at its own expense, for all aspects of the Commercialization of the Products in the Field in the Licensed Territory including: (a) developing and executing a commercial launch and pre-launch plan, (b) negotiating with applicable Governmental Authorities regarding the pricing and reimbursement status of the Products; (c) marketing and promotion (including promotional materials); (d) booking sales and distribution and performance of related services; (e) handling all aspects of order processing, invoicing and collection, inventory and receivables; (f) providing customer support, including handling medical queries, and performing other related functions; and (g) conforming its practices and procedures to Applicable Law relating to the marketing, detailing and promotion of the Products.
8.2 Commercialization Plan. Promptly after the formation of the JCC, Sanofi shall prepare and provide to the JCC for review and discussion a written plan for the Commercialization of such Product in the Licensed Territory (the Commercialization Plan). Each Commercialization Plan shall include a reasonably detailed description of (a) [***]; (e) non-binding sales and marketing forecasts in the U.S.; (f) non-binding net sales projections in the U.S.; (g) [***]; (h) non-binding sales and marketing forecasts and non-binding net sales projections, in each case, outside of the U.S. (i) [***], and in such case the Parties shall amend the Profit/Loss Share Agreement accordingly. Sanofi shall periodically (at least [***]) prepare updates and amendments to its Commercialization Plan to reflect changes in its plans, including in response to changes in the marketplace, relative success of the Products and other relevant factors influencing such plans and activities. Sanofi shall submit all updates and amendments to each Commercialization Plan to the JCC for review and discussion before adopting such updates and amendments.
8.3 Distributorships. Sanofi shall have the right, in its sole discretion, to appoint its Affiliates, and Sanofi and its Affiliates shall have the right, in its sole discretion, to appoint any other Persons, in the Licensed Territory to distribute, market, and sell the Products (with or without packaging rights), in circumstances where the Person purchases its requirements of Products from Sanofi or its Affiliates but does not otherwise make any royalty or other payment to Sanofi or its Affiliates with respect to its intellectual property or other proprietary rights. Where Sanofi or its Affiliates appoints such a Person and such Person is not an Affiliate of Sanofi, that Person shall be a Distributor for purposes of this Agreement. The term packaging rights in this Section means the right for the Distributor to package Products supplied in unpackaged bulk form into individual ready-for-sale packs.
8.4 Pricing Approvals. Sanofi shall control all pricing and reimbursement approvals for Products in the Licensed Territory. RevMed shall provide Sanofi with reasonable assistance and cooperation with respect to obtaining pricing and reimbursement approvals for the Products, at Sanofi's request and expense. 42
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8.5 Patent Marking. Each Party shall mark all Products in accordance with the applicable patent marking laws, and shall require all of its Affiliates, Sublicensees and Distributors to do the same.
8.6 Reports. Each Party shall update the JCC at each regularly scheduled JCC meeting regarding its Commercialization activities with respect to the Products. Each such update shall be in a form to be agreed by the JCC by mutual agreement of its representatives (without application of any final decision-making right of either Party) and shall summarize such Party's (either by itself or through its Affiliates and its Sublicensees) Commercialization activities with respect to the Products.
8.7 Co-Promotion of Products in the United States.
(a) RevMed shall have the one-time exclusive right to elect to assume up to [***]% (but not less than [***]%) of the Detailing effort for all Products in the United States (such geography, the Co-Promotion Territory; such right, the Co-Promotion Option; such Products that are co- promoted by the Parties, the Co-Promotion Product); provided that (i) [***] and (ii) RevMed shall provide to Sanofi, at the time of RevMed's exercise of the Co-Promotion Option pursuant to Section 8.7(b), a plan demonstrating to Sanofi's reasonable satisfaction that RevMed has, or will have on a timely basis, the necessary resources in place sufficient to Detail the applicable Co-Promotion Products in a manner consistent with and within the timelines required under the applicable Commercialization Plan. RevMed shall be obligated to perform the activities set forth in such plan within the timelines provided therein.
(b) Sanofi shall notify RevMed of the anticipated launch date for the first Product in the Co-Promotion Territory at least [***] in advance thereof. If RevMed wishes to exercise its one-time Co-Promotion Option, it shall so notify Sanofi in writing at least [***] prior to the anticipated launch of such Product in the Co-Promotion Territory. If (i) RevMed does not provide the above election notice in compliance with the requirements of this Section 8.7(b), or (ii) RevMed provides notice to Sanofi that it does not intend to exercise its one-time Co-Promotion Option, then RevMed shall be deemed to have waived such one-time right to co-promote any and all Products in the Co-Promotion Territory. For clarity, once RevMed has exercised its Co- Promotion Option pursuant to this Section 8.7(b), RevMed's right to co-promote Products shall apply to all other existing and subsequent Products in the Co-Promotion Territory.
(c) If RevMed exercises the Co-Promotion Option for the Co-Promotion Territory, the Parties shall negotiate in good faith terms and conditions of a co-promotion agreement pursuant to which they will co-promote Products in the Co-Promotion Territory (the Co-Promotion Agreement). The Co- Promotion Agreement will contain the terms and conditions set forth in Exhibit L of the Correspondence and other terms and conditions as are reasonable and customary for the co-promotion of similar products in the Co-Promotion Territory. The Parties shall use Commercially Reasonable Efforts to enter into the Co-Promotion Agreement no later than [***] following the date upon which RevMed exercises the Co-Promotion Option, or such later date as the Parties may agree in writing. 43
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Article IX.
FINANCIAL PROVISIONS
9.1 Upfront Payment. Sanofi shall pay to RevMed a one-time, non-refundable, non-creditable upfront payment of $50,000,000 within [***] Business Days after the Effective Date.
9.2 Milestone Payments. Upon first achievement of a milestone event described below in this Section 9.2 (a Milestone Event) by Sanofi or any of its Affiliates or Sublicensees, Sanofi shall notify RevMed of such achievement and RevMed will issue an invoice to Sanofi for the corresponding one- time, non-refundable and non-creditable milestone payment (a Milestone Payment). RevMed will also have the right to notify Sanofi in writing if RevMed believes a Milestone Event has been achieved even if Sanofi has not provided such notice to RevMed, and unless Sanofi notifies RevMed within [***] Business Days after receipt of such notice from RevMed that such Milestone Event has not been achieved, RevMed may issue an invoice to Sanofi for the corresponding Milestone Payment. Subject to the terms and conditions of this Agreement, Sanofi will pay to RevMed the following Milestone Payments within [***] after receipt of such invoice therefor as follows:
Milestone Event Milestone Payment (a) [***] [***] (b) [***] [***] (c) [***] [***] (d) [***] [***] (e) [***] [***] (f) [***] [***] (g) [***] [***] (h) [***] [***] (i) [***] [***] (j) [***] [***] (k) [***] [***] (l) [***] [***] 44
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Milestone Event Milestone Payment (m) [***] [***] (n) [***] [***] (o) [***] [***] (p) [***] [***] In no event shall the total Milestone Payments under this Agreement exceed: $520,000,000
Each Milestone Payment is due only once and will be payable only upon the first Product to achieve the corresponding Milestone Event for the first time.
*For purposes of determining whether a Milestone Event has occurred with respect to the EMA, a Marketing Approval must be obtained [***].
The Milestone Payments shall be payable with respect to Initiation of any RevMed Study only if [***].
9.3 Royalty Payments for Products.
(a) Royalty Rates for Royalties Payable by Sanofi on Net Sales outside the United States. Subject to the other terms of this Section 9.3, during the Royalty Term, Sanofi shall make quarterly royalty payments to RevMed on aggregate Net Sales of each Product sold outside the United States during a Calendar Year at the applicable royalty rates as set forth below. For clarity, royalties shall only be payable once on any sale of Product under this Agreement.
Aggregate Net Sales of each Product outside the United States during a Calendar Year Royalty Rate Portion of aggregate Net Sales of each Product outside the United States during a Calendar Year less than or equal to $[***] [***]% Portion of aggregate Net Sales of each Product outside the United States during a Calendar Year greater than $[***] and less than or equal to $[***] [***]% Portion of aggregate Net Sales of each Product outside the United States during a Calendar Year greater than $[***] and less than $[***] [***]% Portion of aggregate Net Sales of each Product outside the United States during a Calendar Year greater than $[***] [***]% 45
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(b) Royalty Term. Sanofi's royalty payment obligations under this Section 9.3 with respect to a particular Product and country shall commence upon the First Commercial Sale of such Product in such country (by Sanofi or its Affiliates or Sublicensees) and shall continue, on a Product-by-Product and country-by-country basis, until the latest of (i) the date on which there is no Valid Claim that would be infringed by the sale of such Product in such country; (ii) the expiration of any Regulatory Exclusivity granted with respect to such Product in such country[***] (the Royalty Term for such Product and country).
(c) Royalty Reductions.
(i) In any country in which there is no Valid Claim and no Regulatory Exclusivity for such Product, at the time of sale of such Product in such country during the applicable Royalty Term, Sanofi's obligation to pay royalties under Section 9.3(a) on Net Sales of such Product in such country shall be reduced to [***]% of the rates otherwise payable under such section.
(ii) If during the Royalty Term for a Product in a country, one or more Generic Products of such Product are sold in such country, and during any Calendar Quarter following the Calendar Quarter in which such Generic Product(s) are first sold in such country (the Launch Quarter) Net Sales of such Product in such country during any Calendar Quarter following the Launch Quarter are less than the Designated Percentage (as defined below) of average Net Sales occurring during the [***] immediately preceding the Launch Quarter (such average Net Sales during such Calendar Quarters, the Base Net Sales), then the royalty rates provided in Section 9.3(a) for such Product shall be reduced in such country by the Applicable Reduction Percentage set forth below for such Calendar Quarter and for all future Calendar Quarters, unless and until the Generic Product is no longer sold or the Net Sales increase above the Base Net Sales in a Calendar Quarter. If Net Sales of the applicable Product in a country in a Calendar Quarter following the Launch Quarter for such country are:
A. lower than or equal to [***]%, but more than [***]%, of Base Net Sales of the applicable Product in such country, then the Applicable Reduction Percentage shall be [***]%; or
B. lower than or equal to [***]% of Base Net Sales of the applicable Product in such country, then the Applicable Reduction Percentage shall be [***]%.
(iii) If Sanofi enters into an agreement with a Third Party in order to obtain a license or other right to a Third Party Right that is reasonably necessary to manufacture, use or sell a Product (or the SHP2 Inhibitor contained therein) in a country pursuant to Section 10.7, Sanofi shall be entitled to deduct from the royalties payable under Section 9.3(a) with respect to such Product in such country in a particular Calendar Quarter [***] paid by Sanofi to such Third Party in respect of such agreement for such Calendar Quarter, in each case to the extent reasonably allocable to such Third Party Right and such Product and country; provided that in no event shall the royalties payable for such Product and country in any Calendar Quarter be reduced to less than [***]% of the amount otherwise due under Section 9.3(a) (the Royalty Floor). If any of such amounts cannot be offset against royalties due with respect to a Product for any Calendar Quarter because they would result in royalties payable to RevMed being lower than the Royalty Floor, Sanofi shall have 46
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the right to carry forward and offset such excess amount against royalties or any other payments otherwise due to RevMed in subsequent Calendar Quarters up to a maximum reduction for each Quarter of [***]% of the amounts owed in respect of such subsequent Calendar Quarter. Upon RevMed's written request Sanofi shall provide a summary to RevMed with respect to the scope of the licensed rights and payments due pursuant to such Third Party license, provided that RevMed may only make such a request one time for each Third Party license.
(d) Royalty Reports and Payment.
(i) Within [***] after each Calendar Quarter, commencing with the Calendar Quarter during which the First Commercial Sale of the first Product is made anywhere in the Licensed Territory, Sanofi shall provide RevMed with a report that contains the following information for the applicable Calendar Quarter: (i) on a country-by-country and Product-by-Product basis, the amount of Net Sales of the Products (which may be provided in Dollars or Euros), (ii) on a country-by-country basis and on a Product-by-Product basis, a calculation of the royalty payment due on such sales, and (iii) the exchange rate for such country. Within [***] following delivery of the applicable quarterly report, Sanofi shall pay in Dollars all royalties due to RevMed with respect to Net Sales by Sanofi, its Affiliates and their respective Sublicensees for such Calendar Quarter.
(ii) Within [***] after each Calendar Year, commencing with the Calendar Year during which the First Commercial Sale of the first Product is made anywhere in the Licensed Territory, Sanofi shall provide RevMed with [***].
(e) Clarifications. For the purpose of calculating the aggregate Net Sales of a particular Product for an applicable country to determine the applicable royalty rate under Section 9.3, all Products containing the same SHP2 Inhibitor shall be deemed a single Product, regardless of form, formulation, dosage, packaging, other active ingredient or component, label or intended patient population. All royalty payments under this Section 9.3 are non-refundable and non-creditable.
9.4 U.S. Profit/Loss Share. No later than the Initiation of the first Registrational Clinical Trial for the first Product, Sanofi and RevMed shall enter into a profit/loss share agreement (the Profit/Loss Share Agreement) pursuant to which the Parties shall equally share the Net Profit and Net Loss (as defined in Exhibit M of the Correspondence) applicable with respect to Commercialization of Products (but, for clarity, not any costs of Development) of Products in the U.S. The Profit/Loss Share Agreement for a Product in the U.S. shall continue in effect until the expiration of the Royalty Term for such Product in the U.S. and shall contain the terms and conditions set forth in Exhibit M of the Correspondence and other terms and conditions as are reasonable and customary for the sharing of profits and losses with respect to similar products in the United States (including that each Party shall bear its own income taxes, that each Party is entitled to withhold any tax on behalf of the other Party on payments made to the other Party as required by Applicable Law (taking into account any legally available reduction or elimination of such tax pursuant to an applicable tax treaty or otherwise), and each Party shall indemnify the other Party with respect to any withholding taxes asserted or assessed by any taxing authority on amounts received directly by, or deemed allocable to, such other Party. 47
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9.5 Payment Terms; Exchange Rate. Notwithstanding any term to the contrary of this Agreement, RevMed shall deliver an invoice to Sanofi for all payments owed by Sanofi to RevMed under this Agreement. Sanofi will make all payments owed to RevMed within [***] after the date on which Sanofi receives an undisputed invoice for such owed amount, except where a different timeframe is expressly provided in another Section of this Agreement (e.g., for the reimbursement of RevMed R&D Costs pursuant to Sections 4.5 and 5.5; the payment of the buy-in payment pursuant to Section 5.6(b)B; the upfront payment set forth in Section 9.1; the royalties payable pursuant to Section 9.3, the payment of VAT pursuant to Section 9.7(b); and the payment of unpaid or overpaid amounts pursuant to Section 9.9(b)). All payments to be made by a Party to the other Party under this Agreement shall be made in Dollars by bank wire transfer in immediately available funds to a bank account designated by written notice from the Party that receives the payment. Conversion of Net Sales or reimbursable costs incurred hereunder that are recorded in local currencies to Dollars by a Party, its Affiliates or its or their Sublicensees shall be performed in a manner consistent with its normal practices used to prepare its audited financial statements for internal and external reporting purposes.
9.6 Late Payments. If a Party does not receive payment of any undisputed sum due to it on or before the due date therefor, then it shall notify the paying Party. The paying Party shall pay interest on any undisputed late payments (before and after any judgment) at an annual rate (but with interest accruing on a daily basis) of the lesser of (a) [***] percent above the London Interbank Offered Rate for deposits in Dollars having a maturity of one month published by the British Bankers' Association, as adjusted from time to time on the [***] of each month, such interest to run from the date on which payment of such sum became due until payment thereof in full together with such interest or (b) the maximum rate permitted by Applicable Law.
9.7 Taxes.
(a) General. Each Party shall be solely responsible for the payment of all income taxes imposed on its share of income arising directly or indirectly from the activities of the Parties under this Agreement. In the event that Sanofi is required, under Applicable Law, to withhold any deduction or tax from any payment due to RevMed under this Agreement (taking into account any legally available reduction or elimination of such tax pursuant to an applicable tax treaty or otherwise), such amount will be deducted from the payment to be made by Sanofi, paid to the proper taxing authority, and Sanofi will notify RevMed and upon RevMed's request promptly provide RevMed with copies of any tax certificate or other documentation evidencing such withholding, provided, however, that in the event that any such withholding tax arises as a result of Sanofi's re-domiciliation, assignment of its rights or obligations hereunder to an Affiliate, or use of any Third Party subcontractor, payments to RevMed hereunder shall be made on a grossed-up basis to ensure that RevMed receives the same amount it would have in the absence of such withholding. Each Party agrees to cooperate with the other Party in claiming exemptions from such deductions or withholdings under any agreement or treaty from time to time in effect.
(b) Value Added Tax. Notwithstanding anything contained in Section 9.7(a), this Section 9.7(b) will apply with respect to value added tax (or sales, use or indirect tax) (VAT). All payments to be made by Sanofi hereunder are exclusive of VAT. If any VAT is chargeable in respect of any such payments, Sanofi will notify RevMed and pay VAT at the applicable rate in respect of any such payments following the receipt of a VAT invoice in the appropriate form issued by RevMed in respect of those payments or Sanofi shall self-assess and pay such VAT, such VAT to be payable on the later of the due date of the payment to which such VAT relates and [***] after the receipt by Sanofi of the applicable invoice relating to that VAT payment. 48
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9.8 Records. Each Party shall, and shall cause its Affiliates and its and their Sublicensees to, maintain complete and accurate financial books and records in sufficient detail to permit the other Party to confirm the accuracy of the amount of amounts payable under this Agreement. Each Party shall, and shall cause its Affiliates and its and their Sublicensees to, retain such books and records until the later of (a) [***] after the end of the period to which such books and records pertain and (b) the expiration of the applicable tax statute of limitations (or any extensions thereof) or for such longer period as may be required by Applicable Law.
9.9 Audit Procedures.
(a) Upon reasonable prior notice of the other Party, but in any event at least [***] prior notice, each Party shall and shall cause its Affiliates and its and their Sublicensees to permit an independent auditor of international prominence, selected by the auditing Party and reasonably acceptable to the audited Party, to audit the books and records maintained pursuant to Section 9.8 for the sole purpose of verifying for the auditing Party the accuracy of the financial reports furnished by the audited Party pursuant to this Agreement or of any payments made, or required to be made, by or to the audited Party pursuant to this Agreement or any Ancillary Agreement. Such audit shall not occur more than [***] in a given Calendar Year, unless for cause, and shall not concern books and records relating to a period more than [***] preceding the current Calendar Year. Any failure by a Party to exercise its rights under this Section 9.9 with respect to a Calendar Year within such [***] period shall constitute a waiver by such Party of its right to later object to any payments made by the other Party under this Agreement during such Calendar Year.
(b) Upon completion of the audit, the auditor shall provide a report to both Parties, which report shall be limited to a description of any failure to comply with the terms of this Agreement and the amount of the financial discrepancy. Such auditor shall not disclose the audited Party's Confidential Information to the auditing Party, except to the extent such disclosure is necessary to verify the accuracy of the financial reports furnished by the audited Party or the amount of payments to or by the audited Party under this Agreement. Any amounts shown to be owed but unpaid, or overpaid and in need of reimbursement, shall be paid or refunded (as the case may be) within [***] after the auditor's report, plus interest (as set forth in Section 9.6) from the original due date (unless challenged in good faith by the audited Party in which case any dispute with respect thereto shall be resolved in accordance with Section 15.6).
(c) The auditing Party shall bear the full cost of such audit unless such audit reveals an underpayment by the audited Party that resulted from a discrepancy in the financial report provided by the audited Party for the audited period, which underpayment was more than [***] percent of the amount set forth in such report, in which case the audited Party shall reimburse the auditing Party for the costs for such audit.
(d) The auditing Party shall treat all information subject to review under this Section 9.9 in accordance with the confidentiality provisions of Article XI and the Parties shall cause the auditor to enter into a reasonably acceptable confidentiality agreement with the audited Party obligating such auditor to retain all such financial information in confidence pursuant to such confidentiality agreement. 49
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Article X.
INTELLECTUAL PROPERTY RIGHTS
10.1 Ownership.
(a) [***] Each Party shall ensure that every Third Party performing activities on behalf of such Party in connection with the Collaboration executes a binding and enforceable invention assignment agreement assigning all of such Third Party's right, title and interest in and to Program Inventions to such Party, provided that [***], provided that for those Permitted Contractors or Researchers for whom [***], [***], or [***], provided that [***].
(b) Subject to the other terms and conditions of this Agreement (including the licenses and other rights granted under this Agreement or any Ancillary Agreement), each Party shall have the right to exploit, including license, the Joint Program Technology, without a duty of accounting or any obligation to seek consent from the other Party to exploit such Joint Program Technology. To the extent necessary to effect the foregoing in a country other than the United States, each Party grants to the other Party a nonexclusive, irrevocable, perpetual, fully-paid, worldwide license, with the right to grant sublicenses, under the granting Party's interest in Joint Program Technology, for any and all purposes, provided that RevMed's interest therein shall be subject to the other terms and conditions of this Agreement, including the exclusive licenses granted herein (during the Term) and all payment obligations.
(c) Each Party shall promptly disclose to the other Party in writing and shall cause its Affiliates, and its and their Sublicensees to so disclose, any Joint Program Know-How and any other Program Inventions. Each Party shall also respond promptly to reasonable requests from the other Party for additional information relating to such Joint Program Know-How and other Program Inventions as reasonably necessary to exercise such Party's rights and perform its obligations, hereunder and under any Ancillary Agreement, with respect thereto.
10.2 Patent Prosecution.
(a) Sanofi Prosecuted Patents. Sanofi shall have the sole and exclusive right [***] to file, prosecute and maintain the RevMed Licensed Patents and [***] (the Sanofi Prosecuted Patents), [***]. Such right shall be subject to [***], provided that [***]. RevMed shall transfer the applicable prosecution files for the RevMed Licensed Patents to Sanofi within [***] after the Effective Date. Sanofi shall, through the JPC, consult with RevMed and keep RevMed reasonably informed of the status of the Sanofi Prosecuted Patents and shall promptly provide RevMed with all correspondence received from any patent authorities in connection therewith, including with respect to Sanofi's proposed timelines for submission of comments to patent authorities (to the extent not shared via the JPC). In addition, Sanofi shall promptly provide RevMed, through the JPC, with drafts of all proposed material filings and correspondence to any patent authorities with respect to the Sanofi Prosecuted Patents for RevMed's review and comment reasonably in advance of the intended submission of such proposed filings and correspondence. Sanofi shall, through the 50
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JPC, confer with RevMed and take into consideration RevMed's comments prior to submitting such proposed filings and correspondence. If RevMed does not provide such comments at least [***] prior to the proposed submission date, then RevMed shall be deemed to have no comment to such proposed filings or correspondence. In case of disagreement between the Parties with respect to the filing, prosecution and maintenance of such Sanofi Prosecuted Patents, the final decision shall be made pursuant to Section 2.10.
(b) Collaboration. RevMed shall provide Sanofi all reasonable assistance and cooperation in the patent prosecution and maintenance efforts under this Section 10.2, including providing any necessary powers of attorney and executing any other required documents or instruments for such prosecution or maintenance.
(c) Patent Listings. As between the Parties, [***].
10.3 CREATE Act. Notwithstanding anything to the contrary in this Article X, each Party shall have the right to invoke the Cooperative Research and Technology Enhancement Act of 2005, 35 U.S.C. §102(c) (the CREATE Act) when exercising its rights under this Article X without the prior written consent of the other Party. Where such Party intends to invoke the CREATE Act, as permitted by the preceding sentence, it shall notify the other Party and the other Party shall cooperate and coordinate its activities with the Party invoking the CREATE Act with respect to any submissions, filings or other activities in support thereof. The Parties acknowledge and agree that this Agreement is a joint research agreement as defined in 35 U.S.C. § 100(h).
10.4 Patent Enforcement and Defense.
(a) Each Party shall promptly notify the other Party (but in any case no later than [***] after becoming aware) of any alleged or threatened infringement by a Third Party of any of the RevMed Licensed Patents or Joint Program Patents, and RevMed shall promptly notify Sanofi (but in any case no later than [***] after becoming aware) of any alleged or threatened infringement by a Third Party of any of the Sanofi Sole Program Patents, in each case including (i) any such alleged or threatened infringement on account of a Third Party's manufacture, use or sale of a Product in the Field or (ii) any patent certification filed in the United States under 21 U.S.C. §355(b)(2) or 21 U.S.C. §355(j)(2) or similar provisions in other jurisdictions in connection with an ANDA (an Abbreviated New Drug Application in the United States or a comparable application for Regulatory Approval under Applicable Law in any country other than the United States) or other MAA for a Product in the Field and (iii) any declaratory judgment action filed by a Third Party that is developing, manufacturing or commercializing a Product in the Field alleging the invalidity, unenforceability or non-infringement of any of the RevMed Licensed Patents, Joint Program Patents or Sanofi Sole Program Patents ((i)-(iii), collectively, Product Infringement).
(b) Sanofi, at its sole cost and expense, shall have the sole and exclusive right, but not the obligation, to bring (or defend) and control any legal action in connection with any Product Infringement at its own expense, as it reasonably determines appropriate.
(c) RevMed, at its sole cost and expense, shall have the sole and exclusive right to enforce the RevMed Licensed Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Each Party shall have the right to enforce the Joint Program Patents for any infringement that is not a Product Infringement at its own expense as it reasonably determines appropriate. Sanofi shall have the sole and exclusive right to enforce the Sanofi Sole Program Patents at its sole cost and expense. 51
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(d) [***]
(e) At the request of Sanofi, RevMed shall provide reasonable assistance in connection with any such suit or action, including by executing reasonably appropriate documents, cooperating in discovery and joining as a party to the action if required (at Sanofi's expense). In connection with a proceeding with respect to a Product Infringement covered by this Section 10.4, Sanofi shall not enter into any settlement admitting the invalidity of, or otherwise impairing RevMed's rights in, the RevMed Licensed Patents or Joint Program Patents without the prior written consent of RevMed.
(f) Any recoveries resulting from an enforcement action relating to a claim of Product Infringement shall be first applied against payment of each Party's costs and expenses in connection therewith. Any such recoveries in excess of such costs and expenses (the Remainder) shall be shared by the Parties as follows. The Remainder shall, [***].
10.5 Trademarks.
(a) Product Marks. Sanofi shall have the right to Commercialize the Products in the Licensed Territory, in accordance with Applicable Law, using (i) the corporate Trademarks of Sanofi and its Affiliates, Sublicensees and Distributors and (ii) subject to Section 11.5(a)(ii), any other Trademarks it determines appropriate for such Products in such countries (such Trademarks in clause (ii), the Product Marks), which may vary by country or within a country, provided that the Parties shall coordinate in good faith a global branding strategy with respect to the Products through the JCC pursuant to Section 2.4(a). Sanofi shall own all rights in the Product Marks and shall have the sole right to register, prosecute and maintain the Product Marks using counsel of its own choice in the countries and regions in the Licensed Territory that it determines reasonably necessary, at Sanofi's cost and expense.
(b) Trademark Infringement. RevMed shall provide to Sanofi prompt written notice of any actual or threatened infringement of the Product Marks and of any actual or threatened claim that the use of such Product Marks violates the rights of any Third Party, in each case, of which RevMed becomes aware. Sanofi shall have the sole right to take such action as Sanofi deems necessary against a Third Party based on any alleged, threatened or actual infringement, dilution, misappropriation or other violation of or unfair trade practices or any other like offense relating to, the Product Trademarks by a Third Party at its sole cost and expense, subject to Section 9.4, and using counsel of its own choice. Sanofi shall retain any damages or other amounts collected in connection therewith.
(c) Domain Names. Sanofi shall have the sole right to register and shall own and control any domain names for the Product Marks that it registers in any generic Top Level Domain (e.g., .com, .info, .net or .org) or in any country code Top Level Domain for any country in the Licensed Territory (e.g., .us for the United States and .ca for Canada). 52
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10.6 Patent Extensions.
(a) The Parties shall cooperate in obtaining patent term restoration (under but not limited to the U.S. Drug Price Competition and Patent Term Restoration Act and its foreign equivalents), supplemental protection certificates or their equivalents, and patent term extensions with respect to the RevMed Licensed Patents and Joint Program Patents in any country or region where applicable.
(b) Sanofi shall determine the RevMed Licensed Patents and Joint Program Patents for which it shall apply to extend in any country and notify RevMed of such determination and any such extensions that are granted. Each Party shall provide all reasonable assistance to the other Party in connection with such filings and each Party shall bear its own costs with respect to such assistance.
10.7 Third Party Rights.
(a) If either Party reasonably determines, in consultation with the JRDC, that (i) the Research, Development, Manufacture, or Commercialization of [***] infringes or misappropriates any Patent Right or other intellectual property right of a Third Party, such that such Party or its respective Affiliates or Sublicensees cannot [***] without infringing or misappropriating the Patent Right or other intellectual property right of such Third Party (a Third Party Right) or (ii) [***], such Party shall notify the other Party (such notification, the Third Party Right Notification), and promptly thereafter the Parties shall discuss obtaining a license to the applicable intellectual property right.
(b) Sanofi shall have the first right, but not the obligation, through counsel of its choosing, to negotiate and obtain a license with respect to such Third Party intellectual property right and shall provide RevMed with a copy of such license if it obtains such a license (to the extent permitted by the terms of such license, provided that Sanofi shall use Commercially Reasonable Efforts to obtain such permission to provide such copy). If Sanofi elects not to obtain such license, or fails to obtain such license within [***] after the Third Party Right Notification, then RevMed shall have the right to obtain such license, with the right to grant the corresponding sublicense to Sanofi pursuant to Section 10.7(c). The Party negotiating a license shall keep the other Party reasonably informed of the material terms for such prospective license applicable to the Products and shall consider in good faith the comments of such other Party with respect to such Third Party license.
(c) If RevMed obtains such license, then notwithstanding anything to the contrary in this Agreement, the Patent Rights and Know-How licensed thereunder will be included in the RevMed Background Technology only if Sanofi provides RevMed with written notice within [***] following its receipt from RevMed of the substantive terms of the license agreement, in which [***]. Sanofi shall [***] no later than [***] before the applicable due date therefor. 53
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Article XI.
CONFIDENTIALITY; PUBLICATION
11.1 Duty of Confidence. At all times during the Term and for a period of [***] thereafter, subject to the other provisions of this Article XI:
(a) all Confidential Information of a Party (the Disclosing Party) shall be maintained in confidence and otherwise safeguarded by the other Party (the Receiving Party) and its Affiliates, using commercially reasonable efforts, but in any event no less than in the same manner and the same protections with which the Receiving Party maintains its own confidential information; and
(b) the Receiving Party may only use any such Confidential Information for the purposes of performing its obligations or exercising its rights under this Agreement or any Ancillary Agreement.
11.2 Exceptions. The foregoing obligations shall not apply to the extent that the Receiving Party can demonstrate that any information:
(a) is known by the Receiving Party at the time of its receipt without an obligation of confidentiality with respect to such information, and not through a prior disclosure by the Disclosing Party;
(b) is in the public domain before its receipt from the Disclosing Party, or thereafter enters the public domain through no fault of the Receiving Party;
(c) is subsequently disclosed to the Receiving Party by a Third Party who may lawfully do so and is not under an obligation of confidentiality to the Disclosing Party with respect to such information; or
(d) is developed by the Receiving Party independently and without use of or reference to any Confidential Information received from the Disclosing Party.
Any combination of features or disclosures shall not be deemed to fall within the foregoing exclusions merely because individual features are published or available to the general public or in the rightful possession of the Receiving Party unless the combination itself and principle of operation are published or available to the general public or in the rightful possession of the Receiving Party.
11.3 Authorized Disclosures. Notwithstanding the obligations set forth in Sections 11.1 and 11.5, a Party may disclose the other Party's Confidential Information (including this Agreement and the terms herein) to the extent:
(a) such disclosure: (i) is reasonably necessary for the filing or prosecuting Patent Rights as contemplated by Article X; (ii) is reasonably necessary in connection with regulatory filings for the Products in the Field consistent with this Agreement; or (iii) is made to any Third Party bound by written obligations of confidentiality and non-use similar to those set forth under this Article XI, to the extent otherwise necessary or appropriate in connection with the exercise of its rights or the performance of its obligations hereunder or under any Ancillary Agreement;
(b) such disclosure is reasonably necessary: (i) to its and its Affiliates', Sublicensees' and Distributors' employees and subcontractors in connection with the exercise of its rights or the performance of its obligations hereunder or under any Ancillary Agreement; (ii) to such Party's directors, attorneys, independent accountants or financial advisors for the sole purpose of enabling 54
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such directors, attorneys, independent accountants or financial advisors to provide advice to such Party relating to this Agreement; or (iii) to actual or potential investors or Acquirers of such Party solely for the purpose of evaluating or carrying out a bona fide investment in or acquisition of such Party; provided that in each case, (i), (ii) and (iii), such party(ies) to whom disclosure is made under this Section 11.3(b) shall be bound by confidentiality and non-use obligations substantially consistent with those contained in the Agreement; or
(c) such disclosure is required by Applicable Law, rules of a securities exchange or judicial or administrative process or is reasonably necessary for prosecuting or defending litigation under Article X or Article XIV; provided that in such event such Party (to the extent legally permissible) shall promptly inform the other Party of such required disclosure and use reasonable efforts to provide the other Party an opportunity to challenge or limit the disclosure obligations; provided, further that Confidential Information disclosed shall be limited to that information which is required under the relevant Applicable Law, rule, judicial or administrative process or court or governmental order. Confidential Information that is so disclosed shall remain otherwise subject to the confidentiality and non-use provisions of this Article XI, provided that the Party disclosing Confidential Information in such situation shall use reasonable efforts, including seeking confidential treatment or a protective order, to seek and obtain continued confidential treatment of such Confidential Information.
11.4 Publications. The JRDC shall, directly or through a subcommittee (a) discuss and approve a publication strategy and plan with respect to Development activities hereunder (including details of the Parties' participation in appropriate conferences and scientific or medical publications relating to Products and processes for review of proposed Publications by each Party) and (b) review and comment on and approve any Publication relating to the scientific or medical aspects of the Products in accordance with such strategy, and if applicable coordinate such review and comment process with the JCC. The Parties acknowledge RevMed's interest in publishing the results of the Research and Development activities under this Agreement in order to obtain recognition within the scientific, medical or other applicable community, to advance the state of knowledge in the field, and RevMed's need to fulfill its obligations to principal investigators and researchers with respect to publications under its relevant agreements; the need to protect Confidential Information; and the Parties' mutual interest in obtaining valid patent protection and protecting reasonable business interests and trade secret information. Consequently, each Party and their Affiliates, employee(s) and consultant(s) shall deliver to the JRDC or the applicable subcommittee, and if applicable to the JCC, for review and comment a copy of any proposed Publication that pertains to SHP2 inhibition or any SHP2 Inhibitor or Product using Commercially Reasonable Efforts to provide such copy at least [***] (but in no event less than [***] unless otherwise agreed by the Parties) prior to its intended submission or publication, and in accordance with the applicable strategy determined by the JRDC and the ICMJE guidelines or other similar guidelines. The non-publishing Party shall have the right to require reasonable modifications of the Publication: (a) to protect the non-publishing Party's Confidential Information or trade secrets; or (b) to delay such submission for a reasonable time period (not to exceed [***]) as may be reasonably necessary to seek patent protection for the information disclosed in such proposed submission to the extent consistent with Article X. 55
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11.5 Publicity; Use of Names.
(a) The Parties have agreed to issue a joint press release or separate press releases announcing this Agreement, subject to mutual agreement by the Parties with respect to the content thereof and issued at a mutually agreed date and time. Subject to Sections 11.3 and 11.4 above and the remainder of this Section 11.5, (i) no other disclosure of the existence or the terms of this Agreement or otherwise relating to this Agreement or the activities hereunder may be made by either Party or its Affiliates, and (ii) no Party shall use the name, trademark, trade name or logo of the other Party, its Affiliates or their respective employees in any publicity, promotion, news release or disclosure relating to this Agreement or its subject matter, except in each case (i) and (ii) as provided in this Section 11.5 or as otherwise provided in this Agreement or any Ancillary Agreement or with the prior express written permission of the other Party, except as may be required by Applicable Law.
(b) If a Party is required by Applicable Law, rule or regulation to make a securities filing relating to the signing or effectiveness of this Agreement, or to the terms of this Agreement, with the appropriate Governmental Authorities (including the U.S. Securities and Exchange Commission, and any securities exchange on which securities of such Party are listed), then the Party under such requirement will prepare a draft of such securities filing for review and comment by the other Party. If such securities filing includes the disclosure of this Agreement and its terms, the Party under such disclosure obligation will submit a confidential treatment request and a proposed redacted version of this Agreement as part of such draft. Such draft securities filing will, where possible, be provided to the other Party reasonably in advance of the deadline for such securities filing, and the other Party agrees to promptly (and in any event, no less than [***] (or such shorter time to meet any filing deadline where it was not possible to provide the other Party with [***] notice) after receipt of such confidential treatment request and proposed redactions) give its input in a reasonable manner in order to allow the Party seeking disclosure to file its request within the timelines proscribed by the regulations of applicable Governmental Authorities or securities exchange. The Party seeking such disclosure will use reasonable efforts to obtain confidential treatment of this Agreement from the applicable Governmental Authority or securities exchange as represented by the redacted version reviewed by the other Party, provided that the Party seeking such disclosure shall, notwithstanding the foregoing, at all times have the right to submit such disclosure in accordance with such requirement prior to or on the relevant deadline therefor.
(c) At any time after the release of the initial press release(s) described in Section 11.5(a), each Party shall notify the other Party if it desires to disclose publicly (including on its website) any of the following: [***]. For clarity, this Section 11.5 does not apply to scientific or medical Publications, which are governed by Section 11.4. If the other Party also desires to make such a public disclosure, the Parties will coordinate and agree upon the form, content and timing of such disclosure. If the other Party does not desire to make such a public disclosure, the requesting Party may nonetheless make such disclosure so long as it provides the other Party with a draft of such disclosure at least [***] prior to its intended release for such other Party's review and comment. The non-disclosing Party shall have the right to require reasonable modifications of the disclosure: (a) to protect the non- publishing Party's Confidential Information or trade secrets; or (b) to delay such disclosure for a reasonable time period (not to exceed [***]) as may be reasonably necessary to seek patent protection for the information disclosed in such proposed submission to the extent consistent with Article X. If either Party requests to make any other disclosure with respect to this Agreement or the Collaboration (including any public statement or press release) that is not otherwise permitted under this Agreement, the other Party shall reasonably consider such request. 56
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11.6 Return of Confidential Information. Upon the effective date of the termination of this Agreement for any reason in its entirety, or with respect to a Product, either Party may request in writing and the non-requesting Party shall (at the non-requesting Party's election), with respect to Confidential Information to which such non-requesting Party does not retain rights under the surviving provisions of this Agreement (if applicable, with respect to the terminated Region or terminated Product) promptly destroy all copies of such Confidential Information in the possession or control of the non-requesting Party and confirm such destruction in writing to the requesting Party. Notwithstanding the foregoing, the non-requesting Party shall be permitted to retain such Confidential Information (i) to the extent necessary or useful for purposes of performing any continuing obligations or exercising any ongoing rights hereunder and, in any event, a single copy of such Confidential Information for archival purposes and (ii) any computer records or files containing such Confidential Information that have been created solely by such non-requesting Party's automatic archiving and back-up procedures, to the extent created and retained in a manner consistent with such non-requesting Party's standard archiving and back-up procedures, but not for any other uses or purposes. All Confidential Information shall continue to be subject to the terms of this Agreement for the period set forth in Section 11.1.
11.7 Attorney-Client Privilege. As to any Third Party, neither Party is waiving, nor shall be deemed to have waived or diminished, any attorney work product protection or attorney-client privilege as a result of disclosing information pursuant to this Agreement, or any Confidential Information (including Confidential Information related to pending or threatened litigation) to the Receiving Party, regardless of whether the Disclosing Party has asserted, or is or may be entitled to assert, such privileges and protections. The Parties: (a) share a common legal and commercial interest in such information to the extent available under Applicable Law that is subject to such privileges and protections; (b) are or may become joint defendants in proceedings to which the information covered by such protections and privileges relates; (c) intend that such privileges and protections remain intact should either Party become subject to any actual or threatened proceeding initiated by or against a Third Party to which the Disclosing Party's Confidential Information covered by such protections and privileges relates; and (d) intend that after the Effective Date both the Receiving Party and the Disclosing Party shall have the right to assert such protections and privileges as against a Third Party to the extent available under Applicable Law. In the event of any litigation (or potential litigation) with a Third Party related to this Agreement or the subject matter hereof, the Parties shall, upon either Party's request, enter into a reasonable and customary joint defense agreement. Each Party shall consult in a timely manner with the other Party before producing information or documents in connection with litigation or other proceedings brought by or initiated against a Third Party that would likely implicate privileges maintained by the other Party. Notwithstanding anything contained in this Section 11.7, nothing in this Agreement shall prejudice a Party's ability to take discovery of the other Party in disputes between them relating to the Agreement and no information otherwise admissible or discoverable by a Party shall become inadmissible or immune from discovery, including without limitation based on an assertion of attorney work product protection or attorney-client privilege, solely by this Section 11.7. 57
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11.8 Permitted Disclosure for CREATE Act. In order for a Party to exercise its rights under Section 10.3, such Party shall be allowed to disclose in a patent application it prepares and files pursuant to this Agreement the names of the Parties to this Agreement, or amends a pending application it is prosecuting pursuant to this Agreement to state the names of the Parties to this Agreement.
Article XII.
TERM AND TERMINATION
12.1 Term. The term of this Agreement shall commence upon the Effective Date and, unless earlier terminated pursuant to this Article XII, shall continue in full force and effect until the expiration of Sanofi's payment obligations under Article IX or the Profit/Loss Share Agreement, whichever is later (the Term).
12.2 Termination.
(a) Terminations by Sanofi.
(i) Termination by Sanofi for Convenience. Sanofi may terminate this Agreement (A) in its entirety by providing [***] written notice of termination to RevMed or (B) on a country-by-country or Product-by-Product basis by providing [***] written notice of termination to RevMed; provided that if Sanofi desires to terminate this Agreement under this Section 12.2(a)(i)B only with respect to the U.S. (for all Products or one or more Products), Sanofi shall provide [***] written notice of termination to RevMed.
(ii) For a Change of Control of RevMed. RevMed will notify Sanofi in writing as soon as possible after RevMed announces publicly any information regarding any proposed Change of Control of RevMed (or if the Change of Control will not be publicly announced, then no later than [***] after the signing of the Change of Control). Sanofi will have the option to either (A) terminate this Agreement in its entirety upon written notice to RevMed provided to RevMed within [***] of the effective date of such Change of Control; or (B) [***].
(iii) For Safety. Sanofi will have the right to terminate this Agreement in its entirety or on a country-by-country or Product-by-Product basis, upon [***] prior written notice to RevMed, due to safety concerns raised by a Regulatory Authority, an Institutional Review Board for a Clinical Trial or by Sanofi's internal regulatory decision makers acting in accordance with Sanofi's standard internal policies (any such entity or group, a Safety Reviewer), where such Safety Reviewer recommends cessation of Development or Commercialization of such SHP2 Inhibitor or Product with respect to any SHP2 Inhibitor or Product (and a summary of such concerns will be stated in the notice of termination). During such [***] notice period, each Party will continue to perform all of its obligations under this Agreement then in effect. 58
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(b) Termination for Material Breach. If either Party believes that the other is in material breach of this Agreement, then the non-breaching Party may deliver notice of such breach to the other Party. For all material breaches other than a failure to make a payment as set forth in this Agreement, the allegedly breaching Party shall have [***] from such notice to dispute or cure such breach. For any material breach arising from a failure to make a payment set forth in this Agreement, the allegedly breaching Party shall have [***] from the receipt of the notice to dispute or cure such breach. If the Party receiving notice of material breach under this Agreement fails to cure, or fails to dispute, such breach within the applicable time period set forth above, then the Party originally delivering the notice of material breach may terminate this Agreement effective on written notice of termination to the other Party. If the allegedly breaching Party in good faith disputes such material breach or disputes the failure to cure or remedy such material breach and provides written notice of that dispute to the other Party within the applicable period set forth above, the matter shall be addressed under the dispute resolution provisions in Section 15.6. During the pendency of any such dispute, all of the terms and conditions of this Agreement will remain in effect and the Parties will continue to perform all of their respective obligations hereunder.
(c) Termination for Insolvency. In the event that either Party (i) files for protection under bankruptcy or insolvency laws, (ii) makes an assignment for the benefit of creditors, (iii) appoints or suffers appointment of a receiver or trustee over substantially all of its property that is not discharged within [***] after such filing, (iv) proposes a written agreement of composition or extension of its debts, (v) proposes or is a party to any dissolution or liquidation, (vi) files a petition under any bankruptcy or insolvency act or has any such petition filed against it that is not charged within [***] of the filing thereof or (vii) admits in writing its inability generally to meet its obligations as they fall due in the general course, then the other Party may terminate this Agreement in its entirety effective immediately upon writing notice to such Party.
(d) Termination for Competing Product of Sanofi. If after [***]: (i) Sanofi or its Affiliates, alone or with or through a Third Party, develop, manufacture or commercialize a Competing Product and (ii) Sanofi or its Affiliates have not commenced a Registrational Clinical Trial for a Product prior to commencing the activities in Section 12.2(d)(i), RevMed may terminate this Agreement effective [***] after it delivers written notice to Sanofi that it is exercising its rights under this Section 12.2(d) unless Sanofi elects in writing within such [***] period to [***].
(e) Termination for Sanofi's Decision to Cease [***] of Product.
(i) If at any time during the period commencing on the Effective Date, there is a consecutive [***] period during which Sanofi [***] and such [***] is not (A) by written agreement of the Parties, (B) a result of [***], (C) as a result of [***], (D) a result of [***], or (E) a direct result, in whole or in part, of [***], then RevMed shall promptly notify Sanofi in writing upon becoming aware of such [***]. Alternatively, RevMed, no more often than [***], may request for Sanofi to notify RevMed whether there has been any [***] and Sanofi shall respond to such request within [***], providing reasonable support for any assertion that [***]. Within another [***] following either receipt of notice from RevMed or receipt of any such response from Sanofi confirming [***], as applicable, the Parties shall meet (which may be by teleconference) to discuss the nature and circumstances surrounding such [***]. Sanofi shall have [***] from such meeting date to cure such [***]. If Sanofi fails to cure such [***] within such [***] period, RevMed may terminate this Agreement upon written notice to Sanofi. 59
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(ii) If RevMed reasonably believes a [***] is likely to occur but it has not yet been [***], RevMed may, no more than [***] per Calendar Year, request for the Parties to discuss such potential [***] and Sanofi's intended plans with respect to [***], provided that, for clarity, such discussion shall not be deemed to accelerate the timeframes specified above in Section 12.2(a).
12.3 Effects of Expiration or Termination.
(a) General. Upon termination or expiration of this Agreement with respect to any particular Product or country, all rights and obligations of the Parties under this Agreement with respect to such Product or country shall cease except as otherwise set forth in this Section 12.3 or elsewhere in this Agreement, but, for clarity, such termination or expiration shall not affect the Parties' rights and obligations under this Agreement with respect to the other Products or countries.
(b) Effect of Expiration. Upon expiration of this Agreement, the licenses granted to Sanofi under Section 3.1 will become fully paid up, royalty free, perpetual and irrevocable.
(c) Effect of Termination by Sanofi for Convenience, Change of Control or Termination by RevMed for Sanofi's Material Breach, Insolvency, Competing Product, or Cessation of [***]. Upon the termination of this Agreement by Sanofi pursuant to Section 12.2(a)(i) (Termination by Sanofi for Convenience) or Section 12.2(a)(ii)A (Termination by Sanofi for Change of Control of RevMed) or by RevMed pursuant to Section 12.2(b) (Termination for Material Breach), 12.2(c) (Termination for Insolvency), 12.2(d) (Termination for Competing Product of Sanofi) or 12.2(e) (Termination for Sanofi's Decision to Cease [***] of Product), the following provisions shall apply:
(i) License to Sanofi. All licenses and other rights granted to Sanofi under the RevMed Licensed Technology shall terminate (except as necessary to permit Sanofi to perform its surviving obligations under this Article XII) and all rights thereunder shall revert to RevMed.
(ii) Licenses.
A. License Grants.
1. RevMed License to SHP2 Inhibitors. Sanofi shall, effective upon any such termination of this Agreement, and hereby does, grant to RevMed [***], under all [***], and [***], to [***]. Notwithstanding the foregoing, [***] shall not include [***], and [***] shall include [***] (to the extent [***]).
2. RevMed License to Practice Certain Combinations. Sanofi shall, effective upon any such termination of this Agreement, and hereby does, grant to RevMed [***], under [***], and [***] (but excluding [***]). For the avoidance of doubt, [***] licensed under this Section 12.3(c)(ii)(A)(2) do not [***]. 60
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3. Sanofi License to Practice Certain Combinations. [***] RevMed shall, effective upon any such termination of this Agreement, and hereby does, grant to Sanofi [***], under [***], and [***]. For the avoidance of doubt, [***] licensed under this Section 12.3(c)(ii)(A)(3) do not [***]. If Sanofi [***], Sanofi shall so notify RevMed in writing, and [***].
B. Third Party Restrictions. If the rights licensed to RevMed pursuant to subsection A are sublicensed to RevMed under an agreement between Sanofi and a Third Party, then Sanofi shall so notify RevMed within [***] after the effective date of termination of this Agreement, and the foregoing licenses shall be subject to the applicable provisions of such Third Party agreement (including any applicable payment obligations to the extent arising from the exercise of RevMed's practice of its license under subsection A). RevMed shall have the right to terminate all or any portion of the rights granted to it under subsection A, upon written notice to Sanofi.
C. Royalties. If this Agreement is terminated in its entirety or with respect to one or more Products, other than by RevMed pursuant to Section 12.2(b) (Termination for Material Breach) or 12.2(c) (Termination for Insolvency), RevMed shall pay to Sanofi on a Product-by-Product basis royalties on sales of terminated Products (such Products, which for the purpose of clarity shall not include any Non-SHP2 Product, hereinafter referred to as Termination Products), calculated based on worldwide Net Sales (as such term is applied mutatis mutandis to RevMed and including sales in the U.S.) by RevMed and its Affiliates and Sublicensees of such Termination Products as follows: [***]. RevMed shall pay Sanofi such royalties until the earlier of (x) expiration of the Post-Termination Royalty Term therefor and (y) a Change of Control of Sanofi. Upon any termination of this Agreement, RevMed shall pay to Sanofi any amounts owed to Third Parties under license agreements to which Sanofi is a party that grant Sanofi a license under such Third Party's Patent Rights or Know-How that is sublicensed to RevMed pursuant to Section 12.3(c)(ii)A, unless RevMed declines in writing to obtain such sublicense. Post-Termination Royalty Term means: (I) with respect to a particular country and a particular Termination Product that is the subject of the royalty obligations under Section 12.3(c)(ii)B(1), the period of time commencing upon the First Commercial Sale of such Termination Product in such country (by RevMed or its Affiliates or sublicensees) and ending upon the latest of (a) the date on which there is no Valid Claim (as such term is applied mutatis mutandis to Sanofi Sole Program Patents) of a Sanofi Sole Program Patent that would be infringed by the sale of such Termination Product in such country; (b) the expiration of any Regulatory Exclusivity granted with respect to such Termination Product in such country[***] and (II) with respect to a particular country and a particular Termination Product that is subject of the royalty obligations under Section 12.3(c)(ii)B(2) or Section 12.3(c)(ii)B(3), the period of time commencing upon the First Commercial Sale of such Termination Product in such country (by RevMed or its Affiliates or sublicensees) and ending upon the latest of (a) the expiration of any Regulatory Exclusivity granted with respect to such Termination Product in such country; and (b) [***]. 61
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(iii) Inventory Sell-Off Period. In the case of a termination of this Agreement, Sanofi (with respect to the Termination Products in the Licensed Territory), shall be entitled, for a period of [***] after termination, to (i) complete Manufacture of work-in-progress, and (ii) continue conducting Commercialization activities being conducted by Sanofi hereunder as of such termination (if applicable, with respect to the terminated country(ies)), to the extent related to such Termination Product in Sanofi's inventory as of such termination (or added to such inventory as a result of the completion described in clause (i)), provided that Sanofi fulfills its payment obligations under this Agreement in connection with such inventory sell-off, provided further that the sharing of Net Profits and Net Losses under the Profit/Loss Share Agreement shall continue to apply during the sell-off period. For clarity, from and after the expiration of such [***] period all rights and licenses granted to Sanofi hereunder (if applicable, with respect to the terminated country(ies)) shall terminate (except as necessary to permit Sanofi to perform its obligations under this Article XII).
(iv) Regulatory Materials; Data. Within [***] after the effective date of such termination for Termination Products for which Regulatory Approval has been obtained prior to the effective date of such termination or [***] for other Termination Products (or as promptly as practical thereafter, if such period is not practical under Applicable Law), Sanofi shall transfer and assign to RevMed all Regulatory Approvals relating to such Termination Products, and, to the extent not previously provided to RevMed, transfer other Regulatory Materials including data from preclinical, non-clinical and clinical studies conducted by or on behalf of Sanofi, its Affiliates or Sublicensees on such Termination Products and all pharmacovigilance data (including all adverse event databases) on such Termination Products. In addition, subject to any applicable provisions of any Third Party contract manufacturing agreement, Sanofi shall, or cause its Affiliate or Third Party contract manufacturer to, grant RevMed and any of its Affiliates and Third Party contract manufacturer the right to reference any and all drug master files pertaining to Termination Products within the foregoing time period for the relevant Termination Products. At RevMed's reasonable request, for a period not to exceed [***] following the effective date of termination, Sanofi shall provide RevMed with assistance up to a total of [***] with any inquiries and correspondence with Regulatory Authorities relating to any such Termination Product. [***] The foregoing shall not apply to the extent containing proprietary information or technology of any Third Party relating to proprietary active ingredients contained in Combination Products or any Non-SHP2 Products, provided that Sanofi shall, for any Combination Products, upon written request by RevMed and to the extent permitted by the terms of its Third Party agreements, provide reasonable assistance to RevMed to enable RevMed to access such information or technology by, for example, facilitating introductions to and discussions with the relevant Third Party with respect to such information or technology, provided that such assistance shall count toward the [***] total set forth in the preceding sentence.
(v) Trademarks. Sanofi shall transfer and assign, and shall ensure that its Affiliates transfer and assign, to RevMed, at no cost to RevMed, all Product Marks exclusively relating to any Termination Product, provided that such Product Marks do not contain the business entity names of Sanofi or its Affiliates or variations thereof, except as may otherwise be required by Applicable Law during a transition period to avoid any interruptions in supply of Termination Product to patients. In such case if requested by Sanofi, RevMed shall sign a non-royalty bearing trademark license agreement in the form mutually agreed by the Parties, as requested by Sanofi. 62
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(vi) Transition Assistance. With regard to Termination Products in countries for which the licenses to Sanofi are terminating, Sanofi shall provide the following transitional assistance, with costs allocated as set forth below:
A. Each Party shall comply with Section 11.6 with regard to each Party's Confidential Information.
B. To the extent Sanofi has the right to do so, Sanofi shall promptly provide RevMed with a copy (which may be redacted in Sanofi's discretion if required to protect confidential information of Sanofi or a Third Party) of each license agreement, collaboration agreement or vendor agreement then effective between Sanofi (or its Affiliates) and a Third Party that exclusively relates to any Termination Product, or the Development, Manufacture and Commercialization thereof, and, upon RevMed's request, to the extent Sanofi has the right to do so, Sanofi shall assign or sublicense, and shall ensure that its Affiliates assign or sublicense, to RevMed any such agreement(s). If Sanofi does not have the right to do so, Sanofi will provide RevMed with contact information for such Third Party so that RevMed may pursue an agreement directly with such licensor, collaborator or vendor with respect to Termination Products.
C. Sanofi shall, at RevMed's request, for a period not to exceed [***] following the effective date of termination, provide reasonable technical assistance up to a total of [***] and, to the extent not already provided to RevMed, transfer copies of (including when available, in electronic format) all Sanofi Sole Program Know-How to RevMed or its designee, including without limitation: [***], in each case to the extent such materials are exclusively related to the Termination Product. All such Know-How so provided to RevMed shall be deemed Confidential Information of Sanofi. Furthermore, Sanofi shall within [***] after the effective date of such termination, transfer to RevMed all files and documents relating to the prosecution, defense or enforcement of the RevMed Licensed Patents or Joint Program Patents and provide reasonable assistance for a period not to exceed [***] following the effective date of termination, up to a total of [***], in the transfer of the prosecution, defense and enforcement responsibilities to RevMed, including by executing any documents reasonable necessary therefor.
D. At the end of the sell-off period set forth in Section 12.3(c)(iii), Sanofi shall transfer to RevMed any and all inventory of SHP2 Inhibitors and Termination Products (including all research materials, final product, bulk drug substance, intermediates, work-in-process, formulation materials, reference standards, drug product clinical reserve samples, packaged retention samples, and the like) then in the possession of Sanofi, its Affiliates or Sublicensees, and continue or have continued any ongoing stability studies pertaining to any materials so transferred to RevMed for a reasonable period of time until RevMed can assume responsibility for such activities. Notwithstanding the allocation of costs described below, all such inventory shall be purchased by RevMed at a price equal to [***].
E. If at the time of such termination, RevMed or its Affiliates are not Manufacturing a particular Termination Product, then, at RevMed's request, Sanofi shall: (1) [***], provided that Sanofi shall in no case be obligated to [***], and provided further that such [***]; and (2) if it has the right to do so, assign or transfer to RevMed any Manufacturing agreement between Sanofi and a Third Party contract manufacturer with respect to such Termination Product; or (3) conduct a technology transfer analogous to that described in Section 7.2. 63
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F. If at the time of such termination, Sanofi or its Affiliates are conducting any Clinical Trials (including Registrational Clinical Trials) of a Termination Product, then, at RevMed's election on a trial-by-trial basis, Sanofi shall cooperate, and shall ensure that its Affiliates cooperate, with RevMed to transfer the conduct of all such Clinical Trials to RevMed within [***] after the effective date of such transfer (to the extent practical in light of applicable regulatory and patient safety concerns) and RevMed shall assume any and all liability, and is liable, for such Clinical Trials conducted after the effective date of such termination (except to the extent Sanofi has an obligation of indemnification under Article XIV existing for a claim that arose prior to the effective date of such termination).
G. If at the time of such termination, Sanofi or its Affiliates are Commercializing a particular Termination Product, then, at RevMed's request, the Parties shall negotiate in good faith a transition services agreement to cover detailing and promotion of such Termination Product (in the same manner and no more extensive than the then-current detailing and promotional efforts of Sanofi) by Sanofi or its Affiliate or contract sales force pursuant to a transition plan agreed by the Parties for a period not to exceed [***], and RevMed shall pay Sanofi a commercially reasonable amount to conduct such activities (which amount would include a commercially reasonable per-detail rate).
H. In addition to the foregoing, Sanofi shall use reasonable efforts with respect to those activities for which it is responsible hereunder to cooperate with RevMed to achieve an orderly transition of the Development, Manufacturing and Commercialization of Termination Products from Sanofi or its applicable Affiliate to RevMed.
I. Except as provided in Sections 12.3(c)(vi)D-E, Sanofi's activities under this Section 12.3(c)(vi) shall be conducted [***].
(d) Effect of Termination by Sanofi for Safety or for RevMed's Material Breach or Insolvency. Upon termination of this Agreement by Sanofi pursuant to Section 12.2(a)(iii) (Termination by Sanofi for Safety), Section 12.2(b) (Termination for Material Breach) or 12.2(c) (Termination for Insolvency), the following provisions shall apply:
(i) License to Sanofi. All licenses and other rights granted to Sanofi under the RevMed Licensed Technology under this Agreement shall terminate (except as necessary to permit Sanofi to perform its surviving obligations under this Article XII) and all rights thereunder shall revert to RevMed; provided, however, RevMed shall, effective upon any such termination of this Agreement, and hereby does, grant to Sanofi a non- exclusive, worldwide license, with the right to grant sublicenses to contractors and otherwise only with RevMed's prior written consent, under each (1) RevMed Program Invention and (2) [***]. For the avoidance of doubt, the Patent Rights licensed under this Section 12.3(d)(i) do not include any [***]. 64
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(ii) Inventory Sell-Off Period. In the case of a termination of this Agreement, Sanofi (with respect to the Termination Products in the Licensed Territory), shall be entitled, for a period of [***] after termination, to (i) complete Manufacture of work-in-progress, and (ii) continue conducting Commercialization activities being conducted by Sanofi hereunder as of such termination (if applicable, with respect to the terminated country(ies)), to the extent related to Termination Product in Sanofi's inventory as of such termination (or added to such inventory as a result of the completion described in clause (i)), provided that Sanofi fulfills its payment obligations under this Agreement in connection with such inventory sell-off, provided further that the payment of royalties to RevMed and the sharing of Net Profits and Net Losses under the Profit/Loss Share Agreement shall continue to apply during the sell-off period. For clarity, from and after the expiration of such [***] period all rights and licenses granted to Sanofi hereunder (if applicable, with respect to the terminated country(ies)) shall terminate (except as necessary to permit Sanofi to perform its obligations under this Article XII).
(iii) Regulatory Materials; Data. Within [***] of the effective date of such termination (or as promptly as practical thereafter, if such period is not practical under Applicable Law), [***], Sanofi shall transfer and assign to RevMed all Regulatory Approvals relating to Termination Products, and, to the extent not previously provided to RevMed, transfer other Regulatory Materials including data from preclinical, non-clinical and clinical studies conducted by or on behalf of Sanofi, its Affiliates or Sublicensees on any Termination Products and all pharmacovigilance data (including all adverse event databases) on any Termination Products.
(iv) Trademarks. [***], Sanofi shall transfer and assign, and shall ensure that its Affiliates transfer and assign, to RevMed, [***], all Product Marks exclusively relating to any Termination Product, provided that such Product Marks do not contain the business entity names of Sanofi or its Affiliates or variations thereof.
(e) Effect of Termination by Sanofi of [***] for Change of Control of RevMed. Upon termination of [***] by Sanofi pursuant to Section 12.2(a)(ii)B (Termination by Sanofi for Change of Control) in the case of an Acquiror of RevMed that is a Major Biopharmaceutical Company, RevMed, [***], will (1) make available to Sanofi copies of [***], (2) provide Sanofi with copies of [***], (3) provide Sanofi with all [***], and (4) otherwise provide Sanofi all reasonable assistance in [***]. Furthermore, in such case, except for [***], all Committees shall [***].
12.4 Survival. The following Sections and Articles shall survive the termination or expiration of this Agreement: Articles I (Definitions) (to the extent necessary to give effect to the other Sections and Articles that survive under this Section 12.4) and XV (General Provisions) and Sections 5.8 (Development Records) (for the period stated therein), 9.8 (Records) (for the period stated therein), 11.1 (Duty of Confidence), 11.2 (Exceptions), 11.3 (Authorized Disclosures), 11.5(a) and 11.5(b) (Publicity; Use of Names), 11.6 (Return of Confidential Information), 11.7 (Attorney-Client Privilege), 11.8 (Permitted Disclosures for CREATE Act), 12.3 (Effects of Expiration or Termination), 12.4 (Survival), 12.5 (Accrued Rights and Obligations), 12.6 (Termination Not Sole Remedy), 14.1 (Indemnification by RevMed) (as to activities conducted during the Term), 14.2 (Indemnification by Sanofi) (as to activities conducted during the Term), 14.3 (Indemnification Procedure), 14.4 (Mitigation of Loss), and 14.5 (Limitation of Liability). 65
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12.5 Accrued Rights and Obligations. Expiration or termination of this Agreement shall not diminish either Party's rights, or relieve either Party of any of its obligations, in each case that have been accrued prior to the effective date of such expiration or termination.
12.6 Termination Not Sole Remedy. Except as set forth in Section 5.7, termination is not the sole remedy under this Agreement and, whether or not termination is effected and notwithstanding anything contained in this Agreement to the contrary, all other remedies shall remain available except as agreed to otherwise herein.
Article XIII.
REPRESENTATIONS, WARRANTIES AND COVENANTS; CLOSING CONDITIONS
13.1 Representations and Warranties of Each Party. Each Party hereby represents and warrants, as of the Execution, and covenants (as applicable) to the other Party as follows:
(a) It is a company or corporation duly organized, validly existing, and in good standing under the laws of the jurisdiction in which it is incorporated, and has the full right, power and authority to enter into this Agreement, to perform its obligations hereunder.
(b) (i) This Agreement has been duly executed by it and is legally binding upon it, enforceable in accordance with its terms, (ii) it has taken all necessary corporate action on its part required to authorize the execution and delivery of this Agreement and, (iii) this Agreement, and the performance of its obligations hereunder, do not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.
(c) (i) It is familiar with the provisions and restrictions contained in the FCPA and has adopted and maintains an FCPA policy; (ii) it shall comply with the FCPA in connection with its activities under this Agreement; (iii) it shall not, in the course of its activities under this Agreement, offer, promise, give, demand, seek or accept, directly or indirectly, any gift or payment, consideration or benefit in kind that would or could be construed as an illegal or corrupt practice; and (iv) it is not a government official (as the term is defined in the FCPA) or affiliated with any government official.
(d) (i) Neither it nor any of its Affiliates has been debarred or is subject to debarment pursuant to Section 306 of the FFDCA or analogous provisions of Applicable Law outside the United States or listed on any Excluded List and (ii) neither it nor any of its Affiliates has, to its knowledge, used in any capacity, in connection with the activities to be performed under this Agreement, any individual or entity that has been debarred pursuant to Section 306 of the FFDCA or analogous provisions of Applicable Law outside the United States, or that is the subject of a conviction described in such Section or analogous provisions of Applicable Law outside the United States, or listed on any Excluded List.
(e) It will maintain throughout the Term all permits, licenses, registrations and other forms of authorizations and approvals from any Governmental Authority, necessary or required to be obtained or maintained by such Party in order for such Party to execute and deliver this Agreement and to perform its obligations hereunder in a manner which complies with all Applicable Law. 66
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13.2 Representations and Warranties by RevMed. Except as disclosed in the Disclosure Schedule to this Agreement in Exhibit N of the Correspondence, RevMed represents and warrants to Sanofi as of the Execution Date that:
(a) RevMed has not had any Affiliates prior to the Execution Date and does not have any Affiliates as of the Execution Date;
(b) RevMed is the sole and exclusive owner of all of the RevMed Background Technology, free and clear or all liens and encumbrances, and no Third Party owns or possesses any right, title or interest in or to any of the RevMed Licensed Technology existing as of the Execution Date;
(c) RevMed has not previously agreed to or otherwise committed to assign, transfer or convey or otherwise encumber its rights, title and interests in and to RevMed Licensed Technology existing as of the Execution Date;
(d) To the Knowledge of RevMed, all Patent Rights owned or Controlled by RevMed, existing as of the Execution Date, and reasonably necessary or useful for conducting the Collaboration or otherwise necessary or useful for Researching, Developing, Manufacturing, Commercializing or otherwise exploiting Product in the Field, including the Development or Manufacture of the Products as contemplated in the initial Research Plan and Development Plan attached to this Agreement as of the Execution Date and Commercialization of the Products, as provided hereunder are listed in Exhibit O of the Correspondence;
(e) RevMed has the right to grant the licenses and other rights expressly granted herein to Sanofi, and it has not granted any license, right or interest in, to or under the RevMed Licensed Technology to any Third Party (or agreed to make any such grant) to exploit SHP2 Inhibitors or Products in the Field;
(f) To RevMed's Knowledge, the research and development of the Development Candidate and use of RevMed Background Know-How in connection therewith does not infringe the claims of any issued Patent or published patent application of any Third Party;
(g) The research and development of the SHP2 Inhibitors and use of RevMed Background Know-How in connection therewith does not misappropriate the Know-How of any Third Party;
(h) The research and development of SHP2 Inhibitors (including pursuant to the activities set forth in the initial Research Plan and initial Development Plan) does not breach any obligation of confidentiality or non-use owed by RevMed to a Third Party;
(i) To RevMed's Knowledge, no Third Parties are misappropriating the RevMed Background Know-How and there are no activities by Third Parties that are infringing the RevMed Background Patents; 67
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(j) There are no judgments or settlements against or owed by RevMed, and to RevMed's Knowledge, there are no pending claims or litigation or written threats of possible claims or litigation, in each case relating to the SHP2 Inhibitors or otherwise to RevMed Background Technology;
(k) The issued RevMed Background Patents are valid, enforceable and subsisting, and the pending applications included in the RevMed Background Patents are being prosecuted in accordance with Applicable Law in all material respects, and RevMed has presented all relevant references, documents and information of which it and the inventors are aware to the relevant patent examiners and patent offices that are required to be so submitted under Applicable Law;
(l) The RevMed Background Patents have been filed and maintained properly and correctly and all applicable fees have been paid on or before the due date for payment in all material respects;
(m) RevMed has not received any written notice alleging that the RevMed Background Patents, existing as of the Execution Date, are or would be invalid or unenforceable or that the applications included in such RevMed Background Patents will not proceed to grant;
(n) There (i) are no actual, pending or, to RevMed's Knowledge, alleged or threatened, adverse actions, suits, claims, interferences, re-examinations, oppositions, inventorship challenges or formal governmental investigations involving the RevMed Background Technology that are in or before any Governmental Authority, and (ii) are no actual, pending or, to RevMed's Knowledge, alleged or threatened, adverse actions, suits, claims, interferences, re-examinations, oppositions, inventorship challenges or formal governmental investigations involving the RevMed Licensed Technology;
(o) The inventions claimed or covered by the RevMed Licensed Technology (i) were not conceived, discovered, developed or otherwise made in connection with any research activities funded, in whole or in part, by the federal government of the United States or any agency thereof, (ii) are not a subject invention as that term is described in 35 U.S.C. § 201(e), (iii) are not otherwise subject to the provisions of the Patent and Trademark Law Amendments Act of 1980, as amended, codified at 35 U.S.C. §§ 200-212, as amended, as well as any regulations promulgated pursuant thereto, including in 37 C.F.R. part 401, and (iv) are not the subject of any licenses, options or other rights of any other Governmental Authority, within or outside the United States, due to such Governmental Authority's funding of research and development or otherwise (other than the right to receive payments or any law of general application that applies to personal property generally, e.g., takings laws);
(p) None of the RevMed Background Patents are licensed to RevMed from a Third Party;
(q) There are no exclusivity provisions or any other restrictions in any agreement between RevMed or its Affiliates, on the one hand, and any Third Party, on the other hand, of any SHP2 Inhibitor or Product, that would limit Sanofi's ability to exercise its rights under this Agreement; 68
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(r) All current and former officers, employees, and consultants of RevMed who are inventors of or have otherwise contributed in a material manner to the creation or development of any RevMed Background Technology have executed and delivered to RevMed an assignment or other agreement regarding the protection of proprietary information and the assignment to RevMed of inventions or work product created or generated in the course of employment by or providing services for RevMed, the current forms of which has been made available for review by Sanofi;
(s) The portions of RevMed Background Know-How that are proprietary to RevMed and unpublished as of the Execution Date and material to Research, Development, Manufacture or Commercialization of SHP2 Inhibitors or Products in the Field have been kept confidential by RevMed and have only been disclosed to Third Parties under obligations of confidentiality, and to the Knowledge of RevMed, no such Third Party has breached any such confidentiality obligation to RevMed;
(t) RevMed has included in the electronic dataroom for this Agreement all information in its possession that is material to the Research, Development, Manufacture or Commercialization of the Development Candidate as of the Execution Date, and such information does not contain any untrue statement(s) of fact, or omit to state any fact(s), in either case that are collectively material to the Research, Development, Manufacture or Commercialization of the Development Candidate; and
(u) To RevMed's Knowledge, RevMed and its contractors and consultants have conducted all research and development of the SHP2 Inhibitors and Products in material compliance with all Applicable Laws.
13.3 Covenants by RevMed. RevMed covenants to Sanofi that:
(a) RevMed will not, and will cause its Affiliates not to, grant a lien on the RevMed Licensed Technology to any Third Party or knowingly permit a lien to be imposed on the RevMed Licensed Technology other than those disclosed to Sanofi by RevMed and that do not conflict with the rights granted Sanofi hereunder.
(b) RevMed will not, and will cause its Affiliates and (sub)contractors not to, use any government or not-for-profit organization funding that would encumber the RevMed Licensed Technology without the prior written consent of Sanofi, which consent may be withheld in Sanofi's sole discretion. For clarity, this Section 13.3(b) does not apply to Permitted Contractors and Researchers.
(c) At any time upon written request from Sanofi, if the Parties mutually agree that an agreement between RevMed and a Permitted Contractor or Researcher should be amended to optimize language regarding assignment of inventions or intellectual property to ensure conformance with the principles relating thereto set forth in this Agreement, RevMed will use Commercially Reasonable Efforts to cause such Permitted Contractors or Researchers to sign written agreements substantially in the form agreed upon by the Parties. 69
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(d) With respect to the sponsored research agreements of RevMed in effect as of the Effective Date, if after the Effective Date, there is a material amendment or modification to any such sponsored research agreement or work plan thereunder, and if Sanofi in good faith desires to assume and perform the subject research in-house and if Sanofi reasonably possesses the relevant expertise, capacity and applicable materials necessary for such research at such time (the Capabilities), then Sanofi shall notify RevMed and if RevMed does not give notice to terminate such sponsored research agreement to the applicable Third Party under such agreement within [***] after Sanofi reasonably demonstrates that it has the Capabilities for such research activities, then RevMed shall obtain a license to the intellectual property rights in any inventions arising out of such sponsored research such that they are Controlled by RevMed for purposes of this Agreement and RevMed shall [***].
13.4 Mutual Covenants.
(a) No Debarment. In the course of the Research, Development, Manufacture and Commercialization of the Products, neither Party nor its Affiliates shall use any employee or consultant who has been debarred by any Regulatory Authority or, to such Party's or its Affiliates' Knowledge, is the subject of debarment proceedings by a Regulatory Authority. Each Party shall notify the other Party promptly upon becoming aware (in the case of Sanofi, by its compliance department) that any of its or its Affiliates' employees or consultants has been debarred or is the subject of debarment proceedings by any Regulatory Authority.
(b) Compliance. Each Party and its Affiliates shall comply in all material respects with all Applicable Law (including all anti-bribery laws and laws applicable to the manufacture of human pharmaceuticals) in the Research, Development, Manufacture and Commercialization of the Products and performance of its obligations under this Agreement and the Ancillary Agreements.
(c) Information. In addition to the requirements of Section 6.5, each Party will provide the other Party with all information in its control reasonably necessary or desirable for such other Party to comply with its pharmacovigilance responsibilities in all countries in the Territory, including, as applicable, any adverse drug experiences (including those events or experiences that are required to be reported to the FDA under 21 C.F.R. §§ 312.32 or 314.80 or to foreign Regulatory Authorities under corresponding Applicable Law outside the United States of America) from pre-clinical or clinical laboratory, animal toxicology, pharmacology studies and clinical studies, in each case in the form reasonably requested by such other Party.
13.5 No Other Warranties. EXCEPT AS EXPRESSLY STATED IN THIS ARTICLE XIII, (A) NO REPRESENTATION, CONDITION OR WARRANTY WHATSOEVER IS MADE OR GIVEN BY OR ON BEHALF OF SANOFI OR REVMED; AND (B) ALL OTHER CONDITIONS AND WARRANTIES WHETHER WRITTEN OR ORAL OR EXPRESS OR IMPLIED ARE HEREBY EXPRESSLY EXCLUDED, INCLUDING ANY CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. 70
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13.6 Closing Conditions. The obligations of each Party to consummate the transactions contemplated by this Agreement and the Ancillary Agreements (the Contemplated Transactions) is subject to the fulfillment, or, to the extent permitted by Applicable Law, waiver by such Party, of each of the following conditions (collectively, the Closing Conditions):
(a) The representations and warranties of the other Party contained in this Agreement (i) that are not qualified by materiality, material adverse effect, substantial compliance or similar materiality qualifier will be true and correct in all material respects both when made and at the closing with the same force and effect as if made on the Effective Date and (ii) that are qualified by materiality, material adverse effect, substantial compliance or similar materiality qualifier will be true and correct in all respects both when made and at the closing with the same force and effect as if made on the Effective Date, except, in each of (i) and (ii) as would not reasonably be expected, individually or in the aggregate, to have a material impact on the transaction contemplated by this Agreement.
(b) All actions by (including any authorization, consent or approval) in respect of (including notice to), or filings with, any Governmental Authority or other Person that are required to be obtained pursuant to Section 3.8 to consummate the Contemplated Transactions (including any HSR/Antitrust Filing) will have been obtained or made, in a manner reasonably satisfactory in form and substance to such Party, and no such authorization, consent or approval will have been revoked.
(c) No Material Adverse Event shall have occurred or arisen since the Execution Date.
Article XIV.
INDEMNIFICATION; LIABILITY; INSURANCE
14.1 Indemnification by RevMed. RevMed shall indemnify, defend and hold harmless Sanofi, its Affiliates and their respective officers, directors, agents and employees (Sanofi Indemnitees) from and against any Third Party Claims and Losses arising therefrom under or related to this Agreement against any of them to the extent arising or resulting from:
(a) the negligence, recklessness or willful misconduct of any of the RevMed Indemnitees; or
(b) the material breach of any of the warranties or representations made by RevMed to Sanofi under this Agreement or any Ancillary Agreement; or
(c) the material breach by RevMed of any of its obligations pursuant to this Agreement or any Ancillary Agreement;
except in each case ((a) through (c)), to the extent the applicable Third Party Claim and Losses arising therefrom arise or result from (i) the negligence, recklessness or willful misconduct of any Sanofi Indemnitee; (ii) the breach of any of the warranties or representations made by Sanofi to RevMed under this Agreement or any Ancillary Agreement; or (iii) any breach by Sanofi of its obligations pursuant to this Agreement or any Ancillary Agreement.
14.2 Indemnification by Sanofi. Sanofi shall indemnify, defend and hold harmless RevMed, its Affiliates, and their respective officers, directors, agents and employees (RevMed Indemnitees) from and against any Third Party Claims and Losses arising therefrom under or related to this Agreement against any of them to the extent arising or resulting from:
(a) (i) the Research, Development or Manufacture of any Products by or on behalf of Sanofi or any of its Affiliates, Sublicensees or contractors (other than by RevMed or its Affiliates), or (ii) the Commercialization of Products by or on behalf of Sanofi; or 71
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(b) the negligence, recklessness or willful misconduct of any of the Sanofi Indemnitees; or
(c) the material breach of any of the warranties or representations made by Sanofi to RevMed under this Agreement or any Ancillary Agreement; or
(d) the material breach by Sanofi of any of its obligations pursuant to this Agreement or any Ancillary Agreement;
except in each case ((a) through (d)), to the extent the applicable Third Party Claim and Losses arising therefrom arise or result from (i) the negligence, recklessness or willful misconduct of any RevMed Indemnitee; (ii) the breach of any of the warranties or representations made by RevMed to Sanofi under this Agreement or any Ancillary Agreement; or (iii) any breach by RevMed of its obligations pursuant to this Agreement or any Ancillary Agreement.
14.3 Indemnification Procedure.
(a) Notice of Claim. All indemnification claims in respect of any Sanofi Indemnitee or RevMed Indemnitee seeking indemnity under Section 14.1 or Section 14.2 (collectively, the Indemnitees and each an Indemnitee) will be made solely by the corresponding Party (the Indemnified Party). The Indemnified Party will give the indemnifying Party (the Indemnifying Party) prompt written notice (an Indemnification Claim Notice) of any Losses or discovery of fact upon which such Indemnified Party intends to base a request for indemnification under Section 14.1 or Section 14.2, but failure to provide prompt notice will not relieve the Indemnifying Party from its obligation to indemnify the Indemnitee hereunder except to the extent any Losses result from such delay in providing such notice. Each Indemnification Claim Notice must contain a description of the claim and the nature and amount of such Loss (to the extent that the nature and amount of such Loss are known at such time). Together with the Indemnification Claim Notice, the Indemnified Party will furnish promptly to the Indemnifying Party copies of all notices and documents (including court papers) received by any Indemnitee in connection with the Third Party Claim.
(b) Control of Defense. At its option, the Indemnifying Party may assume the defense of any Third Party Claim subject to indemnification as provided for in Section 14.1 or Section 14.2 by giving written notice to the Indemnified Party within [***] after the Indemnifying Party's receipt of an Indemnification Claim Notice. Upon assuming the defense of a Third Party Claim, the Indemnifying Party may select and appoint the lead legal counsel for the defense of the Third Party Claim. Should the Indemnifying Party assume the defense of a Third Party Claim, the Indemnifying Party will not be liable to the Indemnified Party or any other Indemnitee for any legal expenses subsequently incurred by such Indemnified Party or other Indemnitee in connection with the analysis, defense or settlement of the Third Party Claim. 72
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(c) Right to Participate in Defense. Without limiting Section 14.3(b), any Indemnitee will be entitled to participate in, but not control, the defense of such Third Party Claim and to employ counsel of its choice for such purpose; provided, however, that such employment will be at the Indemnitee's own expense unless (a) the employment thereof has been specifically authorized by the Indemnifying Party in writing, or (b) the Indemnifying Party has failed to assume the defense and employ counsel in accordance with Section 14.3(b) (in which case the Indemnified Party will control the defense).
(d) Settlement. With respect to any Losses relating solely to the payment of money damages in connection with a Third Party Claim and that will not result in the Indemnitee's becoming subject to injunctive or other relief or otherwise adversely affect the business of the Indemnitee in any manner, and as to which the Indemnifying Party has acknowledged in writing the obligation to indemnify the Indemnitee hereunder, the Indemnifying Party will have the sole right to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Loss, on such terms as the Indemnifying Party, in its sole discretion, will deem appropriate. The Indemnifying Party will pay all amounts on behalf of the Indemnified Party at or prior to the time of the entry of judgment. With respect to all other Losses in connection with Third Party Claims, where the Indemnifying Party has assumed the defense of the Third Party Claim in accordance with Section 14.3(b), the Indemnifying Party will have authority to consent to the entry of any judgment, enter into any settlement or otherwise dispose of such Loss provided it obtains the prior written consent of the Indemnified Party (which consent will be at the Indemnified Party's sole and absolute discretion). The Indemnifying Party that has assumed the defense of the Third Party Claim in accordance with Section 14.3(b) will not be liable for any settlement or other disposition of a Loss by an Indemnitee that is reached without the written consent of such Indemnifying Party. Regardless of whether the Indemnifying Party chooses to defend any Third Party Claim, no Indemnitee will admit any liability with respect to, or settle, compromise or discharge, any Third Party Claim without first offering to the Indemnifying Party the opportunity to assume the defense of the Third Party Claim in accordance with Section 14.3(b).
(e) Cooperation. If the Indemnifying Party chooses to defend any Third Party Claim, the Indemnified Party will, and will cause each other Indemnitee to, cooperate in the defense thereof and will furnish such records, information and testimony, provide such witnesses and attend such conferences, discovery proceedings, hearings, trials and appeals as may be reasonably requested in connection with the defense of such Third Party Claim. Such cooperation will include access during normal business hours afforded to the Indemnifying Party to, and reasonable retention by the Indemnified Party of, records and information that are reasonably relevant to such Third Party Claim, and making Indemnitees and other employees and agents available on a mutually convenient basis to provide additional information and explanation of any material provided hereunder. The Indemnifying Party will reimburse the Indemnified Party for all its reasonable out-of-pocket costs in connection with such cooperation.
(f) Expenses. Except as provided above, the reasonable and verifiable costs and expenses, including fees and disbursements of counsel, incurred by the Indemnified Party in connection with any claim will be reimbursed on a [***] by the Indemnifying Party, without prejudice to the Indemnifying Party's right to contest the Indemnified Party's right to indemnification and subject to refund in the event the Indemnifying Party is ultimately held not to be obligated to indemnify the Indemnified Party. 73
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14.4 Mitigation of Loss. Each Indemnified Party shall take and shall procure that its Affiliates take all such reasonable steps and action as are reasonably necessary or as the Indemnifying Party may reasonably require in order to mitigate any Third Party Claims (or potential losses or damages) under this Article XIV. Nothing in this Agreement shall or shall be deemed to relieve any Party of any common law or other duty to mitigate any losses incurred by it.
14.5 Limitation of Liability. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR INDIRECT DAMAGES OR LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 14.5 IS INTENDED TO OR SHALL LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF ANY PARTY UNDER SECTION 14.1 OR SECTION 14.2, OR DAMAGES AVAILABLE FOR A PARTY'S BREACH OF ITS OBLIGATIONS RELATING TO CONFIDENTIALITY UNDER ARTICLE XI OR INTELLECTUAL PROPERTY UNDER ARTICLE X.
14.6 Insurance. Each Party shall procure and maintain insurance, including product liability insurance, with respect to its activities hereunder and under the Ancillary Agreements and which is consistent with normal business practices of companies similarly situated at all times during which any SHP2 Inhibitors or Product is being clinically tested in human subjects or commercially distributed or sold. Sanofi may fulfill such obligation through self- insurance. Each Party shall provide the other Party with evidence of such insurance upon request and, in the case of RevMed, shall provide Sanofi with written notice at least [***] prior to the cancellation, non-renewal or material changes in such insurance. It is understood that such insurance shall not be construed to create a limit of either Party's liability with respect to its indemnification obligations under this Article XIV.
Article XV.
GENERAL PROVISIONS
15.1 Force Majeure. Neither Party shall be held liable to the other Party nor be deemed to have defaulted under or breached this Agreement for failure or delay in performing any obligation under this Agreement to the extent such failure or delay is caused by or results from causes beyond the reasonable control of the affected Party, including embargoes, war, acts of war (whether war be declared or not), acts of terrorism, insurrections, riots, civil commotions, strikes, lockouts or other labor disturbances (whether involving the workforce of the nonperforming Party or of any other Person), fire, floods, earthquakes or other acts of God, or acts, generally applicable action or inaction by any governmental authority (but excluding any government action or inaction that is specific to such Party, its Affiliates or Sublicensees, such as revocation or non-renewal of such Party's license to conduct business), or omissions or delays in acting by the other Party, or unavailability of materials related to the Manufacture of the Products (each cause, an event of Force Majeure). The affected Party shall give notice to the other Party in writing as soon as reasonably practical but no later than [***] after the occurrence of the event of Force Majeure, specifying the nature and extent of the event of Force Majeure, its anticipated duration and any 74
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action being taken to avoid or minimize its effect. The suspension of performance allowed hereunder shall be of no greater scope and no longer duration than is reasonably required, and the affected Party shall promptly undertake and continue diligently all reasonable efforts necessary to cure such force majeure circumstances or to perform its obligations in spite of the ongoing circumstances. In the event that RevMed is the non-performing Party and the Force Majeure continues for more than [***] (which period, in its entirety or a portion thereof, is prior to the commencement of the Registration Program for a Product, which Development thereof is impacted by such Force Majeure), Sanofi's payment obligations under Article IX shall be suspended until notification by RevMed to Sanofi of the termination of such Force Majeure Event (and any related triggers and deadlines shall be similarly suspended).
15.2 Assignment; Change of Control.
(a) Neither Party may assign this Agreement or any of its rights or obligations hereunder, except as expressly permitted hereunder, or delegate any of its obligations under this Agreement, whether by operation of law or otherwise, in whole or in part, without the consent of the other Party, except as follows:
(i) Sanofi may, without consent of RevMed, assign this Agreement or its rights and obligations hereunder in whole or in part to any Affiliate of Sanofi, and RevMed may, with the consent of Sanofi (not to be unreasonably withheld, delayed or conditioned), assign this Agreement or its rights and obligations hereunder in whole or in part to any Affiliate of RevMed; and
(ii) Either Party may, without consent of the other Party, assign this Agreement in whole to (i) in the case of RevMed, its successor in interest or assignee or purchaser, as applicable, in the case of a Change of Control or (ii) in the case of Sanofi, its successor in interest or assignee or purchaser, as applicable, in connection with the sale of all or substantially all of its assets to which this Agreement relates, or in connection with a merger, acquisition or similar transaction. In the case of Sanofi the intellectual property owned or controlled by any such successor in interest or assignee or purchaser (such successor in interest or assignee or purchaser, as applicable, an Acquiror) or its Acquiror Family prior to the applicable Change of Control or other similar transaction immediately prior to such acquisition (other than as a result of a license from the acquired Party) or thereafter developed outside the scope of this Agreement in accordance with this Agreement shall be excluded from [***] and the Acquiror Family shall be excluded from Affiliate solely for purposes of the applicable components of the intellectual property definitions set forth herein. In the case of RevMed, the intellectual property owned or controlled by any such Acquiror or its Acquiror Family prior to the applicable Change of Control or other similar transaction immediately prior to such acquisition (other than as a result of a license from the acquired Party) or is thereafter developed outside the scope of this Agreement in accordance with this Agreement shall be excluded from the RevMed Licensed Technology, in each case only for so long as the remainder of the conditions of this Section 15.2 are met, and the Acquiror Family shall be excluded from Affiliate solely for purposes of the applicable components of the intellectual property definitions set forth herein, in all such cases if and only if: (A) the acquired Party remains a wholly-owned subsidiary of the Acquiror; (B) all intellectual property of the Acquired Party Family and 75
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all research and development assets and operations of the Acquired Party Family, in each case relating to SHP2 Inhibitors and Products, remain with the Acquired Party Family and are not licensed or otherwise transferred to the Acquiror Party Family for any purpose; (C) the scientific and Development activities with respect to SHP2 Inhibitors and Products of the Acquired Party Family and Competing Products of the Acquiror Family (if any) are maintained separate and distinct, and (D) there is no exchange of Know-How relating to SHP2 Inhibitors and Products between the Acquired Party Family and the Acquiror Family. Any attempted assignment not in accordance with this Section 15.2 shall be null and void and of no legal effect. Any permitted assignee shall assume all assigned obligations of its assignor under this Agreement. The terms and conditions of this Agreement shall be binding upon, and shall inure to the benefit of, the Parties and their respected successors and permitted assigns. For clarity, any assignment by Sanofi shall be subject to Section 9.7(a).
(b) Except as part of a transaction permitted under this Section 15.2, in no event shall RevMed assign or transfer, or agree to assign or transfer to any Third Party, any or all of the RevMed Licensed Patents without the consent of Sanofi, not be unreasonably withheld or conditioned.
15.3 Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future law and if the rights or obligations of either Party under this Agreement will not be materially and adversely affected thereby, (i) such provision shall be fully severable, (ii) this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof, (iii) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from and (iv) in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and reasonably acceptable to the Parties. To the fullest extent permitted by Applicable Law, each Party hereby waives any provision of law that would render any provision hereof illegal, invalid or unenforceable in any respect.
15.4 Notices. All notices which are required or permitted hereunder shall be in writing and sufficient if delivered personally, sent by e-mail (and promptly confirmed by personal delivery, registered or certified mail or overnight courier), sent by an internationally-recognized overnight courier or sent by registered or certified mail, postage prepaid, return receipt requested, addressed as follows:
If to RevMed:
Revolution Medicines, Inc. 700 Saginaw Dr. Redwood City, CA 94063 USA Attn: General Counsel Email: [***] 76
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With a copy to:
[***] Latham & Watkins LLP 140 Scott Drive Menlo Park, CA 94025 Fax: [***]
If to Sanofi:
Sanofi 50 Binney Street Cambridge, MA 02142 Attn: [***]
With a copy to:
Sanofi 50 Binney Street Cambridge, MA 02142 Attn: [***]
or to such other address(es) as the Party to whom notice is to be given may have furnished to the other Party in writing in accordance herewith. Any such notice shall be deemed to have been given: (a) when delivered if personally delivered or sent by facsimile on a Business Day (or if delivered or sent on a non-Business Day, then on the next Business Day); (b) on the second (2nd) Business Day after dispatch if sent by an internationally- recognized overnight courier; or (c) on the tenth (10th) Business Day following the date of mailing, if sent by mail.
15.5 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of New York without reference to any rules of conflict of laws.
15.6 Dispute Resolution.
(a) Except for matters within the JSC's authority that are resolved under Section 2.10, including through a Party's exercise of its final decision making authority in accordance therewith, and matters resolved pursuant to Section 5.6, any dispute, claim or controversy arising out of or relating to this Agreement, or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this Agreement to arbitrate (a Dispute) that is not resolved within [***] after written notice of the Dispute by one Party to the other shall be determined by arbitration in [***] before [***] arbitrators, unless the Parties mutually agree in writing otherwise. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect and the Expedited Procedures contained therein, as modified in this paragraph, except (i) to the extent such rules are inconsistent with this Section 15.6(a), in which case, this Section 15.6(a) shall control (including with regard to any limitations of liability or forms of relief), and (ii) [***] discovery depositions may be 77
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conducted per side. The JAMS Expedited Procedures shall be modified to [***] of such procedures as in effect on the Effective Date, and the [***] shall be modified to provide that [***]. The language of the arbitration shall be English. The proceedings and decisions of the arbitrator shall be final and binding on the Parties, and judgment on the award may be entered in any court having jurisdiction.
(b) The Parties shall maintain the confidential nature of the arbitration proceeding and the award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision. All arbitration proceedings and decisions of the arbitrators under this Section 15.6(b) shall be deemed Confidential Information of both Parties under Article XI.
(c) Within [***] after the commencement of arbitration, each Party shall select [***] within [***] of the commencement of the arbitration. If the arbitrator selected by the Parties are unable or fail to agree upon [***] within the allotted time, [***] shall be appointed by JAMS in accordance with its rules. All arbitrators shall serve as a neutral, independent and impartial arbitrators. Each arbitrator shall have not less than [***] years of experience in biotechnology or pharmaceutical industry disputes.
(d) The award shall be rendered within [***] of the constitution of the arbitral tribunal, unless the arbitrators determine that the interest of justice requires that such limit be extended.
(e) The arbitrators may award to the prevailing Party, if any, as determined by the arbitrators, the costs and attorneys' fees reasonably incurred by the prevailing Party in connection with the arbitration. If the arbitrators determine a Party to be the prevailing Party under circumstances where the prevailing Party won some but not all of the claims and counterclaims, the arbitrators may award the prevailing Party an appropriate percentage of the costs and attorneys' fees reasonably incurred by the prevailing Party in connection with the arbitration.
(f) The arbitrators are not empowered to award punitive or exemplary damages, and the Parties waive any right to recover any such damages.
(g) Unless the Parties otherwise agree in writing, during the period of time that any arbitration proceeding is pending under this Agreement, (i) the Parties shall continue to comply with all those terms and provisions of this Agreement that are not the subject of the pending arbitration proceeding; and (ii) in the event that the subject of the dispute relates to the exercise by a Party of a termination right hereunder, including in the case of a material breach of this Agreement, the effectiveness of such termination shall be stayed until the conclusion of the proceedings under this Section 15.6.
(h) Notwithstanding the foregoing, any dispute, controversy or claim relating to the scope, validity, enforceability or infringement of any Patent Rights or Trademark covering the manufacture, use, importation, offer for sale or sale of Products shall be submitted to a court of competent jurisdiction in the country in which such Patent Rights or Trademark were granted or arose. 78
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(i) Notwithstanding anything to the contrary in Section 15.6(c), any dispute relating to the ownership of any Program Invention shall be finally adjudicated, according to U.S. patent law, by an independent U.S. patent counsel with appropriate expertise that is jointly appointed by Sanofi and RevMed. Some adjudication shall be completed within [***] after such counsel is appointed, and such counsel must be appointed within [***] after submission of the issue for resolution.
(j) Nothing in this Section 15.6 will preclude either Party from seeking equitable relief or interim or provisional relief from a court of competent jurisdiction, including a temporary restraining order, preliminary injunction or other interim equitable relief, either prior to or during any arbitration.
15.7 Rights in Bankruptcy. All rights and licenses granted under or pursuant to this Agreement by Sanofi or RevMed are and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction, licenses of right to intellectual property as defined under Section 101 of the U.S. Bankruptcy Code. The Parties agree that the Parties, as licensees of such rights under this Agreement, shall retain and may fully exercise all of their rights and elections under the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction. The Parties further agree that, in the event of the commencement of a bankruptcy proceeding by or against either Party under the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction, the Party hereto that is not a Party to such proceeding shall be entitled to a complete duplicate of (or complete access to, as appropriate) any such intellectual property and all embodiments of such intellectual property, which, if not already in the non-subject Party's possession, shall be promptly delivered to it (i) upon any such commencement of a bankruptcy proceeding upon the non-subject Party's written request therefor, unless the Party subject to such proceeding elects to continue to perform all of its obligations under this Agreement or (ii) if not delivered under clause (i) above, following the rejection of this Agreement by or on behalf of the Party subject to such proceeding upon written request therefor by the non-subject Party. The Parties acknowledge and agree that payments made under Section 9.1 and Section 9.2 or pursuant to the Co-Promotion Agreement shall not (x) constitute royalties within the meaning of Section 365(n) of the U.S. Bankruptcy Code or any analogous provisions in any other country or jurisdiction or (y) relate to licenses of intellectual property hereunder.
15.8 No Action. In no event shall either Party be obligated under the Agreement to take any action or omit to take any action that such Party believes, in good faith, would cause it to be in violation of any Applicable Law.
15.9 Entire Agreement; Amendments. This Agreement, together with the Correspondence and the Exhibits hereto and thereto, contains the entire understanding of the Parties with respect to the collaboration and the licenses granted hereunder. Any other express or implied agreements and understandings, negotiations, writings and commitments, either oral or written, in respect to the collaboration and the licenses granted hereunder are superseded by the terms of this Agreement. The Exhibits to this Agreement and the Correspondence are incorporated herein by reference and shall be deemed a part of this Agreement. This Agreement may be amended, or any term hereof modified, only by a written instrument duly executed by authorized representatives of both Parties hereto. The Parties agree that, effective as of the Effective Date, 79
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
that certain Confidentiality Agreement between an Affiliate of Sanofi and RevMed dated as of June 21, 2017, as amended (Confidentiality Agreement) shall be superseded by this Agreement, and that disclosures made prior to the Effective Date pursuant to the Confidentiality Agreement shall be subject to Article XI.
15.10 Exhibits/Ancillary Agreements. In the event there is a conflict or inconsistency between or among the terms of this Agreement, the terms of the Correspondence, the terms of any Exhibit hereto or thereto, or the terms of any Ancillary Agreement, the order of precedence for resolution of such conflict or inconsistency in descending order shall be as follows: (i) this Agreement, (ii) the Correspondence, (iii) any Exhibit or Schedule of this Agreement or the Correspondence; (iii) any Ancillary Agreement; and (iv) any exhibit or schedule of any Ancillary Agreement.
15.11 Headings. The captions to the several Articles, Sections, subsections and Exhibits hereof are not a part of this Agreement, but are merely for convenience to assist in locating and reading the several Articles, Sections, subsections and Exhibits hereof.
15.12 Independent Contractors. It is expressly agreed that RevMed and Sanofi shall be independent contractors and that the relationship between the two Parties shall not constitute a partnership, joint venture or agency. Neither RevMed nor Sanofi shall have the authority to make any statements, representations or commitments of any kind, or to take any action, which shall be binding on the other Party, without the prior written consent of the other Party.
15.13 Waiver. The waiver by either Party hereto of any right hereunder, or of any failure of the other Party to perform, or of any breach by the other Party, shall not be deemed a waiver of any other right hereunder or of any other breach by or failure of such other Party whether of a similar nature or otherwise.
15.14 Cumulative Remedies. No remedy referred to in this Agreement is intended to be exclusive, but each shall be cumulative and in addition to any other remedy referred to in this Agreement or otherwise available under law.
15.15 Waiver of Rule of Construction. Each Party has had the opportunity to consult with counsel in connection with the review, drafting and negotiation of this Agreement. Accordingly, the rule of construction that any ambiguity in this Agreement shall be construed against the drafting Party shall not apply.
15.16 Business Day Requirements. In the event that any notice or other action or omission is required to be taken by a Party under this Agreement on a day that is not a Business Day then such notice or other action or omission shall be deemed to be required to be taken on the next occurring Business Day.
15.17 Translations. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the Parties. All communications and notices to be made or given pursuant to this Agreement, and any dispute proceeding related to or arising hereunder, shall be in the English language. If there is a discrepancy between any translation of this Agreement and this Agreement, this Agreement shall prevail. 80
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
15.18 Further Actions. Each Party agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts, as necessary or appropriate in order to carry out the purposes and intent of this Agreement.
15.19 Counterparts. This Agreement may be executed in two or more counterparts by original signature, facsimile or PDF files, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 81
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
IN WITNESS WHEREOF, the Parties intending to be bound have caused this Collaborative Research, Development and Commercialization Agreement to be executed by their duly authorized representatives as of the Effective Date. Revolution Medicines, Inc. Aventis, Inc.
By: /s/ Mark A. Goldsmith, M.D., Ph.D. By: /s/ Douglas J. McCormack Name: Mark A. Goldsmith, M.D., Ph.D. Name: Douglas J. McCormack Title: President & Chief Executive Officer Title: Vice President
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
Aventis, Inc. c/o Sanofi 50 Binney Street Cambridge, MA 02142
August 24, 2018
Revolution Medicines, Inc. 700 Saginaw Dr. Redwood City, CA 94063 Attention: General Counsel
Re: Amendment to Collaborative Research, Development and Commercialization Agreement
Dear Revolution Medicines, Inc.:
Reference is hereby made to that certain Collaborative Research, Development and Commercialization Agreement (the Collaboration Agreement), dated as of June 8, 2018, by and between Revolution Medicines, Inc. (RevMed) and Aventis, Inc. (Sanofi). Capitalized terms used but not defined in this letter agreement (this Letter) shall have the meanings assigned to them in the Collaboration Agreement.
Each of RevMed and Sanofi acknowledges and agrees as follows:
1. Amendment to Section 6.5 of the Collaboration Agreement. The first sentence of Section 6.5 of the Collaboration Agreement is hereby amended and restated in its entirety as follows:
Following the Effective Date, but in any case prior to the Initiation of the first Clinical Trial sponsored by Sanofi for a Product, the Parties shall enter into a pharmacovigilance agreement setting forth the worldwide pharmacovigilance procedures for the Parties with respect to the Products, such as safety data sharing, adverse events reporting and safety profile monitoring (the Pharmacovigilance Agreement).
2. No Other Amendments. This Letter shall be deemed to be a part of and incorporated into the Collaboration Agreement. In the event of a conflict between this Letter and the Collaboration Agreement, this Letter shall control. Except as expressly set forth in this Letter, all of the terms and conditions of the Collaboration Agreement shall remain unchanged and are ratified and confirmed in all respects and remain in full force and effect.
3. Entire Agreement. This Letter, together with the Collaboration Agreement and any exhibits or attachments thereto (including, without limitation, the Correspondence and the Exhibits thereto), constitutes the entire agreement between the Parties regarding the subject matter hereof, and any reference to the Collaboration Agreement shall refer to the Collaboration Agreement, as amended by this Letter.
4. Counterparts. This Letter may be executed in one (1) or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
5. Governing Law. This Letter shall be governed by and construed in accordance with the laws of the State of New York without reference to any rules of conflict of laws.
[Remainder of Page Intentionally Left Blank]
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
Please indicate your agreement by countersigning in the space provided below and returning a copy to my attention.
Sincerely,
Aventis, Inc. By: /s/ Douglas J. McCormack Name: Douglas J. McCormack Title: Vice President
Acknowledged and Agreed:
Revolution Medicines, Inc. By: /s/ Mark A. Goldsmith Name: Mark A. Goldsmith Title: Chief Executive Officer
[Signature Page to Letter Agreement]
Source: REVOLUTION MEDICINES, INC., S-1, 1/17/2020
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Output: 240339
Input: Consider Input: Exhibit 10.3 Execution Version GWG HOLDINGS, INC., AND THE TRUST ADVISORS TO THE SELLER TRUSTS LISTED ON SCHEDULE A HERETO ORDERLY MARKETING AGREEMENT December 27, 2018
ORDERLY MARKETING AGREEMENT THIS ORDERLY MARKETING AGREEMENT (the OMA) is entered into on December 27, 2018 (the Effective Date) by and among GWG Holdings, Inc., a Delaware corporation (GWG), and the Trust Advisors to the Seller Trusts listed on Schedule A hereto (the Trust Advisors), and any other person or entity that becomes a party to this Agreement by executing and delivering a joinder hereto in the form attached as Exhibit A. Each of GWG and the Trust Advisors may be referred to herein as a Party and collectively as the Parties. WHEREAS, on January 18, 2018, GWG, the Trust Advisors and certain other entities entered into that certain Amended and Restated Master Exchange Agreement, with effect from January 12, 2018, as amended from time to time (the Master Agreement); and WHEREAS, the Trust Advisors are at all times acting hereunder as the representatives of and for the benefit of each Seller Trust named in the Master Agreement; WHEREAS, pursuant to Section 8.6 of the Master Agreement, GWG and the Trust Advisors agree to negotiate in good faith the terms of an agreement with one or more nationally recognized bulge bracket investment banks for the orderly marketing and resale of certain shares (the Shares) of common stock, par value $0.001 per share (the Stock) of GWG issued in reliance upon available exemptions from the Securities Act of 1933, as amended (the Act), under the terms of the Master Agreement to such Seller Trusts for the purpose of facilitating the establishment of a broader shareholder base and creating on-going liquidity in Stock; WHEREAS, contemporaneous with the execution of this OMA, the Trust Advisors and certain other entities are entering into a registration rights agreement (the Registration Rights Agreement) pursuant to which GWG is agreeing to file a registration statement on Form S-1 or other appropriate form (the Registration Statement) with the Securities and Exchange Commission (SEC) for the public offering of the Shares; WHEREAS, the entry into this OMA is a condition to the obligation of each of GWG and the Seller Trusts to consummate the various transactions contemplated by the Master Agreement; NOW, THEREFORE, FOR GOOD AND VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: Section 1. Orderly Marketing. 1.1 The shares of Stock held by each Seller Trust and subject to this OMA shall be as set out on Schedule A hereto, which Schedule may be amended from time to time in writing by the Parties in accordance with Section 4.1 below. 1.2 It is the goal of the Seller Trusts to have all of the Shares sold, on a pro-rata basis, in three or more tranches (each a Tranche) commencing not earlier than six (6) months after the Effective Date with the resale of all of the shares of Stock completed as soon as practicable after the Effective Date.
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1.3 [Reserved]. 1.4 The Seller Trusts and GWG intend to retain one or more nationally recognized bulge bracket investment banks (the Bank) for the orderly marketing and resale of Shares pursuant to a separate engagement letter (the Engagement Letter) to advise them in connection with the sale of the Tranches (together, the Offerings). Such Engagement Letter shall include customary representations, warranties, covenants and indemnification provisions. The services to be performed by the Bank shall be set forth in such Engagement Letter and are expected to include, among others: (a) assisting in the drafting and preparation of one or more prospectus supplements describing GWG, the Shares and the terms of the Offerings; (b) advising the Seller Trusts on a marketing and distribution strategy for each Tranche of Shares, including whether a particular Tranche should be sold through a block trade, overnight bookbuild, or similar transaction; (c) assisting GWG in preparing marketing materials and conducting one or more roadshows and meetings with potential purchasers of the Shares; (d) advising the Seller Trusts as to the timing, structure and pricing of the Offerings; (e) providing other advisory services as are customary for similar transactions. The Engagement Letter shall include a requirement that, prior to any distribution of Stock by the Bank as contemplated by this Agreement, the Bank shall consult with each of GWG and the Trust Advisors as to the strategy for the marketing, sale and distribution of the respective Tranche. 1.5 After the Parties have agreed on the strategy for the marketing, sale and distribution of a Tranche, the Seller Trusts shall offer the Bank the right to serve as the lead left joint-book-running manager in connection with a best efforts distribution. GWG shall be entitled to appoint, in its discretion, an additional bank as joint book-running manager to participate in the distribution. The Seller Trusts further agree that in the event the Bank accepts such role it will be paid customary fees for the performance of its services in connection with such transactions and that such engagement will involve the execution of a standard form agreement with respect to the distribution of each Tranche, which may be in the form of a placement agency agreement, underwriting agreement or other appropriate agreement (each, a Distribution Agreement); provided, however, that nothing contained in this OMA or Engagement Letter shall require the Bank to underwrite or purchase all or any portion of a Tranche of Stock for its own account. Notwithstanding the foregoing, it is understood and agreed that the Bank or its affiliates may, solely at its discretion and without any obligation to do so, purchase Stock in any Tranche as principal.
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1.6 Each such Distribution Agreement shall set out the customary terms and conditions for the sale and distribution of the respective Tranche, including customary representations, warranties, covenants and indemnification provisions. For the avoidance of doubt, each Distribution Agreement shall include provisions to the following effect: (i) GWG shall have no responsibility for the payment of fees or commissions payable to the Bank, which fees and commissions shall be the responsibility of certain affiliates of the Seller Trusts as set forth in the applicable Distribution Agreement; and (ii) each of GWG and the Seller Trusts shall agree to provide a customary indemnity in favor of the Bank and its affiliates. 1.7 If, in connection with the marketing, sale and distribution of a Tranche, the Bank determines that the number of Shares of Stock proposed to be included in the Tranche exceeds the number that can reasonably be sold, then the number of Shares of Stock shall be reduced accordingly on a pro-rata basis with respect to each of the Seller Trusts. 1.8 Prior to the offering of each Tranche, GWG shall provide the placement agents or underwriters in such Offering a list of the top 100 institutional holders of the Common Stock. In connection with any Offering, the Seller Trusts shall instruct the placement agents or underwriters to use their reasonable best efforts to (i) effect as wide a distribution of the Shares as is reasonably practicable without adversely affecting the pricing thereof and (ii) not sell any Shares to any person or Group (as such terms is used in Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) who, upon completion of the Offering, would have Beneficial Ownership (as defined in Rule 13d-3 under the Exchange Act) of shares of Common Stock representing in the aggregate 5.0% or more the total number of outstanding shares of Common Stock (or in the case of a person of the type described in Rule 13d-1(b)(1)(i) under the Exchange Act, 10% or more of the Total Voting Power). Section 2. Compensation. The Engagement Letter shall provide that the Bank shall not be entitled to any compensation for its advice hereunder or reimbursement of its expenses in connection with this OMA and shall only be entitled to compensation in connection with an Offering as provided in the Engagement Letter and related Distribution Agreement with respect to such Offering. Section 3. [Reserved] Section 4. General Provisions. 4.1 Term; Termination; Withdrawal of Bank. (a) This OMA shall expire upon the earlier of (i) the first anniversary of the Effective Date and (ii) the date that all Shares of Stock of the Seller Trusts as set forth on Schedule A hereto have been sold (the Term). Notwithstanding the foregoing, this OMA may be terminated with or without cause at any time after the Effective Date and without liability or continuing obligation by any of the Parties hereto (i) by mutual written agreement of all of the Parties; and (ii) in writing by the Trust Advisors in their sole discretion.
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(b) The Engagement Letter shall provide that the Bank may terminate its engagement at any time upon not less than 45 days' prior written notice to the other Parties. In the event the Bank provides such notice at any time prior to the sale of greater than 50% of the Shares and within 12 months of the Effective Date, then GWG and the Trust Advisors may elect (A) to terminate this OMA or (B) to continue this OMA and to seek to appoint a substitute investment bank, in which case GWG, after consultation with the Trust Advisors, shall be entitled to appoint a substitute investment bank to serve as the lead joint-book-running manager for the sale of the Shares. In the event the Bank terminates the Engagement Letter at any time following the sale of greater than 50% of the Shares and within 12 months of the Effective Date, the termination thereof shall constitute a concurrent Termination of this OMA. 4.2 Amendments and Waivers. This OMA may be amended or modified in whole or in part, only by duly authorized agreement in writing executed by each of the Parties. 4.3 Notices. All notices and other communications among the Parties shall be in writing and shall be deemed to have been duly given (i) when delivered in person, (ii) when delivered after posting in the United States mail having been sent registered or certified mail return receipt requested, postage prepaid, (iii) when delivered by FedEx or other nationally recognized overnight delivery service or (iv) when received by facsimile or email (provided that a copy is subsequently delivered by one of the other methods permitted in (i) through (iii) of this Section 4.3), addressed as follows: If to GWG: 220 S. Sixth Street, Suite 1200 Minneapolis, MN 55402 Attention: Jon R. Sabes, CEO Email: jsabes@gwglife.com If to the Trust Advisors on behalf of the Seller Trusts: Jeffrey S. Hinkle Murray T. Holland As Trust Advisors to Each of the Seller Trusts set forth on Schedule A hereto c/o The Beneficient Company Group, L.P. 325 N. St. Paul Street, Suite 4850 Dallas, Texas 75201 Email: jhinkle@beneficient.com; mholland@mhtpartners.com
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4.4 Assignments and Transfers by Seller Trusts. The provisions of this OMA shall be binding upon and inure to the benefit of the Seller Trusts and their respective successors and assigns. A Seller Trust may transfer or assign, in whole or from time to time in part, to one or more liquidating trusts its rights hereunder in connection with the transfer or resale of Stock held by such Seller Trust, provided that such Seller Trust complies with all laws applicable thereto and provides written notice of assignment to GWG promptly after such assignment is effected, and provided further that such liquidating trust and each beneficiary thereof executes a joinder to this OMA effective as of the date of such assignment or transfer. 4.5 Counterparts. This OMA may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 4.6 Severability. Any provision of this OMA that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if it were written so as to be enforceable to the maximum extent permitted by applicable law, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by applicable law, the Parties hereby waive any provision of law which renders any provisions hereof prohibited or unenforceable in any respect. 4.7 Further Assurances. The Parties shall execute and deliver all such further instruments and documents and take all such other actions as may reasonably be required to carry out the transactions contemplated hereby and to evidence the fulfillment of the agreements herein contained. 4.8 Entire Agreement. This OMA is intended by the Parties as a final expression of their agreement and intended to be a complete and exclusive statement of the agreement and understanding of the Parties hereto in respect of the subject matter contained herein. This OMA supersedes all prior agreements and understandings between the Parties with respect to such subject matter. 4.9 Governing Law; Consent to Jurisdiction; Waiver of Jury Trial. This OMA, and all claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to this OMA or the negotiation, execution or performance of this OMA (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this OMA), will be construed in accordance with and governed by the law of the State of New York without regard to principles of conflicts of laws that would result in the application of the law of any other jurisdiction. Any action against any Party relating to the foregoing shall be brought in any federal or state court of competent jurisdiction located within the State of New York, and the Parties hereto hereby irrevocably submit to the non-exclusive jurisdiction of any federal or state court located within the State of New York over any such action. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the Parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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EACH PARTY TO THIS AGREEMENT HEREBY WAIVES, AND AGREES TO CAUSE ITS AFFILIATES TO WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (A) ARISING UNDER THIS AGREEMENT OR (B) IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES HERETO IN RESPECT OF THIS AGREEMENT OR ANY OF THE TRANSACTIONS RELATED HERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER IN CONTRACT, TORT, EQUITY OR OTHERWISE. EACH PARTY TO THIS AGREEMENT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT THE PARTIES TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OF A COPY OF THIS AGREEMENT WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY. 4.10 Certain Representations of the Parties. Each of the Parties hereto represents, several and not jointly, that it has taken all action required of it to duly authorize this OMA and that no further action or approval is required on its behalf and, when executed and delivered, this OMA constitutes a valid and binding obligation of such Party, enforceable in accordance with its terms. 4.11 Further Assurances. Each Party agrees to take such further action that may be reasonably required of it, and to execute such documents or instruments, in order to effectuate the transactions contemplated by this OMA. 4.12 Seller Trusts and Trust Advisors. It is expressly understood and agreed that (a) this document is executed and delivered by Delaware Trust Company, not individually or personally, but solely as Trustee, pursuant to direction from the Trust Advisors and in the exercise of the powers and authority conferred and vested in Delaware Trust Company as Trustee pursuant to the Trust Agreements of the Seller Trusts (the Trust Agreements) and the Trustee is governed by and subject to the Trust Agreements and entitled to the protections, rights and benefits contained therein, (b) each of the representations, undertakings and agreements herein made on the part of the Seller Trusts and Trust Advisors is made and intended not as personal representations, undertakings and agreements by Delaware Trust Company but is made and intended for the purpose for binding only the Seller Trusts and respective trust estates (the Seller Trust Assets), (c) nothing herein contained shall be construed as creating any liability on Delaware Trust Company, individually or personally, to perform any covenant either expressed or implied contained herein, all such liability, if any, being expressly waived by the parties hereto and by any person claiming by, through or under the parties hereto, (d) under no circumstances shall Delaware Trust Company be personally liable for the payment of any indebtedness or expenses of the Seller Trusts or Trust Advisors or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Seller Trusts or Trust Advisors under this Agreement or any other related documents, and (e) under no circumstances shall the Trust Advisors be personally liable for the payment of any indebtedness or expenses or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken under this Agreement, all such recourse being strictly to the Seller Trust Assets. [Remainder of Page Intentionally Left Blank; Next Page is Signature Page]
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IN WITNESS WHEREOF, the Parties hereto have executed this OMA as of the date first set forth above. GWG HOLDINGS, INC. By: /s/ Jon R. Sabes Name: Jon R. Sabes, CEO THE LT-1 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-2 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President
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THE LT-3 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-4 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-5 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-6 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President
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THE LT-7 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-8 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-9 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-12 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President
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THE LT-13 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-14 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-15 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-16 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President
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THE LT-17 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-18 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-19 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-20 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President
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THE LT-21 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-22 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-23 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-24 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President
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THE LT-25 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President THE LT-26 EXCHANGE TRUST, By: DELAWARE TRUST COMPANY, not in its individual capacity but solely as Trustee By: /s/ Alan R. Halpern Name: Alan R. Halpern Title: Vice President MURRAY T. HOLLAND, as Trust Advisor /s/ MURRAY T. HOLLAND JEFFREY S. HINKLE, as Trust Advisor /s/ JEFFREY S. HINKLE
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SCHEDULE A List of Seller Trusts and Shares of Stock
Name of Record Holder Number of Shares The LT-1 Exchange Trust 1,397,705 The LT-2 Exchange Trust 1,396,863 The LT-3 Exchange Trust 2,563,777 The LT-4 Exchange Trust 2,537,152 The LT-5 Exchange Trust 2,516,313 The LT-6 Exchange Trust 2,535,832 The LT-7 Exchange Trust 2,526,515 The LT-8 Exchange Trust 2,536,840 The LT-9 Exchange Trust 404,110 The LT-12 Exchange Trust 80,402 The LT-13 Exchange Trust - The LT-14 Exchange Trust 204,064 The LT-15 Exchange Trust 63,834 The LT-16 Exchange Trust 920,349 The LT-17 Exchange Trust 39,347 The LT-18 Exchange Trust 81,860 The LT-19 Exchange Trust 224,917 The LT-20 Exchange Trust 4,601 The LT-21 Exchange Trust 555,751 The LT-22 Exchange Trust 555,750 The LT-23 Exchange Trust 1,466,884 The LT-24 Exchange Trust 1,466,883 The LT-25 Exchange Trust 1,466,884 The LT-26 Exchange Trust 1,466,883
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EXHIBIT A FORM OF JOINDER The undersigned is executing and delivering this Joinder Agreement pursuant to that certain Orderly Marketing Agreement, dated as of December [___], 2018 (as amended, restated, supplemented or otherwise modified in accordance with the terms thereof, the OMA), by and among GWG Holdings, Inc., the Trust Advisors to the Seller Trusts listed on Schedule A thereto, and the Priority Holders listed on Schedule B thereto, and any other person or entity that becomes a party to the OMA in accordance with the terms thereof. Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to such terms in the OMA. By executing and delivering this Joinder Agreement to the OMA, the undersigned hereby agrees, effective commencing on the date hereof, to become a party to, and to be bound by and comply with the provisions of, the OMA applicable to it as a holder of Shares, in the same manner as if the undersigned were an original signatory to the OMA. The undersigned acknowledges and agrees that Section 4.1 through Section 4.11 of the OMA are incorporated herein by reference, mutatis mutandis. [Remainder of page intentionally left blank; signature appears on next page]
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Accordingly, the undersigned have executed and delivered this Joinder Agreement as of the ____ day of ________________, _____. Name: [HOLDER/TRANSFEREE] By: Name: Title: Notice Information Address: Telephone: Facsimile: Email: AGREED AND ACCEPTED as of the day of , . GWG HOLDINGS, INC. By: Name: Title: [TRANSFEROR (if applicable)] By: Name: Title:
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Question: Highlight the parts (if any) of this contract related to Termination For Convenience that should be reviewed by a lawyer. Details: Can a party terminate this contract without cause (solely by giving a notice and allowing a waiting period to expire)?
Output: 8664
Input: Consider Input: Exhibit 10.12
[***] Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and would likely cause competitive harm to the registrant if publicly disclosed.
Execution Version
COLLABORATION AGREEMENT
This COLLABORATION AGREEMENT (this Agreement), effective as of September 13th, 2019 (Effective Date), is between Ginkgo Bioworks, Inc., a Delaware corporation with offices located at 27 Drydock Avenue, 8th floor, Boston, Massachusetts 02210 (Ginkgo), and Berkeley Lights, Inc., a Delaware corporation with offices located at 5858 Horton Street, Suite 320, Emeryville, California 94608 (BLI). Ginkgo and BLI may each be referred to herein as a Party or, collectively, as the Parties.
WHEREAS, BLI and Ginkgo are committed to the goal of developing and deploying workflows on the Beacon Platform to accelerate the engineering of microbial organisms and mammalian cell lines, including by developing new Workflows (as defined below) for use on the Beacon Platform for the Parties' mutual benefit (the Purpose); and
WHEREAS, in furtherance of the Purpose, BLI and Ginkgo have decided to enter into this Agreement, including mutually agreed upon Workflow Development Plans, which establish the terms by which Ginkgo and BLI will work together to bring their unique resources and experiences to bear on the Purpose.
NOW THEREFORE, in consideration of the above premises and the mutual covenants contained herein, the Parties hereby agree as follows: 1. DEFINITIONS
1.1 Affected Party has the meaning set forth Section 14.8 (Force Majeure).
1.2 Affiliate means with respect to a Party, any Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with that Party, for so long as such control exists. For purposes of this definition only, control and, with correlative meanings, the terms controlled by and under common control with means: (a) in the case of Persons that are corporate entities, direct or indirect ownership of more than fifty percent (50%) of the stock or shares (or such lesser percentage which is the maximum allowed to be owned by a foreign corporation in a particular jurisdiction) entitled to vote for the election of directors, or otherwise having the power to control or direct the affairs of such corporate entity; and (b) in the case of Persons that are non-corporate entities, direct or indirect ownership of at least fifty percent (50%) of the equity interest or the power to direct the management and policies of such non-corporate entity.
1.3 Agreement has the meaning set forth in the Preamble.
1.4 [***] means [***]. These include [***]. For clarity, [***] does not include [***].
1.5 Alliance Manager has the meaning set forth in Section 3.7 (Alliance Managers).
1.6 Antibody means a soluble protein derived exclusively from an immunoglobulin protein that includes at least one hyper-variable antigen- binding region, including any fragment [***] of such protein, but, for clarity, excluding (i) [***] and (ii) [***].
1.7 Applicable Law means federal, state, local, national and supra-national laws, statutes, rules and regulations, including any rules, regulations, regulatory guidelines or other requirements of Regulatory Authorities, major national securities exchanges or major securities listing organizations, that may be in effect from time to time during the Term and applicable to a particular activity or country hereunder.
1.8 Arbitration Notice has the meaning set forth in Section 14.5.2 (Dispute Resolution).
1.9 Beacon Optofluidic Machine Improvement means any improvement or modification to the Beacon Optofluidic Machine conceived, developed, generated or reduced to practice during the Term (a) solely by a Party, its Affiliates or Persons acting on behalf of such Party or (b) jointly by, on one hand, Ginkgo, its Affiliates or Persons acting on behalf of Ginkgo and, on the other hand, BLI, its Affiliates or Persons acting on behalf of BLI, in each case of clauses (a) and (b) of this Section 1.9 (Beacon Optofluidic Machine Improvement definition) through the conduct of activities under a Workflow Development Plan or otherwise arising out of the Parties' performance of activities under this Agreement.
1.10 Beacon Optofluidic Machine means (i) the machine with the Specifications set forth, as of the Effective Date, on Schedule 1.10 (Beacon Optofluidic Machine) and (ii) [***] and, with respect to (i)-(ii), any [***] of such machines, developed during the Term by BLI or its Affiliates that [***].
1.11 Beacon Platform means, collectively, (a) the Beacon Optofluidic Machine, (b) the OptoSelect Chips, (c) Consumables related to the Beacon Optofluidic Machine or the OptoSelect Chips and (d) any Software.
1.12 BLI has the meaning set forth in the Preamble.
1.13 BLI Background IP means any Intellectual Property (a) Controlled by BLI or its Affiliates as of the Effective Date, (b) that comes into the Control of BLI after the Effective Date other than by means of this Agreement or the activities performed hereunder or (c) developed during the Term by BLI outside and independently of this Agreement.
1.14 BLI Indemnitee has the meaning set forth in Section 12.2 (Indemnification by Ginkgo).
1.15 BLI Inventions has the meaning set forth in Section 8.2.2 (Ownership of Materials and Data - BLI Inventions).
1.16 BLI Proprietary Workflow means any workflow on the Beacon Platform that was developed by or on behalf of BLI prior to the Effective Date or is developed during the Term in the conduct of activities outside and independent of this Agreement (including, for clarity, outside of any Workflow Development Plan), in each case whether solely by BLI or jointly by BLI and a Third Party. Page 2 of 85
1.17 BLI Subcontractor means a Person to whom BLI has subcontracted any of its activities under this Agreement pursuant to Section 2.7 (Subcontracting).
1.18 BLI Terms and Conditions means those terms and conditions set forth in Schedule 1.18 (BLI Terms and Conditions) and the Product Warranty, as such may be amended from time to time by BLI, [***].
1.19 Budget means, with respect to a Workflow Development Plan, an itemized budget broken down on a [***] and high-level task-by-high-level task basis [***], that sets forth the following internal and out-of-pocket costs anticipated to be incurred in the conduct of activities under such Workflow Development Plan, to the extent applicable and mutually agreed upon by the Parties:
1.19.1 the FAS Support Costs for services provided by any FAS under such Workflow Development Plan;
1.19.2 other FTE Costs for BLI's personnel in the conduct of activities under, or [***] under, such Workflow Development Plan, including BLI personnel conducting development of Software for the Workflow under such Workflow Development Plan; provided that, with respect to the FTE Costs for BLI's personnel providing [***] under a Workflow Development Plan, such FTE Costs shall not exceed [***] percent ([***]%) of the total FTE Costs charged to Ginkgo with respect to any invoice;
1.19.3 the out-of-pocket development ([***]) costs paid by BLI to Third Parties to purchase finished Consumables that are developed and designated as a deliverable under a Workflow Development Plan or raw materials necessary to manufacture Consumables that are developed and designated as a deliverable under a Workflow Development Plan , in each case from such Third Parties for the Beacon Platform, subject to a [***] percent ([***]%) mark-up;
1.19.4 with respect to any then-existing Consumables (i.e. not Consumables for which development or manufacture is ongoing as described in Section 1.19.3), an amount equal to the number of units used in the performance of the Workflow Development Plan, multiplied by a price per unit of Consumables as set forth in Section 5.2.2(b) (Adjustments); and
1.19.5 other out-of-pocket costs paid by BLI to permitted Third Party subcontractors and vendors attributable to the development of the Workflow or Hardware under such Workflow Development Plan, [***].
1.20 Business Day means any day, other than a Saturday, Sunday or a day on which commercial banks located in Boston, Massachusetts or San Francisco, California are authorized or required by Applicable Law or regulation or otherwise to close. Page 3 of 85
1.21 Buy-Down Amount means, at any given time of a Buy-Down Election, an amount equal to:
1.21.1 if, at such time, [***], [***] ([***]%) of the difference between (a) the Full Purchase Target and (b) the sum of all the Development Purchases and Production Purchases made or incurred by Ginkgo;
1.21.2 if, at such time, [***], [***] percent ([***]%) of the difference between (a) the Full Purchase Target and (b) the sum of all the Development Purchases and Production Purchases made or incurred by Ginkgo as of such time;
1.21.3 if, at such time, [***], [***] percent ([***]%) of the difference between (a) the Full Purchase Target and (b) the sum of all the Development Purchases and Production Purchases made or incurred by Ginkgo as of such time; and
1.21.4 if, at such time, [***], [***].
For illustrative purposes only, Schedule 1.21 (Buy-Down Examples) sets forth a table showing the calculated Buy-Down Amounts assuming [***] and [***].
1.22 Buy-Down Election has the meaning set forth in Section 7.3 (Buy-Down Election).
1.23 Calendar Quarter means the respective periods of three (3) consecutive calendar months ending on March 31, June 30, September 30 and December 31; provided that the first Calendar Quarter of the Term shall begin on the Effective Date and end on the last day of the then current Calendar Quarter and the last Calendar Quarter of the Term shall begin on the first day of such Calendar Quarter and end on the last day of the Term.
1.24 [***] means [***] that [***], including [***], by [***], whose [***].
1.25 [***] means the offering or performance of any services using the Beacon Platform, [***], to [***]:
1.25.1 [***];
1.25.2 [***]; or
1.25.3 [***];
provided that in no event shall [***] include the use of the Beacon Platform to (i) [***] or (ii) [***] but, for clarity, are not in any manner or form used as described in Sections 1.25.1, 1.25.2 or 1.25.3 above.
1.26 Change in Control means, with respect to a Person, (a) the acquisition, directly or indirectly, by a Person or group (whether in a single transaction or multiple transactions) of fifty percent (50%) or more of the voting power of such Person or of beneficial ownership of (or the right to acquire such beneficial ownership) fifty percent (50%) or more of the outstanding Page 4 of 85
equity or convertible securities of such Person (including by tender offer or exchange offer); (b) any merger, consolidation, share exchange, business combination, recapitalization or similar corporate transaction involving such Person (whether or not including one or more wholly owned subsidiaries of such Person) or (c) such Person sells or transfers to any Third Party, in one or more related transactions, properties or assets representing all or substantially all of such Person's consolidated total assets to which this Agreement relates.
1.27 Claims is defined in Section 12.1 (Indemnification by BLI).
1.28 Clinical Trial means a human clinical study conducted on sufficient numbers of human subjects that is designed to (a) establish that a product is reasonably safe for continued testing, (b) investigate the safety and efficacy of the product for its intended use, and to define warnings, precautions and adverse reactions that may be associated with the product in the dosage range to be prescribed or (c) support Regulatory Approval of such product or label expansion of such product. Without limiting the foregoing, Clinical Trial includes any Phase II Clinical Trial or Phase III Clinical Trial conducted by or on behalf of one or both Parties in connection with this Agreement.
1.29 Collaboration Data has the meaning set forth in Section 8.5.1 (Disclosure).
1.30 Collaboration Intellectual Property means [***], that is conceived, developed, generated or reduced to practice during the Term (a) solely by a Party, its Affiliates or Persons acting on behalf of such Party or (b) jointly by, on one hand, Ginkgo, its Affiliates or Persons acting on behalf of Ginkgo and, on the other hand, BLI, its Affiliates or Persons acting on behalf of BLI, in each case of clauses (a) and (b) of this Section 1.30 (Collaboration Intellectual Property definition) through the conduct of activities under this Agreement.
1.31 Collaboration Workflow means any Workflow on the Beacon Platform that [***] and is (a) developed jointly by the Parties (or on their behalf) or (b) developed solely by BLI (or on behalf of BLI) for Ginkgo, in each case of clause (a) and (b) of this Section 1.31 (Collaboration Workflow definition), pursuant to a Workflow Development Plan. For the avoidance of doubt, Collaboration Workflows shall not include [***].
1.32 Commercial Services means any [***] activities conducted by Ginkgo or any sublicensee under the rights granted to Ginkgo by BLI in Section 9.1.1 (Scope of Grants) in the Licensed Field (a) under an agreement or arrangement of Ginkgo or any such sublicensee with a Third Party or (b) for [***] that [***] by Ginkgo, an Affiliate or a Third Party; provided that, notwithstanding the foregoing, with respect to Third Parties, Workflows may only be [***] by Ginkgo permitted (under Section 9.1 (Grants to Ginkgo)) sublicensees, but no other Third Parties.
1.33 Completed Workflow means any Key Collaboration Workflow that the JRC or the Expert Panel, as applicable, determines has been Substantially Completed.
1.34 Confidential Information has the meaning set forth in Section 10.1 (Confidential Information). Page 5 of 85
1.35 Conforming Product means, with respect to a Beacon Optofluidic Machine or Consumable delivered by BLI to Ginkgo under this Agreement, that such Beacon Optofluidic Machine or Consumable meets the Product Warranty at the time of delivery.
1.36 Consumables means those certain OptoSelect Chips and reagents set forth on Schedule 1.36 (Consumables) or that, during the Term, [***] for the use of the Beacon Platform and are sold by BLI.
1.37 Contract Year means (a) with respect to the first Contract Year, the period of time commencing on the Effective Date and ending on September 30, 2020 and (b) with respect to each subsequent Contract Year, commencing on October 1 of such Contract Year and continuing for a period of twelve (12) consecutive calendar months; provided that the last Contract Year of the Term shall end on the last day of the Term.
1.38 Control means, with respect to any item of Intellectual Property or material, the possession (whether by ownership or license, other than by a license granted pursuant to this Agreement) by a Party or its Affiliates of the ability to grant to the other Party access, ownership, a license or a sublicense as required herein to such item, without: (a) violating the terms of any agreement or other arrangement with any Third Party in existence as of the time such Party or its Affiliates would be required hereunder to grant the other Party such access, ownership, license or sublicense; (b) violating any Applicable Law, or (c) incurring payment obligations by reason of providing access, ownership, a license or a sublicense to the other Party with respect thereto (unless such other Party agrees in writing to bear such payment obligations [***] to providing access, ownership, a license or a sublicense to such item by such other Party).
1.39 Development Purchase Commitment means, for a given Contract Year, the amount in the column named Development Purchase Commitment in Table 7.2.2 for such Contract Year, as may be amended from time to time under this Agreement.
1.40 Development Purchases means, during any period of time, the aggregate amount paid by Ginkgo to BLI for the conduct of activities under any Workflow Development Plan or otherwise under Section 2.4.2 (Costs under Workflow Development Plan - Payment) during such period of time.
1.41 Disclosing Party is defined in Section 10.1 (Confidential Information).
1.42 Discovered Antibody has the meaning set forth in Section 7.4.2 (Milestone Events).
1.43 Dollars means United States dollars ($).
1.44 Drug Approval Application means any New Drug Application (NDA), as defined in the FFDCA, or any corresponding foreign applications in the Territory, including (a) with respect to the European Union, a Marketing Authorization Application (a MAA) filed with the EMA pursuant to the Centralized Approval Procedure or with the applicable Regulatory Authority of a country in Europe with respect to the mutual recognition or any other regional or national approval procedure or (b) with respect to Japan, an MAA filed with the PMDA. Page 6 of 85
1.45 Effective Date has the meaning set forth in the Preamble.
1.46 EMA means the European Medicines Agency and any successor agency(ies) or authority having substantially the same function.
1.47 European Union or E.U. means the economic, scientific and political organization of member states known as the European Union, as its membership may be altered from time to time, and any successor thereto, except that, for purposes of this Agreement, the E.U. will be deemed to include [***] the United Kingdom, irrespective of whether any such country leaves the European Union.
1.48 Excluded Fields means the use of the Beacon Platform for:
1.48.1 [***];
1.48.2 [***];
1.48.3 [***];
1.48.4 [***];
1.48.5 [***]; and
1.48.6 [***].
1.49 Expert Panel has the meaning set forth in Section 3.5.3 (Decision-Making).
1.50 Expiration has the meaning set forth in Section 13.3.1 (General).
1.51 Extended Force Majeure Event has the meaning set forth Section 14.8 (Force Majeure).
1.52 Failure to Supply has the meaning set forth in Section 5.4.3(a) (Remedial Efforts).
1.53 FAS means a BLI Field Application Scientist providing [***] to Ginkgo related to a Workflow Development Plan or a Workflow either (a) at Ginkgo's facilities or (b) [***]; provided that, in the case of clause (b) of this Section 1.50 (FAS definition), such BLI Field Application Scientist must be specifically dedicated to development of Workflows on at least a part-time basis and identified as such in the Workflow Development Plan under this Agreement (such identification to include, in the case of part-time FAS, a specified percentage of dedication to Ginkgo [***]).
1.54 FAS Support Cost shall mean, with respect to any services provided by one or more FAS(s) to Ginkgo over a specified period of time, the amount equal to the aggregate of the applicable FAS Support Rates for such services during such period of time.
1.55 FAS Support Rate means, with respect to any services provided by a FAS pursuant to this Agreement to Ginkgo, the applicable rate (dependent on the length of support) for such services set forth in Schedule 5.2.1 (Pricing Schedule), subject to adjustment as set forth in Section 5.2.2(c) (Adjustments). Page 7 of 85
1.56 FDA means the United States Food and Drug Administration and any successor agency(ies) or authority having substantially the same function.
1.57 FFDCA means the United States Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended from time to time, together with any rules, regulations and requirements promulgated thereunder (including all additions, supplements, extensions, and modifications thereto).
1.58 Force Majeure Event has the meaning set forth in Section 14.8 (Force Majeure).
1.59 FOU License Fee has the meaning set forth in Section 7.4.1 (License Fees).
1.60 FTE means (a) with respect to any full-time employee of BLI, [***], who is [***] dedicated to the development of Workflows under this Agreement, a total of twelve (12) months of [***] work conducted by such employee or (b) with respect to any full-time employee of BLI that is not [***] dedicated to the development of Workflows under this Agreement, a full time equivalent effort consisting of a minimum of a total of [***] ([***]) hours per year of work [***] a Workflow Development Plan by such employee of a Party. In no event shall the work of one (1) employee exceed 1 full FTE.
1.61 FTE Costs means, with respect to any given activity or activities over any specified period of time, the number of FTEs conducting such activity or activities multiplied by the FTE Rate.
1.62 FTE Rate means the rates per annum, listed in Schedule 1.62 (FTE Rate), which rate includes certain allowable allocations and subject to increase on an annual basis as of January 1 of each year, beginning in 2020, by a factor which reflects the increase, if any, in the Consumer Price Index for [***], as reported by the U.S. Bureau of Labor Statistics, for January 1 of such year when compared to the comparable statistic for January 1 of the preceding year. For clarity, if there is no such increase in the CPI-[***], the FTE Rate shall remain the same and shall not decrease.
1.63 Full Purchase Target has the meaning set forth in Section 7.2.1 (Purchase Commitments - Generally).
1.64 Generalized Workflow means any Collaboration Workflow or component thereof that is designated as a Generalized Workflow by the Parties in a Workflow Development Plan or, if the Parties have made no designation, is not a Specific Implementation. By way of non-limiting example, Generalized Workflows would encompass Workflows or components thereof that are not Specific Implementations and are generally directed to and required to enable:
1.64.1 [***],
1.64.2 [***]; Page 8 of 85
1.64.3 [***];
1.64.4 [***];
1.64.5 [***]; or
1.64.6 [***].
For the purposes of Section 1.64.3 and Section 1.128, the following examples serve to illustrate the concept of a [***] (a) [***] (b) [***] and (c) [***]
1.65 Ginkgo has the meaning set forth in the Preamble.
1.66 Ginkgo Background IP means any Intellectual Property provided or otherwise disclosed to BLI under this Agreement or otherwise [***] for the performance of any activities allocated to BLI under a Workflow Development Plan that is (a) Controlled by Ginkgo or its Affiliates as of the Effective Date, (b) that comes into the Control of Ginkgo after the Effective Date other than by means of this Agreement or the activities performed hereunder, or (c) developed during the Term by Ginkgo [***].
1.67 Ginkgo Excluded Use has the meaning set forth in Section 9.1.6 (Use in Excluded Fields).
1.68 Ginkgo Indemnitee has the meaning set forth in Section 12.1 (Indemnification by BLI).
1.69 Ginkgo Inventions has the meaning set forth in Section 8.2 (Ownership of Ginkgo Inventions and BLI Inventions).
1.70 Ginkgo Licensed IP has the meaning set forth in Section 9.2 (Grants to BLI).
1.71 Ginkgo Materials has the meaning set forth in Section 8.2.1(d) (Ownership of Ginkgo Inventions and BLI Inventions).
1.72 Ginkgo Subcontractor means a Person to whom Ginkgo has subcontracted any of its activities under this Agreement pursuant to Section 2.7 (Subcontracting).
1.73 Ginkgo Workflows means Workflows on the Beacon Platform that are developed by [***]. For clarity, [***].
1.74 Go/No-Go Criteria has the meaning set forth in Section 2.2.1(g) (Workflow Development Plans - Generally).
1.75 Hardware means any and all hardware, equipment, devices, tools, apparatus, machinery, and electronics including, but not limited to, the Beacon Optofluidic Machine, computer and computer-related hardware, servers, networking equipment, interfaces, databases, support equipment, power supplies, wiring and associated equipment. Page 9 of 85
1.76 Headstart Invention means any (a) specific part or component of a [***] (other than any [***], including any [***]) or (b) [***] in its entirety, including [***], in each case, either (i) designated as a Headstart Invention in the applicable Workflow Development Plan or (ii) for which Ginkgo has provided, or is slated to provide, by reference to the applicable category of the Workflow Development Plan(s) as further described in Section 2.2.1(f) and Section 2.2.1(h), Development Purchase funding of greater than [***] percent ([***]%) of the Budget set forth in the applicable Workflow Development Plan(s). For clarity, in no event shall any improvements, modifications or other changes to the [***], whether [***] based, [***] or [***], deemed to be a Headstart Invention or be subject to a Headstart Period.
1.77 [***] means, [***] and [***] that [***] and (b) [***].
1.78 Headstart Period has the meaning set forth in Section 6.1.1 (BLI Standstill).
1.79 [***] means the offering or performance of any [***] services using the Beacon Platform, for commercial sale or otherwise, to [***]; provided that in no event shall [***] include (a) use of the Beacon Platform to [***] if the same does not [***] or (b) the [***] outside of the Beacon Platform.
1.80 [***] means the offering or performance of any [***] services using the Beacon Platform, for commercial sale or otherwise, for [***] applications to the extent specifically related to [***]; provided that in no event shall [***] include using the Beacon Platform to [***] if the same does not [***].
1.81 Incremental Withholding Taxes has the meaning set forth in Section 7.6 (Taxes).
1.82 IND means an application filed with a Regulatory Authority for authorization to commence Clinical Trials, including: (a) an Investigational New Drug Application as defined in the FFDCA or any successor application or procedure filed with the FDA; (b) any equivalent of a United States IND in other countries or regulatory jurisdictions (i.e., clinical trial application); and (c) all supplements, amendments, variations, extensions and renewals thereof that may be filed with respect to any of the foregoing.
1.83 Independent Development has the meaning set forth in Section 8.9 (Specific Implementation Restrictions).
1.84 Initial Workflows has the meaning set forth in Section 2.2.2 (Committed Workflows).
1.85 Initiation or Initiate means, with respect to a Clinical Trial, the first dosing of the first human subject or patient in such Clinical Trial.
1.86 Intellectual Property means all intellectual and industrial property, and all rights therein and thereto, including registration rights thereto, of any kind throughout the world, including Patent Rights, Software, ideas, data, inventions, discoveries, algorithms, formulas, compositions, configurations, specifications, sequences, product applications, formulations, assays, techniques, sketches, drawings, models, works of authorship, copyrights, recordings, moral Page 10 of 85
rights, mask works, design rights, trademarks, trade names, trade dress, service marks, logos, trade secrets, methods, processes, techniques, developments, know-how, and all other similar rights, whether or not registered or capable of being registered in any jurisdiction.
1.87 Intended End of Term means the later of (a) the seventh (7th) anniversary of the Effective Date and (b) the date determined to be the Intended End of Term under Section 7.2.2(d) (Effects of Tolling).
1.88 [***] has the meaning set forth in Section 14.5.2 (Dispute Resolution).
1.89 JRC or Joint Review Committee is defined in Section 3.1 (Joint Review Committee).
1.90 Key Collaboration Workflow means a Collaboration Workflow designated as a Key Collaboration Workflow by the JRC pursuant to Section 3.2.11 (JRC Responsibilities).
1.91 Key Person has the meaning set forth in Section 5.4.1(b) (Dedicated FTEs; Key Persons).
1.92 Lead Time means, with respect to a Beacon Optofluidic Machine (including related Hardware and Software), Consumable or Service, the Lead Time for such Beacon Optofluidic Machine, Consumable or Service as set forth in Schedule 1.92 (Lead Time) or as otherwise mutually agreed upon by the Parties in writing.
1.93 Licensed Field means any and all organisms, products, fields and uses other than the Excluded Fields.
1.94 Licensed Product means a [***] product within the Licensed Field, including (a) [***] or (b) [***] by such [***] described in clause (a) of this Section 1.94, in each case of ((a)-(b)), initially produced on the Beacon Platform or, if not initially produced on the Beacon Platform, is later [***] through use of the Beacon Platform, with respect to each, in the conduct of activities [***] to produce such a product.
1.95 List Price means, at any given time and for any Beacon Optofluidic Machine, Consumable or Service, the price for such Optofluidic Machine, Consumable or Service [***] at such time.
1.96 Losses has the meaning set forth in Section 12.1 (Indemnification by BLI).
1.97 MAA has the meaning set forth in Section 1.44 (Drug Approval Application).
1.98 [***] means [***].
1.99 Maximum Amount has the meaning set forth in Section 5.3.1 (Issuance).
1.100 Milestone Event has the meaning set forth in Section 7.4.2 (Milestone Payments). Page 11 of 85
1.101 Milestone Payment has the meaning set forth in Section 7.4.2 (Milestone Payments).
1.102 Minimum Cumulative Purchase Commitment means, with respect to a Contract Year, the amount set forth in the column Minimum Cumulative Purchase Commitment in Table 7.2.2 for such Contract Year, as such Minimum Cumulative Purchase Commitment may be amended from time to time under this Agreement.
1.103 NDA has the meaning set forth in Section 1.44 (Drug Approval Application).
1.104 OptoSelect Chips means those BLI microfluidic chips described in Schedule 1.104 (OptoSelect Chips) and any other BLI chip used on the Beacon Optofluidic Machine that is developed to execute Workflows.
1.105 Party and Parties has the meaning set forth in the Preamble.
1.106 Patent Rights means any and all (a) issued patents, (b) pending patent applications, including all provisional applications, substitutions, continuations, continuations-in-part, divisions and renewals, and all patents granted thereon, (c) patents-of-addition, reissues, reexaminations and extensions or restorations by existing or future extension or restoration mechanisms, including patent term adjustments, patent term extensions, supplementary protection certificates or the equivalent thereof, (d) inventor's certificates, (e) other forms of government-issued rights substantially similar to any of the foregoing and (f) United States and foreign counterparts of any of the foregoing.
1.107 Performance Service Plan shall mean the plan set forth in Schedule 1.107 (Performance Service Plan).
1.108 Permitted Subcontractor(s) means, individually or collectively, BLI Subcontractor(s) and Ginkgo Subcontractor(s).
1.109 Person means any natural person, corporation, unincorporated organization, partnership, association, joint stock company, joint venture, limited liability company, trust or government or any agency or administrative or political subdivision of any government, or any other entity.
1.110 Phase II Clinical Trial means a Clinical Trial, the principal purpose of which is to make a preliminary determination as to whether a pharmaceutical product is safe for it intended use and to obtain sufficient information about such product's efficacy, in a manner that is generally consistent with 21 CFR § 312.21(b), as amended (or its successor regulation), to permit the design of further Clinical Trials. For clarity, A Phase II Clinical Trial shall include any clinical trial that would or does satisfy the requirements of 21 C.F.R. § 312.21(b) or any comparable regulation outside the United States whether or not it is designated a Phase II Clinical Trial.
1.111 Phase III Clinical Trial means a pivotal Clinical Trial with a defined dose or a set of defined doses of a pharmaceutical product designed to ascertain efficacy and safety of such product, in a manner that is generally consistent with 21 CFR § 312.21(c), as amended (or its successor regulation), for the purpose of enabling the preparation and submission of a Drug Page 12 of 85
Approval Application. A Phase III Clinical Trial shall include any clinical trial that would or does satisfy requirements of 21 C.F.R. § 312.21(c) or any comparable regulation outside the United States., whether or not it is designated a Phase III Clinical Trial.
1.112 PMDA means Japan's Pharmaceuticals and Medical Devices Agency and any successor agency(ies) or authority having substantially the same function.
1.113 Preamble means the first, unnumbered paragraph of this Agreement.
1.114 Product Warranty means, with respect to any Beacon Optofluidic Machine or Consumable, that (a) the representations, warranties and covenants of BLI set forth in the applicable BLI Terms and Conditions (including the product warranties therein) are true with respect to such Beacon Optofluidic Machine or Consumable, (b) with respect to a Beacon Optofluidic Machine, installation and qualification of such Beacon Optofluidic Machines are in accordance with, and meet the standards of, BLI's then-existing [***], such standards to be at least as stringent as those set forth in [***] and (c) BLI does not have knowledge of any defect that would result in a [***] other than those defects [***] or the [***] or any reason that such Beacon Optofluidic Machine or each Consumable is [***].
1.115 Production Purchases means the sum of payments made by Ginkgo to BLI for:
1.115.1 purchases of Beacon Optofluidic Machines together with any associated freight, insurance, customs charges, tariffs or other transportation charges;
1.115.2 purchases of OptoSelect Chips and other Consumables used by the Beacon Platform outside of a Workflow Development Plan together with any associated freight, insurance, customs charges, tariffs or other transportation charges;
1.115.3 FAS or other BLI [***] personnel, as requested by Ginkgo, for general support services (including all payments for a Performance Service Plan), including [***] with respect to activities performed outside of a Workflow Development Plan;
1.115.4 [***];
1.115.5 [***]; and
1.115.6 any other amounts, including for [***] (including for Beacon Optofluidic Machines or any Consumable as applicable, properly charged and invoiced to Ginkgo and paid by Ginkgo under this Agreement in connection with the supply or provision of goods and services by BLI, which are not Development Purchases.
1.116 Purchase Order has the meaning set forth in Section 5.3.1 (Issuance).
1.117 Purpose shall have the meaning set forth in the first WHEREAS clause of this Agreement.
1.118 Receiving Party has the meaning set forth in Section 10.1 (Confidential Information). Page 13 of 85
1.119 Regulatory Approval means, with respect to a country in the Territory, any and all approvals (including Drug Approval Applications that have been approved by a Regulatory Authority), licenses, registrations or authorizations of any Regulatory Authority necessary to commercialize a product in such country[***].
1.120 Regulatory Authority means any applicable supra-national, federal, national, regional, state, provincial or local governmental or regulatory authority, agency, department, bureau, commission, council or other entities (e.g., the FDA, EMA and PMDA) regulating or otherwise exercising authority with respect to activities contemplated in this Agreement.
1.121 Remedial Plan has the meaning set forth in Section 5.4.3(a) (Remedial Efforts).
1.122 Responsible Tax Party has the meaning set forth in Section 7.6 (Taxes).
1.123 Rolling Forecast has the meaning set forth in Section 5.1 (Forecasts).
1.124 Senior Officers means, (a) with respect to Ginkgo, [***] and (b) with respect to BLI, [***].
1.125 Services means services to be provided by or on behalf of BLI to Ginkgo under this Agreement, including with respect to Beacon Platform Software development services, installation services, support services and general training services, but excluding those services provided under a Workflow Development Plan.
1.126 Service Level Standards means, with respect to any service at any given time, the standards for the performance of such service most recently agreed upon by the Parties at such time or if no such standards have been previously agreed upon by the Parties, the standards for the performance of such service then in effect for BLI's other [***] customers.
1.127 Software means full applications or programs as well as partial applications, programs or sections of software code, whether source code, object code or other form, in each case incorporated in or otherwise used by the Beacon Optofluidic Machine.
1.128 Specific Implementation means any individual component of any Collaboration Workflow that is designated as a Specific Implementation by the Parties in a Workflow Development Plan or, if the Parties have made no designation, (a) is [***] for a particular [***] pursuant to a Workflow Development Plan or [***]; or (b) incorporates [***] proprietary to Ginkgo that [***], provided that, to the extent such [***] provided by Ginkgo [***].
1.129 Specifications means, (a) with respect to any Beacon Optofluidic Machine (including related Hardware and Software), BLI's specifications set forth in Schedule 1.10 (Beacon Optofluidic Machine), along with any other specifications mutually agreed upon by the Parties in writing, in each case for such Beacon Optofluidic Machine (including related Hardware and Software) or (b) with respect to any Consumable, the specifications set forth in Schedule 1.36 (Consumables), along with any other specifications mutually agreed upon by the Parties in writing, in each case for such Consumable. Page 14 of 85
1.130 Substantially Completed means, with respect to a Workflow, that such Workflow (a) [***] and (b) is judged by the JRC (or Expert Panel, if applicable) to be substantially complete based upon [***]. For clarity, [***] will be considered by the JRC (or Expert Panel, if applicable) to be [***] of substantial completion.
1.131 Term has the meaning set forth in Section 13.1 (Term).
1.132 Territory means worldwide except for any and all embargoed and sanctioned countries as identified by the U.S. government.
1.133 Third Party means any Person other than Ginkgo and its Affiliates and BLI and its Affiliates.
1.134 United States or U.S. means the United States of America, including its territories and possessions.
1.135 Upfront Payment has the meaning set forth in Section 7.1 (Upfront Payment).
1.136 VAT has the meaning set forth in Section 7.6 (Taxes).
1.137 Workflow means a defined set of tasks performed using the Beacon Platform in a certain order utilizing specific Consumables to [***], including to load, culture, assay and export cells.
1.138 Workflow Development Plan(s) has the meaning set forth in Section 2.2 (Workflow Development Plans).
1.139 Working Group has the meaning set forth in Section 3.8 (Working Groups). 2. DEVELOPMENT
2.1 Collaboration in General. The Parties will undertake this Agreement in furtherance of the Purpose and under the guidance of the JRC pursuant to Article 3 (Joint Review Committee). During the Term, each Party will use diligent efforts to implement and perform (itself or through its Permitted Subcontractors) its respective obligations under and in accordance with (a) this Agreement and (b) each Workflow Development Plan in accordance with the timelines set forth in such Workflow Development Plan. Each Party will reasonably cooperate with each other in the performance of their responsibilities under this Agreement and each Workflow Development Plan, including (i) responding to reasonable requests by the other Party submitted in accordance with this Agreement to provide information reasonably necessary for the performance of such requesting Party's obligations under this Agreement (including any Workflow Development Plan) and (ii) causing its personnel, agents and representatives, while at the other Party's facility, to abide by the written work rules and facility regulations applicable to such facility as provided in advance by such other Party. Page 15 of 85
2.2 Workflow Development Plans.
2.2.1 Generally. Subject to the requirements of Section 2.2.2 (Committed Workflows), from time to time during the Term, the Parties shall discuss in good faith entering into work plans setting forth the activities to be undertaken by the Parties to develop a specific Collaboration Workflow in furtherance of the Purpose (each such work plan that is consistent with the terms of this Agreement and approved by the JRC, and as may be amended from time to time in accordance with this Agreement, a Workflow Development Plan); provided that the Parties and the JRC will manage the pipeline of Collaboration Workflows such that [***]. If the Parties mutually agree that a new Workflow Development Plan should be undertaken by the Parties in order to further the Purpose, then the Parties shall work together in good faith to prepare an initial draft of the proposed Workflow Development Plan on commercially reasonable terms. Once the proposed Workflow Development Plan has been drafted, such proposed Workflow Development Plan will be submitted to the JRC and the JRC shall review such proposed Workflow Development Plan and either (a) reject the proposed Workflow Development Plan, (b) accept the proposed Workflow Development Plan or (c) amend the proposed Workflow Development Plan prior to approving such plan. If the JRC approves a proposed Workflow Development Plan, such proposed plan shall be deemed a Workflow Development Plan under this Agreement and attached to this Agreement as an Exhibit (the first approved Workflow Development Plan to be attached as Exhibit A-1 and subsequently approved Workflow Development Plans to be sequentially numbered as Exhibit A-2, Exhibit A-3, etc.) and, through such attachment, made a part of this Agreement. BLI hereby acknowledges and agrees that in no event will BLI perform any work for Ginkgo in connection with this Agreement other than pursuant to a JRC-approved Workflow Development Plan, other than with respect to BLI providing Ginkgo with any FAS support or other standard service and support pursuant to the terms of this Agreement. At a minimum, each Workflow Development Plan will include the following information:
(a) defined objective and scope of the relevant Collaboration Workflow;
(b) a detailed description of the work to be performed under such Workflow Development Plan and which components of the Collaboration Workflow shall be deemed a Generalized Workflow or a Specific Implementation;
(c) a detailed description of each Party's roles and responsibilities with respect to the work to be performed under such Workflow Development Plan;
(d) the Budget[***] and the allocation of responsibility between the Parties for the funding of such Budget;
(e) timelines for performing and completing work under such Workflow Development Plan; Page 16 of 85
(f) identification of deliverables to be created by a Party in connection with the work to be performed, including (i) any operating protocol, Software, Hardware, consumable, Beacon Optofluidic Machine Improvement or Workflow to be created and (ii) categories (e.g., [***]) of Headstart Inventions (and specific Headstart Inventions) that the JRC reasonably believes, during the drafting of the Workflow Development Plan, will result from the work to be performed by the Parties under the Workflow Development Plan;
(g) (i) [***] descriptions of one or more go/no-go criteria, if any, at which time the JRC shall specifically determine whether to continue work under such Workflow Development Plan (each such criteria, a Go/No-Go Criteria); (ii) [***] metrics associated with such Collaboration Workflow being Substantially Completed; (iii) additional [***] criteria for the work to be performed and (iv) [***] criteria for any deliverables to be created, including any Workflows (such criteria with respect to Collaboration Workflows to include any additional criteria to be used when determining if a Collaboration Workflow has been Substantially Completed); and
(h) (i) the anticipated Development Purchase amounts associated with any Collaboration Workflow that is the subject of such Workflow Development Plan and (ii) with respect to any Headstart Invention, the anticipated Development Purchase amounts (based on the Budget) to be paid by Ginkgo for [***] a Headstart Invention and each category of Headstart Inventions set forth in the applicable Workflow Development Plan.
2.2.2 Committed Workflows. With respect to the Workflow Development Plans to be proposed to the JRC for approval and conducted by the Parties during the [***] Contract Years, subject to the requirement set forth in Section 7.2.2(b)(i) (Development Purchase Commitments) that not less than [***] ([***]%) of the Development Purchases made in the [***] Contract Years be for the development of Workflows for [***], the Parties agree that such Workflow Development Plans shall focus on yeast and mammalian cells and the [***] ([***]) initial Workflow Development Plans shall be directed toward the categories of Workflows set forth in Schedule 2.2.2 (Initial Workflow Development Plans) hereto (collectively, the Initial Workflows). At least [***] ([***]) of the Initial Workflows shall also be deemed to be Key Collaboration Workflows by the JRC (including as indicated on Schedule 2.2.2 (Initial Workflow Development Plans)). A draft outline of the first [***] ([***]) Workflow Development Plans for Initial Workflows are attached hereto as Exhibit B. Promptly following the Effective Date and in no event later than [***] ([***]) days after the Effective Date, the Parties shall finalize the Workflow Development Plans for such first [***] ([***]) Initial Workflows and begin implementation of such Initial Workflows. Promptly thereafter, the Parties shall develop a Workflow Development Plan for each such Initial Workflow to be submitted to the JRC for rejection or approval pursuant to Section 2.2.1 (Workflow Development Plans - Generally). Page 17 of 85
2.2.3 Retooling and Development Costs. If, pursuant to Section 3.2.6, the JRC determines that Hardware or Consumables will need to be developed, retooled or modified in order to create Collaboration Workflows, then Ginkgo and BLI shall discuss and negotiate in good faith the sharing of the costs associated therewith, which, once mutually agreed by the Parties, will be proposed to the JRC in the form of an amendment to the applicable Workflow Development Plan pursuant to Section 2.3.2 (Amendments by the Parties); provided that in all events the Intellectual Property in such developed, retooled or modified Hardware or Consumables will be [***].
2.3 Amendments to Workflow Development Plans.
2.3.1 Amendments Raised by the JRC. The JRC will periodically review (at least once per [***]) each approved Workflow Development Plan and each Party's performance thereunder to determine whether amendments are needed with respect to such Workflow Development Plan in order to more efficiently develop the relevant Workflow, which review will include [***]. If the JRC determines that an amendment is needed with respect to any approved Workflow Development Plan, then the JRC shall amend and restate the applicable Workflow Development Plan to reflect such amendment with such amended and restated Workflow Development Plan to replace the previously attached Workflow Development Plan and, through such attachment and, after signature by each of the Parties, made a part of this Agreement.
2.3.2 Amendments Raised by the Parties. Notwithstanding anything in Section 2.3.1 (Amendments by the JRC) to the contrary, either Party may, at any time, propose amendments to a Workflow Development Plan for the JRC's consideration and such Party shall submit the proposed amendment to the JRC for consideration. Following submission of a proposed amendment to the JRC, the JRC shall review such proposed amendment and either (a) reject the proposed amendment to such Workflow Development Plan, (b) accept the proposed amendment to such Workflow Development Plan or (c) further amend the proposed amendment to such Workflow Development Plan for approval by the JRC. If the JRC approves a proposed amendment to a Workflow Development Plan, then the JRC shall amend and restate the applicable Workflow Development Plan to reflect such amendment with such amended and restated Workflow Development Plan to replace the previously attached Workflow Development Plan and, after signature by each of the Parties, be made a part of this Agreement.
2.4 Costs under Workflow Development Plans.
2.4.1 Reporting. Within [***] ([***]) days following the end of each [***], [***], BLI shall provide a detailed report to Ginkgo setting forth the activities conducted by BLI [***] during such [***] and the costs for such activities [***]. If Ginkgo disputes any costs set forth in BLI's report, it shall so notify BLI in writing within [***] ([***]) days of receiving such report and provide the specific reasons for the dispute and the Parties will attempt to resolve such dispute in good faith for [***] ([***]) days following such notice. In the event the Parties are unable to resolve such dispute in such [***] ([***]) day period, then either Party may initiate dispute resolution in accordance with Section 14.5.2 (Dispute Resolution) and [***]; provided that, during the pendency of any such dispute, if Page 18 of 85
[***], [***] and, if any such disputed costs paid by Ginkgo are finally determined, pursuant to Section 14.5.2 (Dispute Resolution) or by mutual agreement of the Parties, to not have been owed to BLI at the time of payment, BLI will provide a credit against future purchases made by Ginkgo in the amount of the overpayment; provided further that, in the event that there are not sufficient future purchases made by Ginkgo during the Term to fully so credit, BLI will promptly refund any remaining amount of the overpayment to Ginkgo.
2.4.2 Payment. [***], after generating and delivering a report as set forth in Section 2.4.1 (Reporting) or at such other time as may be specified [***], BLI shall issue an invoice to Ginkgo within [***] ([***]) days of Ginkgo receiving such report or, if any costs under BLI's report are disputed pursuant to Section 2.4.1 (Reporting), within [***] ([***]) days of resolution of such dispute, such invoice to be for the amount of costs owed by Ginkgo, if any, to effect the appropriate cost allocation [***] in such [***]. Notwithstanding anything to the contrary in this Agreement, in no event shall BLI provide an invoice (a) requesting payment, nor shall Ginkgo be responsible, in any given [***], for any costs incurred by BLI for any activity in excess of [***] percent ([***]%) of the costs of such activity as set forth in the applicable Workflow Development Plan's Budget for such [***] or (b) for any Development work performed outside the Workflow Development Plan. Ginkgo shall pay all undisputed amounts under an invoice received from BLI under this Section 2.4.2 (Payment) within [***] ([***]) days after receipt of such BLI invoice, and any overdue payments on undisputed amounts shall be subject to payment of interest pursuant to Section 7.10 (Late Payment). All amounts received by BLI in connection with the performance of each Workflow Development Plan shall be non-refundable except as otherwise set forth in Section 7.8 (Audits) and Section 6.1 (Headstart Period).
2.5 Termination of Workflow Development Plans. A Workflow Development Plan, once approved by the JRC, may be terminated by the JRC, including, by way of example, if: (a) both Parties provide notice to the JRC requesting such termination or (b) the JRC finds that (i) termination is [***] or (ii) that [***]. In the event of termination of a Workflow Development Plan under this Section 2.5 (Termination of Workflow Development Plans), BLI will cease working on the Workflow Development Plan and [***] cancel orders or stop the work of a Permitted Subcontractor or any other supplier. Notwithstanding termination of a Workflow Development Plan, Ginkgo shall pay BLI for Ginkgo's share, if any, of the reasonable costs associated with [***] incurred in accordance with this Agreement prior to the decision to terminate such Workflow Development Plan to the extent that BLI could not, after using [***], (A) stop or cancel such or (B) relocate or reassign to any work to be performed for another Person.
2.6 Limitations. Notwithstanding anything to the contrary in this Agreement, neither Party will be required to conduct any activity to develop a Workflow other than those activities allocated to it in a Workflow Development Plan and no proposed Workflow Development Plan (or, subject to Section 2.3 (Amendments to Workflow Development Plans), any amendment thereto) shall become binding on the Parties until approved by the JRC.
2.7 Subcontracting. Each Party may only subcontract its activities under this Agreement (including under a Workflow Development Plan) with the other Party's consent; provided that such consent shall not be necessary if (a) such subcontracting of activities is [***] Page 19 of 85
of such subcontracting Party (e.g. [***]) or (b) [***] (e.g. [***]) in order for a Party to [***]. In any event, prior to any subcontracting by a Party to a Permitted Subcontractor, the subcontracting Party shall obtain a written undertaking from the Permitted Subcontractor that it will be subject to the applicable terms and conditions of this Agreement, including the confidentiality provisions of Article 10 (Confidentiality). Subcontracting will not relieve a Party of its obligations under this Agreement and each Party will remain directly liable for the acts and omissions of its Permitted Subcontractors. Any breach of this Agreement by a Permitted Subcontractor will be deemed to be a breach by the Party that subcontracted its activities to such breaching Permitted Subcontractor.
2.8 Records. Each Party shall, and shall cause its Affiliates and Permitted Subcontractors to, maintain records in sufficient detail for the other Party to confirm compliance with this Agreement and in good scientific manner appropriate for patent and regulatory purposes under Applicable Law, which shall [***] properly reflect all activities conducted and results achieved by such Party under this Agreement. Such records shall be retained by such Party, its Affiliates or Permitted Subcontractors until [***] ([***]) years after the end of the period to which such books and records pertain or for such longer period as may be required by Applicable Law. Each Party shall have the right, during normal business hours and upon reasonable notice, to inspect all such records of the other Party, its Affiliates or Permitted Subcontractors. The reviewing Party shall be responsible for all costs of the inspection but shall have no right to copy or retain records. All disclosed records and the information disclosed therein shall be treated as Confidential Information in accordance with Article 10 (Confidentiality). 3. JOINT REVIEW COMMITTEE
3.1 Formation; Chairperson. Within [***] ([***]) days of the Effective Date (or such other date as may be mutually agreed to by the Parties), the Parties will establish a Joint Review Committee (JRC) comprised of two (2) representatives of Ginkgo and two (2) representatives of BLI, each of whom must have the requisite experience and seniority to enable such Person to make decisions on behalf of the Party it represents with respect to the issues falling within the jurisdiction of the JRC. Each Party may replace its representatives to the JRC at any time upon prior written notice to the other Party; provided that such replacement representatives must have the experience and seniority required under this Section 3.1 (Formation; Chairperson). [***] will select from its representatives the chairperson for the JRC, whose role shall be to call the periodic meetings, and publish meeting minutes. From time to time during the Term, [***] may change the representative who will serve as chairperson upon written notice to [***].
3.2 JRC Responsibilities. The JRC will have that specific decision-making authority expressly enumerated in this Agreement and will provide oversight and a forum for discussing all matters arising in connection with this Agreement, including with respect to planning, reviewing and coordinating the various activities to be undertaken by the Parties pursuant to a Workflow Development Plan. In particular, the JRC will be responsible for:
3.2.1 rejecting or approving proposed Workflow Development Plans submitted to it by a Party or as amended by the JRC pursuant to Section 2.2.1 (Workflow Development Plans - Generally); Page 20 of 85
3.2.2 pursuant to Section 2.2.1 (Workflow Development Plans - Generally), managing the pipeline of anticipated Collaboration Workflows so that [***] including in the event a Workflow Development Plan is terminated early by the JRC;
3.2.3 pursuant to Section 2.3.1 (Amendments by the JRC), periodically reviewing (at least once per [***]) each Workflow Development Plan and each Party's performance thereunder in order to determine whether amendments are needed with respect to such Workflow Development Plan and, if amendments are needed, revising the Workflow Development Plan as necessary;
3.2.4 rejecting, prioritizing, approving or amending proposed amendments to Workflow Development Plans submitted to it by a Party pursuant to Section 2.3.2 (Amendments by the Parties);
3.2.5 deciding whether [***] are at issue and whether to terminate a Workflow Development Plan as further described in Section 2.5 (Termination of Workflow Development Plans);
3.2.6 in connection with each Workflow Development Plan, determining whether Hardware or Consumables will need to be developed or retooled in order to create Collaboration Workflows such that the Parties should discuss sharing of the costs associated therewith pursuant to Section 2.2.3 (Retooling and Development Costs);
3.2.7 in connection with each Workflow Development Plan, designating (a) which components of Workflows are BLI Proprietary Workflows, which are Generalized Workflows, and which are Specific Implementations and (b) (i) which categories (e.g., [***]) of Headstart Inventions (and specific Headstart Inventions within such categories) that the JRC reasonably believes, during the drafting of the Workflow Development Plan, will result from the work to be performed by the Parties under the Workflow Development Plan and (ii) a reasonable estimation of the Development Purchase funding to be paid by Ginkgo with respect to the development of such categories of Headstart Inventions, which estimation will be set forth in the Budget for the applicable Workflow Development Plan; provided that, in no event will failure by the JRC to list (A) specific parts or components of Generalized Workflows or Collaboration Workflows or (B) Consumables, including OptoSelect Chips, with respect to (A)-(B), as Headstart Inventions in a Workflow Development Plan be given any significance in determining whether such invention constitutes a Headstart Invention;
3.2.8 determining whether or not a Collaboration Workflow has been Substantially Completed based on the metrics for such Collaboration Workflow as set forth in the applicable Workflow Development Plan;
3.2.9 pursuant to Section 7.2.1 (Purchase Commitments - Generally), determining whether additional development work is necessary in order to enable Ginkgo to deploy the Beacon Platform as specified in a Workflow Development Plan and if so, then determining how to adjust the Development Purchase Commitments and Production Purchase Targets for the then-current and future Contract Years (with the understanding the JRC has no power to modify the Maximum Amount or the Term); Page 21 of 85
3.2.10 upon determination by the JRC or the Expert Panel that a Collaboration Workflow has not been Substantially Completed, discussing if and how to address the Production Purchase amounts that would have been relevant to such Collaboration Workflow;
3.2.11 designating at least [***] ([***]) Collaboration Workflows as Key Collaboration Workflows within [***] ([***]) years of the Effective Date and at least [***] ([***]) Collaboration Workflows as Key Collaboration Workflows within [***] ([***]) years of the Effective Date; and
3.2.12 performing such other functions as expressly set forth in this Agreement as being under the purview of the JRC or as the Parties may mutually agree in writing, except where in conflict with any provision of this Agreement.
3.3 Meetings and Minutes. Unless otherwise mutually agreed to by the Parties, the JRC will meet each [***] by audio or video teleconference and, at a minimum, [***] each Contract Year in person, with the location for such meetings alternating between Ginkgo and BLI facilities (or such other locations as are mutually agreed by the Parties). Meetings of the JRC will be effective only if a quorum of the JRC (as defined in Section 3.4 (Procedural Rules)) is present or participating by videoconferencing. The chairperson of the JRC will be responsible for calling meetings on no less than [***] ([***]) Business Days' notice, unless exigent circumstances require shorter notice. Each Party will make all proposals for agenda items and will provide all appropriate information with respect to such proposed items at least [***] ([***]) Business Days in advance of the applicable meeting; provided that under exigent circumstances requiring input by the JRC, a Party may provide its agenda items to the other Party within a shorter period of time in advance of the meeting, or may propose that there not be a specific agenda for a particular meeting, so long as the other Party consents to such later addition of such agenda items or the absence of a specific agenda for such meeting, such consent not to be unreasonably withheld, conditioned or delayed. The JRC will designate an individual to prepare and circulate for review and approval of the Parties minutes of each meeting [***] ([***]) Business Days after the meeting. The Parties will agree on the minutes of each meeting promptly, but in no event later than the next meeting of the JRC.
3.4 Procedural Rules. The JRC will have the right to adopt such standing rules as will be necessary for its work, to the extent that such rules are not inconsistent with this Agreement. A quorum of the JRC will exist whenever there is present at a meeting at least one (1) representative appointed by each Party. The JRC will take action by consensus of the representatives present at a meeting at which a quorum exists, with each Party having a single vote irrespective of the number of representatives of such Party in attendance, or by a written resolution signed by at least one representative appointed by each Party. From time to time during the Term, a Party may invite non-voting employees (including its Alliance Manager), consultants and other advisors, experts and specialists to attend meetings of the JRC; provided that such attendees (a) will not vote in the decision-making process of the JRC, (b) are bound by obligations of confidentiality and non-use that are at least as protective of the Parties as set forth in this Agreement and that restrict use and disclosure of information learned while attending JRC meetings and (c) can be required to depart the meeting upon the request of the other (non-inviting) Party, in its sole discretion, due to confidentiality or business reasons. Page 22 of 85
3.5 Decision-Making. If the JRC cannot, or does not, reach consensus on an issue at any JRC meeting or within a period of [***] ([***]) Business Days thereafter (or such other period of time as mutually agreed by the Parties or by consensus of the JRC), then upon the request of either Party, the disagreement will first be referred to the Senior Officers of the Parties, who will confer in good faith on the resolution of the issue. Any final decision mutually agreed to by the Senior Officers will be conclusive and binding on the Parties. If the Senior Officers are not able to agree on the resolution of any such issue within [***] ([***]) days after such issue was first referred to them, then, if such decision is [***], [***] and, for all other decisions, shall be resolved consistent with the provisions of this Section 3.5 (Decision-Making):
3.5.1 subject to Section 3.5.3, if the matter concerns (a) [***], including any [***] or (b) the [***], the final decision shall be made by the Senior Officer of Ginkgo; provided that, in no event may Ginkgo exercise its final-decision making authority, including in connection with amending an approved Workflow Development Plan, in any manner that would (i) [***] BLI's obligations under such Workflow Development Plan, (ii) obligate or require BLI to increase its spending under such Workflow Development Plan by more than [***] percent ([***]%) of BLI's spending obligation under such Workflow Development Plan or (iii) modify the Minimum Cumulative Purchase Commitment or the Full Purchase Target;
3.5.2 subject to Section 3.5.3, if the matter concerns [***], including any [***] (provided that any [***] shall not affect decision-making authority under this Section 3.5 (Decision-Making)), the final decision shall be made by the Senior Officer of BLI; provided that, in no event may BLI exercise its final-decision making authority, including in connection with amending an approved Workflow Development Plan, in any manner that would (a) [***] Ginkgo's obligations under such Workflow Development Plan [***] or (b) obligate or require Ginkgo to increase its spending under such Workflow Development Plan by more than [***] percent ([***]%) of Ginkgo's spending obligation under such Workflow Development Plan, or (c) modify the Minimum Cumulative Purchase Commitment or the Full Purchase Target;
3.5.3 if the matter is determining (a) whether [***] or (b) whether [***] (including with respect to [***]), with respect to each, at either Party's request, the dispute shall be resolved in an accelerated manner by a panel of three (3) independent Third Parties, each having expertise with respect to the subject matter of the applicable Workflow Development Plan (such panel, an Expert Panel), subject to the following process: (i) each Party will engage one independent Third Party expert for the Expert Panel [***] after [***] to serve on the Expert Panel, (ii) within [***] ([***]) days of any request to refer the matter to an Expert Panel or, if earlier, as promptly as reasonably practicable after each Party's engagement of its Third Party Expert, the Parties' two (2) Third Party experts shall mutually agree on a third (3rd) independent Third Party expert who will serve on such panel and as chairperson of the panel, (iii) the Expert Panel will reach a decision as to such matter (including whether [***]) as promptly as practicable, which may include having the JRC or Parties submit information in support of the Expert Panel making a determination, Page 23 of 85
but within no greater than [***] ([***]) days of the third (3rd) expert being chosen and (iv) [***] the Parties will be bound by the determination of the Expert Panel. Each Party shall bear its own costs of participating in the proceeding, including the costs incurred by its Third Party expert, and shall equally share the costs incurred by the third (3rd) Third Party expert selected jointly by the Parties' two (2) Third Party Experts, except that, with respect to [***]. The Expert Panel shall be and is empowered to request additional information or materials from one or both Parties as reasonably necessary for the Expert Panel to investigate and render a decision, [***]. The Parties shall [***] with all such requests and decisions.
3.6 Limitations on Authority. Each Party will retain the rights, powers and discretion granted to it under this Agreement and, unless expressly provided in this Agreement, no rights, powers or discretion will be delegated to or vested in the JRC. The JRC will not have the power to accept, amend, modify, waive or determine compliance with this Agreement; provided that, for clarity, the JRC may reject, accept or amend proposed Workflow Development Plans pursuant to Section 2.2.1 (Workflow Development Plans - Generally) or review, amend or restate an approved Workflow Development Plan pursuant to Section 2.3 (Amendments to Workflow Development Plans) or terminate an approved Workflow Development Plan but, for clarity, in no event may the JRC amend or restate any Workflow Development Plan so it includes work in any Excluded Field. Notwithstanding anything to the contrary, no decision by the JRC or by a Party within the JRC will: (a) require the other Party to breach any obligation or agreement that such other Party may have with or to a Third Party [***] or (b) amend, modify, or waive a Party's compliance with, this Agreement (by way of example, a decision to [***]), any of which shall require mutual written agreement of the Parties.
3.7 Alliance Managers. Each Party will appoint one employee of such Party who will oversee contact between the Parties for all matters between meetings of each JRC and will have such other responsibilities as the Parties may agree in writing after the Effective Date (each, an Alliance Manager). Each Party may replace its Alliance Manager at any time by notice in writing to the other Party. The Alliance Managers will work together to manage and facilitate the communication between the Parties under this Agreement, including the resolution (in accordance with the terms of this Agreement) of issues between the Parties that arise in connection with this Agreement.
3.8 Working Groups. From time to time, the JRC may establish and delegate duties to sub-committees or directed teams (each, a Working Group) on an as-needed basis to oversee particular projects or activities. Each such Working Group will be constituted and will operate as the JRC determines; provided that each Working Group will have equal representation from each Party, unless otherwise mutually agreed. Working Groups may be established on an ad hoc basis for purposes of a specific project or on such other basis as the JRC may determine. Each Working Group and its activities will be subject to the oversight, review and approval of, and will report to, the JRC. In no event will the authority of the Working Group exceed that specified by the JRC for such Working Group. All decisions of a Working Group will be by consensus. Any disagreement between the designees of Ginkgo and BLI with respect to a Working Group will be referred to the JRC for resolution. Page 24 of 85
3.9 Expenses. Each Party will be responsible for all travel and related costs and expenses for its members and other representatives to attend meetings of, and otherwise participate in, the JRC or other Working Group. 4. APPLICABILITY OF BLI TERMS AND CONDITIONS.
With respect to Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services for which Ginkgo has placed a Purchase Order pursuant to this Agreement, the Parties agree to the BLI Terms and Conditions that apply with respect to Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services, unless, notwithstanding anything to the contrary set forth in the BLI Terms and Conditions (including any language regarding the treatment of additional or different terms set forth therein), a term in such BLI Terms and Conditions is inconsistent with a term in this Agreement, in which case this Agreement shall control, including as follows:
4.1.1 this Agreement, and not the BLI Terms and Conditions, shall solely set forth the fields in which Ginkgo has and does not have the ability to use the Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services for certain purposes (e.g., the Excluded Field);
4.1.2 BLI's liability with respect to any Failure to Supply, penalties for late delivery and obligations with respect to short supply shall be as set forth in this Agreement, including Section 5.4.3 (Failure to Supply) of this Agreement;
4.1.3 any right of BLI to use Ginkgo's data, including Collaboration Data, is solely set forth in this Agreement, including Section 8.5 (Use of Collaboration Data) and the BLI Terms and Conditions shall give BLI no right to use any data of Ginkgo or its Affiliates, including Collaboration Data;
4.1.4 each Party's indemnification obligations and matters relating to the extent of its liability (e.g. consequential damages waiver) shall solely be determined under the terms of this Agreement (including Section 11.6 (No Consequential Damages) and Section 12 (Indemnification; Insurance));
4.1.5 any disputes between the Parties related to Beacon Optofluidic Machines (including related Hardware and Software), Consumables, Services or the activities under this Agreement (including the performance of the Workflow Development Plans) shall be governed by Section 14.5 (Governing Law; Dispute Resolution; Equitable Remedies) of this Agreement, including disputes as to whether (a) [***], (b) [***] or (c) (i) [***], (ii) [***] or (iii) [***], and, with respect to each of (a), (b) and (c), which Ginkgo shall be entitled to dispute in writing in good faith irrespective of whether BLI is given sole or final decision-making authority with respect thereto under the applicable BLI Terms and Conditions;
4.1.6 all payment provisions between the Parties related to the subject matter hereunder shall solely be under this Agreement and not any of the BLI Terms and Conditions; Page 25 of 85
4.1.7 each of the BLI Terms and Conditions shall be freely assignable solely to the applicable assignee in connection with any assignment permitted under the terms of Section 14.4 (Assignment) of this Agreement;
4.1.8 no activities by BLI under this Agreement may be terminated or suspended under any of the BLI Terms and Conditions if such termination or suspension is not permitted under the terms of this Agreement;
4.1.9 Ginkgo may elect, at any time in its sole discretion, to terminate the Software License Agreement that comprises part of the BLI Terms and Conditions and, upon such termination, Ginkgo's right to use such underlying Software shall terminate; and
4.1.10 the BLI Terms and Conditions that apply with respect to any Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services for which Ginkgo has placed a Purchase Order pursuant to this Agreement shall not terminate absent mutual written consent of the Parties, unless this Agreement has been terminated early (e.g. prior to its Expiration) in which case such BLI Terms and Conditions shall survive only for so long and to the extent as Ginkgo continues to have the right to use Beacon Optofluidic Machines or Consumables or receive Services pursuant to Section 13.3 (Effects of Termination). 5. FORECASTS; ORDERS; SERVICE STANDARDS AND RELATED OBLIGATIONS
5.1 Forecasts of Production Purchases. Within [***] ([***]) days following the Effective Date and on or before the first Business Day of each [***] thereafter, Ginkgo shall furnish BLI with a rolling forecast of the quantities of Beacon Optofluidic Machines (including related Hardware and Software) and Consumables (on a Consumable-by-Consumable basis) that Ginkgo expects to require from BLI under this Agreement during the ensuing [***] ([***]) month period on a [***] basis (each such forecast, a Rolling Forecast). Subject to the limitations set forth in this Agreement, Ginkgo may, in its sole discretion, update its estimated requirements of Beacon Optofluidic Machines (including related Hardware and Software) and Consumables in the next Rolling Forecast delivered; provided that (a) the [***] of each Rolling Forecast shall be binding upon the Parties with respect to Beacon Optofluidic Machines and with respect to Consumables, Ginkgo's Purchase Orders for Consumables during the [***] may fluctuate by +/- [***] percent ([***]%) of the amount of Consumables set forth in the Rolling Forecast for the [***]; (b) the [***] of each Rolling Forecast shall include binding amounts forecasted for Beacon Optofluidic Machines and Consumables within (i) [***] percent ([***]%) of the number of units of Beacon Optofluidic Machines or (ii) [***] percent ([***]%) of the number of units of any Consumable; and (c) the [***] of each Rolling Forecast shall be non-binding, good faith estimates of Ginkgo's demand for Beacon Optofluidic Machines and Consumables. The foregoing, along with any other relevant provisions in this Agreement, shall be the sole forecasting mechanics for Ginkgo's requirements of Beacon Optofluidic Machines (including related Hardware and Software) or Consumables expressly notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to forecasting. Page 26 of 85
5.2 Pricing. Notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to pricing for Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services, the following shall apply:
5.2.1 General. The pricing as of the Effective Date for Beacon Optofluidic Machines, Consumables and certain services (including Services) are set forth in Schedule 5.2.1 (Pricing Schedule). Such pricing shall be adjusted pursuant to this Section 5.2 (Pricing). For any Consumable or service not listed in Schedule 5.2.1 (Pricing Schedule), BLI shall provide the price for such to Ginkgo upon Ginkgo's request during the Term, such price to be consistent with this Section 5.2 (Pricing). BLI represents and warrants that the pricing set forth in Schedule 5.2.1 (Pricing Schedule) are BLI's List Prices for the described Beacon Optofluidic Machines, Consumables and services (including Services) as of the Effective Date. BLI shall discount List Prices for Ginkgo by [***] percent ([***]%) or such higher amount as agreed by the Parties, and subject to pricing adjustments as set forth in Section 5.2.2 (Adjustments). For clarity, with respect to Consumables to be purchased under a Workflow Development Plan, Ginkgo will be responsible for costs for such Consumables as set forth in the Budget for such Workflow Development Plan.
5.2.2 Adjustments. Notwithstanding anything else to the contrary in this Agreement, and [***], with respect to the prices charged by BLI to Ginkgo under Section 5.3.2 (Purchase Orders - Acceptance and Rejection):
(a) With respect to any [***], (i) there will be no increases from the per unit pricing set forth in Schedule 5.2.1 (Pricing Schedule) for at least the first [***] and (ii) the per unit pricing charged by BLI to Ginkgo at any time shall be no greater than the lowest of the (A) lowest price per unit charged by BLI or its Affiliates to any similarly situated Third Party customer (i.e. taking into account [***]) for such unit at any time in the [***] ([***]) months prior to the delivery of the applicable Purchase Order by Ginkgo or (B) the then- current List Price; provided, however, that in no event shall BLI be required to charge a price less than the cost of goods sold for such unit, as determined in accordance with United States generally accepted accounting principles, consistently applied.
(b) With respect to any [***], (i) there will be no increases from the per unit pricing set forth in Schedule 5.2.1 (Pricing Schedule) for at least the first [***], (ii) subject to subclause (iii), the per unit pricing charged by BLI to Ginkgo shall be no greater than [***] percent ([***]%) of the lowest List Price for such unit at any time between the delivery of the applicable Purchase Order by Ginkgo and delivery of such OptoSelect Chip or Consumable and (iii) the per unit pricing charged by BLI to Ginkgo for such unit that is [***] shall be no greater than [***] percent ([***]%) of the lowest List Price for such unit. Page 27 of 85
(c) With respect to any [***], there will be no increases from the per unit [***] set forth in Schedule 5.2.1 (Pricing Schedule) for at least the [***] and after such [***], BLI may adjust pricing for [***] for a Contract Year within the first [***] ([***]) days of such Contract Year by written notice to Ginkgo; provided that such adjustment [***] for such [***] and in no event will the [***] charged to Ginkgo for any [***] under this Agreement be higher than the then-current List Price for the applicable [***].
(d) With respect to any [***], there will be no increases from the rates set forth in Schedule 5.2.1 (Pricing Schedule), except that, on an annual basis, upon written notice to Ginkgo, BLI may increase the rates set forth in Schedule 5.2.1 (Pricing Schedule) by a percentage [***], not to exceed [***] percent ([***]%) per calendar year.
(e) With respect to any other Beacon Optofluidic Machines, Consumables and services (including Services) not listed on Schedule 5.2.1 (Pricing Schedule), the per unit pricing charged by BLI to Ginkgo shall be no greater than the then-current List Price, [***].
5.3 Purchase Orders; Delivery and Payment.
5.3.1 Issuance. Ginkgo shall submit orders for Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) and Services pursuant to written purchase orders (each, a Purchase Order) issued to BLI in a form consistent with this Agreement. Purchase Orders shall be provided by Ginkgo, shall specify (a) the quantity of Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) or Services ordered and (b) the requested delivery date or service date and location. The requested delivery dates or service dates set forth in a Purchase Order shall be no earlier than the Lead Time for such delivery or service. BLI shall not be obligated to supply in any [***] (i) a quantity of the [***] in excess of the amount designated in such [***] in the binding portion of the Rolling Forecast or (ii) a quantity of [***] that is greater than [***] percent ([***]%) of the amount designated for such item or service in such [***] in the binding portion of the Rolling Forecast (such amount, the Maximum Amount); provided that notwithstanding the provisions set forth in this Section 5.3.1 (Issuance) or Section 5.3.2 (Acceptance and Rejection) to the contrary, BLI shall use [***] to accept and fulfill Purchase Orders for quantities of [***] in excess of the Maximum Amount in any [***]. The foregoing shall apply and, along with any applicable provisions of the Agreement, be the exclusive terms and conditions for Ginkgo's Purchase Orders under this Agreement, notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to Ginkgo's orders for or ability to order (and have orders fulfilled for) [***].
5.3.2 Acceptance and Rejection. BLI shall, by written notice to Ginkgo, accept or, subject to the terms of this Agreement, reject, each Purchase Order (a) with respect to orders for [***], within [***] ([***]) days of receipt and (b) with respect to Page 28 of 85
orders for [***], within [***] ([***]) days of receipt, with respect to each, by written notice to Ginkgo. Any failure of BLI to accept or reject a Purchase Order within such [***] day period shall be deemed an acceptance by BLI of such Purchase Order. Any express acceptance of a Purchase Order by BLI shall confirm the quantity of Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) and Services requested to be supplied or performed, the prices, pursuant to Section 5.2 (Pricing), associated with such Beacon Optofluidic Machines (including related Hardware and Software), Consumables (on a Consumable-by-Consumable basis) and Services and that delivery or performance of such Optofluidic Machines (including related Hardware and Software), Consumables and Services shall occur [***]; provided that (i) BLI shall not have the right to reject, and shall be deemed to have accepted, any Purchase Order meeting the requirements of this Section 5.3 (Purchase Orders; Delivery and Payment) and (ii) if any Purchase Order contains quantities in excess of the Maximum Amount for such month and otherwise meets the requirements of this Section 5.3 (Purchase Orders; Delivery and Payment), then such Purchase Order shall be deemed accepted except with respect to such excess quantities and, subject to Section 5.3.1 (Issuance), BLI shall confirm to Ginkgo within [***] ([***]) days of receipt of such Purchase Order if BLI can supply such excess and if so, such Purchase Order shall be deemed accepted with respect to such excess quantities as well. The foregoing shall apply notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to BLI's ability to accept or reject Ginkgo's orders for Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services.
5.3.3 Delivery and Payment. Notwithstanding anything to the contrary in the BLI Terms and Conditions with respect to the delivery of Beacon Optofluidic Machines (including related Hardware and Software) or Consumables, the performance of Services and rights and responsibilities arising in connection with such delivery or performance, the following shall apply:
(a) Machines and Consumables. With respect to Beacon Optofluidic Machines and Consumables for which Ginkgo has placed a Purchase Order under this Agreement:
(i) such items shall be shipped by BLI (A) [***] or (B) [***], with respect to (A)-(B), to the delivery point set forth on the Purchase Order; [***];
(ii) a BLI employee will install the Beacon Optofluidic Machines at such delivery point and, within [***] ([***]) Business Days of installation, will deliver to Ginkgo a completed BLI field service report confirming installation and qualification of the relevant Beacon Optofluidic Machines in accordance with Schedule 5.3.3 (Qualification Standards);
(iii) title and risk of loss to (A) [***] or (B) [***]; Page 29 of 85
(iv) BLI shall invoice Ginkgo for any Beacon Optofluidic Machine or Consumable at a price calculated in accordance with Section 5.2 (Pricing) [***];
(v) Ginkgo shall be deemed to have accepted delivery of any Beacon Optofluidic Platform upon [***] unless Ginkgo delivers, within [***] ([***]) Business Days a written statement detailing the reasons why the item delivered is not a Conforming Product and, if BLI disputes Ginkgo's allegation of non-conformance, the matter shall be resolved pursuant to Section 14.5.2 (Dispute Resolution); and
(vi) Ginkgo shall pay BLI for all delivered quantities of Conforming Product within [***] ([***]) days from Ginkgo's [***] under this Agreement[***].
(b) Services. With respect to Services for which Ginkgo has placed a Purchase Order under this Agreement:
(i) such Services shall be provided at the time and location set forth on an accepted Purchase Order, unless otherwise mutually agreed by the Parties in writing;
(ii) BLI shall invoice Ginkgo for any Services at a price calculated in accordance with Section 5.2 (Pricing) [***] except [***], which shall be paid [***] and the Terms and Conditions except to the extent such conflicts with the terms of this Agreement, in which case this Agreement shall supersede with respect to the conflicting terms; and
(iii) Ginkgo shall pay BLI for all performed Services that meet the applicable Service Standards within [***] ([***]) days from receipt of invoice[***].
(c) Payments. All Production Purchase amounts paid by Ginkgo to BLI for Beacon Optofluidic Machines, for Consumables and for Services are non-creditable and non-refundable except as set forth in expressly set forth in this Agreement (including Section 7.8 (Audits)) and the BLI Terms and Conditions.
5.4 Capacity; Failure to Supply.
5.4.1 Personnel. Notwithstanding anything to the contrary in the BLI Terms and Conditions for Services:
(a) Generally. With respect to any [***] in the Term, to [***] continuity of supply with respect to services (including Services) rendered under this Agreement (including Workflow Development Page 30 of 85
Plans) to Ginkgo, BLI shall [***] employs a sufficient number of personnel so that it [***] satisfy, with respect to the then-current [***], Ginkgo's requirements for Services during such [***], as specified in the then-applicable Rolling Forecast. BLI shall (a) use qualified personnel in connection with performing Services for Ginkgo and perform such Services in a competent and workmanlike manner consistent with prevailing industry standards and in material conformance with Applicable Laws, the terms of this Agreement (which shall include the terms of any Workflow Development Plans) and (b) obtain and maintain all material licenses, permits or approvals required by Applicable Laws, the terms of this Agreement (which shall include the terms of any approved Workflow Development Plans) in connection with performing Services for Ginkgo.
(b) Dedicated FTEs; Key Persons. In addition to its obligations set forth in Section 5.4.1(a) (Personnel - Generally), during the period beginning [***] ([***]) Business Days after the Effective Date and ending on the [***] ([***]) anniversary of the Effective Date, BLI shall [***] provide Ginkgo with [***] ([***]) FTEs to work on-site at Ginkgo to aid in [***]. Following the [***] ([***]) anniversary of the Effective Date, unless otherwise agreed by the Parties, BLI shall provide Ginkgo with [***] to work on-site at Ginkgo to aid in [***]. [***] shall designate up to [***] ([***]) BLI employees or personnel as key persons (individually, a Key Person and collectively, Key Persons). [***] to the percentage of any such Key Person's time that shall be dedicated to activities performed under this Agreement. No Key Person shall be reassigned, nor shall the time dedicated to activities under this Agreement be reduced, without [***], but if such Key Person (i) is no longer employed by BLI, (ii) [***] or (iii) [***], with respect to (i)-(iii), then the Parties shall work together to mutually identify in writing a new employee as a replacement for such Key Person and, upon such mutual identification, such employee shall be deemed a Key Person for all purposes of this Agreement. For clarity, [***] shall be [***] if [***], that [***] and [***] or [***]. In the event of a termination of employment at BLI of any Key Person, BLI shall notify Ginkgo of such circumstance as promptly as practicable. Ginkgo shall have the right, but not the obligation, at any time, to request that BLI replace such Key Person with another BLI employee reasonably acceptable to Ginkgo. In such event, BLI shall replace such person [***]. Ginkgo will provide each BLI FTE that is on-site at Ginkgo with (I) access to Ginkgo's facility to the extent required to perform each FTE's obligations as set forth in each approved Workflow Development Plan and (II) [***].
(c) Conduct on Site. BLI acknowledges and agrees that BLI FTEs (including Key Persons) are not employees or agents of Ginkgo, that Ginkgo has no responsibility to provide worker's compensation or other Page 31 of 85
liability coverage, insurance, benefits or, other than as expressly provided in this Agreement, compensation for BLI FTEs. BLI further acknowledges and agrees that BLI FTEs are acting solely as representatives of BLI during any work performed at Ginkgo's facilities. BLI shall (a) comply, and shall cause each BLI FTE to comply, with all Applicable Laws; (b) abide, and shall cause each on-site BLI FTE to abide, by [***] guidelines and procedures related to Ginkgo's facilities and use of its foundries that are [***] (e.g., [***]) made available to BLI or BLI's FTEs; and (c) cause on-site BLI FTEs to execute a confidentiality agreement with Ginkgo in the form attached hereto as Exhibit C. Each BLI FTE will be required to complete training offered by Ginkgo regarding the guidelines and procedures referred to in Section 5.4.1(b) (Dedicated FTEs; Key Persons). Without limitation of the foregoing, each BLI FTE shall be responsible for performing work in such a manner as to [***].
5.4.2 Safety Stock Inventory. At any given time during the Term, to ensure continuity of supply with respect to [***], BLI shall maintain an inventory of [***] sufficient to fulfill orders by Ginkgo for [***] for the next [***], such amount of [***] to be based on the then-applicable Rolling Forecast.
5.4.3 Failure to Supply.
(a) Remedial Efforts. If, for any reason, including [***], BLI [***] fails to provide Conforming Product or Service that conforms with this Agreement and the Service Level Standards for such Service, in each case in accordance with one or more accepted Purchase Orders for a period of [***] ([***]) consecutive days or more (each, a Failure to Supply), BLI shall notify Ginkgo promptly, including details of the reasons for the Failure to Supply and BLI's estimate of when the Failure to Supply shall be corrected. BLI shall [***] minimize any shortage or delay in delivery of Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services to Ginkgo as a result of a Failure to Supply. Within [***] ([***]) days of written notification by BLI to Ginkgo under this Section 5.4.3(a) (Remedial Efforts) of a Failure to Supply, the Parties shall hold a JRC meeting at which BLI's representatives will explain [***] the cause of such Failure to Supply and present BLI's remedial plan to [***] Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services to be supplied to Ginkgo in accordance with this Agreement and the accepted Purchase Orders, which plan [***] (the Remedial Plan). BLI shall consider [***] in good faith any reasonable changes proposed by Ginkgo to the Remedial Plan. If the JRC approves the Remedial Plan, BLI will execute such Remedial Plan [***].
(b) Fees for Late Delivery. [***], the following discounts on the amounts owed by Ginkgo to BLI under an accepted Purchase Order Page 32 of 85
shall be in effect for any [***] not delivered in accordance with this Agreement until after the applicable delivery date set forth in such Purchase Order: (a) for deliveries made more than [***] ([***]) days and less than [***] ([***]) days after such delivery date, a [***] percent ([***]%) discount; and (b) for deliveries made after [***] ([***]) days after such delivery date, a [***] percent ([***]%) discount, in each case of clauses (a) through (b), from the price for the Consumable delivered late; provided that, any discount shall only apply if the Purchase Order at issue was for a quantity of [***] at or below the binding forecasted quantity ([***]) provided pursuant to Section 5.1 (Forecasts of Production Purchases). Any discount in effect under this Section 5.4.3(b) (Fees for Late Delivery) shall be incorporated under any invoice presented by BLI to Ginkgo; provided that [***]. For purposes of counting towards Ginkgo's Production Purchases and Minimum Cumulative Purchase Commitments under this Agreement, Ginkgo shall be deemed to have paid any invoice as if no discount for delayed delivery was in effect.
(c) Short Supply. Without limiting anything to the contrary in this Agreement, in the event that any Beacon Optofluidic Machines (including related Hardware and Software), Consumables or the Services are in short supply, i.e., [***], BLI shall notify Ginkgo in writing of such circumstances as soon as possible, including the underlying reasons for such shortage, the date such inability is expected to end and the amount of Beacon Optofluidic Machines (including related Hardware and Software), Consumables or Services to be allocated to Ginkgo. BLI shall allocate Beacon Optofluidic Machines (including related Hardware and Software), Consumables and Services in short supply to Ginkgo [***], with such [***] allocation applicable only up to the number of units of such item set forth in the binding portions of the then-current Rolling Forecast.
(d) Tolling. Without limiting Ginkgo's rights under this Agreement or under Applicable Law, in the event of a Failure to Supply, [***] obligations of Ginkgo that are [***] by such Failure to Supply, including [***], shall be excused by an amount [***] to the Failure to Supply, which excused amount, in ensuring that such amount is [***] to the Failure to Supply, will include amounts [***] to such Failure to Supply. In addition, Ginkgo will submit to BLI a good faith proposal with respect to [***], taking into consideration the [***] that are attributable to such Failure to Supply. BLI shall promptly review such proposal and send written confirmation to Ginkgo of its [***] or, alternatively, inform Ginkgo in writing of and discuss with Ginkgo [***]. If [***], BLI will [***].
(e) Material Failure to Supply. If for reasons [***], over the course of any consecutive [***] period during the Term, BLI fails to provide Page 33 of 85
Ginkgo with at least [***] percent ([***]%) of (a) a given [***] or (b) the cumulative total of [***], with respect to each of clauses (a) and (b), in accordance with accepted Purchase Orders and this Agreement (including, with respect to [***]) over such [***] period, then, such Failure to Supply shall be deemed a material breach of this Agreement and Ginkgo shall have the right to terminate this Agreement pursuant to Section 13.2.1 (Material Breach), subject to BLI's right to cure such material breach. 6. RESTRICTIONS
6.1 Headstart Period.
6.1.1 BLI Standstill. Unless otherwise expressly agreed to in writing by the Parties, on a Headstart Invention-by-Headstart Invention basis, beginning on the date that a Workflow Development Plan is commenced and ending on the earlier of (a) the [***] anniversary of the date on which [***] under this Agreement or (b) subject to the last sentence of this Section 6.1.1 (BLI Standstill), if [***], then the [***] anniversary of the date on which [***] under this Agreement (for each such Headstart Invention, with respect to (a)-(b), the Headstart Period): (i) as between the Parties, Ginkgo will have the sole right to use, practice and exploit such Headstart Invention, and (ii) BLI shall not, and shall cause its Affiliates to not, directly or indirectly, itself or with or through a Third Party, use, practice or otherwise exploit such Headstart Invention in any way or grant any right, title or license to any Third Party to use, practice or otherwise exploit such Headstart Invention; provided that, for clarity, BLI shall retain the right to use, practice and otherwise exploit such Headstart Invention in accordance with the terms of this Agreement to perform BLI's obligations under this Agreement. For further clarity, nothing in this Section 6.1.1 (BLI Standstill) is intended to prevent a Third Party BLI customer or partner from using, practicing or otherwise exploiting any independently developed improvement, invention, process or workflow even if similar to a Headstart Invention as long as BLI and its Affiliates are in compliance with this Section 6.1.1 (BLI Standstill) [***]. If a Workflow Development Plan is cancelled under the terms of this Agreement, then the Headstart Period with respect to Headstart Inventions under such Workflow Development Plan shall be deemed to have immediately accelerated to conclusion, unless Ginkgo (x) identifies in writing one or more Headstart Inventions under the Workflow Development Plan within [***] ([***]) Business Days of cancellation of the Workflow Development Plan and (y) [***], in which case such Headstart Invention(s) shall be subject to the applicable Headstart Period under this Section 6.1.1 (BLI Standstill); provided that, Ginkgo's right to identify [***] under clauses (x) and (y) shall not exist if the cancellation of a Workflow Development Plan is [***].
6.1.2 [***]. Notwithstanding anything to the contrary in Section 6.1.1 (BLI Standstill), on a Headstart Invention-by-Headstart Invention basis, BLI may provide written notice to Ginkgo [***] (i.e. [***]), with respect to a Headstart Invention, such notice to specify (a) the applicable Headstart Invention [***], (b) the [***] and (c) whether BLI would prefer to [***] or, to the extent [***], [***] (which may, [***]); provided that to the extent the [***], BLI may only submit such a notice (and [***]) for [***]. Ginkgo Page 34 of 85
shall have [***] ([***]) Business Days following delivery of notice to Ginkgo to [***] by written notice to BLI. If the Parties [***] within [***] ([***]) Business Days of such written notice by Ginkgo, [***]. Following BLI's delivery of notice to Ginkgo [***], BLI shall [***] (i) if Ginkgo does not [***] within the [***] ([***]) Business Day period after notice delivery, within [***] ([***]) Business Days following the expiration of such [***] ([***]) Business Day period and (ii) if Ginkgo does [***] within the [***] ([***]) Business Day period after notice delivery, within [***] ([***]) Business Days following the [***]. Immediately upon [***] for a Headstart Invention, [***]. For clarity, [***]. For the avoidance of doubt, following the end of the Headstart Period for a Headstart Invention, Ginkgo shall still have the right to use, practice and exploit such Headstart Invention under this Agreement.
6.2 Restrictions on the Parties.
6.2.1 Restrictions on BLI. During the Term and for a period of [***] ([***]) months following the Term of this Agreement, other than pursuant to Sections 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election) or 13.3.3 (Effects of Termination Based Upon an Uncured Ginkgo Breach, Insolvency or Force Majeure Event), BLI shall not, and shall cause its Affiliates not to, directly or indirectly, itself or with or through a Third Party, develop, configure, customize, license, sell, provide or otherwise give access to the Beacon Platform or any [***] to, [***] or its Affiliates for any use; provided that this restriction shall terminate as set forth in Section 13.3 (Effects of Expiration or Termination) or if Ginkgo has not satisfied its Minimum Cumulative Purchase Commitments (as such may be adjusted under this Agreement) for a full Contract Year, including [***] as permitted under Section 7.2.2(a) (Minimum Cumulative Purchase Commitments) or Section 7.2.2(b)(iii) (Development Purchase Commitments); provided that BLI will provide written notice to Ginkgo within [***] ([***]) days of the end of any Contract Year with respect to which BLI believes that Ginkgo has not satisfied its Minimum Cumulative Purchase Commitment. Notwithstanding the foregoing, in the event that a Change in Control of an existing (as of the Effective Date or at any time during the Term) Third Party BLI customer results in such customer being controlled [***] following the date such Third Party became a BLI customer, BLI shall promptly notify Ginkgo in writing of such Change in Control (in no event later than [***] ([***]) days after BLI first learns of such Change in Control, [***] (in which case such notice will be provided by BLI no later than [***] ([***]) days after the earlier of [***] or [***]) and, in such written notice, provide Ginkgo with information regarding [***] and, if BLI does [***], the [***]. Within [***] ([***]) days of Ginkgo's receipt of such written notice, Ginkgo will have the option, at its sole discretion, (a) if [***], to [***] and to [***] and, if Ginkgo makes such election, BLI shall promptly [***] and (i) Ginkgo will [***] (but in no event [***]) and (ii) in the event [***], Ginkgo and BLI will [***] and (b) if [***], then [***], to (i) [***], (ii) [***] and (iii) [***]. In the event BLI notifies Ginkgo as aforesaid and Ginkgo fails to make such election within the [***] ([***]) day period, then, in the case of (A) or (B), BLI will not be deemed to be in breach of this Section 6.2.1 (Restrictions on BLI) solely on account of a Third Party customer [***]. Nothing in this Section 6.2.1 (Restrictions on BLI) will require or oblige BLI [***], then [***]. In the event [***], [***] in a manner that (x) [***], (y) [***] or (z) [***]. For clarity, the foregoing sentence shall not [***]. Except as provided in this Section 6.2.1 (Restrictions on BLI) and the scope of rights granted to Page 35 of 85
Ginkgo under this Agreement (including under Section 6.1 (Headstart Period) and Section 9.1 (Licenses to Ginkgo)), nothing in this Agreement shall otherwise limit, prohibit or preclude BLI from developing, configuring, customizing, licensing, selling or providing the Beacon Platform or Collaboration Workflows for itself or to a Third Party for any uses or otherwise entering into a business or advisory arrangement with any Third Party. As used in this Section 6.2.1 (Restrictions on BLI), control has the meaning set forth in Section 1.2 (Affiliate definition). For clarity, [***].
6.2.2 No Further Restrictions by Ginkgo. During the Term, Ginkgo shall not [***] prohibit (i.e. by [***]), as part of any [***] arrangement with a Third Party, a Third Party from purchasing a Beacon Platform or other BLI products or services, or otherwise using or utilizing such Beacon Platforms for [***], including [***]. For clarity, such obligation shall not prohibit or limit Ginkgo from entering into generally exclusive relationships with Third Parties (e.g., [***]). 7. ECONOMICS
7.1 Upfront Payment. No later than [***] ([***]) days following the Effective Date, Ginkgo will pay to BLI a non-refundable upfront amount equal to Ten Million Dollars ($10,000,000) (the Upfront Payment). Such amount will be fully creditable against all Development Purchases and Production Purchases owed by Ginkgo to BLI [***] and will be fully creditable against the Full Purchase Target and, [***], the Minimum Purchase Commitment, Development Purchase Commitment and Production Purchase Target [***]. [***].
7.2 Purchase Commitments.
7.2.1 Generally. Subject to the terms of this Agreement, during the Term, the Parties' target is for Ginkgo to make a total of One Hundred Fifty Million Dollars ($150,000,000) in Development Purchases and Production Purchases from BLI (as amended from time to time under this Agreement and as more fully set forth in this Section 7.2 (Purchase Commitments), the Full Purchase Target), which Full Purchase Target is divided into Contract Year purchase commitment targets with respect to Development Purchase Commitment and Production Purchase Targets, as more fully set forth in Section 7.2.2 (Contract Year Purchase Targets and Commitments).
7.2.2 Contract Year Purchase Targets and Commitments. Subject to the terms of this Agreement (including the remainder of this Section 7.2.2 (Contract Year Purchase Targets and Commitments)), for each Contract Year, Ginkgo shall [***] make Development Purchases and Production Purchases from BLI in the amounts set forth in the Page 36 of 85
Development Purchase Commitment and Production Purchase Target columns respectively in Table 7.2.2 with respect to such Contract Year:
Table 7.2.2
Development Purchase Commitment
Production Purchase Target
Total Targeted Purchase
Minimum Cumulative Purchase Commitment Contract Year 1 $ [***] $ [***] $ [***] $ [***] Contract Year 2 $ [***] $ [***] $ [***] $ [***] Contract Year 3 $ [***] $ [***] $ [***] $ [***] Contract Year 4 $ [***] $ [***] $ [***] $ [***] Contract Year 5 $ [***] $ [***] $ [***] $ [***] Contract Year 6 $ [***] $ [***] $ [***] $ [***] Contract Year 7 [***] $ [***] $ [***] $ 109,000,000 Total $ [***] $ [***] $150,000,000 N/A
(a) Minimum Cumulative Purchase Commitments. With respect to each Contract Year, by no later than [***], Ginkgo shall have incurred (including all credits and offsets permitted under this Agreement) at least, in the aggregate since the beginning of the Term, the Minimum Cumulative Purchase Commitment amount for such Contract Year. The Minimum Cumulative Purchase Commitments for each of Contract Years [***] are binding commitments. Any amounts paid by Ginkgo to BLI in excess of the Minimum Cumulative Purchase Commitment amount for a given Contract Year in Contract Years [***], regardless of whether such excess constitutes a Development Purchase or Production Purchase, will be creditable towards the Minimum Cumulative Purchase Commitment in subsequent Contract Year(s) until such excess amount has been fully credited. Ginkgo covenants to pay the Minimum Cumulative Purchase Commitments for each Contract Year by the [***] Business Day after the end of the [***]. If BLI has Substantially Completed at least [***] ([***]) [***] Workflows within the first [***] ([***]) Contract Years, then the Minimum Cumulative Purchase Commitment as of the Contract Year (which may include a portion of a full Contract Year) that is the last Contract Year during the Term pursuant to the terms of this Agreement shall change from $109 million (as currently reflected in Table 7.2.2) to $150 million.
(b) Development Purchase Commitments.
(i) Subject to Section 7.2.2(a) (Minimum Cumulative Purchase Commitments), unless the Parties otherwise mutually agree in writing, the Development Purchase Commitment for the [***] Contract Years shall constitute a binding obligation on Ginkgo, and, subject to Ginkgo exercising its Buy-Down Option pursuant to Section 7.3 (Buy-Down Election), the Development Purchase Commitment for the [***] Contract Years shall also constitute binding obligations on Ginkgo. No less than [***] percent ([***]%) of the Development Purchases made in the [***] Contract Years will be used by the Parties to develop Workflows for [***]. Page 37 of 85
(ii) At any time during a Contract Year, upon written notice to the JRC, Ginkgo may accelerate its Development Purchases in such Contract Year to include Development Purchases anticipated to be made in upcoming Contract Year(s). Such additional Development Purchases in excess of the Development Purchase Commitment for such Contract Year will be creditable towards Ginkgo's Development Purchases in subsequent Contract Year(s) until such excess amount has been exhausted and will count towards the Minimum Cumulative Purchase Commitment for the Contract Year in which it is paid, subject to allocation to subsequent Contract Year(s) as set forth in Section 7.2.2(a) (Minimum Cumulative Purchase Commitments).
(iii) Notwithstanding anything to the contrary in this Agreement, in the event that Ginkgo's Development Purchases in a given Contract Year after [***] are less than the Development Purchase Commitment for such Contract Year, respectively, Ginkgo shall be able to apply the Development Purchases made in the first [***] of the next Contract Year to satisfy the previous Contract Year's Development Purchase Commitment; provided that (i) Ginkgo may only be able to satisfy [***] percent ([***]%) of the relevant Development Purchase Commitment for the previous Contract Year pursuant to this Section 7.2.2(b)(iii) (Development Purchase Commitments) and (ii) any amount of Development Purchases credited towards satisfying the previous Contract Year's Development Purchase Commitment shall not count towards satisfying such targets for the then-current Contract Year.
(iv) Notwithstanding anything to the contrary in this Agreement, in the event that a Workflow Development Plan is terminated prior to completion by the JRC, including (A) [***], (B) [***], (C) [***] or (D) [***], then, subject to Section 3.5.1 (Decision-Making), the JRC shall, in good faith, discuss and approve [***]; provided, however, that such [***] (Term).
(c) Production Purchase Commitments.
(i) Subject to this Section 6.2.2(c) (Production Purchase Commitments), unless the Parties otherwise mutually agree in writing, the Production Purchase Target for the [***] shall constitute a binding obligation on Ginkgo and, in partial satisfaction of its Production Purchase commitment for the Page 38 of 85
[***], Ginkgo shall purchase [***] ([***]) [***] within [***] ([***]) days of the Effective Date, the cost of which, for clarity, shall be offset by the upfront payment paid by Ginkgo pursuant to Section 7.1 (Upfront Payment). Subject to Ginkgo's obligation to satisfy the Minimum Cumulative Purchase Commitment for a Contract Year, with respect to the second [***] Contract Years), Ginkgo's Production Purchase Targets for the [***] Contract Years as set forth in Table 7.2.2 are [***], and the Parties expressly acknowledge and agree that [***].
(ii) At any time during a Contract Year, upon written notice to the JRC, Ginkgo may accelerate its Production Purchases in such Contract Year to include Production Purchases anticipated to be made in upcoming Contract Year(s). Such additional Production Purchases in excess of the Production Purchase Target for such Contract Year will be creditable towards Ginkgo's Production Purchases in subsequent Contract Year(s) until such excess amount has been exhausted and will count towards the Minimum Cumulative Purchase Commitment.
(d) Effects of Tolling. Notwithstanding anything to the contrary in this Agreement, Ginkgo's obligations to satisfy Development Purchase Commitments and Production Purchase Commitments at all times during the Term (including any Intended End of Term) are subject to Section 5.4.3(d) (Tolling) and this Section 7.2.2(d) (Effects of Tolling). In the event that, at any time during the Term, there is a Failure to Supply, then the duration of this Agreement will automatically be extended for additional calendar months (rounded to the nearest whole calendar month) equal to [***] (the seventh (7t h) anniversary of the Effective Date plus such additional calendar months, the Intended End of Term).
7.3 Buy-Down Election. During the Term following the end of the second (2nd) Contract Year, Ginkgo may elect, upon written notice to BLI, to buy- down its remaining financial obligations under the Full Purchase Target (the Buy-Down Election) by making a one-time payment to BLI in the amount of the Buy-Down Amount. In the event Ginkgo notifies BLI of its Buy-Down Election as set forth in this Section 7.3 (Buy-Down Election), then, upon Ginkgo's payment of the Buy-Down Amount to BLI within [***] ([***]) days of Ginkgo's Buy-Down Election, this Agreement shall automatically terminate, with the applicable effects of termination set forth in Section 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election).
7.4 Additional Payments.
7.4.1 License Fees. During the Term, and in consideration for the rights granted herein, Ginkgo shall pay field of use license fees (FOU License Fees) as follows: (a) with respect to any calendar year, no FOU License Fees will be due until [***] and (b) [***] ($[***]) per calendar year per Beacon Optofluidic Machine [***] up to a Page 39 of 85
maximum of [***] ($[***]) per calendar year per Beacon Optofluidic Machine; provided that, in no event will the FOU License Fees paid by Ginkgo for use of a Beacon Optofluidic Machine [***]. FOU License Fees shall be applied to Ginkgo's use of all Beacon Optofluidic Machines, [***]. Notwithstanding anything to the contrary in this Agreement and without limiting any of Ginkgo's rights and remedies under Applicable Law and this Agreement, [***],
7.4.2 Milestone Payments. In the event that Ginkgo uses any of the BLI Proprietary Workflows identified in Exhibit D to conduct Commercial Services for a Third Party customer and such Commercial Services [***] result in the discovery of an Antibody to be used as the active ingredient in a therapeutic product for which a Third Party [***] (each such Antibody subject to this Section 7.4.2 (Milestone Payments), a Discovered Antibody), then, on a Discovered Antibody-by-Discovered Antibody basis, in the event such Third Party (a) achieves any of the milestone events noted below in Table 7.4.2 (each, a Milestone Event) with respect to a Discovered Antibody and (b) makes a payment to Ginkgo in connection with such Milestone Event, then Ginkgo will pay BLI [***] percent ([***]%) of such payment received by Ginkgo from such Third Party up to the amount of the corresponding Maximum Milestone Payment for such milestone event set forth below in Table 7.4.2 (each, a Milestone Payment. Notwithstanding anything to the contrary in this Agreement, in no event shall a Discovered Antibody include (x) an Antibody [***] (e.g. [***]) through the conduct of Commercial Services by Ginkgo or (y) an Antibody [***]. Table 7.4.2
Milestone Event
Maximum Milestone Payment [***] $ [***] [***] $ [***] [***] $ [***] [***] $ [***]
Each Milestone Payment shall be payable only once for each and every Discovered Antibody. If any Milestone Event is achieved for any Discovered Antibody before any of the preceding Milestone Events are achieved for such Discovered Antibody, then all the Milestone Payments for such unachieved preceding Milestone Events will be due and payable with the Milestone Payment for the Milestone Event that was achieved. For example, [***].
7.5 Manner of Payments. Each payment under this Agreement to a Party will be made in Dollars and by electronic transfer in immediately available funds via either a bank wire transfer, an ACH (automated clearing house) mechanism, or any other means of electronic funds transfer, at such receiving Party's election, to such bank account as the receiving Party will designate in writing to the other Party at least [***] ([***]) Business Days before the payment is due.
7.6 Taxes. It is understood and agreed between the Parties that any payments made by a Party to the other Party under this Agreement are exclusive of any sales tax, value added tax (if any) or similar tax (VAT) upon such payments. Where VAT is properly added to a payment made under this Agreement, the Party making the payment will pay the amount of VAT only on Page 40 of 85
receipt of a valid tax invoice issued in accordance with the laws and regulations of the country in which the VAT is chargeable. If a Party is required to deduct or withhold from any payment due hereunder any taxes in the nature of a tax upon or measured by income, then the Parties shall work together to ensure, subject to this Section 7.6 (Taxes), that the withholding Party is able to comply with its obligations under Applicable Law and that the non- withholding Party still receives the net amount due to it following payment of such tax by the withholding Party. [***]. The Parties will reasonably cooperate to provide sufficient documentation to receive any credits available under Applicable Law. Notwithstanding the foregoing, to the extent that, due to (a) [***], (b) [***], (c) [***], (d) [***] or (e) [***], with respect to each, VAT or other taxes are imposed on payments made by Ginkgo or BLI, as applicable, to the other Party that were not otherwise applicable (Incremental Withholding Taxes), the Party that took such action resulting in Incremental Withholding Taxes (together with any subsequent successor or assign, Responsible Tax Party) shall be solely responsible for and shall solely bear the amount of such Incremental Withholding Taxes. If the other Party receives a refund or tax credit in connection with the Incremental Withholding Taxes, then such other Party shall promptly pay the Responsible Tax Party an amount equal to the amount of such refund or tax credit.
7.7 Financial and Other Records. Each Party shall, and shall cause its Affiliates to, keep complete and accurate books and records pertaining to its activities conducted and costs incurred under this Agreement (including each approved Workflow Development Plan), including with respect to Budget spending, Development Purchases, Production Purchases, FOU License Fees and Milestone Payments, in sufficient detail to calculate all amounts payable hereunder and to verify compliance with its obligations under this Agreement. Such books and records shall be retained by such Party and its Affiliates until [***] ([***]) years after the end of the period to which such books and records pertain or for such longer period as may be required by Applicable Law.
7.8 Audits. At the request of the other Party, each Party will, and will cause its Affiliates to, permit an independent public accounting firm of nationally recognized standing designated by the other Party and reasonably acceptable to the audited Party, at reasonable times during normal business hours and upon reasonable notice, to audit the books and records maintained pursuant to Section 7.7 (Financial and Other Records) solely to confirm the accuracy of all financial reports, invoices and payments made hereunder or Budget spending under an approved Workflow Development Plan. Such examinations may not (a) be conducted more than once in any [***] month period (unless a previous audit during such [***] month period revealed an overpayment (or an underpayment of a Milestone Payment, FOU License Fees, or royalty for Licensed Products) of at least [***] percent ([***]%) of the amount actually due with respect to such period) or (b) [***]. The accounting firm will execute a reasonable written confidentiality agreement with the audited Party and will disclose to the auditing Party only such information as is reasonably necessary to provide the auditing Party with information regarding any actual or potential discrepancies between the amounts actually paid and the amounts payable under this Agreement. The accounting firm's report will [***] be delivered to each Party at the same time and will be deemed final [***] ([***]) business days after it is received by both Parties. The auditing Party shall bear the full cost of any such audit, unless the accounting firm's report discloses an overpayment (or underpayment) by the auditing Party of more than [***] percent ([***]%) of the amount due for any Calendar Quarter, in which case the audited Party shall bear the full cost of such audit. The audited Party shall pay the amount of any overpayment (or underpayment) disclosed in the accounting firm's report, together with interest thereon from the date such payment was originally due, within [***] ([***]) days after delivery to the Parties of the accounting firm's report. Page 41 of 85
7.9 Confidentiality. All books and records audited by a Party pursuant to Section 7.8 (Audits) will be maintained in confidence by such auditing Party in accordance with Article 10 (Confidentiality).
7.10 Late Payment. If any payment due is not paid by the due date, BLI may (a) charge interest on any outstanding amount of such payment, accruing as of the original due date, at an annual rate equal to the rate of prime (as reported in The Wall Street Journal, Eastern U.S. Edition) plus [***] percentage points or the maximum rate allowable by Applicable Law, whichever is less. 8. INTELLECTUAL PROPERTY OWNERSHIP; USE OF DATA
8.1 Ownership of Background IP; Efforts to Control. As between the Parties, and subject to the licenses granted under this Agreement, Ginkgo shall own and retain all rights, title, and interests in, to and under Ginkgo Background IP, and BLI shall own and retain all rights, title, and interests in, to and under BLI Background IP. With respect to any Intellectual Property developed by BLI or its Affiliates in collaboration or on behalf of a Third Party during the Term of this Agreement that is [***] for (a) [***] or (b) [***], with respect to each, BLI and its Affiliates shall [***] to [***] that BLI or its Affiliates Control such Intellectual Property so that BLI may grant a license to Ginkgo with respect to such Intellectual Property as set forth in Section 9.1 (Grants to Ginkgo).
8.2 Ownership of Ginkgo Inventions and BLI Inventions.
8.2.1 Ginkgo Inventions. Unless otherwise agreed to in writing by the Parties, as between the Parties, Ginkgo shall own:
(a) all biological entities, including all organisms, cells, strains, enzymes and other proteins, nucleic acids and other biomaterials (that are not BLI-provided biological entities listed in Section 8.2.2(f) (BLI Inventions)) [***], in each case that Ginkgo loads onto the Beacon Platform or provides to BLI [***];
(b) all [***];
(c) any assays [***];
(d) all chemical entities other than [***], developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform (clauses (a) through (d) of this Section 8.2.1 (Ginkgo Inventions) collectively, with the exception of [***], the Ginkgo Materials);
(e) all [***]; Page 42 of 85
(f) the [***];
(g) the Ginkgo Workflows, with the exception of any BLI Inventions; and
(h) all rights to the Intellectual Property contained or otherwise embodied in the inventions, discoveries, improvements, materials, chemical entities, Ginkgo Materials, [***], [***], or Ginkgo Workflows, described in clauses (a) through (g) of this Section 8.2.1 (Ginkgo Inventions) (clauses (a) through (g) collectively, the Ginkgo Inventions).
For clarity, Ginkgo's ability to use Ginkgo Inventions are subject to the limitations set forth in Section 9.1 (Grants to Ginkgo).
8.2.2 BLI Inventions. Unless otherwise agreed to in writing by the Parties, as between the Parties, BLI shall own:
(a) all inventions or discoveries [***]related to, or improvements or modifications to, the Beacon Platform that are developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform under a Workflow Development Plan;
(b) any materials or chemical entities that are not Ginkgo Materials that are developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform under a Workflow Development Plan, with the exception of any materials that are publicly available for purchase or are otherwise rightfully in the public domain;
(c) all BLI Proprietary Workflows;
(d) Generalized Workflows, with the exception of any Ginkgo Inventions;
(e) all Consumables provided by BLI related to the Beacon Platform and [***], in each case (i) developed, generated, created, used or otherwise exploited in connection with the use of the Beacon Platform under a Workflow Development Plan and (ii) [***];
(f) although generally not expected during the Term, any [***]; and
(g) all rights to the Intellectual Property contained or otherwise embodied in the inventions, discoveries, improvements, materials, chemical entities, Beacon Platform or Consumables described in clauses (a) through (f) of this Section 8.2.2 (BLI Inventions) (collectively, clauses (a) through (f) of this Section 8.2.2 (BLI Inventions), the BLI Inventions). Page 43 of 85
8.3 Ownership of Remaining Collaboration Intellectual Property. Subject to Section 8.2 (Ownership of Ginkgo Inventions and BLI Inventions), as between the Parties, BLI shall solely own all right, title and interest to all Collaboration Intellectual Property [***].
8.4 Prosecution and Enforcement Rights. Ginkgo shall have the sole and exclusive right, but not the obligation, to protect, seek registration for, defend and enforce, in its sole and entire discretion, the Ginkgo Inventions. BLI shall have the sole and exclusive right, but not the obligation, to protect, seek registration for, defend and enforce in its sole and entire discretion, the BLI Inventions and Collaboration Intellectual Property (other than the Ginkgo Inventions). In no event shall Ginkgo, and Ginkgo shall cause its Affiliates to not, file any patent applications covering (or support existing patent applications covering) the [***] and, in the event Ginkgo (or its Affiliates) do file one or more of such patent applications, Ginkgo will and hereby does assign, and shall cause its employees, agents and contractors to assign, to BLI all rights, title and interests in, to and under such patent applications. Other than as permitted under Section 8.5.2 (Use of Collaboration Data), in no event shall BLI, and BLI shall cause its Affiliates to not, file any patent applications covering (or support existing patent applications covering) [***] and, in the event that BLI (or its Affiliates) do file one or more of such patent applications, BLI will and hereby does assign, and shall cause its employees, agents and contractors to assign, to Ginkgo all rights, title and interests in, to and under such patent applications.
8.5 Use of Collaboration Data.
8.5.1 Disclosure. With respect to any data or results that are generated in connection with activities under a Workflow Development Plan (such data and results (but not Collaboration Workflows), Collaboration Data), each Party shall provide the other Party any Collaboration Data in its possession; provided that [***] shall provide any such Collaboration Data in its possession to [***] to the extent permitted under obligations of confidentiality owed by [***] to Third Parties with respect to such Collaboration Data. Notwithstanding the foregoing, [***] shall have the right to anonymize any Collaboration Data for disclosure to [***] or use by [***] under Section 8.5.2 (Use of Collaboration Data) and shall be permitted to remove from such Collaboration Data (a) any Third Party confidential information, (b) the identity of any [***] and (c) proprietary information regarding [***] Inventions or Intellectual Property Controlled, possessed or owned by [***] or its Affiliates.
8.5.2 Use of Collaboration Data. BLI will have the right to use any Collaboration Data provided to it for disclosure pursuant to Section 8.5.1 (Disclosure) solely for the purposes of (a) [***], (b) [***], (c) [***], and (d) [***]. For clarity, with respect to clause (d) of this Section 8.5.2 (Use of Collaboration Data), [***].
8.6 Notification of New Products; [***].
8.6.1 Access to New Products. During the Term, BLI shall promptly notify Ginkgo of any upcoming or then-current commercial availability of any new Beacon Optofluidic Machine or Consumable that, at that time, is not listed in Schedule 1.10 (Beacon Optofluidic Machine) or Schedule 1.36 (Consumables) and the Parties shall[***]. Page 44 of 85
8.6.2 [***]. During the Term, BLI shall provide Ginkgo with [***] (a) [***], (b) [***] and (c) BLI [***], with respect to each, [***] and [***]. As used in this Section, [***] means [***].
8.7 Inventor's Remuneration. Each Party will be solely responsible for any remuneration that may be due to such Party's inventors under any applicable inventor remuneration laws.
8.8 [***]. If, at any time during the Term, Ginkgo has purchased from BLI, in the aggregate, [***] ([***]) or more Beacon Optofluidic Machines, then:
8.8.1 Non-Exclusive [***] License. To ensure that, [***], BLI shall, and hereby does, automatically grant to Ginkgo, as of the date Ginkgo purchases an aggregate of [***] ([***]) Beacon Optofluidic Machine from BLI, a non-exclusive, non-royalty bearing and sublicensable (through multiple tiers) worldwide license in any Intellectual Property Controlled by BLI that is necessary to [***], solely for Ginkgo's [***] own internal use so that Ginkgo (or its Affiliates or permitted sublicensees) may [***]. Notwithstanding the foregoing, Ginkgo hereby represents, warrants and covenants to BLI that, as of the date BLI grants such license to Ginkgo and throughout the Term and thereafter, it shall not, directly or indirectly, conduct any activities under the rights granted to it in this Section 8.8.1 ([***]) unless and until (a) (i) [***] or (ii) [***], with respect to (i)-(ii), and such [***] or (b) [***]; provided that, after the event(s) sufficient to trigger sub-sections (i) or (ii) of this sentence occur, Ginkgo must provide BLI with written notice of its intent to conduct activities under rights granted pursuant to this Section 8.8.1 [***]. In the event Ginkgo has the right to conduct activities under the rights granted to it in this Section 8.8.1 ([***]), Ginkgo shall [***]. BLI shall [***].
8.8.2 [***]. Upon Ginkgo's written request at any time after [***], BLI shall [***] and will [***] so that [***]. Notwithstanding the foregoing, Ginkgo hereby represents, warrants and covenants to BLI as of the Effective Date, throughout the Term that it shall not, directly or indirectly, [***] unless and until (a) (i) [***] or (ii) [***] or (b) [***]; provided that, after the event(s) sufficient to trigger sub-sections (i) or (ii) of this sentence occur, Ginkgo must provide BLI with written notice of its intent to conduct activities under rights granted pursuant to this Section 8.8.2 [***]. In the event Ginkgo has the right to so [***], Ginkgo shall [***].
8.8.3 [***]. Upon Ginkgo's written request to BLI at any time if (a) there is (i) [***] or (ii) [***], or (b) [***], BLI shall [***] and [***] and shall [***], including by [***]; provided further that, if [***] either (A) [***] or (B) [***], then [***]. In the event Ginkgo [***], Ginkgo hereby represents, warrants and covenants to BLI as of the Effective Date, throughout the Term and thereafter that it shall [***]. BLI shall [***].
8.8.4 Any obligation of Ginkgo to [***] shall be [***].
8.9 Specific Implementation Restrictions. For clarity, this Agreement does not prohibit BLI or its Affiliates, alone or in combination with a Third Party, from independently developing a Workflow or a part or component thereof; or a derivative, modification, replication or progeny of Page 45 of 85
a biological entity; that is the [***] to a Specific Implementation (each such independently developed item, an Independent Development); provided that the Independent Development does not use any [***]; and further provided that BLI and its Affiliates do not [***] any [***] to [***] any Independent Development. Without limiting any other provision of this Agreement or Ginkgo's rights or remedies under this Agreement or Applicable Law, any use of [***] by BLI or its Affiliates, alone or in combination with a Third Party to develop a Workflow or a part or component thereof; or a derivative, modification, replication or progeny of a biological entity that is [***] a Specific Implementation shall be deemed a material breach of this Agreement by BLI and shall give rise to Ginkgo's right to terminate this Agreement pursuant to Section 13.2.1 (Material Breach). 9. LICENSE GRANTS
9.1 Grants to Ginkgo.
9.1.1 Scope of Grants. Subject to the terms and conditions of this Agreement, and in consideration for the payments to BLI under this Agreement, during the Term, BLI, on behalf of itself and its Affiliates, hereby grants and shall grant to Ginkgo a non-exclusive, sublicensable (solely in accordance with Section 9.1.4 (Consent to Sublicense)), non-transferable, non-royalty-bearing (subject to Section 13.3.2 (Effects of Termination Based Upon Ginkgo Buy-Down Election)) worldwide license in, to and under (i) BLI Background IP, and (ii) other Intellectual Property that is Controlled by BLI and that is [***] BLI Inventions, with both of (i) and (ii) being limited to what is necessary for Ginkgo to [***] and (iii) the Collaboration Intellectual Property solely to:
(a) perform research [***] on biological entities, including organisms, cells and strains (and sub-components thereof);
(b) (i) design and develop (A) Collaboration Workflows as generally contemplated under a Workflow Development Plan and (B) Ginkgo Workflows as permitted under this Agreement and (ii) use [***] Workflows to conduct the activities set forth in clause (a) and clause (c) of this Section 9.1.1 (Scope of Grants);
(c) perform commercial research [***] and other Commercial Services for Third Parties; and
(d) in each case of clauses (a) through (c) of this Section 9.1.1 (Scope of Grants), the license granted is for activities solely within the Licensed Field.
9.1.2 License Grant to Exploit [***]. Subject to the terms and conditions of this Agreement, during the Term BLI, on behalf of itself and its Affiliates, hereby grants and shall grant to Ginkgo a [***] license within the Licensed Field in, to and under any Intellectual Property Controlled by BLI that is necessary to make, have made, sell, have sold, import or use any [***] to make, have made, sell, have sold, import or use such [***]. Page 46 of 85
9.1.3 No Consumable License. For clarity and without limiting Section 8.8.1 (Non-Exclusive Manufacturing License; Covenant), the licenses granted to Ginkgo in Section 9.1.1 (Scope of Grants) and Section 9.1.2 (License Grant to Exploit [***]) do not include the right to make, have made, offer to sell or sell Consumables, [***], to or for Third Parties or any Ginkgo Affiliate or Ginkgo Subcontractor that are [***] on the Beacon Platform [***].
9.1.4 Consent to Sublicense. Ginkgo may grant sublicenses of the license granted to Ginkgo under Section 9.1.1 (Scope of Grants) and Section 9.1.2 (License Grant to Exploit [***]) with the prior written consent of BLI[***]; provided that such prior written consent of BLI shall not be needed for any sublicense granted by Ginkgo to (a) a Permitted Subcontractor of Ginkgo under Section 2.7 (Subcontracting) to the extent such sublicense relates to the subcontracted activities, (b) any wholly-owned subsidiary of Ginkgo existing as of the Effective Date or (c) any other Person, including other Affiliates and any Third Party, under Section 9.1.2 (License Grant to Exploit [***]) so long as, in the case of this clause (c), the sublicense [***]. Each sublicense of the license granted to Ginkgo under Section 9.1.1 will (i) be in writing, (ii) be consistent with the terms and conditions of this Agreement and (iii) require each sublicensee thereunder to comply with all terms of this Agreement applicable to a sublicensee. Notwithstanding the grant of any sublicense, Ginkgo shall remain [***] liable to BLI for the performance of all of Ginkgo's obligations under, and Ginkgo's compliance with all provisions of, this Agreement.
9.1.5 Responsibility. Ginkgo shall not (and Ginkgo shall ensure that its Affiliates and [***] sublicensees do not) use any Intellectual Property of BLI's that is licensed under Section 9.1 (Grants to Ginkgo), any BLI Confidential Information or any Beacon Platforms that may be transferred to Ginkgo by BLI under this Agreement, in each case for a purpose other than as expressly permitted under this Agreement.
9.1.6 Use in Excluded Fields. In the event BLI [***] that Ginkgo is using [***] in the Excluded Fields (Ginkgo Excluded Use), BLI shall send Ginkgo a written notice indicating that it believes Ginkgo is using [***] in an Excluded Field and, within [***] ([***]) Business Days after Ginkgo's receipt of BLI's written notice, Ginkgo shall investigate such claim internally and shall either (a) [***], or (b) [***], and the Parties will resolve such dispute pursuant to Section 14.5.2 (Dispute Resolution). If, following the dispute resolution process set forth in Section 14.5.2 (Dispute Resolution), it is determined that Ginkgo is using [***] in an Excluded Field, then BLI may either (i) [***], (ii) [***] or (iii) [***]; provided that, following determination that Ginkgo is using [***] in an Excluded Field pursuant to Section 14.5.2 (Dispute Resolution), if BLI wishes to make any election under clause (i), (ii) or (iii), it must notify Ginkgo within [***] ([***]) Business Days of such determination. [***].
9.2 Grants to BLI. Subject to the terms and conditions of this Agreement, during the Term, Ginkgo hereby grants and shall grant to BLI:
9.2.1 a [***] and this Section 9.2 (Grants to BLI)), [***] license in, to and under any Intellectual Property (a) Controlled by Ginkgo, (b) used by Ginkgo in the conduct of a Workflow Development Plan and (c) necessary for BLI to perform its obligations under this Agreement ((a)-(c) collectively, Ginkgo Licensed IP), solely to perform BLI's obligations under such Workflow Development Plan; and Page 47 of 85
9.2.2 after any applicable Headstart Period, with respect to any [***], a [***] license in, to and under any Ginkgo Licensed IP [***] necessary for the performance of, such [***], to make, have made, offer to sell, sell, have sold, import, use, commercialize or perform such [***] to or for Third Parties and to license such Third Parties to do the same.
Except as permitted under Sections 9.2.1 and 9.2.2, BLI may not sublicense, assign or otherwise transfer the rights granted to it in this Section 9.2 (Grants to BLI) without first obtaining the prior written consent of Ginkgo[***]. Each sublicense of any license granted to BLI under this Section 9.2 (Grants to BLI) will (i) be in writing, (ii) be consistent with the terms and conditions of this Agreement and (iii) require each sublicensee thereunder to comply with all terms of this Agreement applicable to a sublicensee; provided that, subject to Section 6.2.1, such prior written consent of Ginkgo shall not be needed for any sublicense granted by BLI (a) under Section 9.2.1, to a Permitted Subcontractor of BLI under Section 2.7 (Subcontracting) to the extent such sublicense relates to the subcontracted activities, (b) any wholly-owned subsidiary of BLI existing as of the Effective Date, or (c) any other Person, including other Affiliates and any Third Party, under Section 9.2.2. Notwithstanding the grant of any sublicense, BLI shall remain liable to Ginkgo for the performance of all of BLI's obligations under, and BLI's compliance with, all provisions of, this Agreement. BLI shall not (and BLI shall ensure that any of its Affiliates and sublicensees do not) use any Intellectual Property or Confidential Information of Ginkgo that is licensed under this Section 9.2 or otherwise disclosed to BLI under this Agreement for any purpose not expressly permitted under this Agreement. [***].
9.3 No Implied Rights. Except as expressly provided in this Agreement, neither Party will be deemed to have granted the other Party (by implication, estoppel or otherwise) any right, title, license or other interest in or with respect to any Intellectual Property or information Controlled by such Party. 10. CONFIDENTIALITY
10.1 Confidential Information. Each Party may disclose (Disclosing Party) to the other Party (Receiving Party), and Receiving Party may acquire during the course and conduct of activities under the Agreement, certain non-public or confidential information of Disclosing Party in connection with this Agreement. The term Confidential Information means all non-public or confidential information or material in tangible form that one Party discloses to the other Party hereunder, or proprietary or confidential information disclosed in non-tangible form that a Disclosing Party identifies to the Receiving Party as confidential information or that, from the nature of such information, the Receiving Party should reasonably know is the Confidential Information of the Disclosing Party, including all technical and non-technical information conveyed from one Party to the other or otherwise accessed or observed by a Party in any form, electronic data and other proprietary information, data, samples, products, materials, compounds, sequences, compositions, configurations, methods, formulas, formulations, processes, protocols, specifications, designs, recordings, drawings, sketches, models, technologies, equipment, information relating to quality assurance or control, laboratory notebooks, techniques, inventions, Page 48 of 85
know-how, apparatuses, formulae, customer lists, pricing information, strategies, business or marketing plans and other information related to the Disclosing Party's current, future and proposed products, business, customers, Software or technology. The Parties agree that the terms of this Agreement will be treated as Confidential Information of each Party. Without limitation of the foregoing, (i) Ginkgo Background IP, Ginkgo Inventions, Collaboration Data, Specific Implementations, and Ginkgo Workflows will be treated as the Confidential Information of Ginkgo and (ii) BLI Background IP, BLI Inventions, Generalized Workflows and BLI Proprietary Workflows will be treated as the Confidential Information of BLI. Notwithstanding any other provisions herein, Confidential Information does not include information that:
10.1.1 was known to Receiving Party or any of its Affiliates prior to the time of disclosure other than under an obligation of confidentiality with respect to such information;
10.1.2 is at the time of disclosure hereunder or later becomes public knowledge through no fault or omission of Receiving Party or any of its Affiliates;
10.1.3 is obtained by Receiving Party or any of its Affiliates from a Third Party having the right to disclose such information (e.g. not under an obligation of confidentiality to the Disclosing Party or its Affiliates) to such Receiving Party or its Affiliates;
10.1.4 has been independently developed by employees, Permitted Subcontractors, consultants or agents of Receiving Party or any of its Affiliates without the aid, application, or use of or reliance upon Disclosing Party's Confidential Information, as evidenced by contemporaneous written records; or
10.1.5 Receiving Party obtains written consent from Disclosing Party to disclose.
Specific aspects or details of Confidential Information will not be deemed to be within the public domain or in the possession of Receiving Party merely because the Confidential Information is embraced by more general information in the public domain or in the possession of Receiving Party. Further, any combination of Confidential Information will not be considered in the public domain or in the possession of Receiving Party merely because individual elements of such Confidential Information are in the public domain or in the possession of Receiving Party unless the combination and its principles are in the public domain or in the possession of Receiving Party.
10.2 Confidential Treatment. At all times during the Term and for a period of [***] ([***]) years following the end of the Term, or with respect to trade secrets (with such trade secrets either (i) having been specifically identified in writing to the Receiving Party by the Disclosing Party claiming ownership of the same or (ii) reasonably distinguishable by its nature or content as a trade secret of the Disclosing Party), until such time that such information is no longer a trade secret (including pursuant to Sections 10.1.1 - 10.1.5), Receiving Party will, and will cause its Affiliates and its and their respective officers, directors, employees, Permitted Subcontractors, permitted sublicensees and agents to, keep confidential and not publish or otherwise disclose to a Third Party and not use for any purpose, any Confidential Information furnished or otherwise made known to it by the Disclosing Party, except to the extent such disclosure or use is expressly Page 49 of 85
permitted by the terms of this Agreement or is reasonably necessary for the performance of, or the exercise of such Party's rights under, this Agreement; provided that such parties to which the Confidential Information is disclosed are bound by written obligations of confidentiality at least as stringent as those set forth in this Agreement. Notwithstanding the foregoing, a Receiving Party will remain liable for any breach of this Article 10 (Confidentiality) by any party to whom the Receiving Party has disclosed the Disclosing Party's Confidential Information under this Section 10.2 (Confidential Treatment).
10.3 Permitted Disclosures. Receiving Party may disclose the Confidential Information of the Disclosing Party in the following instances:
10.3.1 in order to comply with Applicable Law (including any securities law or regulation or the rules of a securities exchange) or with a legal or administrative proceeding; provided that (a) to the extent legally permitted, Receiving Party gives written notice of such required disclosure to Disclosing Party prior to disclosing such Confidential Information and (b) Disclosing Party shall have the opportunity to take appropriate measures to assure confidential treatment of such Confidential Information to the extent practicable and consistent with Applicable Law and Receiving Party agrees to reasonably cooperate with the Disclosing Party in connection with such measures at Disclosing Party's expense;
10.3.2 in connection with (a) prosecuting or defending litigation or (b) obtaining Regulatory Approval, making other regulatory filings and communications, and filing, prosecuting, enforcing, and defending patent rights, in each case, in connection with Receiving Party's rights and obligations pursuant to this Agreement; provided, however, that, where reasonably possible, Receiving Party will notify Disclosing Party of Receiving Party's intent to make any such disclosure sufficiently prior to making such disclosure so as to allow Disclosing Party adequate time to take whatever action it may deem appropriate to protect the confidentiality of the information to be disclosed; and
10.3.3 with respect to the terms of this Agreement, after having been reasonably redacted by the Receiving Party, to the extent such disclosure is reasonably required, to a bona fide potential licensee, investor, investment banker, acquirer, merger partner or other potential financial partner, and their respective attorneys, professional advisors and agents; provided that each such Person to whom such information is to be disclosed is informed of the confidential nature of such information and has entered into a written agreement with the Party requiring such Person to keep such information confidential.
10.4 Use of Names. Except as expressly provided herein, neither Party will mention or otherwise use the name, logo or trademark of the other Party or any of its Affiliates (or any abbreviation or adaptation thereof) in any publication, press release, website or marketing and promotional materials, or other form of publicity, without the prior written approval of such other Party in each instance; [***]. The restrictions imposed by this Section 10.4 (Use of Name) will not prohibit either Party from making any disclosure identifying the other Party that, in the reasonable opinion of the disclosing Party's counsel, is required by Applicable Law; provided that such Party will submit the proposed disclosure identifying the other Party in writing to the other Party as far in advance as reasonably practicable (and in no event less than [***] ([***]) Business Days prior to the anticipated date of disclosure) so as to provide a reasonable opportunity to comment thereon. Page 50 of 85
10.5 Publicity. Within [***] ([***]) days of the Effective Date (or such other period as mutually agreed to by the Parties), the Parties shall issue a press release in the form set forth in Schedule 10.5 (Press Release). After such initial press release, neither Party shall issue a press release or public announcement relating to this Agreement without the prior written approval of the other Party, which approval shall not be unreasonably withheld, conditioned or delayed, except that a Party may (a) once a press release or other public statement is approved in writing by both Parties, make subsequent public disclosure of the information contained in such press release or other written statement without the further approval of the other Party and (b) issue a press release or public announcement, including without limitation, the disclosure of this Agreement (or a summary thereof) in filings, as required, in the reasonable opinion of the publishing Party's counsel, by Applicable Law (including by the rules or regulations of the United States Securities and Exchange Commission or any stock exchange on which the equity interests of such Party or its Affiliates (or any successor entity) are listed), provided, however, that such Party seeking disclosure will prepare such summary and a proposed redacted version of this Agreement as far in advance as reasonably practicable (and in no event less than [***] ([***]) Business Days prior to the anticipated date of disclosure) so as to provide a reasonable opportunity to comment thereon, and the other Party shall within such [***] ([***]) Business Day period, provide its comments, if any, which may be incorporated, in the reasonable discretion of the Party seeking disclosure.
10.6 Destruction or Return of Confidential Information. Upon the end of the Term, whether in its entirety or with respect to a specific Workflow Development Plan, Disclosing Party may request in writing to Receiving Party, and Receiving Party will, as requested by Disclosing Party except as and if necessary for such Receiving Party to exercise surviving rights under this Agreement following such expiration or termination, (a) at the Disclosing Party's request, destroy, as soon as reasonably practicable, specific Confidential Information identified by the Disclosing Party in writing to the Receiving Party that are in Receiving Party's possession and confirm such destruction in writing to Disclosing Party or (b) deliver to Disclosing Party, as soon as reasonably practicable, at Disclosing Party's expense, all copies of such Confidential Information in the possession of Receiving Party; provided that the Receiving Party will be permitted to retain one copy of such Confidential Information for the sole purpose of performing any continuing obligations hereunder, as required by Applicable Law or for archival purposes. Notwithstanding the foregoing, Receiving Party also will be permitted to retain such additional copies of or any computer records or files containing such Confidential Information that have been created solely by Receiving Party's automatic archiving and back-up procedures, to the extent created and retained in a manner consistent with Receiving Party's standard archiving and back-up procedures, but not for any other use or purpose. 11. WARRANTIES AND DISCLAIMER; LIMITATION OF LIABILITY
11.1 Mutual Representations. Each Party hereby represents and warrants to the other Party, as of the Effective Date, as follows:
11.1.1 such Party is a corporation or limited liability company duly organized, validly existing and in good standing under the laws of the state in which it is incorporated; Page 51 of 85
11.1.2 such Party (a) has the corporate power and authority and legal right to enter into this Agreement, to perform its obligations and to grant the licenses hereunder and (b) has taken all necessary corporate action on its part to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;
11.1.3 this Agreement has been duly executed and delivered on behalf of such Party and constitutes a legal and valid obligation binding upon such Party and enforceable against it in accordance with its terms;
11.1.4 such Party has the right to grant the rights and licenses granted to the other Party pursuant to this Agreement; and
11.1.5 it has not entered into an agreement with a Third Party, or granted any right or license to any Third Party that conflicts with any of the rights, obligations or licenses granted to the other Party hereunder.
11.2 Mutual Covenants. Each Party hereby covenants to the other Party, as of the Effective Date, that:
11.2.1 all of its and its Affiliates' employees who conduct any work under this Agreement will be, during the conduct of all such work, bound to a written agreement with such Party or its Affiliate to automatically assign all right, title and interest in and to their inventions and discoveries, whether or not patentable, to such Party as the sole owner thereof;
11.2.2 to the best of its knowledge, without further duty of inquiry, such Party will not
(a) employ or use any contractor or consultant that employs any Person debarred by the FDA (or subject to similar sanction of the EMA or other Regulatory Authority) or (b) employ any Person that is the subject of an FDA debarment investigation or proceeding (or similar proceeding of the EMA or other Regulatory Authority), in each of (a)-(b), in the conduct of its activities under this Agreement;
11.2.3 it will perform or cause to be performed the obligations assigned to it under this Agreement in good scientific manner and in compliance with all Applicable Laws; and
11.2.4 it shall not, during the Term, enter into an agreement with a Third Party, or grant any right or license to any Third Party relating to any of the intellectual property rights it Controls, or otherwise encumber such intellectual property rights it Controls, that would conflict with any of the rights, obligations or licenses granted to the other Party hereunder. Page 52 of 85
11.3 Additional Representations, Warranties and Covenants of BLI. As of the Effective Date, BLI further represents, warrants and, as applicable, covenants to Ginkgo that:
11.3.1 BLI has, as of the Effective Date, and to its current knowledge will have during the Term, the full right, power and authority to (a) grant all of the right, title and interest in the licenses and other rights granted or to be granted to Ginkgo under this Agreement and (b) perform its obligations under this Agreement; 11.3.2 neither BLI nor its Affiliates have granted, and BLI and its Affiliates will not grant, any liens or security interest on any assets, including Intellectual Property, that would limit the scope of any rights or licenses granted to Ginkgo hereunder;
11.3.3 neither BLI nor its Affiliates have knowledge of or have received any written notice of any claim that any Intellectual Property Controlled by a Third Party would be infringed or misappropriated by the activities contemplated under this Agreement, including Ginkgo's use of the Beacon Platform to perform a general Workflow under this Agreement;
11.3.4 the Beacon Optofluidic Machines (including related Hardware and Software) and Consumables, at the time of delivery to Ginkgo, (a) shall have been manufactured, stored, shipped and delivered in accordance with Applicable Law and this Agreement; (b) to BLI's knowledge, [***] and (c) shall be free from all liens, charges, encumbrances and security interests;
11.3.5 all services, including Services, shall be performed by or on behalf of BLI with requisite care, skill and diligence, by individuals who are appropriately trained and qualified, and in accordance with Applicable Law and industry standards;
11.3.6 to BLI's knowledge [***], the use of the Beacon Platform as contemplated under this Agreement, but without any representation or warranty regarding [***] (a) [***] or (b) [***];
11.3.7 to BLI's knowledge [***], (a) the use of the Beacon Platform as contemplated under this Agreement and (b) the performance of the activities Ginkgo is granted the right to conduct under Section 9.1 (Grants to Ginkgo) (but for both (a) and (b) no representation, warranty or covenant is given by BLI for Ginkgo Materials, Ginkgo Workflows or for Collaboration Workflows) [***]; and
11.3.8 BLI has independently developed all BLI Background IP or otherwise has a valid right to use and, as applicable, to permit Ginkgo and its permitted sublicensees to use, the BLI Background IP for all permitted purposes under this Agreement.
11.4 Additional Representations, Warranties and Covenants of Ginkgo. As of the Effective Date, Ginkgo further represents, warrants and, as applicable, covenants to BLI that:
11.4.1 Ginkgo has, as of the Effective Date, and will have during the Term, the full right, power and authority to (a) grant all of the right, title and interest in the licenses and other rights granted or to be granted to BLI under this Agreement and (b) perform its obligations under this Agreement; Page 53 of 85
11.4.2 Ginkgo has independently developed all Ginkgo Background IP or otherwise has a valid right to use, and, as applicable, to permit BLI and its permitted sublicensees to use, the Ginkgo Background IP for all permitted purposes under this Agreement; and
11.4.3 neither Ginkgo nor its Affiliates have granted, and Ginkgo and its Affiliates will not grant, any liens or security interest on any assets, including Intellectual Property, that would limit the scope of any rights or licenses granted to BLI hereunder.
11.5 DISCLAIMERS.
11.5.1 EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING ITS ACTIVITIES UNDER THIS AGREEMENT OR RESULTS OF ANY WORK PLAN AND HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF ITSELF OR THIRD PARTIES, VALIDITY, ENFORCEABILITY AND SCOPE OF PATENT RIGHTS, VALIDITY OF PATENT RIGHTS CLAIMS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR OTHER DEFECTS WHETHER OR NOT DISCOVERABLE.
11.5.2 BEACON PLATFORMS ARE SOLD FOR RESEARCH USE ONLY. NOT FOR USE IN DIAGNOSTIC PROCEDURES. GINKGO ACKNOWLEDGES THAT (I) BEACON PLATFORMS HAVE NOT BEEN APPROVED, CLEARED OR LICENSED BY THE UNITED STATES FOOD AND DRUG ADMINISTRATION OR ANY OTHER REGULATORY ENTITY WHETHER FOREIGN OR DOMESTIC FOR ANY SPECIFIC INTENDED USE, WHETHER RESEARCH, COMMERCIAL, DIAGNOSTIC OR OTHERWISE AND (II) GINKGO MUST ENSURE IT HAS ANY REGULATORY APPROVALS THAT ARE NECESSARY FOR GINKGO'S INTENDED USES OF BEACON PLATFORMS. GINKGO FURTHER AGREES TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS WHEN USING, MAINTAINING AND DISPOSING OF BEACON PLATFORMS.
11.6 No Consequential Damages. EXCEPT TO THE EXTENT ARISING (A) FROM A PARTY'S BREACH OF ARTICLE 10 (CONFIDENTIALITY), (B) [***] (E) FROM A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (F) IN CONNECTION WITH A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 12 (INDEMNIFICATION; INSURANCE), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED AND ON Page 54 of 85
ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE). THE LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
11.7 Liability Limit. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL A PARTY'S AGGREGATE LIABILITY (ABOVE AMOUNTS ACTUALLY PAID OR REIMBURSED BY SUCH PARTY'S INSURER (TO THE EXTENT NOT SELF-INSURED)) FOR A CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED [***], EXCEPT THAT (A) SUCH LIMITATION SHALL NOT APPLY TO (I) A PARTY'S BREACH OF ARTICLE 10 (CONFIDENTIALITY), [***], (V) A PARTY'S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR (VI) A PARTY'S INDEMNIFICATION OBLIGATIONS UNDER ARTICLE 12 (INDEMNIFICATION; INSURANCE) AND (B) SUCH LIMITATION ON LIABILITY SHALL NOT INCLUDE ANY AMOUNTS ACCRUED AND ACTUALLY OWED PURSUANT TO THE TERMS OF THIS AGREEMENT. 12. INDEMNIFICATION; INSURANCE
12.1 Indemnification by BLI. BLI will indemnify, defend and hold Ginkgo and its Affiliates, and its and their officers, directors, employees, licensees, sublicensees, Permitted Subcontractors and agents (each, a Ginkgo Indemnitee) harmless from and against any and all suits, claims, proceedings and causes of action brought by a Third Party (collectively, Claims) and all associated damages, liabilities, expenses and losses, including reasonable legal expenses and reasonable attorneys' fees (collectively, Losses), to the extent caused by or arising as a result of (a) the breach by BLI of this Agreement or material inaccuracy in any representation or warranty made by BLI under this Agreement, (b) the negligence, gross negligence, fraud or willful misconduct by a BLI Indemnitee in connection with this Agreement, (c) [***], and (d) any Claims by BLI's employees, Permitted Subcontractors or agents for worker's compensation or other liability coverage, insurance, benefits, and other employee-related claims, in each case of clauses (a)-(d) of this Section 12.1 (Indemnification by BLI), except to the extent Ginkgo has an obligation to indemnify an BLI Indemnitee in connection with such Claims and Losses pursuant to Section 12.2 (Indemnification by Ginkgo).
12.2 Indemnification by Ginkgo. Ginkgo will indemnify, defend and hold BLI and its Affiliates, and its and their officers, directors, employees, Permitted Subcontractors and agents (each, an BLI Indemnitee) harmless from and against any and all Claims and Losses, to the extent caused by or arising as a result of (a) the breach by Ginkgo of this Agreement or material inaccuracy in any representation or warranty made by Ginkgo under this Agreement, (b) the negligence, gross negligence, fraud or willful misconduct by a Ginkgo Indemnitee in connection with this Agreement, (c) [***] and (d) any Claims by Ginkgo's employees, Permitted Subcontractors or agents for worker's compensation or other liability coverage, insurance, benefits, and other employee-related claims, and (e) the development, manufacture, use, handling, storage, importation, distribution, sale or other commercialization of Ginkgo Inventions by Ginkgo Page 55 of 85
or its Affiliates, agents, licensees, sublicensees or customers, in each case of clauses (a)-(e) of this Section 12.2 (Indemnification by Ginkgo) except to the extent BLI has an obligation to indemnify a Ginkgo Indemnitee in connection with such Claims and Losses pursuant to Section 12.1 (Indemnification by BLI).
12.3 Procedure. Any Party seeking indemnification under this Article 12 (Indemnification; Insurance) will promptly notify the indemnifying Party in writing after the Party seeking indemnification has received notice of any Claim. The Party seeking indemnification will reasonably cooperate with the indemnifying Party in the defense of any such Claim at the cost of the indemnifying Party. An indemnifying Party will not be obligated to defend, indemnify and hold harmless the Party seeking indemnification if, and only to the extent, the Party seeking indemnification delays providing notice of a Claim to the indemnifying Party and the delay in notice substantively prejudices the ability of the indemnifying Party to successfully defend the Claim. The indemnifying Party may not make any admission on behalf of the Party seeking indemnification [***]. Notwithstanding the foregoing, the Party seeking indemnification may at any time choose to be represented by its own counsel at its expense (or at the indemnifying Party's expense if the indemnifying Party's defense is inadequate as determined by a reasonableness standard).
12.4 Insurance. Each Party will obtain and carry in full force and effect the minimum insurance requirements set forth below. Such insurance (i) will be primary insurance with respect to each Party's own participation under this Agreement and (ii) will be issued by a recognized insurer rated by A.M. Best A-VII (or its equivalent) or better, or an insurer pre-approved in writing by the other Party.
12.4.1 Types and Minimum Limits. The types of insurance, and minimum limits will be: (i) any insurance policy that is required by any Applicable Law, including [***] and [***] policies where applicable; and (ii) [***] insurance with a minimum limit of [***] Dollars ($[***]) per occurrence and [***] Dollars ($[***]) in the aggregate. For clarity, [***].
12.4.2 Certificates of Insurance. Upon request by a Party, the other Party will provide Certificates of Insurance evidencing compliance with this Section 12.4 (Insurance). The insurance policies will be under an occurrence form, but if only a claims-made form is available to a Party, then such Party will continue to maintain such insurance after Expiration or the termination of this Agreement for a period of [***] ([***]) years following the end of the Term. 13. TERM AND TERMINATION
13.1 Term.
13.1.1 General. This Agreement shall commence on the Effective Date and, unless sooner terminated in accordance with its terms, including by Ginkgo pursuant to Section 7.3 (Buy-Down Election) or extended by the mutual written agreement of the Parties, shall continue until the Intended End of Term (such time period, as may be extended pursuant to this Section 13.3.1 (Term - General), the Term); provided that, if, Page 56 of 85
at the expiration of the Intended End of Term, Ginkgo has paid the Minimum Cumulative Purchase Commitment, but will not have paid to BLI the Full Purchase Target, then the Term of this Agreement shall automatically extend for an additional [***] ([***]) year period from the date of the expiration of the then-Intended End of Term so that, among other things, BLI may potentially receive the benefit of the Full Purchase Target and Ginkgo may receive the continuing benefit of royalty-free licenses.
13.1.2 Effects of Expiration. Upon Expiration of this Agreement: (i) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) and the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual, irrevocable, and royalty-free, (ii) no royalties shall be payable by Ginkgo on the sale or transfer of a Licensed Product, (iii) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) set forth in Section 5.2.2 (Pricing - Adjustments) shall [***], (iv) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein and (v) [***].
13.2 Termination With Cause.
13.2.1 Material Breach. If either Party commits a material breach of any of its obligations under this Agreement, then the other Party may give the breaching Party written notice of such material breach. If the breaching Party fails to cure such breach within sixty (60) days after such notice, then the non-breaching Party may terminate this Agreement upon written notice to the breaching Party in its entirety. Notwithstanding the foregoing, if the breaching Party has a bona fide dispute as to whether such breach has occurred or has been cured, it will so notify the non- breaching Party in writing and the cure period will be tolled until such dispute is resolved pursuant to Section 14.5.2 (Dispute Resolution). Upon a final determination of breach or failure to cure, the breaching Party will have the remainder of the cure period to cure such breach. [***].
13.2.2 Bankruptcy. Each Party will have the right to terminate this Agreement immediately in its entirety by giving written notice of termination to the other Party, if the other Party files a voluntary petition, or if an involuntary petition is granted in respect of the other Party and appeal proceedings are not commenced within [***] ([***]) Business Days from the date of such petition under the bankruptcy provisions of Applicable Law, or the other Party is declared insolvent, undergoes voluntary or involuntary dissolution, or makes an assignment for the benefit of its creditors, or suffers the appointment of a receiver or trustee over all, or substantially all, of its assets or properties. All rights and licenses under or to Intellectual Property granted under or pursuant to this Agreement by one Party to the other are, and will otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code, licenses of rights to intellectual property as defined under Article 101 (52) of the U.S. Bankruptcy Code. The Parties agree that each Party will retain and may fully exercise all of its rights and elections under the U.S. Bankruptcy Code or such similar laws in a jurisdiction outside the United States. Page 57 of 85
13.3 Effects Termination.
13.3.1 General. As of the effective date of any early termination of this Agreement, (a) neither Party shall be relieved of any obligation that accrued prior to such effective date of termination; (b) except as otherwise expressly provided herein, all rights and obligations of each Party hereunder will cease and (c) each Party shall return or destroy all Confidential Information of the other Party that is in its possession, subject to and as more fully set forth in Section 10.6 (Destruction or Return of Confidential Information). BLI shall fulfill any Production Purchase orders placed by Ginkgo prior to the effective date of termination and Ginkgo shall pay for such orders pursuant to Section 5.3.3 (Delivery and Payment). For all Development Purchases, BLI shall deliver to Ginkgo all works-in-progress and any report or analysis prepared prior to the effective date of termination within [***] ([***]) days after the effective date of termination. Expiration of this Agreement occurs only when[***].
13.3.2 Effects of Termination Based Upon Ginkgo's Buy-Down Election. In the event that termination is the result of Ginkgo exercising the Buy-Down Election (including payment of the Buy-Down Amount), then, as of the effective date of termination: (a) any and all existing Headstart Periods shall immediately be deemed to have accelerated to conclusion, (b) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall terminate; (c) the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual and irrevocable; (d) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall survive; (e) any Licensed Products arising from Collaboration Workflows or Ginkgo Workflows developed and used by Ginkgo to good effect prior to the effective date of termination shall be [***] on any sale or transfer of such Licensed Product, (f) (i) for any Licensed Products arising from Workflows other than those set forth in subclause (e) of this Section 13.3.2 (Effects of Termination Based on Ginkgo's Buy-Down Election), Ginkgo shall pay [***] and (ii) Ginkgo shall pay [***] for as long as one or more Beacon Optofluidic Machines are in operation at Ginkgo, (g) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) shall be consistent with then-current BLI List Prices, and (h) Ginkgo shall pay BLI for any amounts due for work performed by BLI under and in accordance with this Agreement prior to the effective date of termination to the extent that BLI cannot reasonably cancel or reallocate such work.
13.3.3 Effects of Termination Based Upon an Uncured Ginkgo Breach, Insolvency or Extended Force Majeure Event affecting Ginkgo. In the event that termination is the result of an uncured, material Ginkgo breach of the Agreement under Section 13.2.1 (Material Breach), for Ginkgo's insolvency pursuant to Section 13.2.2 (Bankruptcy) or for an Extended Force Majeure Event with respect to Ginkgo pursuant to Section 14.8 (Force Majeure), then, as of the effective date of termination: (a) any and all existing Headstart Periods shall immediately be deemed to have accelerated to conclusion, (b) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall immediately deemed to have terminated; (c) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall survive, (d) the licenses granted to Ginkgo under Sections 9.1.1(c) (Grants to Ginkgo - Commercial License) and 9.1.2 (License Grant to Page 58 of 85
Exploit [***]) shall survive, but shall convert immediately into royalty-bearing licenses as set forth in subclause (e) hereof, (e) Ginkgo shall to pay to BLI [***]; provided that in the event such uncured material breach is [***], Ginkgo, at its election to be made on or before the [***] ([***]t h) day following the effective date of termination (or, if later, within [***] ([***]) days of learning of the relevant royalties for Licensed Products), may elect, in lieu of royalties, to pay to BLI [***]; (f) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) shall be consistent with then-current BLI List Prices; and (g) Ginkgo shall pay BLI for any amounts due for work performed by BLI under and in accordance with this Agreement prior to the effective date of termination or materials ordered prior to the effective date of termination to the extent that BLI cannot reasonably cancel or reallocate such work or materials.
13.3.4 Effects of Termination Based Upon an Uncured BLI Breach or Insolvency. In the event that termination is the result of an uncured material BLI breach of the Agreement under Section 13.2.1 (Material Breach) or for BLI's insolvency pursuant to Section 13.2.2 (Bankruptcy), then: (a) Ginkgo's obligations to pay to BLI the Minimum Cumulative Purchase Commitment under Section 7.2.2(a) (Contract Year Purchase Targets and Commitments) shall terminate, (b) BLI shall grant royalty-free status on all Licensed Products developed using the Beacon Platform and no royalties shall be payable by Ginkgo on any sale or transfer of such Licensed Products, (c) Ginkgo's obligations to pay to BLI the FOU License Fees pursuant to Section 7.4.1 (License Fees) shall terminate, (d) the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive [***], (e) the licenses granted to BLI from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall terminate, except with respect to any sublicenses granted by BLI under Section 9.2.2 for products and processes that were sold, commercialized or performed by BLI or to or for Third Parties prior to termination, which shall survive and such termination, but only if such sublicenses were granted in accordance with this Agreement, (f) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) set forth in Section 5.2.2 (Pricing - Adjustments) shall survive for a period of [***] from the effective date of termination, (g) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein and (h) any and all existing Headstart Periods shall survive for their duration. If any such uncured, material BLI breach is solely due to BLI's material failure to perform its supply-related obligations under this Agreement, Section 13.4 (Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations) may apply in Ginkgo's sole discretion.
13.3.5 Effects of Termination Based Upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event. In the event that termination is elected by Ginkgo based upon an Extended Force Majeure Event with respect to BLI pursuant to Section 13.2.1 (Force Majeure), then, as of the effective date of termination: (a) any and all existing Headstart Periods shall survive for their duration as if this Agreement had not been terminated, (b) the restrictions on BLI set forth in Section 6.2.1 (Restrictions on BLI) shall survive to the extent set forth therein as if this Agreement had not been terminated; (c) the licenses granted to Ginkgo from BLI in Section 9.1.1 (Scope of Grants) and 9.1.2 (License Grant to Exploit [***]) shall survive and become perpetual, irrevocable and, subject to clause (f) of this Section 13.3.2, royalty-free; (d) the licenses granted to BLI Page 59 of 85
from Ginkgo pursuant to Section 9.2 (Grants to BLI) shall survive; (e) any Licensed Products arising from Collaboration Workflows or Ginkgo Workflows developed or used by Ginkgo to good effect prior to the effective date of termination shall be royalty-free and no royalties shall be payable by Ginkgo on any sale or transfer of such Licensed Product; provided that, if [***], if [***], then, in order for the sale or transfer of Licensed Products arising from Collaboration Workflows or Ginkgo Workflows developed or used by Ginkgo to good effect prior to the effective date of termination to be royalty-free, Ginkgo must pay to BLI [***], but Ginkgo will have [***] ([***]) days following the effective date of termination to decide whether to make such payment to BLI or to pay royalties for such Licensed Products under subclause (f) of this Section 13.3.5 (Effects of Termination Based Upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), (f) (i) for any Licensed Products arising from Workflows other than as set forth in subclause (e) of this Section 13.3.5 (Effects of Termination Based Upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), Ginkgo shall pay [***] and (ii) Ginkgo shall pay [***]; provided that, if [***], then [***], (g) the pricing terms for Beacon Optofluidic Machines, Consumables, and services (including Services) shall be consistent with then-current BLI List Prices and (h) Ginkgo shall pay BLI for any amounts due for work performed by BLI under and in accordance with this Agreement prior to the effective date of termination to the extent that BLI cannot reasonably cancel or reallocate such work.
13.3.6 Non-Limitation of Remedies. Nothing in this Section 13.3 (Effects of Expiration and Termination) limits or precludes any other remedies available to a Party, including for example, the seeking and obtaining of injunctive relief.
13.3.7 Annual Royalty Update. The Parties hereby acknowledge that, if this Agreement is terminated, then, depending on the manner of termination, Ginkgo may, as more fully set forth in Section 13.3 (Effects of Termination), be required to pay royalties to BLI with respect to Licensed Product, which royalties will be in line with BLI's then-standard commercial terms. In order for Ginkgo to more fully understand the royalty that may be owed to BLI in the event this Agreement is terminated, on an annual basis, starting at the end of the [***] Contract Year, BLI will provide Ginkgo, in writing, its then-current commercial terms with respect to royalties for the Licensed Products.
13.4 Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations. In the event that Ginkgo has the right to terminate this Agreement under Section 13.2.1 (Material Breach) due to a material breach of BLI to perform its supply-related obligations under this Agreement (for clarity, this shall not include (a) [***] or (b) [***], Ginkgo may elect by written notice to BLI to, instead of terminating this Agreement, keep this Agreement and, without limiting any other right or remedy under Applicable Law or this Agreement, to decrease the amount of the Minimum Cumulative Purchase Commitment for the current and future Contract Years, as well as the Full Purchase Target, in each case in amounts reasonably mutually agreed upon by the Parties in good faith in accordance with this Section 13.4 (Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations). Following any notice by Ginkgo to BLI under this Section 13.4 (Rights in Lieu of Termination for BLI's Material Breach of Supply Obligations), the Parties shall (i) discuss and implement in good faith a plan to address the supply breach by BLI and shall discuss in good faith potential approaches to prevent such breach from reoccurring, including a Page 60 of 85
modification to Ginkgo's forecasts and BLI's obligation to meet a certain percentage of such forecasts and (ii) discuss and implement reductions to the Minimum Cumulative Purchase Commitment for the current and future Contract Years, as well as reductions to the Full Purchase Target, which reductions will be made based on [***].
13.5 Determination of Use of Workflow to Good Effect. In the event the Parties disagree as to whether a Collaboration Workflow or Ginkgo Workflow has been developed and used by Ginkgo to good effect prior to termination pursuant to Section 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election) or Section 13.3.5 (Effects of Termination Based upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), with respect to each, at either Party's request, the dispute shall be resolved in an accelerated manner by an Expert Panel subject to the process and cost allocation set forth in Section 3.5.3.
13.6 Surviving Provisions. In addition to this Section 13.6 (Surviving Provisions), the following Sections and Articles will survive Expiration and any termination of this Agreement: Article 1 (Definitions), Section 2.2.3 (Retooling and Development Costs) (solely with respect to (i) [***] and (ii) [***]), Section 2.4 (Costs Under Workflow Development Plans) (solely with respect to costs incurred prior to the end of the Term), Section 2.5 (Termination of Workflow Development Plans) (solely with respect to the effects of termination of a Workflow Development Plan as set forth therein), Section 2.8 (Records) (solely for [***] ([***]) years following the end of the Term or for such longer period as required by Applicable Law), Section 3.9 (Expenses) (solely with respect to expenses incurred prior to the end of the Term), Section 4.1.10 (solely to the extent the BLI Terms and Conditions need to survive in order to give effect to the surviving terms of this Agreement), Section 6.1 (Headstart Period) solely to the extent any Headstart Periods extend beyond the Term) and further subject to each of Section 13.3.2 (Effects of Termination Based Upon Ginkgo's Buy-Down Election), Section 13.3.3 (Effects of Termination Based Upon an Uncured Ginkgo Breach, Insolvency or Extended Force Majeure Event affecting Ginkgo) or Section 13.3.5 (Effects of Termination Based upon Ginkgo's Election to Terminate based on a BLI Extended Force Majeure Event), as applicable), Section 6.2.1 (Restrictions on BLI) (solely for the [***] ([***]) month period following the end of the Term), Section 7.5 (Manner of Payments) through Section 7.10 (Late Payments) (solely with respect to any unpaid amounts that accrued prior to the end of the Term or that accrue at any time under Section 7.4.2 (Milestone Payments)), Article 8 (Intellectual Property Ownership; Use of Data), but excluding Section 8.4 (Prosecution and Enforcement Rights), Section 8.5.1 (Disclosure), and Section 8.6 (Notification of New Products; Early Access), Article 10 (Confidentiality), Section 11.5 (Disclaimers), Section 11.6 (No Consequential Damages), Section 11.7 (Liability Limit, Section 12.1 (Indemnification by BLI) through Section 12.3 (Procedure), Section 13.1.2 (Effects of Expiration) (solely for Expiration of this Agreement and only for [***] ([***]) years for under clause (iii) thereof), Section 13.3 (Effects of Termination) (solely for termination of this Agreement), Section 13.5 (Determination of Use of Workflow to Good Effect), Section 14.5 (Governing Law; Dispute Resolution; Equitable Remedies), Section 14.9 (Further Assurances) and Section 14.15 (Interpretation). 14. MISCELLANEOUS
14.1 Notice. Any notice given under this Agreement must be in writing and delivered either to the addresses set forth below in person or via overnight courier (or to such other addresses Page 61 of 85
of which the Parties may from time to time be notified in writing) and each such notice will be effective upon actual receipt:
If to Ginkgo:
Ginkgo Bioworks, Inc. 27 Drydock Avenue, 8th Floor Boston, MA 02210 Attn: [***]
With a copy to:
Ginkgo Bioworks, Inc. 27 Drydock Avenue, 8th Floor Boston, MA 02210 Attn: [***]
with an electronic copy to [***]
With a copy to:
[***]
If to BLI:
Berkeley Lights, Inc. 5858 Horton Street, Suite 320 Emeryville, CA 94608 Attn: [***]
With a copy to:
Berkeley Lights, Inc. 5858 Horton Street, Suite 320 Emeryville, CA 94608 Attn: [***]
With an electronic copy to: [***]
With a copy to:
[***]
Such notice will be deemed to have been given as of the date delivered by hand or on the second business day (at the place of delivery) after deposit with an internationally recognized overnight delivery service.
14.2 Independent Contractors. It is understood that both Parties hereto are independent contractors and are engaged in the operation of their own respective businesses, and neither Party is to be considered the agent of the other. Neither Party has any authority to enter into any contracts or assume any obligations for the other. Page 62 of 85
14.3 Severability. If any provision of this Agreement is held illegal, invalid or unenforceable by a court of competent jurisdiction, such decision will in no way affect the validity or enforceability of any other provisions, which will remain in full force and effect, and the Agreement will be interpreted as if such provision were not included in this Agreement; provided that the Parties will negotiate in good faith an amendment to this Agreement that replaces the unenforceable provision with an enforceable provision (to the extent possible) that reflects their initial intent.
14.4 Assignment.
14.4.1 Permitted Assignments. Neither Party may assign or otherwise transfer this Agreement or any rights hereunder, without the prior written consent of the other Party; provided that either Party may assign or otherwise transfer this Agreement or any rights hereunder (a) to a wholly-owned subsidiary of such Party or (b) in connection with the transfer or sale of all or substantially all of the business or assets of such Party related to the subject matter of this Agreement, whether by merger, consolidation, divestiture, restructure, sale of stock sale of assets or otherwise its successor, whether in a merger, sale of stock or sale of assets or any other transaction, in each case (a)-(b), without first obtaining the prior written consent of the other Party, so long as the non-assigning Party is notified in writing of such assignment within [***] ([***]) days following such assignment; provided further that, in no event may BLI assign this Agreement, in whole or in part, to any Person [***] without first obtaining Ginkgo's prior written consent. Any purported assignment of this Agreement by a Party in contradiction to this Section 14.4 (Assignment) will be void and of no effect.
14.4.2 Transferee. Notwithstanding anything to the contrary set forth herein, if a Party (the Assigning Party) assigns or transfers this Agreement to a permitted Third Party pursuant to Section 14.4.1 (Permitted Assignments) (any such Third Party, a Transferee), then the Intellectual Property that was held or developed by such Transferee prior to or after such assignment or transfer (other than Intellectual Property developed by such Transferee in the course of conducting the Assigning Party's activities under this Agreement to the extent such Intellectual Property would have been so included had it been discovered, created, made, developed, conceived or reduced to practice by such Assigning Party) shall not be deemed to be Intellectual Property Controlled by such Assigning Party, and shall also not be affected or otherwise encumbered in any manner, including without limitation, by being subject to any rights of or licenses under this Agreement. Furthermore, such Transferee (and Affiliates of such Transferee: (i) existing immediately prior to such merger, acquisition, assignment or transfer; or (ii) formed on or after such merger, acquisition, assignment or transfer, which are not controlled by (as defined under the Affiliate definition in Section 1.2 (Affiliate definition)) the Assigning Party) shall be excluded from the Affiliate definition for purposes of determining Intellectual Property that is subject to this Agreement. Page 63 of 85
14.5 Governing Law; Dispute Resolution; Equitable Remedies.
14.5.1 Governing Law. This Agreement will be construed and interpreted in accordance with the laws of the State of Delaware, without regard to any choice of law provision.
14.5.2 Dispute Resolution. Except with respect to those disputes in which a Party seeks equitable relief pursuant to Section 14.5.3 (Equitable Remedies) or for which a Party or Person is expressly given final decision-making authority as set forth in Section 3.5 (Decision-Making), the Parties, through their Senior Officers, will make a good faith effort to settle any disputes that may arise between them with respect to this Agreement. If the Parties do not settle the matter within [***] ([***]) days after the delivery by one Party of written notice (the Arbitration Notice) to the other Party involved, then the Parties will submit the matter to binding arbitration in Wilmington, Delaware. All matters so submitted to arbitration will be settled by three (3) arbitrators in accordance with the [***], or its successor (the [***] Rules). In the event of a conflict between [***] Rules and this Agreement, this Agreement shall govern. Each Party will designate an arbitrator and the Parties will cause the designated arbitrators to mutually agree upon and to designate a third arbitrator who will serve as chairperson; provided, however, that failing such agreement within [***] ([***]) days of delivery of the Arbitration Notice, the third (3rd) arbitrator will be appointed in accordance with [***] Rules within an additional [***] ([***]) days. The Parties shall arrange for a hearing to occur and be completed within [***] ([***]) days after the appointment of the third (3rd) arbitrator, which hearing shall last no longer than [***], unless the arbitral panel believes a longer period is required, in which case the hearing may last [***]. The Parties will cause the arbitrators to decide the matter to be arbitrated within [***] ([***]) days after the close of evidence unless the chairperson arbitrator determines, at the request of any Party or on his or her own initiative, that such time period should be extended, in which case such time period may not be extended beyond an additional [***] ([***]) day period. Each of Ginkgo and BLI will be permitted to serve one set of document production requests with no more than [***] ([***]) requests; no more than [***] ([***]) interrogatories, including subparts, no more than [***] ([***]) requests for admissions; no more than [***] ([***]) subpoenas to Third Parties; and no more than [***] ([***]) notices of deposition per side, in each case, unless the arbitral panel directs otherwise. Any documents not in English that are produced by a Party will be accompanied by a translation into English, which translation will not be binding upon the other Party or the arbitrators. Each Party covenants and agrees that (a) it will produce documents as required by this Section 14.5.2 (Dispute Resolution), and (b) it will make its employees, and will use commercially reasonable efforts to make its former employees, available for depositions and hearing testimony as requested by the other Party. The final decision of the majority of the arbitrators shall be in writing, in all events follow governing law and will be furnished to all the Parties in such dispute. Judgment on such decision may be entered in any court having jurisdiction. Such decision may be used in a court of law only for the purpose of seeking enforcement of the arbitrators' award. Except as required by Applicable Law or to enforce an arbitrators' award, neither Party may disclose the existence, contents or results of an arbitration brought in accordance with this Agreement, or the evidence produced by its opposing Parties, or any analysis or summaries derived from such evidence. The Parties agree that all applicable statutes of limitation and Page 64 of 85
time-based defenses (such as estoppel and laches) will be tolled while the procedures set forth in this Section 14.5.2 (Dispute Resolution) are pending. The Parties will cooperate in taking any actions necessary to achieve this result. Except as may be determined by the arbitrators, neither Party shall be penalized for delays resulting from dispute resolution conducted pursuant to this Section 14.5.2 (Dispute Resolution).
14.5.3 Equitable Remedies; Single Forum. Notwithstanding any other terms of this Agreement, either Party may seek a preliminary injunction or other provisional equitable relief in any court of competent jurisdiction as permitted by Applicable Law. At all times while any claim, action, suit or other proceeding between the Parties and/or any of their Affiliates (or among the Parties and/or any of their Affiliates and one or more Third Parties) arising out of or relating to this Agreement is pending in any court of competent jurisdiction, no dispute that is justiciable and can be joined to such pending claim, action, suit or other proceeding shall be submitted to arbitration pursuant to Section 14.5.2 (Dispute Resolution) without both Parties' mutual consent and, instead, either Party may join such dispute to the pending claim, action, suit or other proceeding by including such dispute in its pleadings or amending its pleadings. In the event that a motion to amend is required to achieve such joinder, the non- moving Party shall consent to such motion.
14.6 Entire Agreement; Amendment and Waiver. This Agreement, together with the Exhibits and Schedules attached hereto, sets forth and constitutes the entire agreement and understanding between the Parties with respect to the subject matter hereof and all prior agreements, understandings, promises and representations, whether written or oral, with respect thereto are superseded hereby. This Agreement may not be amended except by a writing signed by authorized representatives of both Parties. The failure of a Party at any time or times to require performance of any provision hereof will in no manner affect its rights at a later time to enforce the same. To be valid, a waiver must be in writing and signed by an authorized representative of the Party having the right that is waived or to whom the obligation to be waived is owed.
14.7 English Language. This Agreement will be written and executed in, and all other communications under or in connection with this Agreement will be in, the English language. Any translation into any other language will not be an official version thereof, and in the event of any conflict in interpretation between the English version and such translation, the English version will control.
14.8 Force Majeure. Any delay in the performance of any of the duties or obligations (other than payment obligations) of either Party hereto caused by a Force Majeure Event (defined below) shall not be considered a breach of this Agreement and the time required for performance shall be extended for a period equal to the period of such delay. Force Majeure Event shall mean acts of God, acts of the public enemy, war, terrorism, insurrections, riots, injunctions, embargoes, fires, explosions, floods, or other unforeseeable causes beyond the reasonable control and without the fault or negligence of the Party who is so prevented or delayed from fulfilling its obligations under this Agreement by such Force Majeure Event (the Affected Party). The Affected Party shall give prompt written notice to the other Party of such cause and shall take whatever reasonable steps are appropriate in the other Party's discretion to relieve the effect of such cause as rapidly as possible. The Party not directly affected by the Force Majeure Event shall have the right to terminate this Agreement with written notice effective upon receipt if Force Page 65 of 85
Majeure Event continues to prevent performance or compliance in any material respect by the other Party for a period of more than [***] ([***]) days or should [***] ([***]) Force Majeure Events apply to the performance of such other Party during any [***] (each a Extended Force Majeure Event).
14.9 Further Assurances. Each Party will duly execute and deliver, or cause to be duly executed and delivered, such further instruments and do and cause to be done such further acts and things, including the filing of such assignments, agreements, documents, and instruments, as may be necessary or as the other Party may reasonably request in connection with this Agreement or to carry out more effectively the provisions and purposes hereof, or to better assure and confirm unto such other Party its rights and remedies under this Agreement.
14.10 Third Party Beneficiaries. There are no Third Party beneficiaries under this Agreement, except to the extent a Third Party is indemnified pursuant to Article 12 (Indemnification; Insurance); provided that, in no event will any Third Party entitled to indemnification pursuant to Article 12 (Indemnification; Insurance) be allowed to enforce the terms thereof against a Party.
14.11 Export Control. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries which may be imposed upon the Parties from time to time. Each Party agrees that it will not export, directly or indirectly, any technical information acquired from the other Party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the applicable license, approval, or written consent to do so from the appropriate agency or other governmental entity.
14.12 References. Unless otherwise specified, (a) references in this Agreement to any Article, Section, Exhibit or Schedule will mean references to such Article, Section, Exhibit or Schedule of this Agreement, (b) references in any Section to any clause are references to such clause of such Section and (c) references to any agreement, instrument or other document in this Agreement refer to such agreement, instrument or other document as originally executed or, if subsequently amended, replaced or supplemented from time to time, as so amended, replaced or supplemented and in effect at the relevant time of reference thereto.
14.13 Attachments. In the event of any inconsistencies between this Agreement and any Exhibits, Schedules or other attachments hereto, the terms of this Agreement will control, unless the relevant Exhibit, Schedule or other attachment explicitly references its inconsistency with this Agreement and states that it shall control.
14.14 Non-Solicit. Neither Party will, [***], directly or indirectly with or through any Person, solicit for employment any Person who is an employee of the other Party; provided, however, that general solicitation of the public for employment shall not constitute a solicitation hereunder so long as such general solicitation is not designed to target any such Person. In the event that a Party solicits and then hires an employee of the other Party in violation of this Section 14.4 (Non-Solicit), the hiring Party shall, [***], within [***] ([***]) days of such hire, pay the other Party an amount equal to the [***] cash compensation actually paid to the individual Page 66 of 85
([***]) by the non-hiring Party in the immediately prior calendar year and, further, if the individual solicited and then hired in violation of this is a Key Person under Section 5.4.1(b) (Dedicated FTEs; Key Persons), then BLI shall have [***] ([***]) months to identify an employee as the individual to replace such Key Person and any (a) [***] or (b) [***], in each case (a)-(b), to the extent due to the absence of such Key Person performing a Workflow Development Plan upon which the Key Person was engaged, shall be deemed waived for that [***] month period.
14.15 Interpretation. All headings are for convenience only and will not affect the meaning of any provision of this Agreement. The Parties acknowledge that each Party has read and negotiated the language used in this Agreement. Because both Parties participated in negotiating and drafting this Agreement, no rule of construction will apply to this Agreement which construes ambiguous language in favor of or against either Party by reason of that Party's role in drafting this Agreement. Except where the context expressly requires otherwise, (a) the use of any gender herein will be deemed to encompass references to either or both genders, and the use of the singular will be deemed to include the plural (and vice versa), (b) the words include, includes and including will be deemed to be followed by the phrase without limitation, whether or not so appearing herein, (c) the word will will be construed to have the same meaning and effect as the word shall, (d) any reference herein to any Person will be construed to include the Person's successors and permitted assigns, (e) the words herein, hereof and hereunder, and words of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, (f) references to any Applicable Law, rule or regulation, or article, section or other division thereof, will be deemed to include the then-current amendments thereto or any replacement or successor Applicable Law, rule or regulation thereof and (g) the term or will be interpreted in the inclusive sense commonly associated with the term and/or.
14.16 Counterparts. This Agreement may be executed in one or more counterparts, each of which, when executed and delivered by facsimile, electronic transmission or by mail delivery, will be deemed an original and all of which will constitute one and the same instrument.
[Signature Page Directly Follows] Page 67 of 85
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed as of the Effective Date by their respective duly authorized representatives. GINKGO BIOWORKS, INC. BERKELEY LIGHTS, INC.
By: /s/ Barry Canton By: /s/ Keith Breinlinger Name: Barry Canton Name: Keith Breinlinger Title: CTO Title: CTO
SCHEDULE 1.10
Beacon Optofluidic Machine Specifications
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 1.18
BLI Terms and Conditions
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 1.21
Buy-Down Examples
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 1.36
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 1.62
FTE Rate
$[***] USD per year* * All FTEs (Hardware, Software, Program Manager, FAS, etc.) will be billed to Ginkgo at this rate. For periods of less than 1 year, billing will be pro-rated based on time. [***]
SCHEDULE 1.92
Lead Time
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 1.104
OptoSelect Chips
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 1.107
Performance Service Plan
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 2.2.2
Initial Workflow Development Plans
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 5.2.1
Pricing Schedule
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE 5.3.3
Qualification Standards
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
SCHEDULE [***] 1. [***]
SCHEDULE 10.5
Draft Press Release - Subject to further changes by Both Parties
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
EXHIBIT A
Workflow Development Plans
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
EXHIBIT B
Outline of First Two (2) Initial Workflow Development Plans
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
EXHIBIT C
GINKGO BIOWORKS, INC. AGREEMENT CONCERNING RECEIPT OF AND ACCESS TO GINKGO PROPERTY AND CONFIDENTIAL INFORMATION
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
EXHIBIT D
BLI Proprietary Workflows for Section 7.4.2
Intentionally omitted pursuant to Regulation S-K, Item 601(a)(5)
Question: Highlight the parts (if any) of this contract related to Third Party Beneficiary that should be reviewed by a lawyer. Details: Is there a non-contracting party who is a beneficiary to some or all of the clauses in the contract and therefore can enforce its rights against a contracting party?
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Output: 201490
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task598_cuad_answer_generation
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NIv2
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fs_opt
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train
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Detailed Instructions: In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
Q: EXHIBIT 10.14
ENDORSEMENT AGREEMENT
THIS ENDORSEMENT AGREEMENT (this Agreement), made and entered into as of May 31, 1999, by and between FAMOUS FIXINS, INC., 250 West 57th Street, Suite 2501, New York, New York 10107 (Company) and PEY DIRT, INC. (Pey Dirt).
WITNESSETH
WHEREAS, Company desires to obtain the right to use the name, likeness and endorsement of Peyton Manning (hereinafter called Manning) in connection with the advertisement, promotion and sale of Company's Products (hereinafter defined); and
WHEREAS, Manning has granted such rights to Pey Dirt together with the right to sublicense such rights.
NOW, THEREFORE, for and in consideration of the premises and of the mutual promises and conditions herein contained, the parties do hereby agree as follows:
1. Definitions. As used herein, the following terms shall be defined as set forth below:
(a) Contract Period shall mean that period of time commencing as of May 31, 1999 and concluding May 31, 2000.
(b) Contract Territory shall mean the states of Indianapolis and Tennessee and Company's e-commerce site.
(c) Contract Year Quarter shall mean each 3 consecutive month period occurring during any Contract Year (Contract Year meaning any twelve month period herein commencing as of June 1) (so that, by way of example, the first Contract Year Quarter of the first Contract Year commences as of June 1, 1999, the second commences on September 1, 1999, etc.).
(d) Endorsed Products shall mean all Products of Company which have the Manning Identification (defined below) highlighted as a part thereof (in the Products' name or otherwise) or which are shipped in containers or packages bearing the Manning Identification.
(e) Manning Identification shall mean any words or symbols or photographic or graphic representations or combinations thereof which identify Manning such as, for example, the name and likeness of Manning.
(f) Premium Program shall mean any traffic builder, third party tie-in program or other program involving the use of a premium and shall include any program primarily designed to attract the consumer to purchase a product or service other than Endorsed Products themselves.
(g) Products shall mean cold breakfast cereals.
2. Grant of Endorsement Rights. (a) Pey Dirt grants to Company the exclusive right and license to use Manning Identification within the Contract Territory during the Contract Period in connection with the advertisement and promotion by Company of Products in television, radio, print and point of purchase. Pey Dirt also grants to Company, subject to all of the terms and conditions herein, the non-exclusive right to use the Manning Identification in connection with certain merchandise that may be featured on the back panel of the Endorsed Products packaging, said merchandise to be subject to Pey Dirt's sole and exclusive discretion and approval. Notwithstanding anything herein to the contrary, it is specifically agreed that the Manning Identification cannot be used, in whole or in part, in connection with (i) Premium Programs and/or (ii) any multi-media use except for Company's e- commerce site. Pey Dirt expressly agrees that the right to use Manning Identification will not be granted to anyone other than Company for use within the Contract Territory during the Contract Period in connection with the advertisement, promotion and sale of Products. Anything herein to the contrary notwithstanding, Company shall not have the right to distribute photographs of Manning which are larger than 5 x 7.
(b) Company agrees that during the Contract Period it will use its best efforts actively and aggressively to (i) promote the sale of all Endorsed Products in the Contract Territory, and (ii) prevent the sale of any Endorsed Products outside the Contract Territory. Failure of Company to comply with the provisions of this Section 2(b) shall entitle Pey Dirt to revoke this license immediately (notwithstanding any other provision in this Agreement to the contrary).
(c) Pey Dirt has the right to terminate this Agreement immediately if Company's Endorsed Products are not being distributed in the Contract Territory to a significant number of stores by October 1, 1999.
3. Approvals. Company agrees that no use whatsoever of Manning Identification nor any item used in connection with Manning Identification (including, without limitation, advertising) will be made hereunder unless
and until the same has been approved by Pey Dirt. Pey Dirt agrees that any material, advertising or otherwise, submitted for approval as provided herein may be deemed by Company to have been approved hereunder if the same is not disapproved in writing within fourteen (14) days after receipt thereof. Pey Dirt agrees that any material submitted hereunder will not be unreasonably disapproved and, if it is disapproved, that Company will be advised of the specific grounds therefor. Company agrees to protect, indemnify and save harmless Pey Dirt and Manning, or either of them, from and against any and
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all expenses, damages, claims, suits, actions, judgments and costs whatsoever, arising out of, or in any way connected with, any advertising material furnished by, or on behalf of, Company.
4. Remuneration. (a) Within thirty (30) days following the conclusion of each Contract Year Quarter, Company shall deliver to Pey Dirt an itemized statement setting forth the total shipments of Endorsed Products during said Contract Year Quarter and, at the same time, shall pay to Pey Dirt a royalty with respect to such shipments as hereinafter provided. Such royalties shall be based upon the actual invoice price of such shipments, exclusive only of shipping charges and sales taxes, and shall be at the rate of 8.5% of the total of said invoice prices with a minimum invoice price of $2.50 per box.
(b) In addition to the royalty payments set forth above, Company agrees to grant Pey Dirt an option to purchase an aggregate of 50,000 shares of Company's publicly traded and registered stock (the Shares) at an exercise price of $0.15 per share (the Option), which Option shall vest and become unrestricted when the SEC declares Company's registration statement effective (anticipated to be no later than November 30, 1999) and shall be exercisable until June 30, 2004. As further inducement to Pey Dirt to enter into this Agreement, Company and Pey Dirt will enter into that certain Option Agreement dated as of the date of this Agreement, which shall govern all aspects of the Option.
(c) Further, Pey Dirt will be entitled to fifty percent (50%) of all gross profits (i.e., gross revenues less only Company's actual out-of-pocket costs of obtaining the raw merchandise) generated from merchandise related to the Endorsed Products and/or the Manning Identification, said merchandise to be advertised exclusively on the back panel of each box of Endorsed Products. Except for the advertising of merchandise related to the Endorsed Products and/or the Manning Identification, no other use of the back panel of each box of Endorsed Products is permitted without Pey Dirt's prior written consent. It is agreed that all such merchandise must be mutually approved in all respects by the parties hereto, including, without limitation, the style, design and cost thereof.
(d) In addition to and separate from any other remuneration hereunder, if Company uses any performance or service of Manning hereunder in any way that is subject to the jurisdiction of any applicable artists' union, guild or other organization (including, without limitation, SAG and AFTRA), either during or after the Contract Period, Company shall pay directly to such organization all minimum payments or fees (for benefit plans or otherwise) required to be made with respect to Manning's performance or services.
(e) If, at any time during the Contract Period, Company shall enter into any agreement (the terms of what are significantly the same as the terms hereof) in connection with the production and sale of Company's products using the name, likeness, photographic representation or signature of any other National Football League quarterback (active or retired), which agreement provides for the payment to such individual of remuneration in excess of that set forth herein, then Company agrees it will immediately so notify Pey Dirt
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and, at the same time, shall, retroactive to the effective date of such other agreement, increase the rate of remuneration paid to Pey Dirt hereunder up to the highest then-current rate paid by Company to any such National Football League quarterback (active or retired) for a regional endorsement deal.
5. Notices and Submissions. Pey Dirt hereby designates International Merchandising Corporation, IMG Center, Suite 100, 1360 East 9th Street, Cleveland, Ohio 44114, Attn.: Peter Johnson, as Pey Dirt's authorized agent for all purposes hereunder. All notices, submissions and/or requests for approval to be made, obtained or delivered by Company to Pey Dirt pursuant to this Agreement shall be delivered to said address free of all charges such as, for example, shipping charges and customs charges. In the event that any such charges are paid by Pey Dirt or by Pey Dirt's authorized agent, Company agrees to make prompt reimbursement.
6. Payments; Books and Records. (a) Pey Dirt may elect to have
payments made by check, wire transfer or bank transfer. Unless such election has been made in writing, all payments shall be made by check drawn to the order of Pey Dirt, Inc. and delivered to IMG, Suite 100, 1360 East 9th Street, Cleveland, Ohio 44114, Attn.: Peter Johnson. Past due payments hereunder shall bear interest at the rate of (i) one and one-half percent (1-1/2%) per month, or (ii) the maximum interest rate permissible under law, whichever is less.
(b) Company agrees that it will keep accurate and complete records and books of account showing all Endorsed Products shipped by it and the price thereof. Pey Dirt, or its representatives, shall, upon two weeks' written notice, have the right at all reasonable times (prior to the expiration of two (2) years after the termination of the Contract Period) to inspect and make copies of the books and records of Company insofar as they shall relate to the computation of royalties to be paid to Pey Dirt hereunder and the shipment of Endorsed Products pursuant to this Agreement. In the event that any such inspections show an underreporting and underpayment in excess of five percent (5%) for any twelve (12) month period, then Company shall pay the cost of such examination.
7. Labels/Packaging. (a) It is understood that each of the Endorsed Products shipped by Company or its container or the packaging therefor shall have affixed thereto a label or other permanent identification which includes Manning Identification.
(b) It is hereby agreed that the back panel of the Endorsed Products' packaging will feature ad copy or offers as determined by Pey Dirt and its agent, subject to Company's right to reasonably reject such materials only if such materials are clearly offensive to a majority of the populace. Any and all revenues generated by such ad copy or offers shall be disbursed in accordance with Section 4(c) above. Further, the side panel of the Endorsed Products packaging shall feature a charity or other entity of Manning's sole choice. All packaging costs shall be Company's sole responsibility.
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8. Trademarks. Should Company, at any time or times during the Contract Period, desire to register a trademark or trademarks which include Manning Identification, or which relate in any manner to Manning, and/or to register Company as a user thereof, Pey Dirt shall execute any and all documents which the parties reasonably believe to be necessary or desirable for registration or protection of such trademark or trademarks in the name of Manning. All costs related to any such trademarks shall be borne by Company, and ownership of any such trademarks shall rest solely in the name of Pey Dirt or its designee. Upon registration of any such trademark, Pey Dirt shall grant to Company a license for the use of such registered trademark on or in connection with the advertisement, promotion and sale of Endorsed Products, which license shall be coextensive and coterminous with the rights granted thereunder with respect to Manning Identification and shall require no increase in the payments set forth but shall contain such additional provisions as Pey Dirt reasonably believes are necessary for the protection of such trademark registered in the name of Manning or Pey Dirt. Company agrees that it will not file, during the Contract Period or thereafter, any application for trademark registration or otherwise obtain or attempt to obtain ownership of any trademark or trade name within the Contract Territory or in any other country of the world which consists of Manning Identification or any mark, design or logo intended to make reference to Manning or to identify products endorsed by Manning. In the event that, prior to the Contract Period, Company has filed one or more applications for registration of any such trademark, or otherwise has obtained any rights to such trademark, Company agrees to cause such applications and/or trademarks to be assigned and transferred to Pey Dirt forthwith.
9. Products for the Use of Pey Dirt. During the Contract Period, Company shall supply Pey Dirt and/or its agent with such amounts of Endorsed Products as Pey Dirt and/or its agent may reasonably request. Company agrees to pay all charges in connection with the delivery of Endorsed Products to Pey Dirt and/or Pey Dirt's agent, including shipping charges, air freight charges and customs charges. Company agrees to reimburse Pey Dirt's authorized agent for all such expenses incurred by it in connection with the transfer of Endorsed Products to Pey Dirt and/or Pey Dirt's agent.
10. Services of Manning. If Company desires to utilize the services of Manning as a model in connection with photographs or drawings for advertising or for personal appearances, Pey Dirt agrees, at the reasonable request of Company and upon adequate notice, to provide the services of Manning at a time and place reasonably convenient to the schedule of Manning. Company agrees that it will reimburse Pey Dirt for reasonable travel (including first class air fare), lodging, ground transportation and meal expenses incurred by Manning and one traveling companion designated by Manning. Company further agrees it will reimburse Pey Dirt's authorized agent for reasonable travel (including air fare), lodging and meal expenses incurred in providing one representative to accompany Manning. Company understands that if services are requested hereunder, such services may be coordinated with similar services for others entitled to the use of Manning Identification in other connections. Company further understands that such services may be required not more than once during the Contract Period for up to one (1) hour. In the event that Company elects to use the services of Manning in connection with television
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advertising, Company shall make all required union scale and union pension and welfare payments. Company further understands that failure to utilize services of Manning pursuant to this section shall not result in any reduction in payments to Pey Dirt hereunder, nor may the obligation to provide services be carried past the Contract Period. The obligations of Pey Dirt to provide the services of Manning hereunder are subject to the condition that payments to Pey Dirt are current and up to date.
11. Force Majeure. If, at any time during this Agreement, Pey Dirt or Manning is prevented from or hampered or interrupted or interfered with in any manner whatever in fully performing its/his duties hereunder, by reason of any present or future statute, law, ordinance, regulation, order, judgment or decree, whether legislative, executive or judicial (whether or not valid), act of God, earthquake, fire, flood, epidemic, accident, explosion, casualty, lockout, boycott, strike, labor controversy (including but not limited to threat of lockout, boycott or strike), riot, civil disturbance, war or armed conflict (whether or not there has been an official declaration of war or official statement as to the existence of a state of war), invasion, occupation, intervention of military forces, act of public enemy, embargo, delay of a common carrier, inability without default on Company's part to obtain sufficient material, labor, transportation, power or other essential commodity required in the conduct of its business; or by reason of any cause beyond his reasonable control; or by reason of any other cause of any similar nature (all of the foregoing being herein referred to as an event of force majeure), then Pey Dirt's/Manning's obligations hereunder shall be suspended as often as any such event of force majeure occurs and during such periods of time as such events of force majeure exist and such non-performance shall not be deemed to be a breach of this Agreement.
12. Default. (a) If either party at any time during the Contract Period shall (i) fail to make any payment of any sum of money herein specified to be made, or (ii) fail to observe or perform any of the covenants, agreements or obligations hereunder (other than the payment of money), the non-defaulting party may terminate this Agreement as follows: as to subparagraph (i) if such payment is not made within ten (10) days after the defaulting party shall have received written notice of such failure to make payment, or as to subparagraph (ii) if such default is not cured within thirty (30) days after the defaulting party shall have received written notice specifying in reasonable detail the nature of such default. In order to be a sufficient notice hereunder, any such written notice shall specify in detail each item of default and shall specify the provision of this Agreement which applies to each item of default, and shall specify in detail the action the defaulting party must take in order to cure each such item of default. The termination rights set forth in this section shall not constitute the exclusive remedy of the nondefaulting party hereunder, however, and if default is made by either party hereunder, the other may resort to such other remedies as said party would have been entitled to if this section had been omitted from this Agreement. Termination under the provisions of this section shall be without prejudice to any rights or claims which the terminating party may otherwise have against the defaulting party.
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(b) Notwithstanding anything herein to the contrary, the cure periods set forth in subparagraphs (a)(i) and (a)(ii) above only apply to Company's first default under this Agreement. Accordingly, Pey Dirt may, after Company's first default has occurred under either subparagraph (a)(i) or subparagraph (a)(ii) above and has been cured, thereafter immediately terminate this Agreement upon any further defaults by Company hereunder without providing Company an opportunity to cure any additional defaults.
13. Termination. From and after the termination of the Contract Period all of the rights of Company to the use of Manning Identification shall cease absolutely and Company shall not thereafter use or refer to Manning Identification in advertising or promotion in any manner whatsoever, it being understood by Company that Manning Identification may be used at any time by others in connection with the advertisement and promotion of Products the shipment of which is completed after the termination of the Contract Period. It is further agreed that following termination of the Contract Period, Company shall not advertise, promote, distribute or sell any item whatsoever in connection with the use of any name, figure, design, logo, trademark or trade name similar to or suggestive of Manning Identification.
14. Inventory of Endorsed Products on Termination/Expiration. Any Endorsed Products that may have been manufactured by or for Company prior to the termination or expiration of the Contract Period may be sold by Company during the ninety (90) day period next following the date of termination or expiration; provided, however, that Company shall have no such rights unless (a) Company is not in default of any of its obligations hereunder on the date of termination or expiration, (b) within fifteen (15) days after the date of termination or expiration, Company shall furnish to Pey Dirt a written statement of the number and description of Endorsed Products actually in stock on the date of termination or expiration, (c) the quantity of Endorsed Products in stock on the date of termination or expiration is not in excess of a reasonable inventory based upon Company's selling requirements of Endorsed Products during the Contract Period, (d) Company shall continue to pay to Pey Dirt with respect to such sales a royalty at the rates specified herein, and (e) royalties payable pursuant to this section shall be paid within thirty (30) days following the end of each calendar month with respect
to shipments made during such month.
15. Collegiate/National Football League Trademarks. Nothing contained herein shall be construed to convey to Company any rights to use the trademarks, logos or uniform of the University of Tennessee, the Indianapolis Colts, the National Football League or any other professional or amateur football association (including any member clubs or teams of such association) in conjunction with the rights granted hereunder. All rights to the use of such trademarks, logos or team identification must be acquired from the University of Tennessee, the Indianapolis Colts, the National Football League, or any other appropriate rights holder.
16. Indemnity. Company agrees to protect, indemnify and save harmless Pey Dirt, Pey Dirt's agent and Manning, or any of them, from and against any and all expenses, damages, claims, suits, actions, judgments and costs whatsoever, including reasonable attorneys' fees,
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arising out of, or in any way connected with, this Agreement, Company's default hereunder, the negligence, actions, errors or omissions of Company or any claim or action for personal injury, death or otherwise involving alleged defects in Company's Products, provided that Company shall be given notice of any such action or claim. Company agrees to provide and maintain, at its own expense, general liability insurance and product liability insurance with limits no less than $3,000,000 and within thirty (30) days from the date hereof, Company will submit to Pey Dirt a fully paid policy or certificate of insurance naming Pey Dirt, Pey Dirt's agent and Manning as additional insured parties, requiring that the insurer shall not terminate or materially modify such without written notice to Pey Dirt at least twenty (20) days in advance thereof.
17. Waiver. The failure of either party at any time or times to demand strict performance by the other of any of the terms, covenants or conditions set forth herein shall not be construed as a continuing waiver or relinquishment thereof and each may at any time demand strict and complete performance by the other of said terms, covenants and conditions.
18. Bankruptcy. If Company shall become bankrupt or insolvent, or if Company's business shall be placed in the hands of a Receiver, Assignee or Trustee, whether by voluntary act of Company r otherwise, the Contract Period shall, at the option of Pey Dirt, immediately terminate.
19. Assignment. This Agreement shall bind and inure to the benefit of Pey Dirt and the successors and assigns of Pey Dirt. Nothing herein shall prevent Pey Dirt from assigning the monetary benefits of this Agreement as it may so desire. Further, inasmuch as it is recognized that Pey Dirt is the representative of Manning, Pey Dirt may at any time assign this Agreement to Manning and, in such event, Pey Dirt shall have no further obligation or liability in connection herewith and Pey Dirt's position vis-a-vis Company in connection herewith shall be in all respects the same as if Pey Dirt had signed this Agreement as agent rather than as principal from the beginning. The rights granted Company hereunder shall be used only by it and shall not, without the prior written consent of Pey Dirt, be transferred or assigned to any other. In the event of the merger or consolidation of Company with any other entity, Pey Dirt shall have the right to terminate the Contract Period by so notifying Company in writing on or before sixty (60) days after Pey Dirt has received notice of such merger or consolidation.
20. Arbitration. In the event a dispute arises under this agreement which cannot be resolved, such dispute shall be submitted to arbitration and resolved by a single arbitrator (who shall be a lawyer) in accordance with the Commercial Arbitration Rules of the American Arbitration Association then in effect. All such arbitration shall take place at the office of the American Arbitration Association located in Nashville, Tennessee. Each party is entitled to depose one (1) fact witness and any expert witness designated by the other party, and to conduct such other discovery as the arbitrator deems appropriate. The award or decision rendered by the arbitrator shall be final, binding and conclusive and judgment may be entered upon such award by any court.
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21. Significance of Headings. Section headings contained herein are solely for the purpose of aiding in speedy location of subject matter and are not in any sense to be given weight in the construction of this Agreement. Accordingly, in case of any question with respect to the construction of this Agreement, it is to be construed as though such section headings had been omitted.
22. Entire Agreement. This writing constitutes the entire agreement between the parties hereto and may not be changed or modified except by a writing signed by the party or parties to be charged thereby.
23. Governing Law. This Agreement shall be governed and construed according to the law of Tennessee.
24. Reservation of Rights. All rights not herein specifically
granted to Company shall remain the property of Pey Dirt to be used in any manner Pey Dirt deems appropriate. Company understands that Pey Dirt has reserved to itself the right to authorize others to use Pey Dirt Identification within the Contract Territory and during the Contract Period in connection with all tangible and intangible items and services other than Products themselves.
25. No Joint Venture. This Agreement does not constitute and shall not be construed as constituting a partnership or joint venture between Turn 2 and Company. Neither party shall have any right to obligate or bind the other party in any manner whatsoever, and nothing herein contained shall give, or is intended to give, any rights of any kind to any third person.
26. Authorization. The execution, delivery and performance of this Agreement by Company and by Pey Dirt has been duly authorized and approved by the Board of Directors of Company and by the Board of Directors of Pey Dirt and constitutes a valid and binding obligation of Company and of Pey Dirt enforceable in accordance with its terms.
27. Execution and Delivery . This instrument shall not be considered to be an agreement or contract nor shall it create any obligation whatsoever on the part of Pey Dirt and Company, or either of them, unless and until it has been personally signed by a representative of Pey Dirt and by a representative of Company and delivery has been made of a fully signed original. Acceptance of the offer made herein is expressly limited to the terms of the offer.
28. Liability. In no event (including, but not limited to, Manning's or Pey Dirt's default hereunder) shall Manning or Pey Dirt be liable to Company (or any entity claiming through Company) for any amount in excess of the amounts of royalties actually received by Pey Dirt hereunder, excluding the reimbursement of expenses. Under no circumstances will Manning or Pey Dirt, on the one hand, or Company, on the other hand, be liable to the other or any other entity for any special, consequential, indirect, exemplary and/or punitive damages, or for loss of good will or business profits.
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IN WITNESS WHEREOF, the par-ties hereto have caused this Agreement to be executed as of the date first above written.
FAMOUS FIXINS, INC. PEY DIRT, INC.
By: /s/ Jason Bauer By: /s/ Peyton Manning --------------------- ------------------------ Jason Bauer Peyton Manning President President
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Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
A:
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task598_cuad_answer_generation
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
Ex Input:
Exhibit 10.24
______________________________________________________________________________
______________________________________________________________________________
OPERATION AND MAINTENANCE AGREEMENT
Dated as of November 3, 2010
______________________________________________________________________________
______________________________________________________________________________
10.23
TABLE OF CONTENTS Page
ARTICLE I : DEFINITIONS1
ARTICLE II : ENGAGEMENT OF OPERATOR5 2.1 Engagement.. 5 2.2 Independent Contractor. 5 2.3 Owner Cooperation 5
ARTICLE III : TERM, RESIGNATION OR REMOVAL OF OPERATOR5 3.1 Term. 5 3.2 Owner Default. 5 3.3 Operator Default 6 3.4 Cooperation with Owner or Successor Operator 7 3.5 Effect of Termination 7
ARTICLE IV : DUTIES AS OPERATOR7 4.1 Duties as Operator. 7 4.2 Standard of Care.. 11 4.4 Limitation of Authority 12
ARTICLE V : ACCOUNTING, REPORTS, RECORDS12 5.1 Accounting Methods. 12 5.2 Independent Audit. 12
ARTICLE VI : FORCE MAJEURE12 6.1 Procedure.. 12
6.2 Strikes. 13
ARTICLE VII : INSURANCE AND INDEMNIFICATION13 7.1 Operator Insurance. 13 7.2 Contractors 14 7.3 Notice of Claims.. 14 7.4 Mutual Release and Indemnification. 14
ARTICLE VIII : GENERAL PROVISIONS15 8.2 Notices 15 8.3 Rights 16 8.4 Applicable Laws 16 8.5 Rules of Construction. 16 8.6 Governing Law.. 17 8.7 Dispute Resolution. 17 8.8 Limitation of Liability.. 17 8.9 Entirety of Agreement, Amendments 17 8.10 Waivers. 18 8.11 Headings. 18 8.12 Rights and Remedies. 18 8.13 Assignment 18 8.14 Counterparts 18 8.15 No Third Party Beneficiary 18 8.16 Further Assurances. 28
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OPERATION AND MAINTENANCE AGREEMENT This OPERATIONS AND MAINTENANCE AGREEMENT dated this 3rd day of November, 2010 (the Effective Date), is made and entered into by and between MAGELLAN TERMINALS HOLDINGS, L.P. (f/k/a Marrero Terminal, LLC), a Delaware limited partnership (Owner), and OMEGA REFINING, LLC, a Delaware limited liability company (Omega or Operator). Owner and Operator are referred to individually herein as a Party and collectively herein as the Parties.
WITNESSETH:
WHEREAS, Owner currently operates that certain six spot rail car loading/offloading area located at 5000 River Road, Marrero, Louisiana, including associated piping, hoses, and pumps as more particularly described on Exhibit A attached hereto and incorporated by reference herein (the Rail Facility); and
WHEREAS, Owner wishes to retain Operator to maintain and operate the Rail Facility as well as administering the business and regulatory affairs of Owner relating to the Rail Facility, all in accordance with the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I : DEFINITIONS
Capitalized terms used in this Agreement but not otherwise defined herein shall have the following meanings:
Affiliate means, with respect to any Person, any other Person that, directly or indirectly, controls, is controlled by, or is under common control with, such specified Person through one or more intermediaries or otherwise. For the purposes of this definition, control means, where used with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Securities or interests, by contract or otherwise, and the terms controlling and controlled have correlative meanings.
Agreement means this Amended and Restated Operations and Maintenance Agreement (including all exhibits), as amended from time to time in accordance with the terms hereof.
Business Day means any calendar day, other than a Saturday or Sunday, on which commercial banks in New Orleans, Louisiana are open for business.
Calendar Year means the time period from January 1 through December 31 of the same calendar year.
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Capital Project means any capital expenditure to repair, maintain, construct, expand, or modify the Rail Facility.
Capital Project Proposal shall have the meaning set forth in Section 4.1.11.
Claim means any lawsuit, claim, proceeding, investigation, review, audit or other cause of action of any kind.
Constituent of Concern means any substance defined as a hazardous substance, hazardous waste, hazardous material, toxic substance, solid waste, pollutant or contaminant by an Environmental Law.
Effective Date shall have the meaning set forth in the preamble to this Agreement.
Emergency means a sudden or unexpected event that causes, or risks causing, imminent material damage to the Rail Facility, death or injury to any Person, or material damage to property or the environment.
Emergency Work shall have the meaning set forth in Section 4.1.12.
Environmental Law means all applicable Laws and Environmental Permits of any Governmental Authority relating to the environment, natural resources, or the protection thereof, including, without limitation: (a) all requirements pertaining to liability for reporting, management, licensing, permitting, investigation, and remediation of emissions, discharges, releases, or threatened releases of a Constituent of Concern; and (b) CERCLA, the Hazardous Materials Transportation Act, 49 U.S.C. § 5101 et seq. the Federal Clean Water Act, the Federal Clean Air Act, the Federal Solid Waste Disposal Act (which includes the Resource Conservation and Recovery Act), the Federal Toxic Substances Control Act, and the Federal Insecticide, Fungicide and Rodenticide Act, the Oil Pollution Act of 1990, 33 U.S.C. § 2701 et seq., and the Safe Drinking Water Act, 42 U.S.C. § 300f et seq. and any applicable Law relating to health, safety, the environment, natural resources or the protection thereof, each as amended from time to time, including any regulations promulgated pursuant thereto, and any state or local counterparts. Environmental Permits all permits, licenses, registrations, authorizations, certificates and approvals, and any other similar items, of Governmental Authorities required by Environmental Laws and necessary for or held in connection with the ownership and/or operation of the Rail Facility or any of the transactions contemplated hereby.
Force Majeure means any cause or causes not reasonably within the control of the Party claiming suspension and which, by the exercise of reasonable diligence, such Party is unable to prevent or overcome, including, without limitation, acts of God, acts, omissions to act, and/or delays in action of federal, state, or local government or any agency thereof, strikes, lockouts, work stoppages, or other industrial disturbances, acts of a public enemy, sabotage, wars, blockades, insurrections, riots, acts of terror, epidemics, landslides, lightning, earthquakes, fires, storms, storm warnings, floods, washouts, extreme cold or freezing weather, arrests and restraints of governments
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and people, civil or criminal disturbances, interruptions by governmental or court orders, present and future valid orders of any regulatory body having jurisdiction, explosions, mechanical failures, breakage, or accident to equipment installations, machinery, compressors, or lines of pipe, and associated repairs, freezing of wells or lines of pipe, partial or entire failure of wells, pipes, facilities, or equipment, electric power unavailability or shortages, failure of pipelines or carriers to transport, partial or entire failure or refusal of operators of upstream or downstream pipelines or facilities to receive used motor oil, governmental regulations, and inability to obtain or timely obtain, or obtain at a reasonable cost, after exercise of reasonable diligence, pipe, materials, equipment, rights-of-way, servitudes, governmental approvals, or labor, including those necessary for the facilities provided for in this Agreement.
GAAP means generally accepted accounting principles, consistently applied.
Governmental Authority means any federal, state, municipal, local or similar governmental authority, regulatory or administrative agency, court or arbitral body with jurisdiction over the Parties, this Agreement, any of the transactions contemplated hereby or the Rail Facility.
Hazardous Materials means any materials, including without limitation chemicals and wastes that are regulated under Environmental Law. Law means any statute, writ, law, common law, rule, regulation, ordinance, order, judgment, injunction, award, determination or decree of a Governmental Authority, or any requirement under the common law.
Lease shall mean that certain Land Lease dated as of April 30, 2008, pursuant to which Operator leased certain property from Owner's predecessor in interest, as described therein, as amended by that certain First Amendment to Land Lease dated as of October 29, 2009.
Liability Claim means a Claim arising out of the administration, operation, or maintenance of the Rail Facility, or arising out of or incidental to the activities carried on or work performed or required by this Agreement.
Loss means any loss, cost, expense, liability, damage, sanction, judgment, lien, fine, or penalty, including reasonable attorney's and consultant's fees and expenses, incurred, suffered or paid by, or resulting to, the applicable indemnified Persons on account of (i) injuries (including death) to any Person or damage to or destruction of any property, sustained or alleged to have been sustained in connection with or arising out of the matters for which the indemnifying Party has indemnified the applicable indemnified Persons, (ii) any failure of any representation or warranty made by Operator in this Agreement to be true and correct when made, or (iii) the breach of any covenant or agreement made or to be performed by the indemnifying Party pursuant to this Agreement.
Operating and Capital Expenditure Budget means, with respect to each period, the Operating and Capital Expenditure Budget for such period approved by Owner.
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Operator shall have the meaning set forth in the preamble to this Agreement.
Operator Indemnified Parties means, collectively, Operator, its successors and permitted assigns, and their respective Affiliates, shareholders, members, partners, officers, directors, employees, and agents.
Operator Parties means, collectively, Operator, Operator's Affiliates, and their respective successors and assigns; Operator Party means any such Person individually.
Owner shall have the meaning set forth in the preamble to this Agreement.
Owner Indemnified Parties means, collectively, Owner, its successors and permitted assigns, and their respective Affiliates, shareholders, members, partners, officers, directors, employees, and agents.
Party means either Owner or Operator, as applicable, and Parties means both Owner and Operator.
Person means an individual, a corporation, a partnership, a limited partnership, a limited liability company, an association, a joint venture, a trust, an unincorporated organization, or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.
Rail Facility shall have the meaning ascribed to such term m the recital of this Agreement.
Tax or Taxes means any (i) federal, state, provincial, county, local or foreign taxes, charges, fees, levies or other assessments, including all sales and use, goods and services, ad valorem, transfer, gains, profits, excise, franchise, real and personal property, gross receipt, value added, capital stock, production, business and occupation, disability, employment, payroll, license, estimated, stamp, custom duties, severance, unemployment, social security, Medicare, alternative minimum or withholding taxes or charges imposed by any Governmental Authority, and including any interest and penalties (civil or criminal) on or additions to any such taxes, but expressly excluding any income tax or tax based on income, such as, without limitation, the franchise tax set forth in Delaware Tax Code: 8 Del. Laws, c. 5 §501 et. seq., as the same may be amended or recodified from time to time, and (ii) liability for items in (i) of any other Person by contract, operation of Law (including Treasury Regulation 1.1502-6) or otherwise.
Tax Returns means any return, report, election, declaration, statement, notice, information return, schedule, or other document (including any related or supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or any income tax or tax based on income, such as, without limitation, the franchise tax set forth in Delaware Tax Code 8 Del. Laws, c. 5 §501
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et. seq., as the same may be amended or recodified from time to time, or the administration of any laws, regulations or administrative requirements relating to any Taxes or any amendment thereof.
Voting Securities means, as it relates to a Person, securities of any class of such Person entitling the holders thereof to vote in the election of, or to appoint, members of the board of directors or other similar governing body of the Person; provided that if such Person is a limited partnership, Voting Securities of such Person shall be the general partner interest in such Person.
ARTICLE II : ENGAGEMENT OF OPERATOR
2.1 Engagement. Owner hereby appoints and retains Operator to manage, operate, and maintain the Rail Facility and to administer the business and regulatory affairs of Owner relating to the Rail Facility in accordance with the terms and conditions set forth herein, and Operator hereby accepts such appointment.
2.2 Independent Contractor. The Parties expressly understand and agree that Operator is acting and shall perform and execute the provisions of this Agreement as an independent contractor unrelated to Owner or any Owner Affiliate, and the work performed by Operator hereunder shall be subject to Owner's general right of inspection and approval. Nothing in this Agreement is intended to create a relationship, expressed or implied, of employer-employee or principal-agent between Owner and Operator or between Owner and any individual employed or provided to work hereunder by Operator.
2.3 Owner Cooperation. Owner shall cooperate with Operator and provide Operator with such information as Operator may reasonably request from time to time in connection with the performance of Operator's duties hereunder.
ARTICLE III : TERM, RESIGNATION OR REMOVAL OF OPERATOR
3.1 Term. This Agreement shall commence on the Effective Date and, shall continue for the duration of the Lease, unless terminated earlier pursuant to Section 3.2 or 3.3.
3.2 Owner Default. Operator may terminate this Agreement at any time upon the occurrence of any of the following:
(a) the dissolution or bankruptcy of Owner;
(b) Owner fails to pay when due any amount due and payable hereunder, including, without limitation, any interest, fees, reimbursements or indemnifications, and such failure shall continue for a period of 15 days after the due date thereof; or
(c) other than as set forth in clause (b) above, Owner breaches or fails to observe or perform any material term, condition, or obligation contained in this Agreement and fails to correct, or fails to diligently pursue correction of, such breach within 60 days after receipt of written notice from Operator of any such breach.
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If any of the above occurs and Operator elects to terminate this Agreement, then Operator may give a written notice of termination to Owner, which termination shall be effective on the date specified by Operator in such notice, provided that such termination date shall be within 60 days of the date such notice is delivered to Owner. Operator's notice of breach to Owner under Section 3.2(b) or (c) shall state with particularity the breach alleged by Operator. To the extent Owner disputes the basis for Operator's notice of breach, the matter shall be addressed under Section 8.6. Nothing in this Section 3.2 shall be construed to limit or preclude any remedy Operator may have at law or in equity with respect to any material breach by Owner.
3.3 Operator Default. Owner may terminate this Agreement at any time upon the occurrence of any of the following:
(a) the dissolution or bankruptcy of Operator;
(b) Operator fails to pay when due any amount due and payable hereunder, including, without limitation, any interest, fees, reimbursements or indemnifications, and such failure shall continue for a period of 15 days after the due date thereof;
(c) other than as set forth in clause (b) above, Operator breaches or fails to observe or perform any material term, condition, or obligation contained in this Agreement and fails to correct, or fails to diligently pursue correction of, such breach within 60 days after receipt of written notice from Owner of any such breach;
(d) Termination by Owner pursuant to Section 4.1.1; or
(e) Without cause on no less than seven (7) days prior written notice.
In the event Owner terminates this Agreement pursuant to subparagraph (e) above, Owner may reimburse Operator for any unamortized capital expenditure (determined in accordance with GAAP) to the extent such capital expenditure was included in the Operating and Capital Expenditure Budget. If any of the above occurs, other than an event described in subparagraph (d), and Owner elects to terminate this Agreement (a termination for cause), then Owner may give a written notice of termination to Operator, which termination shall be effective on the date specified by Owner in the notice, provided that such termination date shall be within 60 days of the date the notice is delivered to Operator. Owner's notice of breach to Operator under Section 3.3(b) or (c) shall state with particularity the breach alleged by Owner. To the extent Operator disputes the basis for Owner's notice of breach, the matter shall be addressed under Section 8.6. Nothing in this Section 3.3 shall be construed to limit or preclude any remedy Owner may have at law or in equity with respect to any material breach by Operator.
3.4 Cooperation with Owner or Successor Operator. Upon the termination of this Agreement, Operator shall cooperate in the transition of operations to Owner or a successor operator
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and upon Owner's request, will promptly deliver all books and records and other property (including, without limitation, intellectual property) of Owner to Owner or the successor operator, as applicable.
3.5 Effect of Termination. Any termination of this Agreement pursuant to this Article III will release Operator from, and Owner agrees to indemnify Operator against, any liability accruing or accrued hereunder after the effective date of termination, except with respect to the obligations and liabilities of Operator that survive termination including any and all liabilities arising out of or resulting from Operator's operation and maintenance of the Rail Facility. Termination of this Agreement shall not relieve the Parties from any liability or obligation accruing or accrued prior to the date of such termination or deprive a Party not in breach (other than a breach which occurs because such Party is rightfully withholding performance in response to a breach by the other Party) of its right to any remedy otherwise available to such Party.
ARTICLE IV : DUTIES AS OPERATOR
4.1 Duties as Operator. Operator shall be responsible for (1) construction of the improvements to the Rail Facility in accordance with those plans and specifications approved by Owner in writing, (2) administering the regulatory, business, and financial affairs of the Rail Facility; (3) maintaining the financial and product accounting records of the Rail Facility; 4) preparing and distributing financial statements; (5) complying with any and all instructions it receives from Owner with respect to the operation and maintenance of the Rail Facility, provided that such instructions are consistent with applicable Laws and (6) complying with any and all Law and Environmental Law including any other permits or licenses.
4.1.2 Improvements/Alterations to the Rail Facility. Operator shall evaluate and modify, at its sole cost and expense, the rail car containment pan system (the Containment Pan System) so that such system is in compliance with the Spill Prevention, Control, and Countermeasure Regulations promulgated by the Environmental Protection Agency (the SPCC Regulations) and any other applicable regulations, rules or similar administrative publications promulgated by any other federal, state, or local regulatory agency. Such evaluation and modification, if necessary, of the Containment Pan System shall occur within ninety (90) days of the Effective Date. Owner specifically reserves the right to review, evaluate and approve the plans and specifications developed by Operator for any modifications to be made to the Containment Pan System for such compliance. Owner will provide written notice to Operator, within fifteen (15) days of Operator's submission of the plans and specifications for the Containment Pan System, confirming or denying its approval of Operator's plans and specifications for modification to the Containment Pan System, and in the event Owner does not approve such plans and specifications, Owner will provide Operator with written detail describing why such approval was withheld. Operator will have ten (10) days from the date it receives such written notice from Owner denying approval of its Containment Pan System plans and specifications to remediate such plans and specifications so that the modifications will comply with the SPCC Regulations. If Operator fails to remediate the Containment Pan System plans and specifications in a manner that will result in the modifications to the Containment Pan System complying with the SPCC Regulations within such ten (10) day period in a manner satisfactory to Owner, Owner, in its sole discretion, may unilaterally terminate this Agreement. Additionally, Owner reserves the right to inspect the
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Containment Pan System after Operator has modified such equipment, and if such modifications made by Operator to the Containment Pay System do not comply with SPCC Regulations, then Owner, in its sole discretion, may unilaterally terminate this Agreement. Any other alterations or improvements to the Rail Facility may not be made by Operator without the written consent of Owner.
4.1.3 Operation of the Rail Facility. Operator shall manage and operate the Rail Facility, the construction and future modifications to the Rail Facility, and negotiate agreements in Owner's name with third parties related to the operation of the Rail Facility (provided that (i) Owner shall have the right to approve or disapprove any such agreements, and (ii) if approved, except as provided in Section 4.1.1, Owner, and not Operator, shall execute all such agreements), comply with any instructions it receives from Owner with respect to the operation and maintenance of the Rail Facility, provided that such instructions are consistent with applicable Laws, and perform all other services and functions related thereto subject to the limits, requirements, and restrictions otherwise set forth in this Agreement.
4.1.4 Maintenance of the Rail Facility. Subject to the terms, conditions and limitations set forth in this Agreement, Owner hereby authorizes and empowers Operator, and Operator agrees, in the name of and on behalf of Owner, to, at its sole cost and expense, keep and maintain the Rail Facility in a condition and repair similar to, but not less than, its condition and repair on the Effective Date hereof.
4.1.5 Operator Recommendations. In the event that Operator makes a good-faith recommendation in writing regarding an operational issue to Owner, and Owner does not, for any reason whatsoever, approve such recommendation, then Operator shall not be liable and Owner hereby releases and shall indemnify, defend and hold Operator harmless from and against any Claim or Loss that arises from, or is attributable to, the failure to implement such recommendation.
4.1.6 Compliance with Owner Instructions. Notwithstanding anything to the contrary in this Agreement, in the event that Owner instructs Operator to take any action or refrain from taking any action in connection with the operation or maintenance of the Rail Facility and Operator in good faith disagrees with Owner because, among other reasons, it is not consistent with prudent operating standards, then Operator shall notify Owner of such disagreement in writing, and Owner hereby releases and shall indemnify, defend and hold Operator harmless from and against any Claim or Loss that arises from, or is attributable to, Operator's compliance with Owner's instructions.
4.1.7 Environmental Laws. Operator shall comply, in the performance of its duties and responsibilities hereunder, in all respects with all Environmental Laws and all Environmental Permits.
4.1.8 Purchase of Services, Materials and Supplies. Except as otherwise provided below and subject to the limitations herein, Operator shall, on Owner's behalf and as its agent, purchase or cause to be purchased necessary services, materials and supplies and incur such expenses and enter into such commitments as may be necessary to operate and maintain the Rail Facility, including, but not limited to, (i) contracts for the maintenance, repair and replacement of the Rail
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Facility and, if requested by Owner, construction of additions to the Rail Facility; and (ii) contracts for power, fuel, other utilities, and communication facilities as may be necessary in connection with proper operation and maintenance of the Rail Facility and for providing adjustments and replacements thereto.
4.1.9 Personnel. Except as otherwise provided below and subject to the limitations herein, Operator, in its reasonable judgment, shall employ such personnel, with Operator or an Affiliate as their employer, as it may deem necessary to operate and maintain the Rail Facility and to provide adjustments and replacements thereto and to perform its other obligations hereunder. In addition to Operator's or Operator's Affiliates' employees who are either full-time or part-time dedicated to operating and maintaining the Rail Facility, Operator may: (i) utilize from time to time its other employees or the employees of Operator's Affiliates in services in connection therewith at a usual and customary rate of compensation; and/or (ii) engage the services of third-party contractors in the performance of such functions. Notwithstanding the foregoing, all personnel provided by Operator to operate and maintain the Rail Facility shall have the requisite background, training and skill necessary to operate such a facility in accordance with all current industry standards and any and all applicable state and federal Laws, Environmental Laws, and Environmental Permits.
4.1.10 Payment of Operating Expenses. Operator shall promptly pay all direct costs and expenses incurred in operating and maintaining the Rail Facility as they become due, without reimbursement by Owner save and except to the extent specifically provided otherwise herein.
4.1.11 Operating Expense Budget. Operator shall (i) administer and otherwise comply with the budget proposed by Operator and approved by Owner (ii) operate and maintain the Rail Facility in compliance with the Operating and Capital Expenditure Budget established for the Rail Facility; provided, however, if Owner instructs Operator to perform any services outside of the scope of the services contemplated in the Operating and Capital Expenditure Budget (exclusive of those services to be performed by Operator in connection with any necessary alterations or modifications to the Containment Pan System pursuant to Section 4.1.1), then Owner shall reimburse Operator for the costs and expenses associated therewith.
4.1.12 Capital Projects. Operator may propose an unbudgeted Capital Project at any time by giving written notice of such to Owner. The notice (the Capital Project Proposal) must specifically describe the proposed Capital Project and shall include the following:
(i)a good-faith estimate of the costs associated with the operation and maintenance of the proposed Capital Project;
(ii)preliminary engineering designs and plans; and
(iii)general requirements or provisions for the Capital Project, including construction of the Capital Project and insurance coverage.
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Owner shall approve or reject the proposed Capital Project set forth in the applicable Capital Project Proposal within fifteen (15) days from the date of receipt of the same, such approval not to be unreasonably withheld, conditioned or delayed. If Owner approves the applicable Capital Project, then Operator shall have the right and authority with respect to the approved Capital Project to make expenditures, or enter into contracts to incur expenditures, without further authorization by Owner; provided, however, Owner will not be responsible for reimbursing Operator for any expenditures incurred by Operator related to the construction, operation, and maintenance of the Capital Project.
4.1.13 Emergencies. Notwithstanding any provision of this Agreement, in the event of an Emergency, Operator shall proceed with maintenance or repair work or with any other action when necessary to minimize damage and to end the Emergency (Emergency Work), without regard to the limits set forth in this Article IV. Operator shall, as soon as reasonably practicable, notify Owner of the existence or occurrence of the Emergency, setting forth the nature of the emergency, the corrective action taken or proposed to be taken, and the actual or estimated cost of such corrective action. Emergency Work shall include only such work as is necessary to immediately address the Emergency and does not include any work necessary to restore the Rail Facility or improve the Rail Facility in order to permit continued operations.
4.1.14 Reporting By Operator. Operator shall (by either (i) submitting written reports or records or (ii) providing Owner with access to Operator's internet website containing the relevant information, at Operator's discretion) provide to Owner the following reports or records, based on the best data available at the time of preparation and subject to revision based on acquisition of more accurate data:
(i) as soon as available, and in any event within 30 days after the end of each calendar month, an operational report on major repairs and other operational details materially affecting the operations of the Rail Facility during such month;
(ii) as soon as available, and in any event within 30 days after the end of each Calendar Year, a certificate from the president or chief executive officer of Operator stating that no event or condition exists or has occurred that violates, results in a breach of, or constitutes a default on the part of any Operator Party under, any of the terms, conditions or provisions of this Agreement;
(iii) within 5 days of Owner's request, environmental information or records pertaining to the Rail Facility (as specified by Owner) necessary for Owner to comply with any reporting obligations of Owner related to all applicable Environmental Law and Environmental Permits; and
(iv) such other information regarding the Rail Facility or the operation and maintenance of the Rail Facility as Owner may from time to time reasonably request.
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4.1.15 Notices to Owner. Operator shall immediately notify Owner in writing of (i) any enforcement, clean-up, removal or other governmental or regulatory action instituted, completed or threatened against Operator Parties or Owner pursuant to any Law or Environmental Law as a result of the operation of the Rail Facility; (ii) any claim made or threatened by any person arising out of or in connection with the operation of the Rail Facility against Operator Parties or Owner relating to damage, contribution, cost recovery, compensation loss or injury resulting from or claimed to result from any Hazardous Materials; (iii) any reports made to any environmental agency arising out of or in connection with any Hazardous Materials removed from the Rail Facility or the property on which the Rail Facility is situated including any complaints, notices, warnings, reports or asserted violations in connection therewith; and (d) the discovery of any Hazardous Materials at the Rail Facility or the property on which the Rail Facility is situated that are or may be in violation of Environmental Law. Operator shall also provide to Owner, as promptly as possible, and in any event within five (5) business days after the Operator Parties first received or sent the same, copies of all claims, reports, complaints, notices, warnings or asserted violations relating in any way to the Rail Facility or the Operator Parties' operation thereof. Upon written request of Owner (to enable Owner to defend itself from any claim or charge related to any Law or Environmental Law), Operator shall promptly deliver to Owner notices of hazardous waste manifests reflecting the legal and proper disposal of all such Hazardous Materials removed from the Rail Facility or the property on which the Rail Facility is situated.
4.1.16 Chevron Terminaling Agreement. Each of the parties hereto acknowledges that rail car utilization is a service to which Chevron Marine Products LLC (Chevron) is entitled under that certain Terminaling Agreement between Chevron and Owner, dated as of May 1, 2008 (the Chevron Terminaling Agreement). As such, Operator agrees to provide such service to Chevron in the event such service is warranted until the earlier to occur of (i) the termination of the provisions of this Agreement, or (ii) the termination of the Chevron Terminaling Agreement.
4.1.17 Regulatory Affairs. Operator shall be responsible for preparing and submitting all regulatory filings pertaining to the Rail Facility required by any Governmental Authority.
4.1.18 Devotion of Time. The employees of Operator, or the Operator Parties, as applicable, designated to perform the functions under this Agreement shall devote such time to the operation and maintenance of the Rail Facility as necessary to accomplish the responsibilities of Operator as set forth in this Article IV. Owner recognizes that the employees of Operator, or the Operator Parties, as applicable, shall not be obligated to devote full time to the operation and maintenance of the Rail Facility and that such employees of Operator may act on behalf of Operator or the Operator Parties, as applicable, in activities not associated with this Agreement.
4.2 Standard of Care. Operator shall perform its duties and obligations hereunder and its responsibilities as Operator of the Rail Facility, (i) in a good and workmanlike manner, (ii) in conformity with the good practices in the rail car loading and unloading industry, (iii) in accordance with all valid and applicable Laws, including, without limitation, all Environmental Laws and Environmental Permits, and (iv) in accordance with the Operating and Capital Expenditure Budget.
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4.3 Limitation of Authority. Notwithstanding anything in this Agreement, Operator shall seek prior approval of Owner prior to taking the following actions:
4.3.1 Binding Owner. Endorsing the name of Owner on any contract, commercial paper, or instruments of any nature or otherwise creating any obligation binding upon Owner except as expressly permitted under this Agreement.
4.3.2 Asset Sales. Acquiring or disposing of any assets of Owner in a single transaction or in a series of related transactions, with a fair market value exceeding $10,000 in the aggregate, provided, however that Operator is expressly permitted to terminate leases or other contracts in respect of rental equipment regardless of value.
4.3.3 Incurring any indebtedness on behalf of Owner, except for trade credit incurred by Operator in the ordinary course of business or within its expenditure authority set forth in this Agreement.
ARTICLE V : ACCOUNTING, REPORTS, RECORDS
5.1 Accounting Methods. Operator shall keep proper and complete records and books of account, which shall fully and accurately reflect all transactions and other matters relative to its operation and maintenance of the Rail Facility as are entered into records and books of account in accordance with generally accepted industry practices, and the same shall be supported by purchase orders, invoices, payrolls or other customary or necessary records pertaining thereto. Operator's financial books and records shall be kept in accordance with GAAP and shall be maintained on an accrual basis. The costs of any audit of Operator's books or records shall be borne by Owner absent manifest error.
5.2 Independent Audits. Upon reasonable prior written notice to Operator, Owner shall have the right during normal business hours to audit or examine all books and records of Operator to the extent they relate to Operator's performance hereunder as well as the relevant books of account of Operator's contractors, relating to the performance of Operator's obligations under this Agreement. Operator shall cooperate with Owner's auditors by (i) making the applicable books and records available for inspection by Owner's auditors, and (ii) making such copies of books and records as may be reasonably requested by such auditors. In no event shall Owner's audits unreasonably interfere with Operator's operations.
ARTICLE VI : FORCE MAJEURE
6.1 Procedure. If either Party is rendered unable, wholly or in part, by Force Majeure to carry out its obligations under this Agreement, other than the obligation to indemnify and to make payments then or thereafter due hereunder, upon such Party giving notice and full particulars of such Force Majeure in writing to the other Party as soon as reasonably possible after the occurrence of the cause relied on, then the obligations of the Party giving such notice, so far as they are affected by such Force Majeure, will be suspended during the continuance of any inability so caused but for no longer period, and such cause must as far as possible be remedied with all reasonable and diligent dispatch by the Party claiming such in order to put itself in a position to carry out its obligations
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under this Agreement. Such notifying Party must also provide notice of the date of termination of such Force Majeure event. A Force Majeure event affecting the performance by either Party shall not relieve it of liability in the event of its negligence, where such negligence was a cause of the Force Majeure event, or in the event of its failure to use commercially reasonable efforts to remedy the situation and remove the cause with all reasonable dispatch.
6.2 Strikes. It is understood and agreed that the settlement of strikes or lockouts is entirely within the discretion of the Party directly involved in the strike or lockout, and that the above requirement that any Force Majeure must be remedied with all reasonable dispatch will not require the settlement of strikes or lockouts by acceding to the demands of the opposing party when such course is inadvisable in the discretion of the Party having the difficulty.
ARTICLE VII : INSURANCE AND INDEMNIFICATION
7.1 Operator Insurance.
7.1.1 Operator, with respect to Operator's activities provided for under this Agreement, shall maintain the following insurance coverage with responsible insurance carriers:
(a) Workers' Compensation. Operator shall maintain statutory worker's compensation insurance, covering all of its and its Affiliates' employees and statutory employees, in accordance with the benefits afforded by the statutory Worker's Compensation Acts applicable to the state, territory, or district of hire, supervision, or place of accident. In addition, Operator shall maintain employer's liability insurance with a limit of not less than one million dollars ($1,000,000) each accident, one million dollars ($1,000,000) disease each employee, and one million dollars ($1,000,000) disease policy limit. Where not prohibited by law, Operator shall waive its right of subrogation against Owner.
(b) Commercial General Liability Insurance. Operator shall maintain Commercial General Liability Insurance covering its operations under this Agreement including, without limitation, bodily injury, death, property damage, premises/operations, sudden and accidental pollution, independent contractors, products/completed operations, contractual, and personal injury liability, with a limit of not less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the annual aggregate.
(c) Commercial Automobile Insurance. Operator shall maintain Commercial Automobile Insurance coverage, including, without limitation, bodily injury and property damage for owned, hired, rented, and non-owned automotive equipment with a limit of not less than one million dollars ($1,000,000) per accident.
(d) Umbrella Liability Insurance. Operator shall maintain Umbrella Liability Insurance coverage covering in excess of (a), (b), and (c) above, excluding Worker's Compensation, in the amount of ten million dollars ($10,000,000).
7.1.2 To the extent of the liabilities assumed by Operator in this Agreement, Operator shall name Owner Indemnified Parties as additional insured on all insurance policies,
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except Workers' Compensation. The Owner Indemnified Parties' additional insured status will not limit the application of insurance protection as required by this Agreement which arises out of the Operator's indemnity obligations. These policies shall provide primary coverage for claims in which Operator has agreed to hold harmless and/or to indemnify the Owner Indemnified Parties. No other insurance clause may be invoked by any insurer. This coverage shall apply whether or not the indemnification is valid. Operator shall have its insurer(s) waive its right of subrogation against Owner Indemnified Parties on all insurance carried. Unless expressly stated to the contrary elsewhere in this Agreement or prohibited by applicable law or legal statute, Operator's indemnification obligations under this Agreement shall not be limited by amount or in scope to coverage provided by insurance which is required under this Agreement.
7.1.3 Upon request, Operator agrees to furnish to Owner certificates of insurance or other evidence satisfactory to Owner to demonstrate that the required insurance has been procured and is in force. The certificate shall accurately reflect the required insurance coverages and shall provide that in the event of modification, expiration, cancellation or material change in a policy affecting the certificate holder, thirty days prior written notice shall be given to the certificate holder. Operator waives all rights against Owner for recovery of damages to the extent such damages are covered by the insurance maintained in accordance with this Section 7.1.
7.2 Contractors. Operator acknowledges and agrees that any contractor engaged by Operator to perform services at the Rail Facility will be required to execute an access agreement, in a form acceptable to Owner, prior to such contractor accessing the Rail Facility and performing any services. Further, Operator shall attempt to obtain reasonable indemnification and insurance protection from contractors performing services for Owner to protect Owner and Operator. Operator shall require each of its contractors to carry insurance coverage substantially equivalent to the insurance required of Operator above, and to include provisions for its contractors to name Owner and Operator as additional insureds, with the exception of Workers' Compensation Insurance, and state that such policies will be primary to and non-contributory with any other insurance maintained by Operator and Owner. With respect to Workers' Compensation Insurance, the applicable contractor shall be required to cause its insurers to wave all rights of recovery or subrogation against Owner and Operator, where not prohibited by law.
7.3 Notice of Claims. In the event that Operator receives notice, either in writing or orally, of an asserted or threatened Liability Claim against Operator or Owner, Operator shall provide Owner within 10 days of receipt of such Liability Claim a copy of any demand letter, petition, or similar documentation of the Liability Claim.
7.4 Mutual Release and Indemnification.
7.4.1 Owner's Indemnification. Subject to the terms of this Agreement, including, without limitation, Section 8.8 of this Agreement, Owner shall indemnify, defend, and hold harmless the Operator Indemnified Parties from and against all Claims and Losses arising out of or relating to (i) allegations of death or bodily injury or damage to property, to the extent arising out of or resulting from the negligence, gross negligence or willful misconduct of Owner, its Affiliates or its or their respective officers, directors, employees, or contractors in connection with this Agreement or the performance hereof; provided that Owner shall not be required to indemnify the Operator
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Indemnified Parties against such Claims and Losses to the extent such Claims and Losses are attributable to the acts or omissions of any Operator Indemnified Parties, (ii) any breach of this Agreement by Owner, and (iii) any agreements relating to the Rail Facility between Owner and third parties not affiliated with the Operator Parties (except to the extent expressly assumed by Operator hereunder). The duty to indemnify, defend and hold harmless under this Section 7.4.1 shall continue in full force and effect, notwithstanding the expiration or early termination of this Agreement, with respect to any Claims or Losses based on facts or conditions that occurred prior to such expiration or termination.
7.4.2 Operator's Indemnification. Subject to the terms of this Agreement, including, without limitation, Section 8.8 of this Agreement, Operator shall indemnify, defend, and hold harmless the Owner Indemnified Parties from and against all Claims and Losses arising out of or relating to (i) allegations of death or bodily injury or damage to property, to the extent arising out of or resulting from the negligence, gross negligence or willful misconduct of Operator, its Affiliates or its or their respective officers, directors, employees, or contractors in connection with this Agreement or the performance hereof; provided that Operator shall not be required to indemnify the Owner Indemnified Parties against such Claims or Losses to the extent such Claims or Losses are attributable to the acts or omissions of any Owner Indemnified Party, (ii) any breach of this Agreement by Operator, and (iii) any agreements relating to the Rail Facility between Operator and third parties not affiliated with Owner (except to the extent expressly assumed by Owner hereunder). The duty to indemnify, defend and hold harmless under this Section 7.4.2 shall continue in full force and effect, notwithstanding the expiration or early termination of this Agreement, with respect to any Claims or Losses based on facts or conditions that occurred prior to such expiration or termination.
ARTICLE VIII : GENERAL PROVISIONS
8.1 Additional Rail Facilities. Nothing in this Agreement shall limit Owner's right to construct, expand or modify, and operate other rail car loading/off loading facilities (i) at Owner's terminal and storage facility located on the property on which the Rail Facility is located, or (ii) at any other location in Owner deems necessary and beneficial.
8.2 Notices. Except as specifically provided otherwise herein, any notice, claim, or other communication provided for in this Agreement or any notice that either Party may desire to give to the other shall be in writing and shall be: (i) sent by facsimile transmission; (ii) delivered by hand; (iii) sent by United States mail with all postage fully prepaid; or (iv) delivered by courier with charges paid in accordance with the customary arrangements established by such courier, in each of the foregoing cases addressed to the Party at the following addresses:
To Owner:
Magellan Terminals Holdings, L.P. Attn: Mark Roles Manager, Commercial Development P.O. Box 22186 MD 31st Floor
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Tulsa, Oklahoma 74121-2186 To Operator:
Omega Refining, LLC Attn: Robert Winland 5000 River Road Marrero, Louisiana 70072
with a copy to:
Gregory & Plotkin, LLC Attn: James P. Gregory, Esq. 1331 17t h Street, Suite 1060 Denver, Colorado 80202
or at such other address as either Party may at any time designate by giving written notice to the other Party. Such notices, claims, or other communications shall be deemed received as follows:
(i) if delivered personally, upon delivery;
(ii) if sent by United States mail, whether by express mail, registered mail, certified mail or regular mail, the notice shall be deemed to have been received on the day receipt is refused or is confirmed orally or in writing by the receiving Party;
(iii)if sent by a courier service, upon delivery; or
(iv)if sent by facsimile, the Business Day following the day on which it was transmitted and confirmed by transmission report or such earlier time as confirmed orally or in writing by the receiving Party.
8.3 Rights. The failure of either Party to exercise any right granted hereunder shall not impair nor be deemed a waiver of that Party's privilege of exercising that right at any subsequent time or times.
8.4 Applicable Laws. This Agreement is subject to all valid present and future laws, regulations, rules, and orders of governmental authorities now or hereafter having jurisdiction over the Parties, this Agreement, any of the transactions contemplated hereby or the Rail Facility.
8.5 Rules of Construction. In construing this Agreement, the following principles shall be followed:
8.5.1 no consideration shall be given to the fact or presumption that one Party had a greater or lesser hand in drafting this Agreement;
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8.5.2 examples shall not be construed to limit, expressly or by implication, the matter they illustrate;
8.5.3 the word includes and its syntactical variants mean includes, but is not limited to and corresponding syntactical variant expressions; and
8.5.4 the plural shall be deemed to include the singular and vice versa, as applicable.
8.6 Governing Law. This Agreement shall be governed by, construed, and enforced in accordance with the laws of the State of Delaware, without regard to choice of law principles that would require the application of the laws of any other jurisdiction.
8.7 Dispute Resolution.
8.7.1 Negotiation. Prior to submitting any dispute for resolution by a court, a Party shall provide written notice to the other of the occurrence of such dispute. If the Parties have failed to resolve the dispute within 15 Business Days after such notice was given, the Parties shall seek to resolve the dispute by negotiation between senior management personnel of each Party. Such personnel shall endeavor to meet and attempt to amicably resolve the dispute. If the Parties are unable to resolve the dispute for any reason within 30 Business Days after the original notice of dispute was given, then either Party shall be entitled to pursue any remedies available at law or in equity; provided, however, this Section 8.6.1 shall not limit a Party's right to initiate litigation prior to the expiration of the time periods set forth herein of such limitations would prevent a Party from filing a lawsuit or claim within the applicable period for filing lawsuits (e.g. statutes of limitation, prescription, etc.).
8.7.2 Costs and Expenses. The prevailing Party in any litigation pertaining to any dispute hereunder shall be entitled to recover its reasonable costs, expenses, and attorney's fees in connection with such litigation.
8.8 Limitation of Liability. Notwithstanding anything in this agreement to the contrary, neither Party shall be liable to the other Party for special, indirect, consequential, punitive, or exemplary damages suffered by such Party resulting from or arising out of this Agreement or the breach thereof or under any other theory of liability, whether tort, negligence, strict liability, breach of contract, warranty, indemnity, or otherwise, including, without limitation, loss of use, increased cost of operations, loss of profit or revenue, or business interruptions. In furtherance of the foregoing, each Party releases the other Party and waives any right of recovery for special, indirect, consequential, punitive, or exemplary damages suffered by such Party regardless of whether any such damages are caused by the other Party's negligence (and regardless of whether such negligence is sole, joint, concurrent, active, passive, or gross negligence), fault, or liability without fault.
8.9 Entirety of Agreement, Amendments. This Agreement, including, without limitation, all exhibits hereto, integrate the entire understanding between the Parties with respect to the operation and maintenance by Operator of Owner's Rail Facility and supersede all prior understandings, drafts, discussions, or statements, whether oral or in writing, expressed or implied,
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dealing with the same subject matter. This Agreement may not be amended or modified in any manner except by a written document signed by the Parties that expressly amends this Agreement.
8.10 Waivers. No waiver by either Party of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), nor shall such waiver constitute a continuing waiver unless expressly provided. No waiver shall be effective unless made in writing and signed by the Party to be charged with such waiver.
8.11 Headings. The headings and captions in this Agreement have been inserted for convenience of reference only and shall not define or limit any of the terms and provisions hereof.
8.12 Rights and Remedies. Except as otherwise provided in this Agreement, each Party reserves to itself all rights, counterclaims, other remedies, and defenses to which such Party is or may be entitled arising from or out of this Agreement or as otherwise provided by law.
8.13 Assignment. Operator shall not make any assignment of all or any part of this Agreement or any of the rights or obligations hereunder unless there first shall have been obtained the written consent thereto of Owner, which consent shall not be unreasonably withheld, conditioned, or delayed. Owner shall not make any assignment of all or any part of this Agreement or any of the rights or obligations hereunder except in connection with the sale, financing or conveyance of all or any part of the Rail Facility. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties. Any attempted assignment of this Agreement in violation of this Section 8.12 shall be null and void.
8.14 Counterparts. This Agreement may be executed in one or more counterparts (including by facsimile), each of which shall be deemed an original, and all of which shall be deemed one and the same Agreement.
8.15 No Third Party Beneficiary. Except for parties indemnified hereunder, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and shall not inure to the benefit of any other Person whomsoever or whatsoever, it being the intention of the Parties that no third Person shall be deemed a third-party beneficiary of this Agreement.
8.16 Further Assurances. Each Party shall take such acts and execute and deliver such documents as may be reasonably required to effectuate the purposes of this Agreement.
* * * * *
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IN WITNESS WHEREOF, the undersigned have executed or caused to be executed on their behalf this Agreement to be effective on the Effective Date.
Operation & Maintenance Agreement Signature Page K&E 10351208.3
EXHIBIT A
Exhibit A K&E 10351208.3
EXHIBIT C Owner's Facility Security Plan
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Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Ex Output:
42293
Ex Input:
1
EXHIBIT 10.4
LICENSING AND WEB SITE HOSTING AGREEMENT
This Agreement is entered into on February 26, 1999, (the Effective Date) by and between Mortgage Logic.com, Inc. (Client), with an address at Two Venture Plaza, 2 Venture, Irvine, California 92618 and TrueLink, Inc. (TrueLink), with an address at 3026 South Higuera, San Luis Obispo, California 93401.
WHEREAS, TrueLink is in the business of (i) developing and licensing interface software (the Interface) to third parties; (ii) providing access to credit bureau information to third parties through the Interface; and (iii) providing certain technical support and programming customization services to users of the Interface substantially similar to those specifically enumerated herein (collectively Support Services); and
WHEREAS, TrueLink is licensed (or will be licensed) to provide access through the Interface to automated underwriting systems made available by certain third party investors or mortgage insurers (each such system is referred to hereafter as a System, and all systems for which TrueLink is licensed to provide access are collectively referred to hereafter as the Systems); and
WHEREAS, Client desires to obtain access (for itself and for certain of Client's correspondent broker customers) for communications with, and use of, the Interface, including credit bureau information, by transmitting information and data to and receiving information and data from the Interface and such Support Services as Client may from time-to-time specify; and
WHEREAS, TrueLink is willing to provide to Client and to certain of Client's correspondent broker customers access to the Interface and various Support Services, subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
a. Browser. The term Browser refers to a program used to provide interactive, graphical access to sites on the World Wide Web.
b. Client Content. The term Client Content means all text, words, names, likenesses, trademarks, logos, artwork, graphics, video, audio, HTML, JAVA or other coding, domain names, image maps, links, software applications, or other content that appear on, or are provided to TrueLink by or on behalf of Client for uploading to or downloading from, the Web Site.
c. Client's Intellectual Property. The term Client Intellectual Property means, client's designs, customer lists, formulas, procedures, methods, apparatus, ideas, creations, improvements, works of authorship, materials, processes, inventions, techniques, data, know-how,
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show-how, algorithms, programs, subroutines, tools, patents and patentable materials, copyrights and copyrightable materials and trade secrets.
d. Credit Data. The term Credit Data means data of any borrower or loan applicant of Client or BNC Mortgage, Inc., or any of their affiliates, or any of their customers or brokers, provided that such data (i) consists only of raw credit data regarding the creditworthiness of such a borrower or loan applicant provided by third party credit repositories which currently consists of TransUnion Credit Information Services, Equifax Credit Information Services or Experien Information Services that is submitted, transmitted or in any way sent through the Interface and is the later of (I) the later of 31 days old from that date of receipt thereof by TrueLink or that date on which such data is archived pursuant to TrueLink's internal operating procedures consistently applied or (II) such date as may be agreed to between Client and Keith Guy provided that the parties acknowledge that such parties will discuss a date on which such data is similarly archived third party credit repositories as referred in this subparagraph (d) and (ii) is not combined, compared with or against, integrated or presented in any way with any Client Proprietary Information.
e. Credit Reporting Agreement. The term Credit Reporting Agreement means the various agreements between TrueLink and each of TransUnion Credit Information Services, Experien Information Services and Equifax Credit Information Services pursuant to which TrueLink is provided raw credit data from time to time.
f. TrueLink's Intellectual Property. The term TrueLink Intellectual Property means any or its intellectual property associated with the Interface, including, without limitation, designs, formulas, procedures, methods, apparatus, ideas, creations, improvements, works of authorship, materials, processes, inventions, techniques, data, know-how, show-how, algorithms, programs, subroutines, tools, patents and patentable materials, copyrights and copyrightable materials and trade secrets.
g. Internet. The term Internet refers to the global network of computers using the TCP/IP protocol for communication.
h. Web Site. The term Web Site refers to the World Wide Web site on which Client Content will appear.
i. System Agreements. The term System Agreements means any agreement pursuant to which TrueLink is licensed to provide access to a System.
2. LICENSE.
a. Grant. TrueLink hereby grants to Client a non-exclusive license to use the Interface in the ordinary course of its business of the origination, underwriting, processing and funding of consumer finance receivables in accordance with this Agreement. Notwithstanding the foregoing, Client is not obligated to utilize the License and is free to acquire, develop, license or otherwise utilize any other hardware, software system, design, formula, procedure or trade secret to provide software and services similar to the ones provided by TrueLink hereunder, so long as such
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software or services do not infringe upon any of TrueLink's Intellectual Property. Nothing in the foregoing sentence is meant to affect in any way Client's confidentiality obligations pursuant to Section 10 herein.
b. Scope. The license granted to Client pursuant to section 2(a) consists of the following rights:
i. Use and execution of the Interface on a compatible software platform (as such compatibility specifications may be issued by TrueLink from time to time); and
ii. Access to the Interface from multiple computer located at those sites listed on Exhibit A. Client may amend Exhibit A by giving TrueLink written notice of the new sites.
c. Term. The license shall last until this Agreement is terminated in accordance with section 12.
d. Ownership. Notwithstanding the license granted under section 2.1, TrueLink retains all of its ownership and license rights in the Interface.
3. HOSTING SERVICES. TrueLink will provide the following services to Client (the Hosting Services):
a. Storage. ___ megabytes (MB) of disk space on TrueLink's servers will be used for storage of the Web Site and any data files associated with the Web Site.
b. Response Time. TrueLink agrees to use reasonable commercial efforts, consistent with efforts provided to its other Clients to ensure reasonable response times for users accessing the Web Site. Reasonable response times shall be measured as follows: at a mutually agreed to time Client will conduct three tests of the time that it takes to load the home page of the Web Site from an IBM compatible computer (with a 16550 UART chip and an Intel 80586 300 MHZ processor running Windows 98 or NT and Microsoft Internet Explorer (with the cache turned off) accessing the Web Site over a phone line using a 28.8K baud modem (the results of these tests will be reported to TrueLink upon completion); reasonable response times means that at all times the time it takes to load the home page of the Web Site using a properly configured IBM compatible computer (as set forth above) accessing the Web Site over a phone line using a 28.8K baud modem shall in no event exceed twice the average of the three test response times.
c. Bandwidth. ___ MB of monthly bandwidth (data transfer). In the event that the response time is not reasonable as determined under section 3.1 hereof, upon written notice from Client, TrueLink will, within a reasonable period of time, use reasonable commercial efforts to increase the bandwidth as necessary to make the response time reasonable.
d. Availability. The Web Site will be available Client's to Internet users approximately 24 hours a day, seven days a week, normal maintenance and unforeseen hardware or communications problems excepted. To minimize server downtime during peak usage periods,
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TrueLink will take all reasonable actions to attempt to schedule routine maintenance between the hours of 8:00 p.m. to 5:00 a.m. pacific standard time.
e. Access. Client will have access to Interface usage statistics and raw log files in real time via the Interface.
f. Backups. TrueLink will backup the Interface and all data files associated with it at least once each day and will store the backup materials in a safe, secure location, suitable for magnetic media, and not at
the same location as TrueLink's server.
g. Internet Connection. TrueLink will maintain redundant connections to the Internet on diverse backbones.
h. Domain Names. TrueLink shall provide assistance to Client in securing one or more domain names, sub-domain names or URL's associated therewith; provided that prior to TrueLink providing such assistance, Client shall engage in an appropriate trademark search reasonably satisfactory to TrueLink in order to establish that no domain name proposed by Client shall infringe upon the trademark, service mark, name, or logo of any third party. TrueLink will not be responsible for, or have any liability in connection with, the operation of the Web Site with respect to online commercial transactions, or for the transmission accuracy or completeness of any data or information to or from the Web Site or through the Interface by Client or Client's customers.
i. Credit Bureau Information. TrueLink shall transmit such credit data to Client through the Interface as may be permitted under the Credit Repository Agreements and applicable law, each as in affect from time to tome, and in accordance with the certain Credit Bureau Agreement between TrueLink and Client dated of even date herewith. Subject to the foregoing, Client shall order TrueLink a credit report on each borrower for which an underwriting approval is requested through a System using the Interface. TrueLink makes no representation or warranty, and shall have no liability for the truth or completeness of any data so transmitted.
4. SUPPORT SERVICES. For a period of not less than ____ months, TrueLink will make available to Client the services of at least one programmer identified by TrueLink and reasonably acceptable to Client to provide such Support Services as Client may reasonably request to TrueLink in writing for purposes of permitting Client to use the Interface in accordance with the License granted under Section 2 hereof and the other terms and conditions of this Agreement.
5. COMPENSATION.
a. Client will pay TrueLink's fees for requested Hosting Services and Support Services pursuant to the schedule of charges set forth on Exhibits A and B attached hereto, (but not less than $____ per month for the Hosting Services and $____ per month for Support Services). For any other services agreed to between the parties, Client will pay TrueLink fees which will be determined by the parties and will vary depending on the services utilized. TrueLink will provide Client with an invoice for the requested Hosting Services and Support Services and any other agreed-upon services on a monthly basis. Invoices will be paid within 15 days of receipt.
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6. DOCUMENTATION AND DISPUTES. Client will be provided upon request with documentation supporting the amount charged (other than the minimum monthly fees listed in Section 4) and will be entitled to contest any charge (other than the minimum monthly fees listed in Section 4), provided that Client timely pays all contested amounts. TrueLink agrees that the costs for any Hosting Services will not increase for a period of one year from the date of this Agreement and that rates charged for Hosting Services will not exceed that charged by TrueLink to any other party.
7. UNSOLICITED COMMERCIAL E-MAIL.
Client shall not engage in the practice commonly known as spamming pursuant to the rights granted hereunder. This includes but is not limited to, the following: posting an article or advertisement to more than ten (10) news groups, forums, e-mail mailings lists or other similar groups or lists; or sending unsolicited mass e-mailings to more than twenty-five (25) e-mail users, if such unsolicited e-mailings provoke complaint.
8. COVENANTS AND WARRANTIES OF CLIENT
a. Compliance with Laws. Client will comply in all material respects with applicable state and federal consumer credit reporting, privacy and similar laws in connection with its use of the Interface.
b. Notification. Client shall not represent that loan underwriting decisions related to loans originated by using the Interface are in any way made by TrueLink in communicating all loan approvals or denials in accordance with the foregoing.
c. Limitation on Access. Client will use reasonable commercial efforts consistent with the protection of Client Proprietary Information to restrict access to the Interface to its officers, employees, and agents as may be approved by Client.
d. Use of Credit Data during the term of this Agreement. Client hereby grants to TrueLink the nonexclusive worldwide right and license to use, distribute, disseminate, license, resell, exploit, upload, display, copy and store Credit Data subject to the limitations set forth in and in accordance with the Non-Competition Agreement.
e. Representations of Client. Client represents and warrants: (a) Client is the owner, valid licensee, or authorized user of the Client Content, (b) to Client's actual knowledge the use of the Client Content shall not infringe the copyright, trade secret, trademark or other proprietary or intellectual property right of any third party, or constitute a definition,
invasion of privacy, or violation of any right of publicity or other third party right, (c) the Client Content complies in all material respects with applicable federal and state laws regarding posting or transmitting data which is threatening, obscene, indecent, defamatory or in violation of report control was, and (d) to Client's actual knowledge Client Content shall be free at the time provided to TrueLink from viruses, worms, Trojan horses, and any other malicious code.
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f. Spamming. TrueLink reserves the right at any time to implement technical mechanisms to prevent Client engaging in illegal or obscene activity or in spamming, TrueLink reserves all legal and equitable rights in enforcing this policy.
9. TRUELINK WARRANTIES. TrueLink represents and warrants that the Interface and all related software (i) is designed to be used before, on and after January l, 2000; (ii) will operate before, on and after January 1, 2000, in the processing of dates, including without limitation calculating, comparing, indexing and sequencing; and (iii) will successfully transition from December 31, 1999, to January 1, 2000, without human intervention. At Client's request, TrueLink will provide sufficient evidence to demonstrate adequate testing of the Interface and all related software to meet the foregoing requirements. Client will provide reasonable access to TrueLink make any repairs necessary to comply with this section and make any upgrades specified by TrueLink to so comply, all at TrueLink's sole cost and expense, to the extent such upgrades were not previously requested by Client pursuant to previously requested Hosting Services or Support Services as set forth herein.
10. CONFIDENTIALITY.
a. Client acknowledges its responsibility to preserve the confidentiality of certain technology, information, and documentation embedded in the Interface and agrees to respect the confidential nature of the Interface. Notwithstanding anything to the contrary contained in this Agreement, it is understood and agreed that Client's confidentiality obligations relating to any System and any data, documentation, or other output from such System shall include those specified in any agreements between Client and the licensor of the System.
b. TrueLink acknowledges its responsibilities to preserve the confidentiality of all results of the Support Services, Client's Intellectual Property, and subject to Section 8(d) herein Client Confidential Information.
c. The parties hereto recognize that certain of the information and documentation previously provided or that may in the future be provided by a party to the other related to the matters covered by this Agreement includes privileged, confidential and proprietary information belonging to such party (a party's Proprietary Information) which, if disclosed, could result in substantial and irreparable harm to such party. For information and documentation to qualify as a party's Proprietary Information, such information must either be marked Confidential or otherwise identified in writing as confidential at or prior to the time of its delivery to the other hereunder. Notwithstanding the foregoing, the following matters will automatically be deemed TrueLink Proprietary Information, whether or not specifically marked or designated as such: (i) any implementation information or user's guides for the Interface, (ii) any advance releases of TrueLink promotional material, (iii) information concerning TrueLink's business plans and strategies, and (iv) TrueLink's customer list. Notwithstanding the foregoing, the following matters will be automatically deemed Client Proprietary Information: Client's Intellectual Property, all results of the Hosting and Support Services, including any information or materials of any type or nature, tangible or intangible, disclosed by Client as a result of the TrueLink's relationship with Client relating to the business, products or technology or potential business, products or technology of Client, business plans, financial information, borrower and loan data technical specifications, design concepts,
-6- 7 technical information, customer lists, pricing information, marketing plans and other similar information pertaining to Client. Each agrees to treat all of the other Proprietary Information and all materials as strictly confidential, except to the extent otherwise agreed by the other in writing. Except to the extent otherwise agreed by both parties in writing, party further agrees to treat all of the other Proprietary Information and all materials which it prepares using or based on the other's Proprietary information or any portion thereof (the Derivative Documentation) as strictly confidential, including, without limitation, any notes made and all reports prepared in connection with this Agreement.
d. Notwithstanding the foregoing, the restrictions on disclosure and other obligations set forth above with respect to Proprietary Information or Derivative Documentation shall not apply when, and to the extent that such Proprietary Information or Derivative Documentation: (i) is or becomes generally available to the public through no fault of the receiving party; (ii) was previously known to the receiving party free of any obligation to keep it confidential; (iii) is subsequently disclosed to the receiving party by a third party who may transfer and disclose such information without restriction and free of any obligation to keep it confidential; (iv) is independently developed by the receiving party or a third party without reference to or any use of the
disclosing party's proprietary information; or (v) is required to be disclosed by the receiving party as a matter of law, provided that the receiving party uses all reasonable efforts to provide the disclosing party with at least ten days' prior notice of such disclosure.
11. STANDARD OF CARE. TrueLink shall perform the Hosting and Support Services and any other agreed-upon services for Client with the same degree of care, skill and prudence customarily exercised by it for its own operations.
12. INDEMNITY.
a. Client shall indemnify and hold TrueLink, its affiliates, directors, officers, employees, agents and licensors harmless from and against all claims, actions, expenses, losses, and liabilities, including reasonable attorneys' fees, arising from or relating to the following: (i) any claim arising out of any breach by Client of this Agreement, (ii) any claim or demand resulting from any act or omission by Client or any customer of Client granted access to the Interface by Client which constitutes a breach of or default by TrueLink under any System Agreement or Credit Repository Agreement, which breach or default has either not been cured or cannot be cured within the applicable cure period and the consequences of which is that TrueLink will lose material rights it has pursuant to said Agreements or a violation of any state or federal law, rule or regulation (iii) any claim arising out of or relating to the Web Site or Client Content (including, but not limited to, any claim resulting from any content posted to the Web Site by Client or Client's employees, agent or any customer of Client granted access to the Interface by Client), without regard to any knowledge limitation or qualification that may be contained in this Agreement, and (iv) injury or damage to person or property caused by a product, service, or information, whether or not defective, that is sold, distributed or transmitted from the Web Site.
b. TrueLink shall indemnify and hold Client harmless, its affiliates, directors, officers, employees, agents and licensors harmless from and against all claims, actions, expenses, losses, and liabilities, including reasonable attorneys' fees, arising from or relating to any
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claim arising out of any breach by TrueLink of this Agreement or any failure by TrueLink in the performance of any of its obligations or agreements hereunder.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TRUELINK DISCLAIMS ANY AND ALL EXPENSES WARRANTIES, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES OF MERCHANTABILITY OR FOR ANY MATTER RELATING TO THE ACCURACY OR COMPLETENESS, OR TIMING OF TRANSMISSION OF ANY DATA SUBMITTED THROUGH THE INTERFACE OR TO OR FROM THE WEB SITE.
IN NO EVENT SHALL TRUELINK'S LIABILITY FOR ANY MATTER ARISING UNDER OR RELATED TO SECTION 3, 4, 7 AND 11 THIS AGREEMENT (OTHER THAN DUE TO A BREACH RESULTING FROM TRUELINK'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) EXCEED THE TOTAL COMPENSATION PAID FOR HOSTING AND SUPPORT SERVICES OVER THE IMMEDIATELY PRECEDING 12 MONTHS PERIOD.
13. TERM OF AGREEMENT. This Agreement will take effect on the Effective Date and remain in effect for a period of 1 year; provided, that Sections 2 and 3 level shall terminate promptly upon (a) any action or omission by Client or any of its customers which constitutes a breach of or default by TrueLink under any System Agreement or Credit Repository Agreement, which breach or default has either not been cured or cannot be cured within the applicable cure period and the consequences of which is that TrueLink will lose material rights it had pursuant to said Agreements or (b) any violations or breach by Client of Sections 8a - 8c. This Agreement shall renew automatically thereafter for successive one year periods until terminated pursuant to Section 12 herein or unless either Client or TrueLink deliver to the other written notice of intent not to renew no later than thirty (30) days prior to the end of said year. If Client decides to discontinue its Hosting Service, Client is responsible for arranging for a new name server within 30 days. In case of discontinued Service, Client shall retain full ownership of all domains associated with Client and Client Content. If Client decides to discontinue Hosting Service, Client is responsible for arranging for a new hosting environment within 60 days.
14. TERMINATION. Subject to Section 4 hereof, TrueLink will continue to provide the requested Hosting Services and Support Services until the last day of the month following the month in which Client provides TrueLink with a written notice of its election to terminate this Agreement.
15. ASSIGNMENT OR TRANSFER. Neither party shall assign or transfer any of its rights under this Agreement without the prior written approval of the other party, except no such approval shall be required for an assignment to a financially responsible affiliate.
16. MODIFICATIONS. This Agreement may be amended at any time and from time to time, but any amendment must be in writing and signed by the party to be charged.
17. WAIVER. No waiver of any provision of this Agreement will be valid unless it is in writing and signed by the party against whom it is sought to be enforced. No waiver at any time of any provision of this Agreement will be deemed a waiver of any other provision of this
-8- 9 Agreement at that time or a waiver of that or any other provision of this Agreement at any other time.
18. UNDEFINED TERMS. Terms that are not specifically defined in this Agreement are used as set forth in the California Uniform Commercial Code.
19. POWER AND AUTHORITY. Each party represents to the other that it has all necessary power and authority to enter into and perform its obligations under this Agreement. The individuals executing this Agreement on behalf of each party represent that they have authority to do so.
20. NOTICES. All notices required or permitted to be sent under this Agreement shall be in writing and shall be sent to the parties at the addresses set forth in the preamble of this Agreement, or to such other addresses and to such other individuals of which either party may notify the other in a notice which complies with the provisions of this subsection. All notices will be deemed given (i) when delivered by hand, (ii) one (l) day after delivery to a reputable overnight carrier, or (iii) three (3) days after placement in first-class mail, postage prepaid, return receipt requested.
21. CUMULATIVE RIGHTS. The rights and remedies of the parties hereunder are cumulative and are in addition to, and not in lieu of, all rights and remedies available at law and in equity.
22. CAPTIONS. The captions in this Agreement are included for convenience of reference only and will not be construed to define or limit any of the provisions contained herein.
23. JOINT DRAFTING AND NEUTRAL CONSTRUCTION. This Agreement is a negotiated document and shall be deemed to have been drafted jointly by the Parties, and no rule of construction or interpretation shall apply against any particular party based on a contention that the Agreement was drafted by one of the Parties including, but not limited to California Civil Code section 1654, the provisions of which are hereby waived. This Agreement shall be construed and interpreted in a neutral manner.
24. VALIDITY OF AGREEMENT. If any term, provision, covenant, or condition of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the rest of the Agreement shall remain in full force and effect and shall in no way be affected or invalidated. The provisions of Sections 1 and 5 through 30 this Agreement will survive the expiration or termination of this Agreement.
25. ENTIRE AGREEMENT. This Agreement, including all Exhibits, contains the entire agreement of the Parties relating to the rights granted and obligations assumed herein. Any oral representations or modifications concerning this instrument shall be of no force or effect unless contained in a subsequent written modification signed by the party to be charged.
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26. APPLICABLE LAW. This Agreement shall be governed, construed and interpreted in accordance with the laws of the State of California (without respect to principles of conflicts of law).
27. VENUE. Any and all disputes between the parties that cannot be settled by mutual agreement shall be resolved solely and exclusively in the state or federal courts located within San Luis Obispo County, California, and each party consents to the jurisdiction of such courts and irrevocably waives any objections thereto, including without limitation, on the basis of improper venue or forum non conveniens.
28. ATTORNEY FEES AND COSTS. In any action brought under this Agreement, the prevailing party shall be entitled to recover its actual costs and attorney fees pursuant to California Civil Code section 1717 and all other litigation costs, including expert witness fees, and all actual attorney fees and litigation costs incurred in connection with the enforcement of a judgment arising from such action or proceeding. The provisions of the preceding sentence shall be severable from the provisions of this Agreement and shall survive the entry of any such judgment.
29. NO PARTNERSHIP OR JOINT VENTURE. The parties hereto understand and agree that TrueLink is furnishing its services and the Interface to Client on its own behalf and not on behalf of the System providers. Client understands and agrees that authorization to use the System must be obtained from the System providers. In no event will TrueLink offer the Systems without such authorization from the System providers. Nothing contained herein will be construed to create any association, partnership, joint venture or any agency relationship between the parties hereto.
30. FORCE MAJEURE. TrueLink will be excused from delays in performing or from failing to perform its obligations under this Agreement to the extent the delays or failures result from causes beyond the reasonable control or TrueLink. However, to be excused from delay or failure to perform, TrueLink must act diligently to remedy the cause of the delay or failure.
Dated: TRUELINK, INC.
--------------------------
By ------------------------------------- Title:
Dated: MORTGAGE LOGIC.COM, INC. --------------------------
By ------------------------------------- Title:
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Exhibit A
Charges for Hosting Services
[To be agreed to by and between TrueLink and Client prior to the Closing]
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Exhibit B
Charges for Support Services
[To be agreed to by and between TrueLink and client prior to the Closing]
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Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
Ex Output:
23791
Ex Input:
SOFTWARE LICENSE AND MAINTENANCE AGREEMENT THIS SOFTWARE LICENSE AND MAINTENANCE AGREEMENT (Agreement) is made and entered into as of this 27th day of April 2009 by and between SFG Financial Corp, a/k/a E-Path FX, a Delaware Corporation whose principal address is 575 Madison Avenue, 8th Floor, New York, NY 10022 (Licensor), and 551 FX IB Associates, LLC a Delaware Limited Liability Company, whose principal address is located at 575 Madison Avenue, 8th Floor, New York, NY 10022 (Licensee). WHEREAS, Licensor is the owner of a certain proprietary trading software known as the E-Path FX Trading Platform, specifically, and variations thereof, along with documentation and related information, including the intellectual property rights pertaining thereto: and WHEREAS, Licensor is the owner of the computer equipment (the Hardware) required for the operation of the Platform that is located at a single centralized location, specifically at Internap Inc,76 Ninth Avenue, New York, New York10011; and WHEREAS, Licensee desires to obtain from licensor a Non Exclusive, Non Transferrable license rights and licenses granted herein to the Platform, for purposes of implementing and marketing an over-the-counter, (OTC) Foreign Currency Exchange Service utilizing the Platform; and WHEREAS, Licensor shall convey a Non Exclusive license to the Licensee solely for Licensee's use in the field of foreign exchange transactions only; and WHEREAS, Licensor is willing to grant such rights, licenses and options under the terms and conditions of this agreement; NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: ARTICLE I CERTAIN DEFINITIONS For the purposes of this Agreement:
1.1 AFFILIATE means, in the case of any corporation, partnership, limited liability company or other business or investment entity, a different business entity or other individual that directly or indirectly, through one or more intermediaries controls, or is controlled by, or is under common control with the business entity.
1.2 CONFIDENTIAL INFORMATION shall mean, all existing and future information, including but not limited to Software documentation, Software training and instruction manuals, data, reports, programs, methods, tapes, recorded notes, computer-generated data, tests, studies and other written documents, computer programs, proprietary trade secrets and know-how, Software, Intellectual Property Rights and any and all other information embodied in a tangible form relating to and disclosed to the Licensee in connection with this Agreement, including but not limited to those related to the Licensed Technology. The foregoing items referenced in the preceding sentence shall be deemed to be confidential within the meaning hereof when, and so long as it is not in possession of the Licensee prior to the disclosure thereof (except in the event same wrongfully obtained by, or wrongly disclosed to the Licensee); or is not then and does not become part of the public knowledge and literature through the fault of the Licensee.
1.3 DERIVATIVE WORK means any additions, modifications, improvements or enhancements based upon or incorporating the Licensed Technology, such as modifications, enhancements or any other form in which the Licensed Software may be recast, transformed or adapted.
1.4 DOCUMENTATION means documentation developed by Licensor from time to time in printed or computer file format relating to the installation or use of the Licensed Software.
1.5 FIELD OF USE means, and is limited to, the utilization of the Licensed Technology by the Licensee for the exclusive purpose of fulfilling Spot FX transactions by transmitting market data and orders. The Field of Use shall not include any functions or applications not expressly described in the preceding sentence, but shall include functions or applications developed by Licensor to enhance the performance within the Field of Use.
1.6 INTELLECTUAL PROPERTY RIGHTS means, collectively, all of the following intellectual and similar property rights of Licensor, whether or not filed, perfected, registered, issued or recorded and whether now or hereafter existing including, but not limited to, all: (i) patents, patent applications, and patent rights, including any and all continuations, divisions, reissues, reexaminations, or extensions thereof; (ii) rights associated with works of authorship, including but not limited to copyrights, copyright applications and copyright registrations. Moral Rights (as defined below) trademarks, trademark applications, service marks, trade dress and mask works; (iii) rights relating to the protection of trade secrets, know-how and other confidential information including, but not limited to, rights in industrial property and all associated information and confidential or proprietary information; (iv) industrial design rights; (v) utility models, inventions, and/or discoveries; (vi) know-how or other data or information, software, databases and all embodiments or fixations thereof; (vii) Licenses, documentations, registrations and franchises, and all additions, improvements and accessions to , and books and records describing or used in connection with, any of the items set forth in the preceding clause and (viii) any rights analogous to those set forth in the preceding clauses and any other proprietary rights relating to intangible property.
1.7 LICENSED KNOW-HOW means the proprietary know-how and trade secrets related to the Licensed Software and all Intellectual Property Rights with respect to the Licensed Software.
1.8 LICENSED SOFTWARE means the Platform Software.
ARTICLE II LICENSE GRANT AND RESTRICTIONS I. Licensee acknowledges and agrees that:
1.9 LICENSED TECHNOLOGY means the Licensed Know-How and the Licensed Software, collectively.
1.10 MORAL RIGHTS means and right of paternity or integrity, any right to claim authorship of, to object to or prevent and distortion, mutilation or modification of, or other derogatory action in relation to, the subject work, whether or not such would be prejudicial to the author's honor or reputation, to withdraw from circulation or control the publication or distribution of the subject work, or similar right, existing under judicial or statutory law of any county in the world, or under and treaty, regardless of whether or not such right is denominated or generally referred to as a moral right.
1.11 PLATFORM SOFTWARE means all Software owned, licensed and/or controlled by Licensor necessary for the Licensee to operate E- Path FX Trading Platform (Platform), which provides real-time consolidation of multiple Electronic Communication Networks (ECN) markets, exchanges, and other pools of liquidity for Spot FX (collectively the Pools of Liquidity) via proprietary processes and front- end user interface for viewing market data and trading Spot FX.
1.12 SOFTWARE means computer programs and systems, whether embodied in software , firmware or otherwise, including, software compilations, software, software implementations of algorithms, software tool sets, compilers, and software models and methodologies (regardless of the stage of development or completion) including any and all: (a) media on which any of the foregoing is recorded; (b) forms in which any of the foregoing is embodied (whether in Source Code, Object Code, executable code or human readable form); (c) translation, ported versions and modifications or any of the foregoing. Source Code means fully documented human-readable source code form of the Software, including programmer's notes and materials and documentation, sufficient to allow a reasonably skilled programmer to understand the design, logic, structure, functionality, operation and features and to use, operate, maintain, modify, support and diagnose errors. Object Code means Software in machine-readable form that is substantially or entirely in binary form or otherwise directly executable by a computer after processing or linking.
i. The Licensed Technology is comprised of Licensor's trade secrets and other proprietary, confidential information; and
ii. Licensee will not sell, lease, lend, transfer, assign, hypothecate, or otherwise distribute the licensed programs to any third party for use in the field of foreign exchange transactions unless the Licensee receives specific approval of the Licensor.
The licensee will not use the Licensed Technology or permit the use of the Licensed Technology for any illegal purpose, and will use the Licensed Technology only in accordance with the terms of this License Agreement.
Licensor, specifically and without limiting any of the foregoing assumes neither, responsibility or liability for the availability, timeliness or accuracy of the system or any equipment, regardless of whether or not the equipment was recommended, selected, is contained for, or is located on the Licensor's premises. The Licensee has independently evaluated the system, and has concluded that use of the system confers a significant benefit to the Licensee. Accordingly the Licensee hereby assumes all liabilities and risks associated with the use of the system and equipment, except for direct damages arising from gross negligence or willful misconduct of the Licensor.
iii. Licensor hereby, subject to the terms and conditions of this Agreement and provided that Licensee makes payments to Licensor as required under this Agreement, grants to Licensee a non-exclusive license to utilize Licensed Technology solely in the Field of Use and subject to the additional restrictions set forth below and otherwise in this License Agreement.
iv. It is hereby acknowledged by Licensor, that Licensee desires to make use of the Licensed Technology to access consolidated market data and to enter orders for trading Spot FX.
v. The Licensee's rights to access and use the Licensed Technology is limited to Licensor's operating hours, on days that the foreign exchange markets are open for trading (FX) (Market Day). At the end of the Licensor's operating hours or each market day the system will automatically transmit cancellation messages for each open ticket that is processed on the system or on any of the Pools of Liquidity at that time. There is no guarantee that these cancellations of the open tickets, nor that such tickets will not result in executions outside of the Licensor's operating hours. The Licensee will be responsible for immediately reporting to the Licensor any apparent failure of either transmissions or other system failure or delays.
vi. The Licensee will use the Licensed Technology only for (i) receiving market data, and (ii) entering trading tickets in the ordinary course of the Licensee's business activities.
vii. The Licensee acknowledges and understands neither, the Licensor, nor any of its respective affiliates, employees, officers or agents shall assume any responsibility or liability for the system's operations, involving the operations of any equipment, (including but not limited to computer equipment or peripherals, server equipment, communication equipment and data lines, all such equipment, collectively referred to herein as the Equipment).
The foregoing shall apply regardless of whether a claim arises in contract, tort, negligence, strict liability or otherwise. II. Additional Restrictions. The Licensee expressly agrees and acknowledges that, notwithstanding anything herein to the contrary, Licensee is not licensed to, and Licensee expressly agrees that it shall not(and shall not permit any third party to);
viii. The Licensee acknowledges and understands that accessing the Licensed Technology triggers and constitutes a renewed assumption of such liabilities and risk.
i. The Licensee agrees that neither the Licensor, nor any of its respective affiliates, employees, officers, or agents, shall be liable for any loss, damage, cost or expense, (direct or indirect) except for direct damages arising from the gross negligence of willful misconduct of the Licensor.
ii. Licensor shall assume no liability, both contingent and otherwise, which may arise out of or be in any way related to the following; (a) furnishing, performance, maintenance, use of, or inability to use all or any part of the system, (b) any fault in the delivery or operation of the system, (c) suspension or termination of the Licensee's ability to use all or part of the system, or any inaccuracies or omissions in any information or documentation provided, (d) any failure or delay suffered or allegedly suffered by Licensee in initiating and terminating trades, (e) the termination of all or part of this Licensee Agreement by the Licensor, (f) the termination or modification of any and all parts of the License.
(a) use the Licensed Technology (all or any portion thereof) other than within the scope of the license granted by Licensor under this Agreement;
(b) disclose any Licensed Technology to, or permit the use or access of any Licensed Technology by, any third party for any reason without the prior written consent of Licensor;
(c) sublicense, assign, lease, transfer or distribute any Licensed Technology, or operate and Licensed Technology for timesharing, rental, outsourcing, or service bureau operations, or to train persons (other than employees of the Licensee on the use of any Licensed Technology solely in the Field of Use);
In addition, Licensor acknowledges and agrees that, except to the extent necessary for Licensee to exercise its rights under the license granted in this Agreement, Licensee is not being granted, and will not hold, any other intellectual property rights of Licensor whatsoever. Licensee's rights in the Licensed Technology are hereby limited to the license rights expressly granted to Licensee under this Agreement and all rights not expressly granted to Licensee herein are expressly reserved and retained by Licensor. Licensee acknowledges that the grant of the license set forth in this Section is a non-exclusive license and that the Licensor shall have the right to use and to license to other parties the Licensed Technology for any purpose and in any manner as Licensor may determine in its sole discretion. Licensee acknowledges and agrees that the restrictions set forth in this Section, constitute a material inducement and consideration for Licensor's willingness to grant the license set forth herein. Any failure of Licensee to adhere to these restrictions will constitute a material failure of consideration and material breach of this Agreement that will entitle Licensor to terminate this Agreement and all Licensee's rights and licenses hereunder upon written notice to Licensee in accordance with the provisions of this Agreement.
(d) create or develop, and/or allow any third party to create or develop, any Derivative Work of any Licensed Technology;
(e) disclose any Licensed Technology to, or permit the use or access of any Licensed Technology by any individuals other than the employees of the Licensee for use in the Field of Use.
(f) directly or indirectly, reverse engineer, reverse assemble, disassemble or decompile all and/or part of the Licensed Technology, or otherwise attempt to discover any source code, algorithms, trade secrets or other proprietary rights embedded in or relating to the Licensed Technology by any means whatsoever (except and solely to the extent that applicable law prohibits reverse engineering restrictions), nor shall it knowingly permit any other individual or corporation, association, partnership, limited liability Licensee, joint venture, joint stock or other Licensee, business trust, trust, organization, governmental authority or other entity of any kind to do so.
(g) Modify, alter, improve and/or change in any manner all and/or any portion of the Licensed Technology in any manner without the prior written consent of Licensor.
ARTICLE III OWNERSHIP Licensee acknowledges that Licensor owns all right, title, and interest in and to the Licensed Technology and all Intellectual Property Rights therein. Licensee will not delete or in any manner alter the copyright, or other proprietary rights, notices of Licensor appearing on or in the Licensed Technology as delivered to Licensee. Licensee will not copy or reproduce the Licensed Technology (including Derivative Works of Licensed Technology), in whole or in part without the prior written consent of Licensor. To the extent Licensee is provided reproduction rights pursuant to such written consent, Licensee must reproduce on each copy of any Software related to the Licensed Technology, all copyrights, patent, or trademark notice, and any other proprietary legends that were provided in the originals. In addition, Licensee will use its reasonable efforts to protect Intellectual Property Rights in the Licensed Technology and will report promptly to Licensor any infringement of such rights of which the Licensee becomes aware. Licensor reserves the right at its discretion to assert claims against third parties for the infringement or misappropriation of Licensor's Intellectual; Property Rights in the Licensed Technology and to retain all compensation, damages and other amount payable to Licensor with regard to such infringement or misappropriation therein. ARTICLE IV TERM I Subject to termination pursuant to this Agreement, the Non Exclusive license granted by Licensor to Licensee shall be for an initial period of 36 months, commencing from the acceptance date, (the Initial Period). The Agreement may be renewed for an additional period of seven (7) years at the option of the Licensor. Upon any breach by Licensee of any representation, warranty, covenant and/or obligation hereunder, the Licensor may immediately terminate this Agreement and prohibit the Licensee's use of any and/or all of the Licensed Technology. In the event of such immediate termination Licensor shall retain all of it rights under this Agreement and applicable law including but not limited to the right to receive payments for all trades performed using the Licensed Technology. II The Initial Period shall be extended by mutual written of the parties within 45 days of the close of the Initial Period. III Any additional extension of this License Agreement will be by mutual agreement in writing. ARTICLE V LICENSEE FEE, TAXES, AND TERM I As consideration for the Licensee to use the licensed programs and software system as set forth in this agreement, Licensee shall pay to Licensor the Non Exclusive license fee as set forth below.
(a) Form of Payment: Licensee shall remit to Licensor, contemporaneous with the execution of this Agreement, a n Initial Payment of $35,000.00 which has previously been advanced by Licensee to the Licensor. All payments provided for in this Agreement are exclusive of, (and Licensee shall pay) all taxes, customs, duties, insurance, shipping, and other charges. Payments made to Licensor shall be in United States Dollars. (b) Taxes: All taxes in connection with this Agreement including foreign or domestic sales, use, personal property, excise, or other similar taxes, duties, and charges that may become due as a result of sales of the Platform, however, designated, which charges shall be paid directly by Licensee.
USER FEES - Non-Exclusive User Fee and Pay Periods
Charges and Payment Terms
(c) Option
The Licensor shall grant to the Licensee a six month option (the Option) to purchase up to 3,333,333 shares of its common stock. If the Option is exercised in part or in whole on or before June 30, 2009, the exercise price of the Option shall be $0.15. However, if the Option is exercised after July 1, 2009, the exercise price of the Option shall be $0.20. The Licensor acknowledges that to date the Licensee has advanced the aggregate sum of $63,309, of which $28,309 shall be applied against the partial exercise of the Option. Additional sums advanced to SFG, prior to the execution of this Agreement, and subsequent to the execution of this Agreement shall be detailed in Schedule A and annexed hereto and will be applied consistent with the terms of the Option granted pursuant to this section.
II. As compensation for the Licensee to use the Licensed Technology during the Initial Period, Licensee shall pay to Licensor, the following user fees:
Monthly Notional Volume bands (US$bn) traded on Platform by Licensee
Payments to Licensor Fee rate per US$1million traded (for each one-way part of the trade)
0-10 US$7.50
10-20 US$7.00
20-30 US$6.00
30-50 US$5.50
50+ US$5.00
The cost of the audit will be borne by Licensor unless a discrepancy of more than five-percent (5%) is discovered, in which case the cost of the audit shall be borne by Licensee.
i. For the purpose of this Agreement:
(i) Monthly Notional Volume means the US$ (US Dollar) equivalent of the primary currency traded Client turnover, provided that US$ (US Dollar) conversion should be made based upon the monthly revaluation rate (last business day) and volume should be rounded to the nearest million; and
(ii) For the avoidance of doubt, if any of the Monthly Notional Volume is reached in one relevant month, the fee rate per trade applicable to the highest Monthly Notional Volume band reached in that month shall apply to all trades (each way) in that month; not just to the trades within a particular band. For example, if in any given month the Monthly Notional volume traded is (US$10.1 billion), the fee rate per (US$1 million trade will be US$7 for the entire amount of US$10.1 billion.
III. Time of Payment
(a) Each payment for a particular calendar month shall be due no later than the (20th) day of the subsequent calendar month.
(b) The Licensee shall calculate the license fee payable to the Licensor for each month based on the Monthly Notional Volume bands for that pay period and shall pay the Licensor accordingly. In no event shall the amount payable by the Licensor be less than the amount recorded by the Licensee as being traded with the Licensed Technology multiplied by the applicable Fees set forth above.
IV. Record Keeping and Reports
(a) As a condition of Licensee receiving the grant of a license herein, Licensee agrees to maintain reasonable records relating to all trades conducted through the Licensed Technology and all other uses of the Licensed Technology by the Licensee under this Agreement. Licensee shall prepare and submit summary quarterly reports to Licensor no later than 20 days following the last business day of each calendar quarter, which reports must specify a complete record of usage of the Licensed Technology by the Licensee and shall accompany the payments made to Licensor.
(b) Licensee agrees to allow an independent Certified Public Accountant or other Audit Professional, (selected by mutual agreement) to audit and analyze appropriate accounting records to ensure compliance with all terms of this Agreement. Any such audit shall be permitted by Licensee within 30 days of Licensee's receipt of a written request of Licensor.
Supplemental Payments will be paid by the Licensee to the Licensor within (10) days of receipt of said payments by the Licensee from third parties
(a) Simultaneously with the execution hereof, the Licensor shall issue to the Licensee 350,000 shares of its common stock as a bonus.
(b) Rebate Shares. During the period commencing on the Acceptance Date through the thirty six (36th) month anniversary of this Agreement, the Licensor shall remit to Licensee a series of rebates based upon the amount of Notional Volumes traded on the EPath FX Trading Platform by Licensee. The computation of the rebates received by Licensee shall be expressed as a fixed percentage (15%) of Billable Platform Fees paid by Licensee to Licensor. The rebates shall be payable in shares of Licensor's Common Stock; priced at $.25 cents per share. The amount of rebates earned by Licensee shall be calculated for each tranche of 30 Billion of Notional Volume traded in the EPath FX Platform by Licensee. The amount of shares earned by Licensee shall terminate at the earlier of, the expiration of the term of this Agreement or the receipt of Six (6,000,000) Million shares of Licensor's common stock by Licensee. By way of illustration, if the Licensee trades 30 Billion of Notional Volume on the Platform, with a Billable Platform Fee of $279,000. The rebate to Licensee will be calculated as follows: Rebate = 15% of $279,000 = $41,850; Shares of Licensor representing $41,850/$.25 = 167,400 shares of Licensor.
V. Enhancements: Supplemental Payments
I. During the term of the non-exclusive license agreement, Licensor shall receive from Licensee one third (33%) of the gross amounts earned by the Licensee from third parties applicable to the following areas of the Licensed Technology usage (if any), (Supplemental Payments):
(a) Clearing fees
(b) Banking Rebates (give-up fees)
(c) Processing of half pips
(d) Swap rates (swap interest rate differential)
(e) Currency spreads
II. Shares
ARTICLE VI SUB LICENSE AGREEMENT Licensee agrees it shall not exchange, lease, sublease, distribute, assign, sell or otherwise transfer in any manner any right and/or interest incident to the License Technology to any third party under any circumstances, without the prior written consent of the Licensor. ARTICLE VII TECHNICAL SUPPORT SERVICES (a) The Licensor shall provide Technical Support Services relating to the maintenance and support of the Software and the Licensee shall pay the Licensor $2,500 per month for such Technical Support Services. (b) The Licensee may request that the Licensor performs further development and customization work for creating a unique client front end and other enhancements to the Platform Software after the effective date. In the event the Licensee desires such services, the Licensee must agree in writing to a price and the terms for such services based upon the scope of the work requested by Licensee. Until such an agreement is entered into in writing, the Licensor shall have no obligation to perform such work. (c) The parties agree that (except for the customization work) (above) all future enhancements to the Software, including any new Revisions, Versions, updates to, or any other non-customized development work regarding the Software (which the Licensee may accept or decline) shall be provided to the Licensee during the term of this Agreement at no additional cost. (d) Except for the Charges set forth above, there shall be no additional fees payable by the Licensee to the Licensor for technical support services pursuant to this Agreement, unless the parties agree to the contrary in writing. (e) Licensee and Licensor Responsibilities
i. The Licensor shall provide customer support to Licensee on terms and conditions set forth herein below.
ii. The Licensee agrees to notify the Licensor in writing (including by email) or telephone promptly following the discovery of any Error. Further, upon discovery of such an Error, Licensee agrees, if requested by the Licensor, to submit to the Licensor a list of output and any other data that the Licensor may reasonably require to reproduce the Error (to the extent reasonably available to the Licensee) and the operating conditions under which the Error occurred or was discovered.
(f) Error Corrections. During the term of this Agreement, the Licensor shall use commercially reasonable efforts to provide Error Corrections for Errors in the Software reported by Licensee to the Licensor. (g) Revisions. During the term of this Agreement, the Licensor shall make available to Licensee any Revisions of the Software or Documentation at no extra charge, subject to limitations explicitly set forth in this Agreement. The Licensor will make such available to the Licensee when the Licensor makes such Revisions generally available to its other licensees. (h) Limitations. The Licensor shall have no obligation under this Agreement to make any modifications, Revisions, or Error Corrections, other than those required to conform to the requirements of the Specifications and this Agreement. Notwithstanding the foregoing, the Licensor shall have no obligation under this Agreement to correct Errors which result from the breach by Licensee of this Agreement, or which cannot be remedied due to any modifications of the Software made by Licensee or any third party without authorization from the Licensor. If the Licensor agrees to remedy any errors or problems not covered by the terms of this Agreement, Licensee shall pay the Licensor for all such work performed at the Licensor's then-current standard rates. Licensee acknowledges that the Licensor is under no obligation to perform services with respect to any hardware or any software which is not the Software. ARTICLE VIII
CONTACT INFORMATION
Licensor Information:
iii. If required by the Licensee, the Licensor product managers and engineers will host free Web-based training seminars covering a variety of topics to facilitate the use of the Software. These seminars will be broadcast on a periodic basis, provided, however, that the Licensor is under no obligation to provide them on any specific schedule.
iv. Any software, modules, or other methods of communication developed by the Licensor in performing duties under this Agreement shall be kept secure from access by the unauthorized third parties. Any failure of such security shall be deemed, notwithstanding anything to the contrary, a failure of the Primary Function of the Software.
Account Manager: Michael C. Caska Telephone: 917-226-9630 Fax: 646-607-9711 E-mail: mcaska@caskaco.com
Billing: Michael C. Caska Telephone: 917-226-9630 Fax: 646-607-9711 E-mail: mcaska@caskaco.com
Tech Support: Michael C. Caska Telephone: 917-226-9630 Fax: 646-607-9711 E-mail: mcaska@caskaco.com
Written Notices: SFG Financial Corporation
575 Madison Avenue, 8th Floor,
New York, NY 10022 Att: Michael C. Caska
Licensee Information:
ARTICLE VIX
WARRANTY DISCLAIMER
THE LICENSED TECHNOLOGY IS PROVIDED ON AN AS IS BASIS WITHOUT WARRANTY OF ANY KIND AND LICENSOR HEREBY
DISCLAIMS ALL WARRANTIES CONCERNING THE LICENSED TECHNOLOGY, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR PARTICULAR PURPOSE ,
COMPLETENESS, USE, ACCURACY AND/OR TITLE. LICENSOR DOES NOT WARRANT THAT THE LICENSED TECHNOLOGY IS ERROR-
FREE OR THAT IT WILL MEET LICENSEE'S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED TECHNOLOGY WILL BE
UNINTERRUPTED,TIMELY SECURE OR ERROR-FREE, OR THAT ERRORS IN THE LICENSED TECHNOLOGY OR NONCONFORMITY TO ITS
DOCUMENTATION CAN OR WILL BE CORRECTED.
Account Manager: Name: Fred Miller Telephone 212-605-0200 Fax: 212-605-0222 E-mail:_____________________________
Billing: Name: Fred Miller Telephone 212-605-0200 Fax: 212-605-0222 E-mail:_____________________________
Written Notices: 551 FX IB Associates LLC
575 Madison Avenue, 8th Floor,
New York, NY 10022 Att: Fred Miller
ARTICLE X
CONFIDENTIAL INFORMATION/NON SOLICITATION
(a) NONDISCLOSURE. The Licensee shall not disclose, publish, or disseminate the Confidential Information to anyone other than the Licensee's employees with a need to know and who have agreed in writing to be bound by the confidentiality provisions of this Section, or as may be required by legal process. The Licensee agrees to use the same degree of care with respect to the Confidential Information that it takes to hold in confidence its own most valuable proprietary information, but not less than reasonable care, to prevent any unauthorized use, disclosure, publication, or dissemination of the Confidential Information. The Licensee agrees to accept and use the Confidential Information only for the purpose of carrying out its authorized activities under this Agreement. In the event the Licensee is required to disclose the Confidential Information by an order of a court or governmental agency, then the Licensee shall first give written notice to Licensor to allow Licensor to make a reasonable effort to obtain a protective order or other confidential treatment for the Confidential Information. (b) NON SOLICITATION. During the Term of this Agreement and during the three year period after the expiration or termination of this Agreement, the Licensee will not solicit any person employed by Licensor and/or its Affiliates to leave his or her employment with Licensor. For purpose of this Article the term Solicit means any affirmative recruitment specifically aimed at one or more individuals identified by name, title or affiliation, but shall not mean generally advertising job openings or any activities that constitute follow-up to individuals who respond to job opening advertisements or who voluntarily initiate employment inquiries. ARTICLE XI INJUNCTIVE RELIEF Licensee acknowledges that (i) any breach of its obligations under this Agreement with respect to the Licensed Technology, the Licensed Know-How Rights, , the disclosure of Confidential Information and/or the Non Solicitation of Licensor Employees; (ii) any failure by Licensee to use Licensed Technology strictly in accordance with the license rights granted to Licensee under this Agreement and/or (iii) any breach of its obligations under the additional restrictions contained in this Agreement, will cause Licensor irreparable injury for which there are inadequate remedies at law, and therefore, Licensor will be entitled to equitable relief without the posting of any bond or indemnity (including but not limited to injunctive relief and the remedy of specific performance) in addition to all other rights and remedies provided by this Agreement or available at law.
ARTICLE XII INDEMNITY Licensee will be solely responsible for any commercial or legal liability that may arise as a result of Licensee's exercise of any of the license rights granted by Licensor to Licensee under this Agreement, and Licensee shall defend, indemnify, and hold Licensor harmless from and against any and all suits, claims, proceedings, judgments, awards, damages, loss, liability, cost and expenses (including without limitation reasonable attorney's fees and other related costs) that are incurred or suffered by Licensor or any of its affiliates, directors, officers, employees, or agents to the extent they arise or result, directly or indirectly, from (i) Licensee's exercise of any license or other rights granted to Licensee under this Agreement; (ii) the conduct of Licensee's business directly or through any affiliate of Licensee and/or (iii) the breach by the License of any representation, warranty, obligation, restriction, term and/or covenant under this Agreement.
ARTICLE XIII EXCLUSION OF DAMAGES; LIMITATION OF LIABILITY (a) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE, OPERATION OR PERFORMANCE OF ANY OF THE LICENSED TECHNOLOGY, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, MISREPRESENTATION OR OTHERWISE, AND WHETHER OR NOT LICENSORHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE LICENSED TECHNOLOGY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OR OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE UNDER NO CIRCUMSTANCE SHALL LICENSOR BE LIABLE FOR ANY ACTIONS, CLAIMS OR THE LIKE BY LICENSEE OR ANY THIRD PARTY THAT THE USE OF THE LICENSED TECHNOLOGY HAS RESULTED, RESULTS OR MAY RESULT IN ANY INFRINGEMENT, DEPRIVATION OR VIOLATION OF THE INTELLECTUAL PROPERTY, CONSTITUTIONAL, STATUTORY, CONTRACTUAL, COMMON LAW OR OTHER RIGHTS OF ANY PERSON (b) IN NO EVENT SHALL LICENSOR'S AGGREGATE CUMULATIVE TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED ONE HALF OF THE AMOUNT PAID BY THE LICENSEE TO Licensor HEREUNDER. (c) THIS SECTION IS A MATERIAL INDUCEMENT TO AND CONDITION FOR LICENSOR ENTERING INTO THIS AGREEMENT.
ARTICLE XIX INSOLVENCY Either party shall have the right to terminate this Agreement immediately upon notice to the other party if the other party: (a) becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing. ARTICLE XX CERTAIN OTHER EVENTS OF TERMINATION (a) Upon the occurrence of any Change of Control (as defined below) this Agreement and all Licensee's rights and licenses hereunder shall automatically terminate unless, prior to the occurrence of such Change of Control, Licensor has consented to such Change of Control in a writing executed by an officer of Licensor; provided that Licensor will not unreasonably withhold its consent to the consummation of a Change of Control. For purposes of the preceding sentence, Licensor will be deemed to have reasonably withheld its consent to a Change of Control if any person or entity who would acquire direct or indirect control (as defined below) of Licensee pursuant to such Change of Control then conducts a business that is directly or indirectly competitive with a business then conducted by Licensor or any of its Affiliates and/or Licensor reasonably believes that Licensor's interests will be adversely effected by the continuing of this Agreement upon such a Change in Control. As used herein, the term CHANGE OF CONTROL means: (i) a transaction or series of related transactions that results in the sale or other disposition of all or substantially all of Licensee's assets; or (ii) a merger or consolidation in which Licensee is not the surviving corporation or in which, if Licensee is the surviving corporation, the shareholders of Licensee immediately prior to the consummation of such merger or consolidation do not, immediately after consummation of such merger or consolidation, own stock or other securities of Licensee that possess a majority of the voting power of all Licensee's outstanding stock and other securities and the power to elect a majority of the members of Licensee's board of directors; or (iii) a transaction or series of related transactions (which may include without limitation a tender offer for Licensee's stock or the issuance, sale or exchange of stock of Licensee) if the shareholders of Licensee immediately prior to the initial such transaction do not, immediately after consummation of such transaction or any of such related transactions, own stock or other securities of Licensee that possess a majority of the voting power of all Licensee's outstanding stock and other securities and the power to elect a majority of the members of Licensee's board of directors. As used herein, the term CONTROL (including, with correlative meanings, the terms, CONTROLS CONTROLLING, CONTROLLED BY or UNDER COMMON CONTROL WITH) with respect to a designated person means the possession, directly or indirectly, of the power to vote a majority of the securities having voting power for the election of directors (or other persons acting in similar capacities) of such person or otherwise to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract or otherwise. (b) In the event Licensee winds up, dissolves or otherwise ceases doing business, Licensor shall be entitled to terminate this Agreement immediately upon written notice to Licensee.
ARTICLE XXI EFFECT OF TERMINATION Upon termination of this Agreement: for any reason (a) the rights and licenses granted to Licensee pursuant to this Agreement will automatically terminate, and (b) Licensee shall, within five (5) days, ship to Licensor all Licensed Technology, API's Documentation with respect to the Licensed Technology and other Confidential Information in Licensee's possession or control, and an officer of Licensee shall certify in writing that Licensee as complied with the provisions of this Section. All of the Licensor's rights under this Agreement shall survive termination of this Agreement.
ARTICLE XXII RIGHT OF FIRST REFUSAL During the term of this Agreement, the Licensor shall have the right (the Right of First Refusal), for a period (the Exercise Period) expiring at 11:59 PM (Eastern Time) on the fifth (5th) business day after the giving of written notice by the Licensee that it has received a bonafide offer from a third party to (ii) purchase all or substantially all of the assets of Licensee; or (ii) to engage in a merger or consolidation in which Licensee is not the surviving corporation or in which, if Licensee is the surviving corporation, the owners of Licensee immediately prior to the consummation of such merger or consolidation do not, immediately after consummation of such merger or consolidation, own stock or other securities of Licensee that possess a majority of the voting power of all Licensee's outstanding stock and other securities and the power to elect a majority of the members of Licensee's board of directors.
In the event the Licensor declines or fails to exercise in full the Right of First Refusal before the expiration of the Exercise Period, the
Licensee shall have the right to consummate the transaction with the third party.
ARTICLE XXIII NON EXCLUSIVE REMEDY Termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party. NO DAMAGES FOR TERMINATION. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED INCOME, OR DAMAGES RESULTING FROM ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY EITHER PARTY ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS.
ARTICLE XXIV
GENERAL PROVISIONS
(a) GOVERNING LAW. The parties agree that it is to their mutual benefit that their respective rights and obligations under this Agreement are guided by, and their disputes hereunder are determined in accordance with, a well developed body of law. Accordingly, the parties agree that the validity, interpretation and legal effect of this Agreement shall be governed by the internal laws of the State of New York, U.S.A., applicable to contracts entered in and performed entirely within the State of New York, U.S.A. without regard to any conflict of law principles. The parties agree that any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the City of New York, State of New York, and the parties each (i) irrevocably submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York, or any court of the State of New York, and (ii) waives any objection to the venue of any such suit, action or proceeding and any claim relating to forum non conveniens. In any such suit, action, or proceeding, any summons, order to show cause, writ, judgment, decree or other process may be delivered to the parties outside the State of New York or outside the United States and when so delivered, such party shall be subject to the jurisdiction of such court, and amenable to the process so delivered as though the same had been served within the State of New York but outside the county in which such suit, action or proceeding is pending. (b) COMPLIANCE WITH LAWS. Licensee agrees to comply in all material respects with all applicable laws, rules, and regulations in connection with its activities under this Agreement, including without limitation, any applicable export controls imposed by the U.S. Export Administration Act of 1978, as amended (the ACT) and the regulations promulgated under the Act. (c) ASSIGNMENT. Licensee may not assign this Agreement or assign, sublicense and/or transfer in any manner its license rights hereunder in whole or in part without Licensor's prior written consent. Any attempt to assign this Agreement or assign, sublicense and/or transfer in any manner Licensee's license rights hereunder without such consent will be void and of no effect. For purposes of this Agreement, any Change of Control (as defined in Section 13.4(a)) shall be governed by the provisions of the section entitled Change Of Control and not the provisions of this Section Subject to the terms of this Section, this Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. (d) ATTORNEYS' FEES. In the event that any action or proceeding is brought in connection with this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys' fees following a final judgment. (e) SEVERABILITY. If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, then that provision of the Agreement will not be voided, but rather will be enforced to the maximum extent legally permissible and the other provisions of this Agreement will remain in full force and effect.
(f) INDEPENDENT CONTRACTOR. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. (g) NOTICES. All notices required or permitted under this Agreement will be in writing and delivered by confirmed facsimile transmission, by courier or overnight delivery service, or by certified mail, and in each instance will be deemed given upon receipt. All communications to a party will be sent to the address of the party set forth in the preamble above or to such other address as may be specified by such party to the other in accordance with the Section called Contact Information. Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section. (h) COUNTERPARTS. This Agreement may be executed in counterparts, each of which will be deemed an original, but both of which together will constitute one and the same instrument. (e) ENTIRE AGREEMENT. This Agreement, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, superseding and replacing any and all prior and contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. (h) MODIFICATION. No modification to this Agreement, nor any waiver of any rights, shall be effective unless consented to in writing and the waiver of any breach or default shall not constitute a waiver of any other right or of any subsequent breach or default. (i) FORCE MAJEURE. Except for the obligations to make payments hereunder, each Party shall be relieved of the obligations hereunder to the extent that performance is delayed or prevented by any cause beyond its reasonable control, including without limitation, acts of God, public enemies, war, civil disorder, fire, flood, explosion, labor disputes or strikes or any acts or orders of any governmental authority. (j) CONSTRUCTION. The parties agree that no ambiguity (if any) found in this Agreement shall be resolved against any party by virtue of its participation in the drafting of this Agreement. (k) REPRESENTATION BY COUNSEL. Each party acknowledges that it has had the opportunity to be represented by separate independent counsel in the negotiation of this Agreement, that any such respective attorneys were of its own choosing, that each authorized representative has read this Agreement and that it understands its meaning and legal consequences to each party. Each Party warrants and represents that it has consulted with its attorney of choice, or voluntarily chose not to do so, concerning the execution, the meaning and the import of this Agreement, and has read this Agreement and fully understands the terms hereof as signified by its signature below, and is executing the same of its own free will for the purposes and consideration herein expressed. Each Party warrants and represents that it has had sufficient time to consider whether to enter into this Agreement and that it is relying solely on its own judgment and the advice of its own counsel, if any, in deciding to execute this Agreement. Each Party warrants and represents that it has read this Agreement in its entirety and has consulted with its attorney, if any concerning the execution of this Agreement. If any or all Parties have chosen not to seek counsel, said party or parties hereby acknowledge that it or they refrained from seeking counsel entirely of its or their own volition and with full knowledge of the consequences of such a decision.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the Effective Date by their duly authorized representatives.
SFG FINANCIAL CORP. 551 FX IB ASSOCIATES LLC
By: /s/ Michael C. Caska By: /s/ Fred Miller
Name: Michael C. Caska Fred Miller
Title: Chief Executive Officer Title: Member Manager
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
[Q]: EXHIBIT 10.9 DISTRIBUTOR AGREEMENT This Distributor Agreement (the 'Agreement') dated [*] is between Lucid Inc., a New York corporation, having a principal place of business at 2320 Brighton Henrietta T/L Road, Rochester NY 14623 And [*] ('Distributor') For good and valuable consideration, the parties hereby agree: 1. Appointment A) Lucid appoints the Distributor and the Distributor accepts appointment as an exclusive authorized Lucid Distributor. The Distributor will be entitled to purchase certain Lucid products and resell them to End User customers within the following market segments:- hospital and medical research centres, including but not limited to dermatology, pathology, plastic surgery and mohs surgery departments, clinical research centres, small animal research facilities, cosmetic and cosmeceutical companies. B) The relationship of the parties under this Agreement is that of independent contractors and nothing contained herein shall be construed as creating any partnership, joint venture or agency relationship between the Distributor and Lucid. Under no circumstances shall any employees of one party be deemed the employees of the other for any purpose. The Distributor shall not have the authority to assume or create any obligation, or make any representation of any kind on behalf of Lucid. 2. Term A) The initial term of this Agreement shall be three (3) calendar years from the Agreement date. After the initial term, unless terminated, this Agreement will automatically renew for periods of one (1) calendar year each. 3. Products A) Lucid agrees to sell the following products to the Distributor: - VivaScope in-vivo Confocal Microscope Model VS1500 VivaScope ex-vivo Confocal Microscope Model VS2500 VivaSCOPE in-vivo Confocal Microscope Model VS3000 B) Further products manufactured by Lucid will be discussed with the Distributor and by agreement will be added to this Agreement.
4. Territory A) The Distributor is appointed as an exclusive Distributor within the following territories: [*]. B) The Distributor agrees to act as a Distributor for Lucid within the above Territories and not to solicit any sales of the Product(s) outside the above Territories. 5. Duties of The Distributor A) The Distributor will use his best efforts to actively promote and sell the Product to all relevant End Users within all relevant market segments within the Territory. B) The Distributor agrees to undertake detailed sales demonstrations of the Product(s) to potential End Users within all relevant market segments within the Territory. C) The Distributor agrees to allow the End User to undertake sales evaluations (trials) of the product(s), using the Distributor's own Demonstration Equipment as necessary. D) The Distributor agrees to promote the Product(s) at all relevant trade shows, seminars and exhibitions held within the Territory. Lucid may, at it's discretion, and in co-ordination with the Distributor when Lucid deems it necessary, at its own expense and in its own name, engage in advertising activities of or hold or participate in exhibitions of the Product in the Territory. E) The Distributors will not develop, manufacture or sell any equipment or service, which in any way can be considered to be competitive to the equipment or service offered by Lucid to the Distributor as Product. Lucid reserves the right to inform the Distributor from time to time of specific products and companies that Lucid considers to be competitive. A competitive product includes, but is not limited to, any product that would infringe any claim of any Lucid owned or licensed patent issued or pending worldwide, whether or not corresponding patent claims are in force in the Distributors territory or the sale of which would restrict sale of Lucid product. F) The Distributor will provide to the End User, full installation and customer training of the Product(s).
6. Personnel A) The Distributor will employ as a minimum one full-time Lucid dedicated Product Manager sales professional, giving one hundred per cent of their time to the promotion and sale of Lucid products. 7. Demonstration Equipment A) The Distributor agrees to purchase demonstration products as new products are released subject to special pricing. The Distributor agrees to use the demonstration equipment for the duties as noted in 5 A, B, C, D as above and not to re-sell this demonstration equipment to End Users. 8. Training A) The Distributor agrees to have all sales professionals employed on Lucid products undergo sales training at an agreed location and to a level approved by Lucid. B) The Distributor agrees to allow Lucid to accompany the Distributor sales professionals during sales calls within the Territory as required. C) The Distributor agrees to allow Lucid to participate in sales meetings for training purposes, held within the Distributor's facility. 9. Information A) The Distributor will supply to Lucid, on a monthly basis, a detailed listing of all sales prospects within the Territory. A sales prospect is considered by Lucid to be any End User who has expressed an interest in purchasing Lucid products. B) The Distributor agrees to supply to Lucid on a monthly basis a detailed sales forecast, highlighting potential order dates of product. C) The Distributor agrees to supply to Lucid, from time to time, with any competitive data emanating from the Territory. D) The Distributor agrees to supply Lucid, on an annual basis, with a detailed sales plan for the Product(s), broken down by sales for each individual country within the Territory. Any country or part of the territory that does not meet the sales expectations as forecasted by the Distributor will be subject to review by Lucid and may subsequently be removed from the Territory. The first sales plan will be presented to Lucid within three (3) months of the signing of this agreement and annual sales plans will be due on November 30 each year.
E) The distributor agrees to keep Lucid informed of details of forthcoming and installed units together with customer details including customer name, address and email details at a level sufficient to fulfil all requirements of US Government Export Administration Regulations and Lucid quality audits. 10. Sub-Distribution The Distributor shall not be entitled to engage sub-distributors or any other third party as his sub-agent for sales of the Product, without having obtained Lucid's prior written approval. Such approval shall not be unreasonably withheld. 11. Intellectual Property A) Lucid is the sole owner of all trademark symbols and logos under which the products will be sold. Lucid agrees that the Distributor may use the appropriate trademarks to promote the sale of products in the Territory. Such use is only with Lucid's permission and must be related to the sale of Lucid products. The Distributor acquires no rights to Lucid trademarks by selling Lucid products. The Distributor may not use Lucid trademarks, symbols or logos as part of its business or corporate names. B) The Distributor will assist Lucid in protecting Lucid's patents, copyright, trademarks and logos. The Distributor will inform Lucid of any known or suspected violations of Lucid's patents, copyright, trademarks, symbols and logos. If Lucid requests, the Distributor will assist in protecting such intellectual property from infringement. 12. Duties of Lucid A) Lucid will supply to the Distributor, free of any charge, reasonable quantities of Product datasheets. B) Lucid will supply to the Distributor, free of charge, images of skin in vivo. Lucid will make every reasonable effort to supply images of skin to the Distributor, which are required by the Distributor for a particular End User application. C) Lucid will make available free of charge to the Distributor the services of at least one suitable sales professional. D) Lucid will make available free of charge to the Distributor the services of at least one Clinical Research Engineer. This person will normally reside at Lucid's USA Headquarters but may from time to time assist the Distributor within the Territory.
E) Lucid will make its facility in the USA available, from time to time, to the Distributor and the Distributor's sales force for sales training purposes. Lucid will also offer this service to the Distributor for the introduction of potential End Users from the Territory. 13. Prices, Terms & Conditions of Sale A) The Distributor may purchase Products from Lucid at the price published by Lucid, from time to time, in the International Distributor price list (attached). Lucid agrees to allow the Distributor a discount of thirty (30) per cent against the published International Distributor price list. B) All orders from the Distributor to Lucid will be subject to Lucid's standard terms and conditions of sale. C) All prices are quoted by Lucid in US Dollars and are sold Ex Works, becoming the Distributor's property when despatched from the Lucid facility. 14. Minimum Purchase Obligation The Distributor agrees to purchase from Lucid minimum agreed quantity of product in the first, second and third years of the Agreement, excluding demonstration product. These quantities to be agreed by both parties in the initial detailed sales plan noted in clause 9D and amended with further agreement in subsequent annual sales plans 15. PAYMENT TERMS The Distributor agrees to abide by Lucid's standard payment terms, which are as follows; One Hundred (100) per cent of order value by sixty ( 90 ) day irrevocable letter of credit when order is placed on Lucid. 16. TERMINATION A) Either party may terminate this agreement by giving written Notice to the other party if: i) The other party fails to perform or satisfy any of the conditions, covenants or obligations of this Agreement. ii) The other party files or has filed against it, a petition seeking relief under any bankruptcy, insolvency, reorganisation, moratorium, liquidation or similar law affecting creditors' rights B) In addition, Lucid may terminate this agreement by giving the Distributor Written Notice if there is any change of control, ownership or management of the Distributor.
C) Either party may terminate this agreement by providing Ninety days Written Notice. 17. EFFECT OF TERMINATION A) Upon the termination of this Agreement: 1. The Distributor shall terminate any registration it has made as a Lucid Distributor. 2. Distributor will immediately return any samples, sales literature, promotional materials and other documents supplied to the Distributor free of charge from Lucid. 3. Any right to use Lucid patents, copyrights, trademarks, symbols and logos shall immediately cease. B) If this Agreement is terminated Lucid shall not be liable for any incidental, indirect; special punitive of consequential damages of any kind, including any perceived or real market development costs. 18. Incident and Traceability Reporting A) DISTRIBUTOR will IMMEDIATELY report via telephone communication to Lucid any incidents that involve the use of PRODUCTS sold by the DISTRIBUTOR to end users that affect patient safety or well-being (an INCIDENT). Such oral incident reporting will be followed immediately by a written incident report that documents the detailed conditions that resulted in the INCIDENT and Distributor shall thereafter co-operate with Lucid in the investigation of any and all conditions that led to, or resulted from the INCIDENT. B) DISTRIBUTOR will routinely, but not less than annually, report in writing to Lucid, documenting the end users to which PRODUCTS have been sold, including the address, telephone number and name of a person who is the primary emergency contact. Lucid will use this information in the event of Lucid issuing a product recall of the PRODUCT for safety or other reasons. If such an event occurs, and upon Lucid's request, the DISTRIBUTOR will immediately provide Lucid with the names, addresses, telephone numbers and emergency contact personnel of any end user sites not previously reported to Lucid. 19. LIMITATION OF LIABILITY A) Lucid does not guarantee delivery of Product by any particular date. If Lucid accepts Distributor's order and fails to deliver ordered products, Distributors sole remedy will be limited to refund of money paid to Lucid for any undelivered products. B) Lucid will not have any liability or responsibility to Distributor or any other person or entity for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable, based on
claims of Distributor or Distributor's customers (including but not limited to, claims for loss of data, goodwill, profits, use of money or use of product, interruption in use or availability of data stoppage or other work or impairment or assets) arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, except only in the case of death or personal injury where and to the extent that applicable law requires such liability. In no event will the aggregate liability incurred by Lucid in any action or proceeding exceed the total amount actually paid to Lucid by Distributor for the purchase of the products that actually caused the damage or loss. 20. Governing Law A) This Agreement shall be governed by and interpreted in accordance with the laws of the State of New York, USA without regard to conflict of laws principles. 21. NOTICE A) All notices required herein (NOTICE) shall be given in English language. Notices must be sent postage pre-paid, and (a) delivered personally against written receipt (b) transmitted via facsimile or (c) sent by nationally recognised overnight courier service, or (d) sent via first class certified mail, return receipt requested, to the address listed above. Any change of addresser fax number must be designated in writing and served in accordance with this Section. Notice shall be effective (a) upon receipt if personally delivered (b) upon confirmation of transmission if sent via facsimile and (c) two (2) business days after deposit with the courier or an official depository of the US Post Office, if sent via recognised overnight courier of via Certified Mail, as the case may be. 22 ENTIRE AGREEMENT: A) This Agreement, including the Price List attached hereto, as amended from time to time, constitutes the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes and replaces all previous proposals, both oral and written, negotiations, representations, commitments, writings, contracts, agreements and all other communications between the two parties. Signatures on the next page
IN WITNESS WHEREOF, the parties have duly executed this Agreement on the date first above written.
LUCID Inc. [*] By By Marcy K. Davis-McHugh [*] TITLE TITLE: Corporate Vice President
DATE [*] DATE: [*]
SIGNATURE SIGNATURE
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
[A]: 12508
[Q]: CONFIDENTIAL
PSiTECHCORPORATION WEBSITE CONTENT LICENSE AGREEMENT This Content License Agreement (Agreement), dated as of Feb 10, 2014 (the Effective Date), is by and between PSiTech Corporation, a BVI Corporation, with offices located at 303, 3rdFl, St. Georges Bldg, 2 Ice House St, Central, Hong Kong(Licensor), and Empirical Ventures, Inc., a Nevada corporation with offices located at 100, 40 Lake Bellevue Dr, Bellevue, WA(Licensee). WHEREAS, Licensee owns, operates and controls the Licensee Site (as defined below); WHEREAS, Licensor owns or otherwise has the right to license the Licensed Content (as defined below); WHEREAS, Licensee wishes to make Licensed Content accessible on the Licensee Site; and WHEREAS, Licensor is willing to license the Licensed Content to Licensee, subject to all terms and conditions set forth herein. NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: 1. Definitions. For purposes of this Agreement, the following terms have the following meanings. Other terms defined in the body of the Agreement shall have the meanings so given. Affiliate of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term control (including the terms controlled by and under common control with) means the direct or indirect ownership of more than fifty percent (50 %) of the voting securities of a Person. Confidential Information means any information that is treated as confidential by a party, including, without limitation, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing and marketing, in each case to the extent it is: (a) if in tangible form, marked as confidential; or otherwise, identified at the time of disclosure as confidential, or (b) would be considered as confidential information by one who is reasonably knowledgeable and experienced in the field to which the information relates. With respect to each party, the terms of this Agreement are Confidential Information of the other party.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
Content Item means each discrete creative work (for example, article, photograph or video), as designated by the Licensor, that is included in the Licensed Content. End User means each natural person that has access to Licensed Content on the Licensee Site. Gross Revenues means the gross revenues received by the Licensee and derived from or in connection with the Licensee Site, from any sources whatsoever, including but not limited to fees for access to and use of the Licensee Site and advertising, sponsorship, marketing and other paid-for placements, andmaintenance, support and other services. Law means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state, local or foreign government or political subdivision thereof, or any arbitrator, court or tribunal of competent jurisdiction. Licensed Content means those materials and content identified in Schedule 2, as may be amended by the parties as set forth herein. Licensee Site means the website operated by Licensee on or through which the Licensed Content is displayed. Losses means losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.] Mark means any trademark, trade name, service mark, design, logo, domain name or other indicator of the source or origin of any product or service. Licensor's Mark as used in Section 3.3shall mean the Mark GoPage, either in standard character or stylized format. Multilevel Marketing or MLM means a direct sales or marketing strategy in which the sales force is compensated both for sales they personally generate and for sales made by sales people they recruit. Person means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association or other entity. Related Media means those mobile sites, mobile applications (apps), widgets, gadgets, RSS feeds, e-mail newsletters and other content delivery media owned, operated and controlled by Licensee. Territory means Canada, United States and Mexico.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
2. Delivery of Content. During the Term, except as otherwise set forth herein, Licensor shall make available to Licensee the Licensed Content for display on the Licensed Site. Licensor reserves the right to modify the Licensed Content in its reasonable discretion. Licensor shall notify Licensee of any such modifications. Licensor is not liable for delays or failures of delivery beyond its reasonable control. Licensor's sole responsibility for any such delay or failure is to deliver or re-deliver the relevant Licensed Content as soon as reasonably possible. 3. License Grants. 3.1 Content License. Subject to Licensee's ongoing compliance with Section 3.2 and all other terms and conditions of this Agreement, Licensor grants to Licensee an exclusive (save for rights reserved to Licensor hereunder), non-transferable (except as provided in Section 11.7) and non- sublicensable license, during the License Term, to reproduce, perform, display, transmit and distribute the Licensed Content on the Licensee Siteand Related Media intended solely for use by End Usersin the Territory within the scope set forth in Schedule 1 (License Scope), which is attached hereto and incorporated herein by this reference. The foregoing includes the right to permit End Users to access the Licensed Content solely for their own end use and not for redistribution and otherwise subject to Terms of Use that comply with Section 4.3. Licensee is not granted any right to, and shall not, permit any other use of the Licensed Content by End Users, or any use of the Licensed Content by any other Person (including Licensee's Affiliates). 3.2 Content License Restrictions. The license granted in Section 3.1 is subject to the following: (a) Licensee shall not include Licensed Content on the Licensee Site or any Related Media other than as expressly permitted herein and in accordance with all terms and conditions of Section 4. (b) Licensee shall not make the Licensed Content available, or otherwise use the Licensed Content, except as expressly licensed pursuant to Section 3.1. Any use by Licensee of the Licensed Content on any other website, mobile site or application or other media of Licensee other than the Licensee Site and Related Media as expressly provided herein requires a separate written agreement between Licensor and Licensee, and Licensor has no obligation to enter into any such agreement. (c) Licensee shall not permit the Licensed Content to be, or appear to be, reproduced, displayed or distributed on, as part of or in connection with any website or other online (including mobile) area other than the Licensee Site and Related Media, whether by framing, in-line linking, appearing in a new window or otherwise. (d) Licensee shall not edit, alter, modify, combine with other content or create any derivative works of the Licensed Content without the prior written consent of Licensor. (e) Licensee shall not display, and shall not permit others to display, on the Licensee Site any images or content that is or could be reasonably construed to be offensive, pornographic, defamatory or libelous, infringing the intellectual property rights of any third party, promoting terrorism or other unlawful violence, or for any other purpose that violates applicable Law.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
(f) If Licensor instructs Licensee to delete or make inaccessible any Content Item because such Content Item may contain errors, is or could be subject to a third-party claim or for any other good faith reason, Licensee shall comply with such instruction as promptly as reasonably possible and, in any case, within twenty-four (24) hours. The License Term for each such Content Item terminates at the end of such 24-hour period. All uses of the Licensed Content that do not comply fully with the provisions of this Section 3.2 shall for all purposes be deemed beyond the scope of the license granted hereunder. Any violation of this Section 3.2 by Licensee shall be a material breach of this Agreement for which Licensor may terminate this Agreement as set forth in Section 6.2(a). 3.3 Trademark License. (a) Licensor grants to Licensee a limited, non-exclusive, non-transferable (except as provided in Section 11.7) and non-sublicensable royalty-free license during the Term to those of Licensor's Marks designated by Licensor from time to time to: (i)display such Marks on the Licensee Site: (x) with the Licensed Content to provide source attribution; or (y) as links to the Licensed Content; (ii)comply with its express obligations under this Agreement; and (iii)advertise, market and promote the availability of the Licensed Content or the Licensee Site and identify the Licensor as a content provider; provided, that all uses of Licensor's Marks shall require Licensor's prior written approval.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
(b) Licensee shall use the Marks solely in accordance with Licensor's trademark usage guidelines and quality control standards as the same may be updated from time to time by Licensor. If Licensor notifies Licensee that any use does not so comply, Licensee shall immediately either remedy the use to the satisfaction of Licensor or terminate such use. Licensee shall not use, register or attempt to register in any jurisdiction any Mark that is confusingly similar to or incorporates any of the Licensor's Marks. All uses of the Licensor's Marks, and all goodwill associated therewith, shall inure solely to the benefit of Licensor. 3.4 Reservation of Rights. Neither this Agreement nor the licenses granted hereunder convey any ownership right in any of the Licensed Content, Licensor's Marks or other materials provided by or on behalf of Licensor under this Agreement. Except for the express licenses granted in this Agreement, all right, title and interest in and to the Licensed Content and Licensor's Marks are and will remain with Licensor and its licensors. 4. Licensee Obligations. 4.1 Content Display. Throughout the Term, Licensee shall provide the Licensed Content on the Licensee Site and Related Media solely to the extent of and within the scope of the license granted in this Agreement and otherwise in accordance with the following: (a) Licensee shall present the Licensed Content solely in accordance with the specifications and restrictions set forth in Schedule 4. (b) Licensee shall update Licensed Content on the Licensee Site and Related Media promptly upon receipt of such updates from the Licensor. (c) Licensee shall present each Content Item solely in its entirety (without any addition, modification or deletion). (d) Licensee shall remove the Licensed Content from the Licensee Site and Related Media immediately upon the expiration or earlier termination of the License Term for such Content Item. 4.2 Required Notices. Licensee shall display with each Content Item the appropriate copyright and trademark notices and any other source attribution required by Licensor. Licensee shall not alter, remove or obstruct any such notices or attribution included with any Content Item as delivered by Licensor.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
4.3 Terms of Use. Throughout the Term, Licensee shall have in effect and maintain accessible on the Licensee Site and Related Media website terms of use (Terms of Use) and privacy policy (Privacy Policy) on which use of the Licensee Site and Related Media, including the Licensed Content, is expressly conditioned, and which in form and substance are reasonably acceptable to Licensor. 4.4 Content Hosting and Support; User Complaints. Throughout the Term, Licensee shall host, operate, maintain and make accessible to End Users the Licensed Content on the Licensee Site. The service level standards and procedures used by Licensee with respect to the Licensed Content, including but not limited to those regarding End User requests and communications, will be consistent with those it employs with respect to other content on the Licensee Site. Without limiting the foregoing, if Licensee receives any notice claiming that the Licensed Content infringes or otherwise violates any intellectual property or other third-party right, Licensee shall: (a) immediately notify Licensor in writing (which may include e-mail), including such detail as is available and necessary for Licensor to evaluate and address such complaint; and (b) fully cooperate with Licensor in addressing such claims. 5. Fees and Payment. 5.1 License Fees. In consideration of the licenses granted and other undertakings by Licensor hereunder, Licensee shall pay Licensor a License Fee in the amount of two hundred thousand dollars (US$200,000) (License Fee). The License Fee shall be due and payable as follows: (a) US$50,000 upon signing the Memorandum of Understanding (MOU) between the Parties (provided, however, that Licensor hereby acknowledges receipt of this portion of the License Fee); (b) US$50,000 upon signing of this Agreement; and (c) US$100,000 upon on or before March 28, 2014. The License Fees are non-cancellable and non-refundable.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
5.2 In addition to the License Fee payable in accordance with Section 5.1, Licensee shall pay a royalty (Royalty) to Licensor according to the following schedule (Royalty Schedule): Subscribers Royalty Payable as Percentage of Gross Revenue 0 - 5000 6.25% 5001 - 7500 6.75% 7501 - 10,000 7.00% 10,001 - 15,000 8.00% 15,001 - 20,000 8.50% 20,001 - 25,000 9.25% 25,001+ 9.75% 5.3 Reports and Payment (a) Not later than the fifteenth (15th) calendar day of each calendar quarter (or the first business day thereafter), Licensee shall deliver to Licensor (i) a report accurately showing Gross Revenues of the Licensee for the previous quarter, the number of Subscribers on the last day of such previous quarter and the amount of Royalties due thereon, and (ii) payment of the Royalties payable for such previous quarterbased on the Subscriber information as reflected in the report. All payments under this Agreement shall be made in US dollars. (b) If Licensee fails to make any payment when due: (i)Licensor shall have the right to terminate this Agreement and all licenses granted hereunder as provided in Section 6.2; and] (ii)If any License Fees or Royalties are more than ten (10) days past due, Licensor may assess interest on the past due amount at the rate of one and a half percent (1.5%) per month or, if lower, the highest rate permitted under applicable Law.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
5.4 Taxes. All License Fees are exclusive of sales, use, value added, and similar taxes, which are the responsibility of Licensee. If Licensee is required under any applicable Law to withhold any amount from such payment, Licensee shall hold such funds in trust for Licensor and shall cooperate with Licensor in completing and filing all forms and other documents required for the release of the funds withheld for payment to Licensor. 5.5 Audit Right. During the Term and for five (5) years thereafter, Licensee shall maintain complete and accurate books and records regarding its business operations relevant to the calculation of License Fees and any other information required to be reported to Licensor under this Agreement. Licensee shall make such books and records, and appropriate personnel, available during normal business hours for audit by Licensor or its authorized representative; provided that Licensor shall: (a) provide Licensee with reasonable prior notice of any audit; (b) undertake an audit no more than once per calendar year, unless a prior audit has disclosed a balance due; and (c) conduct or cause to be conducted such audit in a manner designed to minimize disruption of Licensee's normal business operations. Licensor may take copies and abstracts of materials audited. Licensor will pay the cost of such audits unless an audit reveals a discrepancy in payment or reporting of five percent (5%) or more, in which case the Licensee shall reimburse the Licensor for the reasonable cost of the audit. Licensee shall immediately upon notice from Licensor pay Licensor the amount of any underpayment revealed by the audit, including interest calculated in accordance with Section 5.3(b)(ii), together with any reimbursement pursuant to the preceding sentence.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
6. Term and Termination. 6.1 Term. The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any express provision of this Agreement, shall continue until five (5) years following the Effective Date (the Initial Term). Thereafter, this Agreement shall renew automatically for one (1) additional three (3) year period (the Renewal Term and collectively, together with the Initial Term, the Term) unless either party provides the other with written notice of non-renewal at least ninety (90) days before the expiration of the Initial Term]. 6.2 Termination. (a) Either party may terminate this Agreement, effective upon written notice to the other party, if the other partymaterially breaches this Agreement, and such breach is incapable of cure or, if capable of cure, (i) fails to commence a plan of action approved by Licensor to cure such breach within thirty (30) days, or (ii) fails to cure such breach within ninety (90) days after receiving written notice thereof, in either case after receiving notice of the breach. Provided, however, that if the breach giving rise to the termination right under this Section 6.2is non-payment of License Fees or Royalties, the cure period shall be ten (10) days. (b) Either party may terminate this Agreement by written notice to the other party if the other party: (i) becomes insolvent or admits its inability to pay its debts generally as they become due; (ii) becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within ten (10) business days or is not dismissed or vacated within sixty (60) days after filing; (iii) is dissolved or liquidated or takes any corporate action for such purpose; (iv) makes a general assignment for the benefit of creditors; or (v) has a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 6.3 Effect of Expiration or Termination. Upon any expiration or termination of this Agreement: (a) All licenses granted under this Agreement shall also terminate, and Licensee shall immediately delete from its systems and servers all Licensed Content, Licensor's Marks and any other materials provided by Licensor. Upon Licensor's written request, Licensee shall promptly provide Licensor with written certification of such deletion. (b) Licensee shall promptly pay all unpaid License Fees that relate to the period prior to the effective date of expiration or termination.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
(c) If termination is by Licensor pursuant to Section 6.2(a), all License Fees that would have been payable through the end of the then- current Term had the Agreement not been terminated early shall become immediately due and payable. (d) If termination is by Licensee pursuant to Section 6.2(a), Licensee shall be relieved of any obligation to pay License Fees that relate to the period after the effective date of termination. (e) Each party shall (i) return to the other party all documents and tangible materials (and any copies) containing, reflecting, incorporating or based on the other party's Confidential Information, (ii) permanently erase all of the other party's Confidential Information from its computer systems and (iii) certify in writing to the other party that it has complied with the requirements of this Section 6.3(e). 6.4 Surviving Terms. The provisions set forth in the following Sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.4, Section 5.5,Section 6.3, this Section 6.4, Section 7, Section 8, Section 9, Section 10 and Section 11. 7. Representations and Warranties. 7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity as represented herein under the laws and regulations of its jurisdiction of incorporation, organization or chartering; (b) it has the full right, power and authority to enter into this Agreement, to grant the rights and licenses granted hereunder and to perform its obligations hereunder; (c) the execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of the party; and (d) when executed and delivered by such party, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
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Source: GO-PAGE CORP, 10-K, 2/21/2014
7.2 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, (A) EACH PARTY HEREBY DISCLAIMS ANY WARRANTY, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, UNDER THIS AGREEMENT; AND (B) LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON- INFRINGEMENT. 8. Indemnification. 8.1 By Licensor. Licensor shall indemnify, defend and hold harmless Licensee against all Losses arising out of or resulting from any claim, suit, action or proceeding (each, an Action) by an unaffiliated third party related to or arising out of a claim that the Licensed Content or Licensor's Marks, or Licensee's use thereof solely in compliance with this Agreement, infringes a copyright or trademark right of any third party registered in any country in the Territory. The foregoing obligation shall not apply to Losses for which Licensee is required to indemnify Licensor pursuant to Section 8.2. 8.2 By Licensee. Licensee shall indemnify, defend and hold harmless Licensor against all Losses arising out of or resulting from any Action by a third party related to or arising out of: (a) the Licensee Site or Related Media, including any material displayed or services provided thereon but excluding Licensed Content and Marks used in accordance with this Agreement; (b) Licensee's use of the Licensed Content and/or Licensor's Marks in a manner not permitted by this Agreement (including Licensee's continued use of any Content Item in violation of Section 4.1(d) or any of Licensor's Marks after Licensor has directed Licensee to cease using any such Marks; or (c) Licensee's failure to comply fully with Section 4.3. 8.3 Indemnification Procedure. The indemnified party shall promptly notify the indemnifying party in writing of any Action and cooperate with the indemnifying party at the indemnifying party's sole cost and expense. The indemnifying party shall not settle any Action in a manner that adversely affects the rights of the indemnified party without the indemnified party's prior written consent, which shall not be unreasonably withheld or delayed. The indemnified party may retain counsel of its choice to observe the proceedings at its own cost and expense. 9. LIMITATIONS OF LIABILITY. 9.1 No Consequential or Indirect Damages. NEITHER PARTY SHALL BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, LIQUIDATED, SPECIAL OR EXEMPLARY DAMAGES OR PENALTIES, INCLUDING WITHOUT LIMITATION, LOSSES OF BUSINESS, REVENUE OR ANTICIPATED PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11
Source: GO-PAGE CORP, 10-K, 2/21/2014
9.2 Cap on Monetary Damages. EACH PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED AN AMOUNT EQUAL TO THE AGGREGATE AMOUNTS PAID OR PAYABLE TO LICENSOR IN THE TWELVE (12) MONTHS PRECEDING THE COMMENCEMENT OF THE CLAIM. 9.3 Exceptions. The provisions of Section 9.1 and Section 9.2 will not apply to limit the Licensee's indemnification obligations under Section 8.2, or in the case of Licensee's gross negligence or wilful misconduct. 10. Confidentiality. Obligation of Confidentiality. Each party (the Recipient) acknowledges that in connection with this Agreement such party may gain access to Confidential Information of the other party (the Disclosing Party). As a condition to being furnished with Confidential Information, the Recipient agrees, during the Term and for five (5) years thereafter. Confidential Information excludes such information required to be disclosed pursuant to federal or state securities rules and regulations, including but not limited to, disclosure of the Company in their filings with the Securities and Exchange Commission: to 10.1 (a) not use the Disclosing Party's Confidential Information other than in connection with performing its obligations under this Agreement and shall make no use of any such Confidential Information, directly or indirectly, in any manner to the detriment of the Disclosing Party or in order to obtain any competitive benefit with respect to the Disclosing Party; and (b) maintain the Disclosing Party's Confidential Information in confidence and, subject to Section 10.2 below, not disclose any of the Disclosing Party's Confidential Information without the Disclosing Party's prior written consent; provided, however, that Recipient may disclose the Disclosing Party's Confidential Information to its officers, employees, consultants and legal advisors (Representatives) who: (i) have a need to know for purposes of the Recipient's performance under this Agreement, (ii) have been apprised of this restriction; and (iii) are themselves bound by nondisclosure restrictions at least as restrictive as those set forth in this Section 0. The Recipient shall be responsible for ensuring its Representatives' compliance with, and shall be liable for any breach by its Representatives, of this Section 10. The Receiving Party shall employ the same efforts it uses with respect to its own confidential information to safeguard the Disclosing Party's Confidential Information from use or disclosure to anyone other than as permitted hereby.
12
Source: GO-PAGE CORP, 10-K, 2/21/2014
10.2 Exceptions. (a) Confidential Information does not include information of the Disclosing Party that: (i)is already known to the Recipient without restriction on use or disclosure prior to receipt of such information from the Disclosing Party; (ii)is or becomes generally known by the public other than by breach of this Agreement by, or other wrongful act of, the Recipient; or (iii)is received by the Recipient from a third party who is not under any obligation to the Disclosing Party to maintain the confidentiality of such information. (b) If the Recipient becomes legally compelled to disclose any of the Disclosing Party's Confidential Information, the Recipient shall: (i)provide prompt written notice to the Disclosing Party notice so that the Disclosing Party may seek a protective order or other appropriate remedy or waive its rights under this Section 10; and (ii)disclose only the portion of Confidential Information that it is legally required to furnish. If a protective order or other remedy is not obtained, or the Disclosing Party waives compliance, the Recipient shall, at the Disclosing Party's expense, use reasonable efforts to obtain assurance that confidential treatment will be afforded the Confidential Information.
13
Source: GO-PAGE CORP, 10-K, 2/21/2014
11. Miscellaneous. 11.1 Further Assurances. Upon a party's reasonable request, the other party shall, at its sole cost and expense, promptly execute and deliver all such further documents and instruments, and take all such further actions, necessary to give full effect to the terms of this Agreement. 11.2 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Public Announcements. Neither party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party's Marks, in each case, without the prior written consent of the other party, which shall not be unreasonably withheld or delayed; except the provisions of this paragraph excludes such information required to be disclosed pursuant to federal or state securities rules and regulations, including but not limited to, disclosure of the Company in their filings with the Securities and Exchange Commission. 11.3 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and addressed to the parties as follows (or as otherwise specified by a party in a notice given in accordance with this Section):
If to Licensor: Room 303, 3rd Floor, St. George's Building, 2 Ice House Street, Central, Hong Kong Facsimile: (852) 3526 0355 E-mail:angela@sg-cs.com Attention: Angela Jen If to Licensee: 100, 40 Lake Bellevue Dr, Bellevue, WA, 98005 Facsimile: [FAX NUMBER] E-mail: Peter@go-page.com Attention: Peter Schulhof, President
14
Source: GO-PAGE CORP, 10-K, 2/21/2014
Notices sent in accordance with this Section shall be deemed effectively given: (a) when received, if delivered by hand (with written confirmation of receipt); (b) when received, if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or e-mail (in each case, with confirmation of transmission), if sent during normal business hours of the recipient, and on the next business day, if sent after normal business hours of the recipient; or (d) on the third business day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. 11.4 Interpretation. For purposes of this Agreement, (a) the words include, includes and including are deemed to be followed by the words without limitation; (b) the word or is not exclusive; (c) the words herein, hereof, hereby, hereto and hereunder refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. 11.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. 11.6 Entire Agreement. This Agreement, together with the attached Schedules and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. 11.7 Assignment. This Agreement is personal to Licensee. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor's prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor's prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 11.7 is void from the outset and shall be of no force or effect. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee's consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
15
Source: GO-PAGE CORP, 10-K, 2/21/2014
11.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit or remedy of any nature whatsoever, under or by reason of this Agreement. 11.9 Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 11.10 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. 11.11 Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule. 11.12 Dispute Resolution. In the event of a dispute arising out of this Agreement, the parties shall first negotiate in good faith in an effort to reach a settlement of the dispute. If having negotiated in good faith, the parties are unable to resolve their dispute, the parties shall submit the dispute to binding arbitration by a single arbitrator. The arbitration shall be governed by the Commercial Rules of Arbitration of the American Arbitration Association. The arbitration shall take place at an agreed location, or if the parties cannot agree on a venue in Reno, Nevada or Vancouver, BC, as determined by the flip of a coin. The arbitrator shall have jurisdiction over the conduct of discovery prior to the hearing. Notwithstanding the foregoing, nothing in this Section 11.13 shall be construed to prohibit either party from seeking appropriate injunctive or other equitable relief in a court of competent jurisdiction.
16
Source: GO-PAGE CORP, 10-K, 2/21/2014
11.13 Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party. 11.14 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. PSITech Corporation By /s/Cameron Investments Limited Name: Cameron Investments Limited Title: Director
Empirical Ventures, Inc. By /s/Peter Schulhof Name: Peter Schulhof Title: President
17
Source: GO-PAGE CORP, 10-K, 2/21/2014
SCHEDULE 1 LICENSE SCOPE
Display the Licensed Content on the Licensee Site to actual and prospective customers or End-Users located within Canada, the United States or Mexico engaged in any vertical market business except(i) the offer or brokering of vacation home rentals, and (ii) the offering or sale of any products or services using a Multi-level Marketing system.
18
Source: GO-PAGE CORP, 10-K, 2/21/2014
SCHEDULE 2 LICENSED CONTENT The Licensed Content consists of content and images and code.
19
Source: GO-PAGE CORP, 10-K, 2/21/2014
Source: GO-PAGE CORP, 10-K, 2/21/2014
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
[A]: 24564
[Q]: EXHIBIT I TO SCHEDULE A (COMPLIANCE WITH UNITED STATES SECURITIES LAWS) AGENTS' CERTIFICATE In connection with the offer and sale in the United States of common shares (the Securities) of Tribute Pharmaceuticals Inc. (the Corporation) to Accredited Investors pursuant to a Subscription Agreement dated as of May 22, 2015, and pursuant to an agency agreement (the Agency Agreement) dated as of May 22, 2015 between the Corporation and the agents named therein, [ ] (the Agent) and [ ] (the U.S. Affiliate), the U.S. registered broker-dealer affiliate of the Agent, hereby certify as follows: (i) on the date hereof and on the date of each offer of Securities by us in the United States and each subsequent sale to such offerees by the Corporation, the U.S. Affiliate is and was: (A) a duly registered as a broker-dealer under the U.S. Exchange Act and duly registered as a broker-dealer under the laws of each state where it made offers of Securities (unless exempt from such registration requirements); and (B) a member of and in good standing with the Financial Industry Regulatory Authority, Inc.; (ii) all offers of Securities by us in the United States have been effected by the U.S. Affiliate in accordance with all applicable U.S. federal and state broker-dealer requirements; (iii) immediately prior to offering the Securities to persons in the United States, we had reasonable grounds to believe and did believe that each such person was an Accredited Investor, based upon a pre-existing relationship, and, on the date hereof, we continue to believe that each such offeree purchasing Securities from the Corporation is an Accredited Investor; (iv) no form of Directed Selling Efforts, General Solicitation or General Advertising was used by us in connection with the offer of the Securities by us in the United States, and we have not acted in any manner involving public offering within the meaning of Section 4(a) (2) of the U.S. Securities Act in connection with the offer of the Securities by us in the United States; (v) in connection with arranging each sale by the Corporation of Securities to U.S. Subscribers solicited by us, we caused each such U.S. Subscriber to duly complete and execute a Subscription Agreement to be used for U.S Subscribers; (vi) the Agent represents and warrants that with respect to Offered Shares to be sold in reliance on Rule 506(b) of Regulation D, none of it, the U.S. Affiliate, any of its or the U.S. Affiliate's directors, executive officers, general partners, managing members or other officers participating in the Offering, or any other person associated with the Agent who will receive, directly or indirectly, remuneration for solicitation of Subscribers of Offered Shares pursuant to Rule 506(b) of Regulation D (each, a Dealer Covered Person and, together, Dealer Covered Persons), is subject to any Disqualification Event except for a Disqualification Event (i) covered by Rule 506(d)(2)(i) of Regulation D and (ii) a description of which has been furnished in writing to the Corporation prior to the date hereof;
(vii) the Agent represents that it is not aware of any person (other than any Dealer Covered Person) that has been or will be paid (directly or indirectly) remuneration for solicitation of Subscribers in connection with the sale of any Offered Shares pursuant to Rule 506(b) of Regulation D; and (viii) the offering of the Securities in the United States has been conducted by us in accordance with the terms of the Agency Agreement, including Schedule A attached hereto. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Terms used in this certificate have the meanings given to them in the Agency Agreement, including Schedule A attached hereto, unless otherwise defined herein. Dated this day of , 2015. [INSERT NAME OF AGENT] [INSERT NAME OF U.S. AFFILIATE] By: By: Name: Name: Title: Title:
Question: Highlight the parts (if any) of this contract related to Agreement Date that should be reviewed by a lawyer. Details: The date of the contract
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
Let me give you an example: Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong. 1. General provisions 1.1 This is a framework agreement, the terms and conditions are applied to all purchase orders which signed by this agreement (hereinafter referred to as the order ). 1.2 If the provisions of the agreement are inconsistent with the order, the order shall prevail. Not stated in order content will be subject to the provisions of agreement. Any modification, supplementary, give up should been written records, only to be valid by buyers and sellers authorized representative signature and confirmation, otherwise will be deemed invalid. 2. The agreement and order 2.1 During the validity term of this agreement, The buyer entrust SHENZHEN YICHANGTAI IMPORT AND EXPORT TRADE CO., LTD or SHENZHEN LEHEYUAN TRADING CO, LTD (hereinafter referred to as the entrusted party or YICHANGTAI or LEHEYUAN ), to purchase the products specified in this agreement from the seller in the form of orders. 2.2 The seller shall be confirmed within three working days after receipt of order. If the seller finds order is not acceptable or need to modify, should note entrusted party in two working days after receipt of the order, If the seller did not confirm orders in time or notice not accept orders or modifications, the seller is deemed to have been accepted the order. The orders become effective once the seller accepts, any party shall not unilaterally cancel the order before the two sides agreed . 2.3 If the seller puts forward amendments or not accept orders, the seller shall be in the form of a written notice to entrusted party, entrusted party accept the modified by written consent, the modified orders to be taken effect. 2.4 Seller\'s note, only the buyer entrust the entrusted party issued orders, the product delivery and payment has the force of law.
1
Source: LOHA CO. LTD., F-1, 12/9/2019
3. GOODS AND COUNTRY OF ORIGIN: 4. Specific order: The products quantity, unit price, specifications, delivery time and transportation, specific content shall be subject to the purchase order issued by entrusted party which is commissioned the buyer. 5. PACKING: To be packed in new strong wooden case(s) /carton(s), suitable for long distance transportation and for the change of climate, well protected against rough handling, moisture, rain, corrosion, shocks, rust, and freezing. The seller shall be liable for any damage and loss of the commodity, expenses incurred on account of improper packing, and any damage attributable to inadequate or improper protective measures taken by the seller in regard to the packing. One full set of technical All wooden material of shipping package must be treated as the requirements of Entry-Exit Inspection and Quarantine Bureau of China, by the agent whom is certified by the government where the goods is exported. And the goods must be marked with the IPPC stamps, which are certified by the government agent of Botanical-Inspection and Quarantine Bureau. 6. SHIPPING MARK: The Sellers shall mark on each package with fadeless paint the package number, gross weight, net weight, measurements and the wordings: KEEP AWAY FROM MOISTURE , HANDLE WITH CARE THIS SIDE UP etc. and the shipping mark on each package with fadeless paint. 7. DATE OF SHIPMENT: According to specific order by YICHANGTAI or LEHEYUAN. 8. PORT OF SHIPMENT:
2
Source: LOHA CO. LTD., F-1, 12/9/2019
9. PORT OF DESTINATION: SHENZHEN, GUANGDONG, CHINA 10. INSURANCE: To be covered by the Seller for 110% invoice value against All Risks and War Risk. 11. PAYMENT: Under Letter of Credit or T/T: Under the Letter of Credit: The Buyer shall open an irrevocable letter of credit with the bank within 30 days after signing the contract, in favor of the Seller, for 100% value of the total contract value. The letter of credit should state that partial shipments are allowed. The Buyer\'s agent agrees to pay for the goods in accordance with the actual amount of the goods shipped. 80% of the system value being shipped will be paid against the documents stipulated in Clause 12.1. The remaining 20% of the system value being shipped will be paid against the documents stipulated in Clause 12.2. The Letter of Credit shall be valid until 90 days after the latest shipment is effected. Under the T/T The trustee of the buyer remitted the goods to the seller by telegraphic transfer in batches as agreed upon after signing each order. 12. DOCUMENTS: 12.1 (1) Invoice in 5 originals indicating contract number and Shipping Mark (in case of more than one shipping mark, the invoice shall be issued separately). (2) One certificate of origin of the goods. (3) Four original copies of the packing list. (4) Certificate of Quality and Quantity in 1 original issued by the agriculture products base. (5) One copy of insurance coverage (6) Copy of cable/letter to the transportation department of Buyer advising of particulars as to shipment immediately after shipment is made.
3
Source: LOHA CO. LTD., F-1, 12/9/2019
12.2 (1) Invoice in 3 originals indicating contract number and L/C number. (2) Final acceptance certificate signed by the Buyer and the Seller. 13. SHIPMENT: CIP The seller shall contract on usual terms at his own expenses for the carriage of the goods to the agreed point at the named place of destination and bear all risks and expenses until the goods have been delivered to the port of destination. The Sellers shall ship the goods within the shipment time from the port of shipment to the port of destination. Transshipment is allowed. Partial Shipment is allowed. In case the goods are to be dispatched by parcel post/sea-freight, the Sellers shall, 3 days before the time of delivery, inform the Buyers by cable/letter of the estimated date of delivery, Contract No., commodity, invoiced value, etc. The sellers shall, immediately after dispatch of the goods, advise the Buyers by cable/letter of the Contract No., commodity, invoiced value and date of dispatch for the Buyers. 14. SHIPPING ADVICE: The seller shall within 72 hours after the shipment of the goods, advise the shipping department of buyer by fax or E-mail of Contract No., goods name, quantity, value, number of packages, gross weight, measurements and the estimated arrival time of the goods at the destination. 15. GUARANTEE OF QUALITY: The Sellers guarantee that the commodity hereof is complies in all respects with the quality and specification stipulated in this Contract. 16. CLAIMS: Within 7 days after the arrival of the goods at destination, should the quality, specification, or quantity be found not in conformity with the stipulations of the Contract except those claims for which the insurance company or the owners of the vessel are liable, the Buyers, on the strength of the Inspection Certificate issued by the China Commodity Inspection Bureau, have the right to claim for replacement with new goods, or for compensation, and all the expenses (such as inspection charges, freight for returning the goods and for sending the replacement, insurance premium, storage and loading and unloading charges etc.) shall be borne by the Sellers. The Certificate so issued shall be accepted as the base of a claim. The Sellers, in accordance with the Buyers\' claim, shall be responsible for the immediate elimination of the defect(s), complete or partial replacement of the commodity or shall devaluate the commodity according to the state of defect(s). Where necessary, the Buyers shall be at liberty to eliminate the defect(s) themselves at the Sellers\' expenses. If the Sellers fail to answer the Buyers within one weeks after receipt of the aforesaid claim, the claim shall be reckoned as having been accepted by the Sellers.
4
Source: LOHA CO. LTD., F-1, 12/9/2019
17. FORCE MAJEURE: The Sellers shall not be held responsible for the delay in shipment or non-delivery, of the goods due to Force Majeure, which might occur during the process of manufacturing or in the course of loading or transit. The Sellers shall advise the Buyers immediately of the occurrence mentioned above and within fourteen days thereafter, the Sellers shall send by airmail to the Buyers a certificate of the accident issued by the competent government authorities, Chamber of Commerce or registered notary public of the place where the accident occurs as evidence thereof. Under such circumstances the Sellers, however, are still under the obligation to take all necessary measures to hasten the delivery of the goods. In case the accident lasts for more than 10 weeks, the Buyers shall have the right to cancel the Contract. 18. LATE DELIVERY AND PENALTY: Should the Sellers fail to make delivery on time as stipulated in the Contract, with exception of Force Majeure causes specified in Clause 17 of this Contract, the Buyers shall agree to postpone the delivery on condition that the Sellers agree to pay a penalty which shall be deducted by the paying bank from the payment. The penalty, however, shall not exceed 5% of the total value of the goods involved in the late delivery. The rate of penalty is charged at 0.5% for every seven days, odd days less than seven days should be counted as seven days. In case the Sellers fail to make delivery ten weeks later than the time of shipment stipulated in the Contract, the Buyers have the right to cancel the contract and the Sellers, in spite of the cancellation, shall still pay the aforesaid penalty to the Buyers without delay, the seller should refund the money received and pay the 30% of the total goods price of the penalty 19. ARBITRATION: All disputes in connection with this Contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the Foreign Economic and Trade Arbitration Committee of the China Beijing Council for the Promotion of International Trade in accordance with its Provisional Rules of Procedures by the said Arbitration Committee. The Arbitration shall take place in Beijing and the decision of the Arbitration Committee shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. 20. This final price is the confidential information. Dissemination, distribution or duplication of this price is strictly prohibited.
5
Source: LOHA CO. LTD., F-1, 12/9/2019
21. Law application It will be governed by the law of the People\'s Republic of China ,otherwise it is governed by United Nations Convention on Contract for the International Sale of Goods. 22. <<Incoterms 2000>> The terms in the contract are based on (INCOTERMS 2000) of the International Chamber of Commerce. 23. The Contract is valid for 5 years, beginning from and ended on . This Contract is made out in three originals in both Chinese and English, each language being legally of the equal effect. Conflicts between these two languages arising there from, if any, shall be subject to Chinese version. One copy for the Sellers, two copies for the Buyers. The Contract becomes effective after signed by both parties. THE BUYER: THE SELLER: SIGNATURE: SIGNATURE: 6
Source: LOHA CO. LTD., F-1, 12/9/2019
Question: Highlight the parts (if any) of this contract related to Document Name that should be reviewed by a lawyer. Details: The name of the contract
The answer to this example can be: 14
Here is why: This question is based on the following sentence in the passage "Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong.". The name of the contract starts at the mentioned index in the answer.
OK. solve this:
Exhibit 99.01 JOINT VENTURE AGREEMENT THIS JOINT VENTURE AGREEMENT (the Agreement) made and entered into this 27th day of November 2018 (the Execution Date),
BETWEEN: MJ Syndicated, Inc. a Florida Corporation of _______________________________, FL 33436 And
SIMPLY HERBALS, Nervanah Herbal Medicine Company of _______________________________TN 37660
(individually and collectively the Joint Venture Participants JVP).
BACKGROUND:
The JVP wish to associate themselves in business of Selling a variety of Health- related products.
This Agreement sets out the terms and conditions that govern the Joint Venture.
IN CONSIDERATION OF and as a condition of the JVP entering into this Agreement and other valuable consideration, the receipt and sufficiency of which consideration is acknowledged, the parties to this Agreement agree as follows:
Formation
By this Agreement the Participants enter into a general Joint Venture (the Joint Venture) in accordance with the laws of The State of Florida. The rights and obligations of the JVP will be as stated in the applicable legislation of The State of Florida except as otherwise provided in this Agreement.
Name
A.
B.
1.
The firm name of the Joint Venture will be: TBD
Purpose
The purpose of the Joint Venture will be: Manufacturing and Selling Health Related products.
The Joint Venture is a fixed term Joint Venture beginning November 27, 2018 and ending November 30th, 2019 or as otherwise provided in this Agreement. Where the Joint Venture is entered for a fixed term and the Joint Venture continues after the expiration of that term then in the absence of an express new agreement, the rights and duties of the Participants remain the same as they were at the expiration of that term so far as those terms are consistent with a Joint Venture at will.
Place of Business
The principal office of the business of the Joint Venture will be located at__________________________, FL 33434 or such other place as the Participants may from time to time designate.
Capital Contributions
Each of the Participants will contribute to the capital of the Joint Venture, in cash or property in agreed upon value. All Participants will contribute their respective Contributions as agreed.
Withdrawal of Capital
No participant will withdraw any portion of their Contribution without the express written consent of the other Participant.
Additional Capital
Capital Contributions may be amended from time to time, according to the requirements of the Joint Venture provided that the interests of the Participants are not affected, except with the unanimous consent of the Participants. No Participant will be required
2.
3.
4.
5.
6.
7.
8.
to make Additional Capital Contributions. Whenever additional capital is determined to be required and an individual Participant is unwilling or unable to meet the additional contribution requirement within a reasonable period, as required by Joint Venture business obligations, remaining Participants may contribute in proportion to their existing Capital Contributions to resolve the amount in default. In such case the allocation of profits or losses among all the Participants will be adjusted to reflect the aggregate change in Capital Contributions by the Participants.
Any advance of money to the Joint Venture by any Participant in excess of the amounts provided for in th is Agreement or subsequently agreed to as Additional Capital Contribution will be deemed a debt owed by the Joint Venture and not an increase in Capital Contribution of the Participant. This liability will be repaid with interest at rates and times to be determined by a majority of the Participants within the limits of what is required or permitted in the Act. This liability will not entitle the lending Participant to any increased share of the Joint Venture's profits nor to a greater voting power. Such debts may have preference or priority over any other payments to Participants as may be determined by a majority of the Participants.
Capital Accounts
An individual capital account (the Capital Accounts) will be maintained for each Participant and their Initial Capital Contribution will be credited to this account. Any Additional Capital Contributions made by any Participant will be credited to that Participant's individual Capital Account.
Interest on Capital
No borrowing charge or loan interest will be due or payable to any Participant on their agreed Capital Contribution inclusive of any agreed Additional Capital Contributions.
9.
10.
11.
Financial Decisions
Decisions regarding the distribution of profits, allocation of losses, and the requirement for Additional Capital Contributions as well as all other financial matters will be decided by a unanimous vote of the Participants.
Profit and Loss
Subject to any other provisions of this Agreement, the net profits and losses of the Joint Venture, for both accounting and tax purposes, will accrue to and be borne by the Participants in proportion to the Participants' Capital Contributions inclusive of any Additional Capital Contributions (the Profit and Loss Distribution).
Books of Account
Accurate and complete books of account of the transactions of the Joint Venture will be kept in accordance with generally accepted accounting principles (GAAP) and at all reasonable times will be available and open to inspection and examination by any Participant. The books and records of the Joint Venture will reflect all the Joint Venture's transactions and will be appropriate and adequate for the business conducted by the Joint Venture.
Annual Report
As soon as practicable after the close of each fiscal year, the Joint Venture will furnish to each Participant an annual report showing a full and complete account of the condition of the Joint Venture. This report will consist of at least the following documents:
a statement of all information as will be necessary for the preparation of each Participant's income or other tax returns;
a copy of the Joint Venture's federal income tax returns for that fiscal year;
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supporting income statement;
a balance sheet;
a cash flow statement;
a breakdown of the profit and loss attributable to each Participant; and
any additional information that the Participants may require.
Banking and Joint Venture Funds
The funds of the Joint Venture will be placed in such investments and banking accounts as will be designated by the Participants. Joint Venture funds will be held in the name of the Joint Venture and will not be commingled with those of any other person or entity.
Fiscal Year
The fiscal year will end on the 31st day of December of each year.
Audit
Any of the Participants will have the right to request an audit of the Joint Venture books. The cost of the audit will be borne by the Joint Venture. The audit will be performed by an accounting firm acceptable to all the Participants. Not more than one (1) audit will be required by any or all of the Participants for any fiscal year.
Management
Except as all of the Participants may otherwise agree in writing, all actions and decisions respecting the management, operation and control of the Joint Venture and its business will be decided by a majority vote of the Participants.
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Contract Binding Authority
All actions and decisions with respect to binding the Joint Venture in contract requires the consent of a majority of the Participants.
Tax Matters Participant
The tax matters Participant will be MJ Syndicated Inc. (the Tax Matters Participant). The Tax Matters Participant will prepare, or cause to be prepared, all tax returns and reports for the Joint Venture and make any related elections that the Participants deem advisable.
A Tax Matters Participant can voluntarily withdraw from the position of Tax Matters Participant or can be appointed or replaced by a majority vote of the other Participants. In the event of a withdrawal of the Tax Matters Participant from the Joint Venture, the remaining Participants will appoint a successor as soon as practicable.
Meetings
Regular meetings of the Participants will be held quarterly.
Any Participant can call a special meeting to resolve issues that require a vote, as indicated by this Agreement, by providing all Participants with reasonable notice. In the case of a special vote, the meeting will be restricted to the specific purpose for which the meeting was held.
All meetings will be held at a time and in a location that is reasonable, convenient and practical considering the situation of all Participants.
Admitting a New Participant
A new Participant may only be admitted to the Joint Venture with a unanimous vote of the existing Participants.
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Any new Participant agrees to be bound by all the covenants, terms, and conditions of this Agreement, inclusive of all current and future amendments. Further, a new Participant will execute such documents as are needed to affect the admission of the new Participant. Any new Participant will receive such business interest in the Joint Venture as determined by a unanimous decision of the other Participants.
Voluntary Withdrawal of a Participant
Any Participant will have the right to voluntarily withdraw from the Joint Venture at any time. Written notice of intention to withdraw must be served in writing upon the remaining Participants at least Thirty (30) business days prior to the withdrawal date.
The voluntary withdrawal of a Participant will result in the dissolution of the Joint Venture.
A Dissociated Participant will only exercise the right to withdraw in good faith and will act to minimize any present or future harm done to the remaining Participants as a result of the withdrawal.
Involuntary Withdrawal of a Participant
Events resulting in the involuntary withdrawal of a Participant from the Joint Venture will include, but not be limited to: death of a Participant; Participant mental incapacity; Participant disability preventing reasonable participation in the Joint Venture; Participant incompetence; breach of fiduciary duties by a Participant; criminal conviction of a Participant; Expulsion of a Participant; Operation of Law against a Participant; or any act or omission of a Participant that can reasonably be expected to bring the business or societal reputation of the Joint Venture into disrepute.
The involuntary withdrawal of a Participant will result in the dissolution of the Joint Venture.
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A trustee in bankruptcy or similar third party who may acquire that Dissociated Participant's interest in the Joint Venture will only acquire that Participant's economic rights and interests and will not acquire any other rights of that Participant or be admitted as a Participant of the Joint Venture or have the right to exercise any management or voting interests.
Dissociation of a Participant
Where the dissociation of a Participant for any reason results in the dissolution of the Joint Venture then the Joint Venture will proceed in a reasonable and timely manner to dissolve the Joint Venture, with all debts being paid first, prior to any distribution of the remaining funds. Valuation and distribution will be determined as described in the Valuation of Interest section of this Agreement.
The remaining Participants retain the right to seek damages from a Dissociated Participant where the dissociation resulted from a malicious or criminal act by the Dissociated Participant or where the Dissociated Participant had breached their fiduciary duty to the Joint Venture or was in breach of this Agreement or had acted in a way that could reasonably be foreseen to bring harm or damage to the Joint Venture or to the reputation of the Joint Venture.
Dissolution
Except as otherwise provided in this Agreement, the Joint Venture may be dissolved only with the unanimous consent of all Participants.
Distribution of Property on Dissolution of Joint Venture
In the event of the dissolution of the Joint Venture, each Participant will share in any remaining assets or liabilities of the Joint Venture in proportion to the Participants' Capital Contributions inclusive of any Additional Capital Contributions (the Dissolution Distribution).
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Upon Dissolution of the Joint Venture and liquidation of Joint Venture Property, and after payment of all selling costs and expenses, the liquidator will distribute the Joint Venture assets to the following groups according to the following order of priority:
in satisfaction of liabilities to creditors except Joint Venture obligations to current Participants;
in satisfaction of Joint Venture debt obligations to current Participants; and then
to the Participants according to the Dissolution Distribution described above.
The claims of each priority group will be satisfied in full before satisfying any claims of a lower priority group. Any excess of Joint Venture assets after liabilities or any insufficiency in Joint Venture assets in resolving liabilities under this section will be shared by the Participants according to the Dissolution Distribution described above.
Valuation of Interest
In the absence of a written agreement setting a value, the value of the Joint Venture will be based on the fair market value appraisal of all Joint Venture assets (less liabilities) determined in accordance with generally accepted accounting principles (GAAP). This appraisal will be conducted by an independent accounting firm agreed to by all Participants. An appraiser will be appointed within a reasonable period of the date of withdrawal or dissolution. The results of the appraisal will be binding on all Participants. A withdrawing Part ic ipant 's interest wi l l be based on that Participant's proportion of the Dissolution Distribution described above, less any outstanding liabilities the withdrawing Participant may have to the Joint Venture. The intent of this section is to ensure the survival of the Joint Venture despite the withdrawal of any individual Participant.
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No allowance will be made for goodwill, trade name, patents or other intangible assets, except where those assets have been reflected on the Joint Venture books immediately prior to valuation.
Goodwill
The goodwill of the Joint Venture business will be assessed at an amount to be determined by appraisal using generally accepted accounting principles (GAAP).
Title to Joint Venture Property
Title to all Joint Venture Property will remain in the name of the Joint Venture. No Participant or group of Participants will have any ownership interest in such Joint Venture Property in whole or in part.
Voting
Any vote required by the Joint Venture will be assessed where each Participant receives one vote carrying equal weight.
Force Majeure
A Participant will be free of liability to the Joint Venture where the Participant is prevented from executing their obligations under this Agreement in whole or in part due to force majeure, such as earthquake, typhoon, flood, fire, and war or any other unforeseen and uncontrollable event where the Participant has communicated the circumstance of said event to any and all other Participants and taken any and all appropriate action to mitigate said event.
Duty of Loyalty
No Participant will engage in any business, venture or transaction, whether directly or indirectly, that might be competitive with the business of the Joint Venture or that would be in direct conflict of
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interest to the Joint Venture without the unanimous written consent of the remaining Participants. Any and all businesses, ventures or transactions with any appearance of conflict of interest must be fully disclosed to all other Participants. Failure to comply with any of the terms of this clause will be deemed an Involuntary Withdrawal of the offending Participant and may be treated accordingly by the remaining Participants.
Duty of Accountability for Private Profits
Each Participant must account to the Joint Venture for any benefit derived by that Participant without the consent of the other Participants from any transaction concerning the Joint Venture or any use by that Participant of the Joint Venture property, name or business connection. This duty continues to apply to any transactions undertaken after the Joint Venture has been dissolved but before the affairs of the Joint Venture have been completely wound up by the surviving Participant or Participants or their agent or agents.
Duty to Devote Time
Each Participant will devote such time and attention to the business of the Joint Venture as the majority of the Participants will from time to time reasonably determine for the conduct of the Joint Venture business.
Actions Requiring Unanimous Consent of the Participants
The following list of actions will require the unanimous consent of all Participants:
committing the Joint Venture to new liabilities or obligations totaling To Be Determined;
and
incurring single expenditures that exceed To Be Determined.
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Any losses incurred as a result of a violation of this section will be charged to and collected from the individual Participant that acted without unanimous consent and caused the loss.
Forbidden Acts
No Participant may do any act in contravention of this Agreement.
No Participant may permit, intentionally or unintentionally, the assignment of express, implied or apparent authority to a third party that is not a Participant in the Joint Venture.
No Participant may do any act that would make it impossible to carry on the ordinary business of the Joint Venture.
No Participant may confess a judgment against the Joint Venture.
No Participant will have the right or authority to bind or obligate the Joint Venture to any extent with regard to any matter outside the intended purpose of the Joint Venture.
Any violation of the above Forbidden Acts will be deemed an Involuntary Withdrawal of the offending Participant and may be treated accordingly by the remaining Participants.
Indemnification
All Participants will be indemnified and held harmless by the Joint Venture from and against any and all claims of any nature, whatsoever, arising out of a Participant's participation in Joint Venture affairs. A Participant will not be entitled to indemnification under this section for liability arising out of gross negligence or wil l ful misconduct of the Participant or the breach by the Participant of any provisions of this Agreement.
Liability
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A Participant will not be liable to the Joint Venture, or to any other Participant, for any mistake or error in judgment or for any act or omission done in good faith and believed to be within the scope of authority conferred or implied by this Agreement or the Joint Venture.
Liability Insurance
The Joint Venture may acquire insurance on behalf of any Participant, employee, agent or other person engaged in the business interest of the Joint Venture against any liability asserted against them or incurred by them while acting in good faith on behalf of the Joint Venture.
Amendments
This Agreement may not be amended in whole or in part without the unanimous written consent of all Participants.
Jurisdiction
The Participants submit to the jurisdiction of the courts of The State of Florida for the enforcement of this Agreement or any arbitration award or decision arising from this Agreement.
Definitions
For the purpose of this Agreement, the following terms are defined as follows:
Additional Capital Contributions means Capital Contributions, other than Initial Capital Contributions, made by Participants to the Joint Venture.
Capital Contribution means the total amount of cash or Property contributed to the Joint Venture by any one Participant.
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Dissociated Participant means any Participant who is removed from the Joint Venture through a voluntary or involuntary withdrawal as provided in this Agreement.
Expulsion of a Participant can occur on application by the Joint Venture or another Participant, where it has been determined that the Participant:
has engaged in wrongful conduct that adversely and materially affected the Joint Venture's business;
has willfully or persistently committed a material breach of this Agreement or of a duty owed to the Joint Venture or to the other Participants; or
has engaged in conduct relating to the Joint Venture's business that makes it not reasonably practicable to carry on the business with the Participant.
Initial Capital Contribution means Capital Contributions made by any Participant to acquire an interest in the Joint Venture.
Operation of Law means rights or duties that are cast upon a party by the law, without any act or agreement on the part of the individual including, but not limited to, an assignment for the benefit of creditors, a divorce, or a bankruptcy.
Miscellaneous
Time is of the essence in this Agreement.
This Agreement may be executed in counterpart.
Headings are inserted for the convenience of the parties only and are not to be considered when interpreting this Agreement. Words in the singular mean and include the plural and vice versa. Words in the
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masculine gender include the feminine gender and vice versa. Words in the neuter gender include the masculine gender and the feminine gender and vice versa.
If any term, covenant, condition or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, it is the parties' intent that such provision be reduced in scope by the court only to the extent deemed necessary by that court to render the provision reasonable and enforceable and the remainder of the provisions of this Agreement will in no way be affected, impaired or invalidated as a result.
This Agreement contains the entire agreement between the parties. All negotiations and understandings have been included in this Agreement. Statements or representations which may have been made by any party to this Agreement in the negotiation stages of this Agreement may in some way be inconsistent with this final written Agreement. All such statements are declared to be of no value in this Agreement. Only the written terms of this Agreement will bind the parties.
This Agreement and the terms and conditions contained in this Agreement apply to and are binding upon the Participant's successors, assigns, executors, administrators, beneficiaries, and representatives.
Any notices or delivery required here will be deemed completed when hand-delivered, delivered by agent, or seven (7) days after being placed in the post, postage prepaid, to the parties at the addresses contained in this Agreement or as the parties may later designate in writing.
All of the rights, remedies and benefits provided by this Agreement will be cumulative and will not be exclusive of any other such rights, remedies and benefits allowed by law.
IN WITNESS WHEREOF the Participants have duly affixed their signatures under hand on this 27th day of November 2018.
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Simply Herbals
Per: ____________________
CEO: MJ Syndicated, Inc CEO: Simply Herbals, Inc.
MJ Syndicated, Inc.
Per: __/s/ Maxine Pierson________
Question: Highlight the parts (if any) of this contract related to Insurance that should be reviewed by a lawyer. Details: Is there a requirement for insurance that must be maintained by one party for the benefit of the counterparty?
Answer:
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
One example: Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong. 1. General provisions 1.1 This is a framework agreement, the terms and conditions are applied to all purchase orders which signed by this agreement (hereinafter referred to as the order ). 1.2 If the provisions of the agreement are inconsistent with the order, the order shall prevail. Not stated in order content will be subject to the provisions of agreement. Any modification, supplementary, give up should been written records, only to be valid by buyers and sellers authorized representative signature and confirmation, otherwise will be deemed invalid. 2. The agreement and order 2.1 During the validity term of this agreement, The buyer entrust SHENZHEN YICHANGTAI IMPORT AND EXPORT TRADE CO., LTD or SHENZHEN LEHEYUAN TRADING CO, LTD (hereinafter referred to as the entrusted party or YICHANGTAI or LEHEYUAN ), to purchase the products specified in this agreement from the seller in the form of orders. 2.2 The seller shall be confirmed within three working days after receipt of order. If the seller finds order is not acceptable or need to modify, should note entrusted party in two working days after receipt of the order, If the seller did not confirm orders in time or notice not accept orders or modifications, the seller is deemed to have been accepted the order. The orders become effective once the seller accepts, any party shall not unilaterally cancel the order before the two sides agreed . 2.3 If the seller puts forward amendments or not accept orders, the seller shall be in the form of a written notice to entrusted party, entrusted party accept the modified by written consent, the modified orders to be taken effect. 2.4 Seller\'s note, only the buyer entrust the entrusted party issued orders, the product delivery and payment has the force of law.
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Source: LOHA CO. LTD., F-1, 12/9/2019
3. GOODS AND COUNTRY OF ORIGIN: 4. Specific order: The products quantity, unit price, specifications, delivery time and transportation, specific content shall be subject to the purchase order issued by entrusted party which is commissioned the buyer. 5. PACKING: To be packed in new strong wooden case(s) /carton(s), suitable for long distance transportation and for the change of climate, well protected against rough handling, moisture, rain, corrosion, shocks, rust, and freezing. The seller shall be liable for any damage and loss of the commodity, expenses incurred on account of improper packing, and any damage attributable to inadequate or improper protective measures taken by the seller in regard to the packing. One full set of technical All wooden material of shipping package must be treated as the requirements of Entry-Exit Inspection and Quarantine Bureau of China, by the agent whom is certified by the government where the goods is exported. And the goods must be marked with the IPPC stamps, which are certified by the government agent of Botanical-Inspection and Quarantine Bureau. 6. SHIPPING MARK: The Sellers shall mark on each package with fadeless paint the package number, gross weight, net weight, measurements and the wordings: KEEP AWAY FROM MOISTURE , HANDLE WITH CARE THIS SIDE UP etc. and the shipping mark on each package with fadeless paint. 7. DATE OF SHIPMENT: According to specific order by YICHANGTAI or LEHEYUAN. 8. PORT OF SHIPMENT:
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Source: LOHA CO. LTD., F-1, 12/9/2019
9. PORT OF DESTINATION: SHENZHEN, GUANGDONG, CHINA 10. INSURANCE: To be covered by the Seller for 110% invoice value against All Risks and War Risk. 11. PAYMENT: Under Letter of Credit or T/T: Under the Letter of Credit: The Buyer shall open an irrevocable letter of credit with the bank within 30 days after signing the contract, in favor of the Seller, for 100% value of the total contract value. The letter of credit should state that partial shipments are allowed. The Buyer\'s agent agrees to pay for the goods in accordance with the actual amount of the goods shipped. 80% of the system value being shipped will be paid against the documents stipulated in Clause 12.1. The remaining 20% of the system value being shipped will be paid against the documents stipulated in Clause 12.2. The Letter of Credit shall be valid until 90 days after the latest shipment is effected. Under the T/T The trustee of the buyer remitted the goods to the seller by telegraphic transfer in batches as agreed upon after signing each order. 12. DOCUMENTS: 12.1 (1) Invoice in 5 originals indicating contract number and Shipping Mark (in case of more than one shipping mark, the invoice shall be issued separately). (2) One certificate of origin of the goods. (3) Four original copies of the packing list. (4) Certificate of Quality and Quantity in 1 original issued by the agriculture products base. (5) One copy of insurance coverage (6) Copy of cable/letter to the transportation department of Buyer advising of particulars as to shipment immediately after shipment is made.
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Source: LOHA CO. LTD., F-1, 12/9/2019
12.2 (1) Invoice in 3 originals indicating contract number and L/C number. (2) Final acceptance certificate signed by the Buyer and the Seller. 13. SHIPMENT: CIP The seller shall contract on usual terms at his own expenses for the carriage of the goods to the agreed point at the named place of destination and bear all risks and expenses until the goods have been delivered to the port of destination. The Sellers shall ship the goods within the shipment time from the port of shipment to the port of destination. Transshipment is allowed. Partial Shipment is allowed. In case the goods are to be dispatched by parcel post/sea-freight, the Sellers shall, 3 days before the time of delivery, inform the Buyers by cable/letter of the estimated date of delivery, Contract No., commodity, invoiced value, etc. The sellers shall, immediately after dispatch of the goods, advise the Buyers by cable/letter of the Contract No., commodity, invoiced value and date of dispatch for the Buyers. 14. SHIPPING ADVICE: The seller shall within 72 hours after the shipment of the goods, advise the shipping department of buyer by fax or E-mail of Contract No., goods name, quantity, value, number of packages, gross weight, measurements and the estimated arrival time of the goods at the destination. 15. GUARANTEE OF QUALITY: The Sellers guarantee that the commodity hereof is complies in all respects with the quality and specification stipulated in this Contract. 16. CLAIMS: Within 7 days after the arrival of the goods at destination, should the quality, specification, or quantity be found not in conformity with the stipulations of the Contract except those claims for which the insurance company or the owners of the vessel are liable, the Buyers, on the strength of the Inspection Certificate issued by the China Commodity Inspection Bureau, have the right to claim for replacement with new goods, or for compensation, and all the expenses (such as inspection charges, freight for returning the goods and for sending the replacement, insurance premium, storage and loading and unloading charges etc.) shall be borne by the Sellers. The Certificate so issued shall be accepted as the base of a claim. The Sellers, in accordance with the Buyers\' claim, shall be responsible for the immediate elimination of the defect(s), complete or partial replacement of the commodity or shall devaluate the commodity according to the state of defect(s). Where necessary, the Buyers shall be at liberty to eliminate the defect(s) themselves at the Sellers\' expenses. If the Sellers fail to answer the Buyers within one weeks after receipt of the aforesaid claim, the claim shall be reckoned as having been accepted by the Sellers.
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Source: LOHA CO. LTD., F-1, 12/9/2019
17. FORCE MAJEURE: The Sellers shall not be held responsible for the delay in shipment or non-delivery, of the goods due to Force Majeure, which might occur during the process of manufacturing or in the course of loading or transit. The Sellers shall advise the Buyers immediately of the occurrence mentioned above and within fourteen days thereafter, the Sellers shall send by airmail to the Buyers a certificate of the accident issued by the competent government authorities, Chamber of Commerce or registered notary public of the place where the accident occurs as evidence thereof. Under such circumstances the Sellers, however, are still under the obligation to take all necessary measures to hasten the delivery of the goods. In case the accident lasts for more than 10 weeks, the Buyers shall have the right to cancel the Contract. 18. LATE DELIVERY AND PENALTY: Should the Sellers fail to make delivery on time as stipulated in the Contract, with exception of Force Majeure causes specified in Clause 17 of this Contract, the Buyers shall agree to postpone the delivery on condition that the Sellers agree to pay a penalty which shall be deducted by the paying bank from the payment. The penalty, however, shall not exceed 5% of the total value of the goods involved in the late delivery. The rate of penalty is charged at 0.5% for every seven days, odd days less than seven days should be counted as seven days. In case the Sellers fail to make delivery ten weeks later than the time of shipment stipulated in the Contract, the Buyers have the right to cancel the contract and the Sellers, in spite of the cancellation, shall still pay the aforesaid penalty to the Buyers without delay, the seller should refund the money received and pay the 30% of the total goods price of the penalty 19. ARBITRATION: All disputes in connection with this Contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the Foreign Economic and Trade Arbitration Committee of the China Beijing Council for the Promotion of International Trade in accordance with its Provisional Rules of Procedures by the said Arbitration Committee. The Arbitration shall take place in Beijing and the decision of the Arbitration Committee shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. 20. This final price is the confidential information. Dissemination, distribution or duplication of this price is strictly prohibited.
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Source: LOHA CO. LTD., F-1, 12/9/2019
21. Law application It will be governed by the law of the People\'s Republic of China ,otherwise it is governed by United Nations Convention on Contract for the International Sale of Goods. 22. <<Incoterms 2000>> The terms in the contract are based on (INCOTERMS 2000) of the International Chamber of Commerce. 23. The Contract is valid for 5 years, beginning from and ended on . This Contract is made out in three originals in both Chinese and English, each language being legally of the equal effect. Conflicts between these two languages arising there from, if any, shall be subject to Chinese version. One copy for the Sellers, two copies for the Buyers. The Contract becomes effective after signed by both parties. THE BUYER: THE SELLER: SIGNATURE: SIGNATURE: 6
Source: LOHA CO. LTD., F-1, 12/9/2019
Question: Highlight the parts (if any) of this contract related to Document Name that should be reviewed by a lawyer. Details: The name of the contract
Solution is here: 14
Explanation: This question is based on the following sentence in the passage "Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong.". The name of the contract starts at the mentioned index in the answer.
Now, solve this: Exhibit 10.16
MARKETING AFFILIATE AGREEMENT
This Agreement is made this 1s t day of October 2008, (the Effective Date), by and between Equidata, Inc., a corporation organized under the laws of Virginia with its principal place of business at 724 Thimble Shoals Boulevard Newport News, Virginia 23606 (Equidata), and National Credit Report.com, LLC a Corporation organized under the laws of Florida, with its principal place of business at 7700 N. Congress Ave, Suite 3113, Boca Raton FL33487 (Marketing Affiliate).
RECITALS
Therefore, if accepted all parties agree that the following shall constitute a marketing agreement between the parties.
TERMS AND CONDITIONS
Permission. Subject to the terms and conditions of this Agreement, Marketing Affiliate may display Marketing Materials at its principal place(s) of business, or at the principal place(s) of its third party partners, together with a link from the Marketing Affiliate Web Site to Fquidata (and its partners) Web Site. Marketing Materials may also be used in the marketing of potential customers through direct mail and personal solicitation as well as inbound and outbound telemarketing. Marketing Affiliate may not otherwise offer for sale, market, sell or distribute the Services of Equidata without express written permission.
1. Equidata provides certain personal credit, fraud detection, credit scoring services and credit monitoring for consumers, the (Services). 2. Marketing Affiliate and Equidata wish to enter into an agreement under which Marketing Affiliate may market the Services. 3. Marketing Affiliate wishes to market the Services indirectly through third party programs, direct mail, Internet and both inbound and outbound telemarketing. In addition, each may own and operate a web site utilizing direct access to the Services through Internet links.
1. Compensation. Marketing Affiliate shall be responsible for collecting all amounts due directly from the Consumer and shall bear sole responsibility for non-payment of any fees charged to the Consumer. Marketing Affiliate shall pay to Equidata, as compensation for its providing of Services under this agreement, such amounts as outlined and detailed in Exhibit A attached hereto. Such amounts shall be billed on a bi-monthly basis by Equidata and are due and payable in full by Marketing Affiliate 30 days from the invoice date. The prices set forth in Exhibit A do not include regulatory fees, sales tax, excise tax or any other fees or taxes that may be charged by states or local taxing authorities nor does it include additional fees or surcharges, including specific area Affiliate charges that may be accessed by the Credit Reporting Agencies (CRA's). Said amounts charged to Equidata will be billed separately to Marketing Affiliate and are due immediately upon receipt. Marketing Affiliate agrees to reimburse Equidata all costs of collecting any past due amounts from Marketing Affiliate by reason of non payment, including reasonable attorney fees and disbursements. Equidata reserves the right to increase the base cost of Services. Notice will be given to Marketing Affiliate in writing no less than 30 days prior to such increase taking affect. A development fee, yet To Be Determined and outlined in Exhibit A, is due upon a signed agreement of project scope. Marketing Affiliate agrees to pay promptly and in full all charges incurred through services rendered when billed. When paying by credit card, the Marketing Affiliate agrees to pay for all items that are revoked or disputed by the credit card company or the card holder along with any charges or fees charged by the credit card company including fees associated with processing the credit card transaction and that the Marketing Affiliate will be billed for those items in accordance with Equidata standard practices. Marketing Affiliate and the undersigned principal, partner or owner further agree that this Agreement will serve as a personal guaranty by the undersigned principal, partner or owner of the company, and the undersigned principal, partner or owner will become responsible for any unpaid balance past due on any invoice. The Marketing Affiliate agrees to pay a late charge of 1 l/2% per month on the unpaid, past-due amount as well as a returned check fee of not less than $35.00 per returned item. In addition, the Marketing Affiliate agrees to pay 25% attorney's fees plus court cost in the event that the Marketing Affiliate's account is referred to an attorney for collection. 2. Disputes. In the case of disputed charge, defined as a non-payment of an invoice for which notice of dispute has been given in writing by Marketing Affiliate to Equidata, Equidata or Marketing Affiliate may choose arbitration and Marketing Affiliate and Equidata shall be obligated by the terms agreed upon by arbitration and all monies determined owed shall be considered due and payable immediately. Such arbitration does not relieve Marketing Affiliate from its obligation to promptly pay for undisputed charges in accordance with the terms of this Agreement. Such disputes shall be settled by arbitration in the City of Newport News, Virginia. Marketing Affiliate shall give Equidata written demand of dispute within 10 days of the due date of the invoice. The demand shall set forth a statement for the nature of the dispute and the amount involved. If Equidata and Marketing Affiliate can not resolve the dispute on their own within 10 days after Equidata receive said dispute, the parties shall jointly select an arbitrator. Initials: /s/ IP
Source: STEEL VAULT CORP, 10-K, 12/24/2008
If the parties do not agree on the selection of an arbitrator, each party will select an arbitrator of their choosing, and the two arbitrators will jointly select a third arbitrator(s). Not later than 5 calendar days after the arbitrator(s) have been selected, the arbitrator(s) shall schedule the arbitration hearing to commence on a mutually convenient date. The hearing shall commence no later than 25 calendar days after Equidata receives receipt of dispute from Marketing Affiliate and shall continue from day to day until completed. The arbitrator(s) shall issue an award in writing no later than 10 calendar days after the conclusion of the hearing. The arbitration award shall be final and binding on both parties. 3. Operational Specifications. Marketing Affiliate and Equidata shall agree upon Operational Specifications pertaining to the methodology and logistics of data transfer and database coordination. Upon mutual agreement as to the Operational Specifications, they shall be deemed to be a part of this Agreement by way of an Exhibit. Both parties must agree upon any changes to the Operational Specifications in writing. Any such changes will be deemed to be a part of the Operational Specifications. 4. Non-solicitation of Clients. Marketing Affiliate shall not directly or indirectly solicit an existing business customer of Equidata during the term and condition of this Agreement other than for joint marketing purposes. Further, Marketing Affiliate shall not market similar products from competing companies on any Web Site Landing Page containing the Equidata or Marketing Affiliate Web link as long as this Agreement is in effect. 5. Compliance. Marketing Affiliate nor Equidata, shall engage in any practice or activity that is not in compliance with the Fair Credit Reporting Act (FCRA), the Fair Debt Collection Practices Act (FDCPA) and the Health Insurance Portability and Accountability Act (HIPAA) as well as, but not limited to, any practice or activity that:
5.1. Violates any applicable law or regulation; including but not limited to the sale of illegal goods or the violation of export control or obscenity laws; that invade the privacy of any third party; that are in any way connected with the transmission of junk mail, spam or the unsolicited mass distribution of e-mail, or with any unethical marketing practices. 5.2. Is misleading, deceptive, confusing or abusive as outlined in the Telemarketing Fraud Prevention Act; 5.3. Makes any representation or statement, or grants any warranty or creates any other obligation with respect to the Services, that is in addition to or otherwise inconsistent with any representation, statement or warranty stated expressly by Equidata. 5.4. Uses Marketing Materials, media or methods that are not approved, including, but nor limited to telemarketing scripts. Such approval shall not be unreasonably withheld and shall be completed within 48 hours of receipt of Marketing Materials for review. 5.5. Does not meet the standards for good industry practices for the direct marketing industry. 5.6. Further guidelines and requirements are provided in Exhibit B and C.
6. Audit. Equidata may audit, at Equidata's expense, the Marketing Affiliate's marketing, practices and activities for the purpose of assuring compliance with this Agreement. Equidata reserves the right to site inspect Marketing Affiliate's physical location of business at any time. 7. Term and Termination. This Agreement commences on the Effective Date, and terminates, along with all licenses and authorizations granted under it, upon the earliest of termination in accordance with the following.
7.1. This Agreement shall be for the term of one year; thereafter, the Agreement shall renew automatically under these same terms and agreements unless superceded by future agreements. 7.2. This Agreement may be terminated by either party with cause upon thirty (30) days written notice. Upon Marketing Affiliate's default in payment or other breach of this Agreement, Equidata may terminate this Agreement without notice to Marketing Affiliate. Upon termination for any reason, Equidata reserves the right to deactivate Marketing Affiliate's access to the services including the Equidata Web Site. Termination does not release Marketing Affiliate from paying all amounts owed to Equidata. 7.3. At time of Agreement termination, Marketing Affiliate shall immediately remove all URL related data pertaining to said Agreement; and if data is not voluntarily removed, Equidata reserves the right to use all available legal resources to force the removal of Equidata URL related data and Marketing Affiliate agrees to be liable for the cost of such action, including but not limited to reasonable attorney fees. 7.4. Equidata reserves the right to terminate this Agreement immediately for cause if Experian, Equifax and/or TransUnion (Credit Reporting Agencies — CRAs) decline to render Services to Marketing Affiliate for any reason or if Equidata is notified by any of the CRAs to cease rendering Services to Marketing Affiliate.
8. Representations and Warranties. Marketing Affiliate represents and warrants that:
8.1 Marketing Affiliate does not engage in any business with respect to, and the Marketing Affiliate Web Site will not be used, or display any materials, in any form or medium, in connection with a credit clinic, credit repair or restoration, credit counseling firm, financial counseling firm, detective agency, private investigation, security services, practice of law, news reporting or journalism, or fraudulent or unethical conduct. 8.2. The information regarding Marketing Affiliate set forth in this Agreement, and the information provided to Equidata with respect to Marketing Affiliate and the Marketing Affiliate Web Site, is accurate; and 8.3. Marketing Affiliate's business, including without limitation any business conducted in connection with the Marketing
Source: STEEL VAULT CORP, 10-K, 12/24/2008
Affiliate Web Site, does not violate any applicable law, regulation, court order or material agreement to which Marketing Affiliate is subject. 8.4. Equidata warrants that it is an authorized provider of the Services as outlined in this Agreement and that it has the ability to provide said Services in the manner described herein. Page 2 of 3 Initials: /s/ IP
Source: STEEL VAULT CORP, 10-K, 12/24/2008
Accepted and Agreed: Executive two (2) copies and return executed copies to:
9. Indemnification. Equidata and Marketing Affiliate each hereby agree to defend, indemnify and hold harmless each other and each of its employees, agents, officers, directors and shareholders from and against any claims, suits, demand or actions arising from breach of any warranties under this Agreement or failure to provide Services under this Agreement. 10. Proprietary Information. Marketing Affiliate and Equidata mutually acknowledge that from time to time Confidential Information may be received by each. Confidential Information, includes, but is not limited to, Customer names and lists. The Receiving Party may not disclose or use the Disclosing Party's Confidential and Proprietary Information for any reason other than in the performance of this Agreement. It is agreed any information received or collected by Marketing Affiliate about its Customers or potential Customers, including information used to enroll Customers is Proprietary as defined by this section and will not be used by Equidata in any manner other than as outlined herein. 11. Liability. MARKETING AFFILIATE ACKNOWLEDGES AND AGREES THAT ANY PRODUCT, SERVICE, LICENSE OR PERMISSION PROVIDED BY EQUIDATA UNDER THIS AGREEMENT IS PROVIDED ON AN AS IS BASIS. EQUIDATA EXPRESSLY DISCLAIMS ANY WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING FROM COURSE OF DEALING OR PERFORMANCE, AND HEREBY DISCLAIMS AND EXCLUDES FROM THIS AGREEMENT ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, NONINTERFERENCE WITH DATA, ACCURACY, OR THAT THE SERVICE IS ERROR FREE. IN NO EVENT WILL EQUIDATA BE LIABLE FOR ANY INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION LOST PROFITS OR OTHER ECONOMIC LOSS, LOST REIMBURSEMENTS, AND LOST DATA, OR FOR ANY CLAIM BY ANY THIRD PARTY. EVEN IF EQUIDATA, MARKETING AFFILIATE OR BOTH HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIM, MARKETING AFFILIATE AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS EQUIDATA, AND EACH OF ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS, FROM AND AGAINST ANY CLAIM, SUIT, DEMAND, OR ACTION, INCLUDING WITHOUT LIMITATION ATTORNEY FEES, ARISING FROM (A) BREACH OF THIS AGREEMENT BY MARKETING AFFILIATE, (B) THE MARKETING AFFILIATE WEB SITE, OR (C) MARKETING AFFILIATE'S BUSINESS. 12. Miscellaneous. This Agreement binds and inures to the benefit of each party's permitted successors, assigns and legal representatives, including the purchasers of the stock or assets of either party hereto. No delegation by either party of any duty hereunder shall be deemed an assignment of this Agreement, nor shall any change in control or an assignment of by operation of law by either party be deemed an assignment hereunder. Any failure or delay in exercising, or any single or partial exercise of, any right or remedy by either party may not be deemed a waiver of any further, prior, or future right or remedy hereunder. This Agreement is governed by and construed in accordance with the laws of the State of Virginia. All notices required to be given in writing must be sent by overnight delivery service to the name and address designated in this Agreement or to such other address that the receiving party may in advance designate by written notice. Notice is deemed effective on the day after delivery by the overnight carrier. If any provision of this Agreement is declared invalid, the other provisions remain in full force and effect and this Agreement is deemed to be amended to replace, to the extent legally possible, the rights and obligations contained in the invalid provision. The invalidity of any provision is not a failure of consideration. The Parties shall operate as Independent Contractors in performing their obligations under the Agreement and shall have exclusive control of the manner and means of performing such obligations. Each party shall be solely responsible for supervision, daily direction and control of its employees and payment of their salaries, worker's compensation, disability and other benefits. Nothing in the Agreement shall be construed as making either party the agent of the other party, as granting to the other party the right to enter into any contract on behalf of the other party, or as establishing an association, franchise, joint venture or partnership between the Parties. Under no circumstances shall the employees of one party be deemed to be employees of the other for any purpose. This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous agreements, statements and representations, oral or written, between the parties relating to the subject matter of the Agreement. No representation or promise, or modification or amendment to this Agreement is binding on either party unless in writing signed by authorized representatives of both parties.
Company Name: Equidata, Inc. Marketing Affiliate Name: National Credit Report LLC Address: 724 Thimble Shoals Blvd. Newport News, VA 23606 Address: 7700 N Congress AVE, Suite 3113 Boca Raton, FL 33487 Phone Numbers: 757-873-0519 / 800-288-9809 Fax: 757-873-1224 Phone Numbers: 561-910 8900
Email Address: Kchase@equidata.com Email Address: ivan.posniak@nationalcreditreport.com Print Name: Kitty Chase Print Name: Ivan Posniak Title: SVP Title: CEO Signature: /s/ Kitty Chase Signature: /s/ Ivan Posniak
Page 3 of 3 Initials: /s/ IP
Source: STEEL VAULT CORP, 10-K, 12/24/2008
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
One example: Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong. 1. General provisions 1.1 This is a framework agreement, the terms and conditions are applied to all purchase orders which signed by this agreement (hereinafter referred to as the order ). 1.2 If the provisions of the agreement are inconsistent with the order, the order shall prevail. Not stated in order content will be subject to the provisions of agreement. Any modification, supplementary, give up should been written records, only to be valid by buyers and sellers authorized representative signature and confirmation, otherwise will be deemed invalid. 2. The agreement and order 2.1 During the validity term of this agreement, The buyer entrust SHENZHEN YICHANGTAI IMPORT AND EXPORT TRADE CO., LTD or SHENZHEN LEHEYUAN TRADING CO, LTD (hereinafter referred to as the entrusted party or YICHANGTAI or LEHEYUAN ), to purchase the products specified in this agreement from the seller in the form of orders. 2.2 The seller shall be confirmed within three working days after receipt of order. If the seller finds order is not acceptable or need to modify, should note entrusted party in two working days after receipt of the order, If the seller did not confirm orders in time or notice not accept orders or modifications, the seller is deemed to have been accepted the order. The orders become effective once the seller accepts, any party shall not unilaterally cancel the order before the two sides agreed . 2.3 If the seller puts forward amendments or not accept orders, the seller shall be in the form of a written notice to entrusted party, entrusted party accept the modified by written consent, the modified orders to be taken effect. 2.4 Seller\'s note, only the buyer entrust the entrusted party issued orders, the product delivery and payment has the force of law.
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Source: LOHA CO. LTD., F-1, 12/9/2019
3. GOODS AND COUNTRY OF ORIGIN: 4. Specific order: The products quantity, unit price, specifications, delivery time and transportation, specific content shall be subject to the purchase order issued by entrusted party which is commissioned the buyer. 5. PACKING: To be packed in new strong wooden case(s) /carton(s), suitable for long distance transportation and for the change of climate, well protected against rough handling, moisture, rain, corrosion, shocks, rust, and freezing. The seller shall be liable for any damage and loss of the commodity, expenses incurred on account of improper packing, and any damage attributable to inadequate or improper protective measures taken by the seller in regard to the packing. One full set of technical All wooden material of shipping package must be treated as the requirements of Entry-Exit Inspection and Quarantine Bureau of China, by the agent whom is certified by the government where the goods is exported. And the goods must be marked with the IPPC stamps, which are certified by the government agent of Botanical-Inspection and Quarantine Bureau. 6. SHIPPING MARK: The Sellers shall mark on each package with fadeless paint the package number, gross weight, net weight, measurements and the wordings: KEEP AWAY FROM MOISTURE , HANDLE WITH CARE THIS SIDE UP etc. and the shipping mark on each package with fadeless paint. 7. DATE OF SHIPMENT: According to specific order by YICHANGTAI or LEHEYUAN. 8. PORT OF SHIPMENT:
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Source: LOHA CO. LTD., F-1, 12/9/2019
9. PORT OF DESTINATION: SHENZHEN, GUANGDONG, CHINA 10. INSURANCE: To be covered by the Seller for 110% invoice value against All Risks and War Risk. 11. PAYMENT: Under Letter of Credit or T/T: Under the Letter of Credit: The Buyer shall open an irrevocable letter of credit with the bank within 30 days after signing the contract, in favor of the Seller, for 100% value of the total contract value. The letter of credit should state that partial shipments are allowed. The Buyer\'s agent agrees to pay for the goods in accordance with the actual amount of the goods shipped. 80% of the system value being shipped will be paid against the documents stipulated in Clause 12.1. The remaining 20% of the system value being shipped will be paid against the documents stipulated in Clause 12.2. The Letter of Credit shall be valid until 90 days after the latest shipment is effected. Under the T/T The trustee of the buyer remitted the goods to the seller by telegraphic transfer in batches as agreed upon after signing each order. 12. DOCUMENTS: 12.1 (1) Invoice in 5 originals indicating contract number and Shipping Mark (in case of more than one shipping mark, the invoice shall be issued separately). (2) One certificate of origin of the goods. (3) Four original copies of the packing list. (4) Certificate of Quality and Quantity in 1 original issued by the agriculture products base. (5) One copy of insurance coverage (6) Copy of cable/letter to the transportation department of Buyer advising of particulars as to shipment immediately after shipment is made.
3
Source: LOHA CO. LTD., F-1, 12/9/2019
12.2 (1) Invoice in 3 originals indicating contract number and L/C number. (2) Final acceptance certificate signed by the Buyer and the Seller. 13. SHIPMENT: CIP The seller shall contract on usual terms at his own expenses for the carriage of the goods to the agreed point at the named place of destination and bear all risks and expenses until the goods have been delivered to the port of destination. The Sellers shall ship the goods within the shipment time from the port of shipment to the port of destination. Transshipment is allowed. Partial Shipment is allowed. In case the goods are to be dispatched by parcel post/sea-freight, the Sellers shall, 3 days before the time of delivery, inform the Buyers by cable/letter of the estimated date of delivery, Contract No., commodity, invoiced value, etc. The sellers shall, immediately after dispatch of the goods, advise the Buyers by cable/letter of the Contract No., commodity, invoiced value and date of dispatch for the Buyers. 14. SHIPPING ADVICE: The seller shall within 72 hours after the shipment of the goods, advise the shipping department of buyer by fax or E-mail of Contract No., goods name, quantity, value, number of packages, gross weight, measurements and the estimated arrival time of the goods at the destination. 15. GUARANTEE OF QUALITY: The Sellers guarantee that the commodity hereof is complies in all respects with the quality and specification stipulated in this Contract. 16. CLAIMS: Within 7 days after the arrival of the goods at destination, should the quality, specification, or quantity be found not in conformity with the stipulations of the Contract except those claims for which the insurance company or the owners of the vessel are liable, the Buyers, on the strength of the Inspection Certificate issued by the China Commodity Inspection Bureau, have the right to claim for replacement with new goods, or for compensation, and all the expenses (such as inspection charges, freight for returning the goods and for sending the replacement, insurance premium, storage and loading and unloading charges etc.) shall be borne by the Sellers. The Certificate so issued shall be accepted as the base of a claim. The Sellers, in accordance with the Buyers\' claim, shall be responsible for the immediate elimination of the defect(s), complete or partial replacement of the commodity or shall devaluate the commodity according to the state of defect(s). Where necessary, the Buyers shall be at liberty to eliminate the defect(s) themselves at the Sellers\' expenses. If the Sellers fail to answer the Buyers within one weeks after receipt of the aforesaid claim, the claim shall be reckoned as having been accepted by the Sellers.
4
Source: LOHA CO. LTD., F-1, 12/9/2019
17. FORCE MAJEURE: The Sellers shall not be held responsible for the delay in shipment or non-delivery, of the goods due to Force Majeure, which might occur during the process of manufacturing or in the course of loading or transit. The Sellers shall advise the Buyers immediately of the occurrence mentioned above and within fourteen days thereafter, the Sellers shall send by airmail to the Buyers a certificate of the accident issued by the competent government authorities, Chamber of Commerce or registered notary public of the place where the accident occurs as evidence thereof. Under such circumstances the Sellers, however, are still under the obligation to take all necessary measures to hasten the delivery of the goods. In case the accident lasts for more than 10 weeks, the Buyers shall have the right to cancel the Contract. 18. LATE DELIVERY AND PENALTY: Should the Sellers fail to make delivery on time as stipulated in the Contract, with exception of Force Majeure causes specified in Clause 17 of this Contract, the Buyers shall agree to postpone the delivery on condition that the Sellers agree to pay a penalty which shall be deducted by the paying bank from the payment. The penalty, however, shall not exceed 5% of the total value of the goods involved in the late delivery. The rate of penalty is charged at 0.5% for every seven days, odd days less than seven days should be counted as seven days. In case the Sellers fail to make delivery ten weeks later than the time of shipment stipulated in the Contract, the Buyers have the right to cancel the contract and the Sellers, in spite of the cancellation, shall still pay the aforesaid penalty to the Buyers without delay, the seller should refund the money received and pay the 30% of the total goods price of the penalty 19. ARBITRATION: All disputes in connection with this Contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the Foreign Economic and Trade Arbitration Committee of the China Beijing Council for the Promotion of International Trade in accordance with its Provisional Rules of Procedures by the said Arbitration Committee. The Arbitration shall take place in Beijing and the decision of the Arbitration Committee shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. 20. This final price is the confidential information. Dissemination, distribution or duplication of this price is strictly prohibited.
5
Source: LOHA CO. LTD., F-1, 12/9/2019
21. Law application It will be governed by the law of the People\'s Republic of China ,otherwise it is governed by United Nations Convention on Contract for the International Sale of Goods. 22. <<Incoterms 2000>> The terms in the contract are based on (INCOTERMS 2000) of the International Chamber of Commerce. 23. The Contract is valid for 5 years, beginning from and ended on . This Contract is made out in three originals in both Chinese and English, each language being legally of the equal effect. Conflicts between these two languages arising there from, if any, shall be subject to Chinese version. One copy for the Sellers, two copies for the Buyers. The Contract becomes effective after signed by both parties. THE BUYER: THE SELLER: SIGNATURE: SIGNATURE: 6
Source: LOHA CO. LTD., F-1, 12/9/2019
Question: Highlight the parts (if any) of this contract related to Document Name that should be reviewed by a lawyer. Details: The name of the contract
Solution is here: 14
Explanation: This question is based on the following sentence in the passage "Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong.". The name of the contract starts at the mentioned index in the answer.
Now, solve this: Exhibit 10.11
AMENDMENT AND TERMINATION
OF
JOINT VENTURE AGREEMENT
This AMENDMENT AND TERMINATION OF JOINT VENTURE AGREEMENT (this Amendment) is made and entered into effective as of October 30, 2019 (the Effective Date) by and among (1) Veoneer AB, a Swedish corporation (Veoneer AB) and Veoneer US, Inc., a Delaware corporation (Veoneer US and together with Veoneer AB, the Veoneer Parties), and (2) Nissin Kogyo Co., Ltd., a Japanese corporation (Nissin), Nissin Kogyo Holdings USA, Inc., an Ohio corporation (Nissin Holding) and Zhongshan Nissin Industry Co., Ltd., a Peoples' Republic of China company (NBZ and together with Nissin and Nissin Holding, the Nissin Parties), as an amendment to that certain Joint Venture Agreement dated March 7, 2016 by and among Autoliv ASP, Inc. (Autoliv ASP), Autoliv AB (Autoliv AB) and Autoliv Holding, Inc. (Autoliv Holding and together with Autoliv ASP and Autoliv AB, the Autoliv Parties) and the Nissin Parties, as amended, supplemented or otherwise modified from time to time in accordance with the terms thereof and in effect on the date hereof (the JV Agreement). Capitalized terms not defined in this Amendment shall have the meanings as assigned thereto in the JV Agreement.
RECITALS
(A)The Autoliv Parties and the Nissin Parties entered into the JV Agreement as of March 7, 2016 to engage in the JV Business through Veoneer Nissin Brake Systems Japan, Co., Ltd. (VNBJ), Veoneer Nissin Brake Systems America, LLC (whose corporate name has since been changed to Veoneer Brake Systems, LLC, VNBA), Veoneer Nissin Brake Systems (Zhongshan), Co., Ltd. (VNBZ) and Autoliv Nissin Brake Research Asia Co., Ltd. (ANRA);
(B)The Autoliv Parties, the Veoneer Parties and the Nissin Parties entered into that certain Addendum to Joint Venture Agreement as of September 3, 2018 pursuant to which (i) Autoliv ASP assigned the JV Agreement as well as all the rights and obligations thereunder to Veoneer US and ceased to be a party thereto and (ii) each of Autoliv AB and Autoliv Holding assigned the JV Agreement as well as all the rights and obligations thereunder to Veoneer AB and ceased to be a party thereto;
(C)Notwithstanding the preceding paragraph (B), Autoliv AB remains a party to the JV Agreement only in relation to ANRA and only to the extent necessary to deal with the liquidation proceedings of ANRA;
(D)Nissin and the Veoneer Parties entered into that certain VNBA Separation Agreement as of June 14, 2019 pursuant to which, among other things, Nissin Holding sold, and Veoneer Roadscape Automotive, Inc. purchased, as of June 28, 2019, all of Nissin Holding's membership interests in VNBA;
(E)The Veoneer Parties and the Nissin Parties entered into that certain Amendment to Joint Venture Agreement as of June 28, 2019 pursuant to which, among other things, the JV Agreement ceased to have any application or effect to VNBA as of June 28, 2019;
(F)Honda Motor Co., Ltd. (Honda), as of the Effective Date, Nissin and Veoneer AB entered into those certain (1) VNBJ Share Purchase Agreement, pursuant to which Veoneer AB is selling, and Honda and Nissin are purchasing, all of Veoneer AB's outstanding shares in VNBJ (the VNBJ SPA, and the consummation of the transactions pursuant to the terms of the VNBJ SPA, the VNBJ Closing) and (2) VNBZ Share Purchase Agreement, pursuant to which Veoneer AB is selling, and Honda and Nissin are purchasing, all of Veoneer AB's equity interests in VNBZ (the VNBZ SPA, and the consummation of the transactions pursuant to the terms of the VNBZ SPA, the VNBZ Closing); and
(A)Upon the later of the VNBJ Closing and the VNBZ Closing, no Veoneer Party will hold any equity interest in any of the Companies.
NOW, THEREFORE, the Veoneer Parties and the Nissin Parties hereby agree as follows:
Article 1.Amendment and Termination of JV Agreement
a.As of the VNBJ Closing, except as expressly set forth in this Amendment, the JV Agreement shall immediately cease to have any application or effect with respect to VNBJ, all rights and obligations with respect to VNBJ under the JV Agreement shall terminate and all references to Company or Companies in the JV Agreement (either in the body of the JV Agreement or its schedules and other attachments) shall read and be interpreted to mean VNBZ and/or ANRA except as the context otherwise requires.
b.As of the VNBZ Closing, except as expressly set forth in this Amendment, the JV Agreement shall immediately cease to have any application or effect with respect to VNBZ, all rights and obligations with respect to VNBZ under the JV Agreement shall terminate and all references to Company or Companies in the JV Agreement (either in the body of the JV Agreement or its schedules and other attachments) shall read and be interpreted to mean VNBJ and/or ANRA except as the context otherwise requires.
c.Except as expressly set forth in this Amendment and notwithstanding anything to the contrary contained in the JV Agreement (including Section 9.3.11 (Termination and Survival)), (a) effective as of the later of the VNBJ Closing and the VNBZ Closing, the JV Agreement shall terminate in its entirety with respect to the Veoneer Parties and (b) after the later of the VNBJ Closing and the VNBZ Closing, the Veoneer Parties shall cease to be a party to the JV Agreement and shall have no further obligations with respect thereto. For clarity, upon the later of the VNBJ Closing and the VNBZ Closing, the JV Agreement will remain in full force and effect in accordance with the terms thereof solely between the Nissin Parties and Autoliv AB with respect to the liquidation proceedings of ANRA.
d.Notwithstanding Article 1.1, Article 1.2 and Article 1.3 above, the termination of the JV Agreement with respect to VNBJ, VNBZ or the Veoneer Parties shall not release any Veoneer Party or any Nissin Party from liability for the breach of any of its representations, warranties, covenants or agreements set forth in the JV Agreement that arise prior to the VNBJ Closing or the VNBZ Closing, as applicable.
Article 2.D&O Indemnity
Notwithstanding Article 1.1, Article 1.2 and Article 1.3 above, the Nissin Parties agree to cause each of VNBJ and VNBZ to comply with Sections 4.3.2 and 4.3.3 of the JV Agreement with respect to the indemnification or reimbursement, as applicable, of all Directors and Officers (except those individuals resigning pursuant to Section 6.2.6 of the VNBJ SPA and Section 6.2.6 of the VNBZ SPA) with respect to any Liabilities arising prior to the VNBJ Closing or the VNBZ Closing, as applicable.
Article 3.Governing Law
This Amendment shall be governed by and construed in accordance with the laws of Japan.
Article 4.Effectiveness
This Amendment shall only become effective upon the VNBJ Closing with respect to Article 1.1 and the VNBZ Closing with respect to Article 1.2, and shall terminate without any force or effect in the event that the VNBJ SPA and the VNBZ SPA are terminated in accordance with the terms thereof.
(The remainder of this page has intentionally been blank.)
IN WITNESS WHEREOF, each of the Veoneer Parties and the Nissin Parties has caused this Amendment to be executed through its duly authorized representative effective as of the date first above written.
Veoneer AB
By: /s/ Mats Backman Name: Mats Backman Title: Director
By: /s/ Amelie Wendels Name: Amelie Wendels Title: Director
Veoneer US, Inc.
By: /s/ Eric R. Swanson Name: Eric R. Swanson Title: President & Secretary
Nissin Kogyo Co., Ltd.
By: /s/ Yasushi Kawaguchi Name: Yasushi Kawaguchi Title: Representative Director, President for and on behalf of each of the Nissin Parties
Signature Page to Amendment and Termination of Joint Venture Agreement
IN WITNESS WHEREOF, each of the following companies hereby acknowledges and agrees to be bound by the terms and conditions set forth in this Amendment:
Veoneer Nissin Brake Systems Japan Co., Ltd.
By: /s/ John T. Jensen Name: John T. Jensen Title: President, Representative Director
Veoneer Nissin Brake Systems (Zhongshan) Co., Ltd.
By: /s/ Steven M. Rodé Name: Steven M. Rodé Title: Director
Signature Page to Amendment and Termination of Joint Venture Agreement
Question: Highlight the parts (if any) of this contract related to Governing Law that should be reviewed by a lawyer. Details: Which state/country's law governs the interpretation of the contract?
Solution:
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6650
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task598_cuad_answer_generation
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NIv2
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fs_opt
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train
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
One example is below.
Q: Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong. 1. General provisions 1.1 This is a framework agreement, the terms and conditions are applied to all purchase orders which signed by this agreement (hereinafter referred to as the order ). 1.2 If the provisions of the agreement are inconsistent with the order, the order shall prevail. Not stated in order content will be subject to the provisions of agreement. Any modification, supplementary, give up should been written records, only to be valid by buyers and sellers authorized representative signature and confirmation, otherwise will be deemed invalid. 2. The agreement and order 2.1 During the validity term of this agreement, The buyer entrust SHENZHEN YICHANGTAI IMPORT AND EXPORT TRADE CO., LTD or SHENZHEN LEHEYUAN TRADING CO, LTD (hereinafter referred to as the entrusted party or YICHANGTAI or LEHEYUAN ), to purchase the products specified in this agreement from the seller in the form of orders. 2.2 The seller shall be confirmed within three working days after receipt of order. If the seller finds order is not acceptable or need to modify, should note entrusted party in two working days after receipt of the order, If the seller did not confirm orders in time or notice not accept orders or modifications, the seller is deemed to have been accepted the order. The orders become effective once the seller accepts, any party shall not unilaterally cancel the order before the two sides agreed . 2.3 If the seller puts forward amendments or not accept orders, the seller shall be in the form of a written notice to entrusted party, entrusted party accept the modified by written consent, the modified orders to be taken effect. 2.4 Seller\'s note, only the buyer entrust the entrusted party issued orders, the product delivery and payment has the force of law.
1
Source: LOHA CO. LTD., F-1, 12/9/2019
3. GOODS AND COUNTRY OF ORIGIN: 4. Specific order: The products quantity, unit price, specifications, delivery time and transportation, specific content shall be subject to the purchase order issued by entrusted party which is commissioned the buyer. 5. PACKING: To be packed in new strong wooden case(s) /carton(s), suitable for long distance transportation and for the change of climate, well protected against rough handling, moisture, rain, corrosion, shocks, rust, and freezing. The seller shall be liable for any damage and loss of the commodity, expenses incurred on account of improper packing, and any damage attributable to inadequate or improper protective measures taken by the seller in regard to the packing. One full set of technical All wooden material of shipping package must be treated as the requirements of Entry-Exit Inspection and Quarantine Bureau of China, by the agent whom is certified by the government where the goods is exported. And the goods must be marked with the IPPC stamps, which are certified by the government agent of Botanical-Inspection and Quarantine Bureau. 6. SHIPPING MARK: The Sellers shall mark on each package with fadeless paint the package number, gross weight, net weight, measurements and the wordings: KEEP AWAY FROM MOISTURE , HANDLE WITH CARE THIS SIDE UP etc. and the shipping mark on each package with fadeless paint. 7. DATE OF SHIPMENT: According to specific order by YICHANGTAI or LEHEYUAN. 8. PORT OF SHIPMENT:
2
Source: LOHA CO. LTD., F-1, 12/9/2019
9. PORT OF DESTINATION: SHENZHEN, GUANGDONG, CHINA 10. INSURANCE: To be covered by the Seller for 110% invoice value against All Risks and War Risk. 11. PAYMENT: Under Letter of Credit or T/T: Under the Letter of Credit: The Buyer shall open an irrevocable letter of credit with the bank within 30 days after signing the contract, in favor of the Seller, for 100% value of the total contract value. The letter of credit should state that partial shipments are allowed. The Buyer\'s agent agrees to pay for the goods in accordance with the actual amount of the goods shipped. 80% of the system value being shipped will be paid against the documents stipulated in Clause 12.1. The remaining 20% of the system value being shipped will be paid against the documents stipulated in Clause 12.2. The Letter of Credit shall be valid until 90 days after the latest shipment is effected. Under the T/T The trustee of the buyer remitted the goods to the seller by telegraphic transfer in batches as agreed upon after signing each order. 12. DOCUMENTS: 12.1 (1) Invoice in 5 originals indicating contract number and Shipping Mark (in case of more than one shipping mark, the invoice shall be issued separately). (2) One certificate of origin of the goods. (3) Four original copies of the packing list. (4) Certificate of Quality and Quantity in 1 original issued by the agriculture products base. (5) One copy of insurance coverage (6) Copy of cable/letter to the transportation department of Buyer advising of particulars as to shipment immediately after shipment is made.
3
Source: LOHA CO. LTD., F-1, 12/9/2019
12.2 (1) Invoice in 3 originals indicating contract number and L/C number. (2) Final acceptance certificate signed by the Buyer and the Seller. 13. SHIPMENT: CIP The seller shall contract on usual terms at his own expenses for the carriage of the goods to the agreed point at the named place of destination and bear all risks and expenses until the goods have been delivered to the port of destination. The Sellers shall ship the goods within the shipment time from the port of shipment to the port of destination. Transshipment is allowed. Partial Shipment is allowed. In case the goods are to be dispatched by parcel post/sea-freight, the Sellers shall, 3 days before the time of delivery, inform the Buyers by cable/letter of the estimated date of delivery, Contract No., commodity, invoiced value, etc. The sellers shall, immediately after dispatch of the goods, advise the Buyers by cable/letter of the Contract No., commodity, invoiced value and date of dispatch for the Buyers. 14. SHIPPING ADVICE: The seller shall within 72 hours after the shipment of the goods, advise the shipping department of buyer by fax or E-mail of Contract No., goods name, quantity, value, number of packages, gross weight, measurements and the estimated arrival time of the goods at the destination. 15. GUARANTEE OF QUALITY: The Sellers guarantee that the commodity hereof is complies in all respects with the quality and specification stipulated in this Contract. 16. CLAIMS: Within 7 days after the arrival of the goods at destination, should the quality, specification, or quantity be found not in conformity with the stipulations of the Contract except those claims for which the insurance company or the owners of the vessel are liable, the Buyers, on the strength of the Inspection Certificate issued by the China Commodity Inspection Bureau, have the right to claim for replacement with new goods, or for compensation, and all the expenses (such as inspection charges, freight for returning the goods and for sending the replacement, insurance premium, storage and loading and unloading charges etc.) shall be borne by the Sellers. The Certificate so issued shall be accepted as the base of a claim. The Sellers, in accordance with the Buyers\' claim, shall be responsible for the immediate elimination of the defect(s), complete or partial replacement of the commodity or shall devaluate the commodity according to the state of defect(s). Where necessary, the Buyers shall be at liberty to eliminate the defect(s) themselves at the Sellers\' expenses. If the Sellers fail to answer the Buyers within one weeks after receipt of the aforesaid claim, the claim shall be reckoned as having been accepted by the Sellers.
4
Source: LOHA CO. LTD., F-1, 12/9/2019
17. FORCE MAJEURE: The Sellers shall not be held responsible for the delay in shipment or non-delivery, of the goods due to Force Majeure, which might occur during the process of manufacturing or in the course of loading or transit. The Sellers shall advise the Buyers immediately of the occurrence mentioned above and within fourteen days thereafter, the Sellers shall send by airmail to the Buyers a certificate of the accident issued by the competent government authorities, Chamber of Commerce or registered notary public of the place where the accident occurs as evidence thereof. Under such circumstances the Sellers, however, are still under the obligation to take all necessary measures to hasten the delivery of the goods. In case the accident lasts for more than 10 weeks, the Buyers shall have the right to cancel the Contract. 18. LATE DELIVERY AND PENALTY: Should the Sellers fail to make delivery on time as stipulated in the Contract, with exception of Force Majeure causes specified in Clause 17 of this Contract, the Buyers shall agree to postpone the delivery on condition that the Sellers agree to pay a penalty which shall be deducted by the paying bank from the payment. The penalty, however, shall not exceed 5% of the total value of the goods involved in the late delivery. The rate of penalty is charged at 0.5% for every seven days, odd days less than seven days should be counted as seven days. In case the Sellers fail to make delivery ten weeks later than the time of shipment stipulated in the Contract, the Buyers have the right to cancel the contract and the Sellers, in spite of the cancellation, shall still pay the aforesaid penalty to the Buyers without delay, the seller should refund the money received and pay the 30% of the total goods price of the penalty 19. ARBITRATION: All disputes in connection with this Contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the Foreign Economic and Trade Arbitration Committee of the China Beijing Council for the Promotion of International Trade in accordance with its Provisional Rules of Procedures by the said Arbitration Committee. The Arbitration shall take place in Beijing and the decision of the Arbitration Committee shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. 20. This final price is the confidential information. Dissemination, distribution or duplication of this price is strictly prohibited.
5
Source: LOHA CO. LTD., F-1, 12/9/2019
21. Law application It will be governed by the law of the People\'s Republic of China ,otherwise it is governed by United Nations Convention on Contract for the International Sale of Goods. 22. <<Incoterms 2000>> The terms in the contract are based on (INCOTERMS 2000) of the International Chamber of Commerce. 23. The Contract is valid for 5 years, beginning from and ended on . This Contract is made out in three originals in both Chinese and English, each language being legally of the equal effect. Conflicts between these two languages arising there from, if any, shall be subject to Chinese version. One copy for the Sellers, two copies for the Buyers. The Contract becomes effective after signed by both parties. THE BUYER: THE SELLER: SIGNATURE: SIGNATURE: 6
Source: LOHA CO. LTD., F-1, 12/9/2019
Question: Highlight the parts (if any) of this contract related to Document Name that should be reviewed by a lawyer. Details: The name of the contract
A: 14
Rationale: This question is based on the following sentence in the passage "Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong.". The name of the contract starts at the mentioned index in the answer.
Q: AMENDMENT NO. 3 TO STREMICK'S HERITAGE FOODS, LLC and PREMIER NUTRITION CORPORATION MANUFACTURING AGREEMENT
This Amendment No. 3 (the Third Amendment), entered into by and between Stremicks Heritage Foods, LLC (Heritage) Premier Nutrition Corporation (Premier) is effective as of July 3, 2019 (Third Amendment Effective Date) and amends that certain Manufacturing Agreement between Heritage and Premier dated July 1, 2017 as amended (Agreement). Heritage and Premier are each referred to herein as a Party and collectively as the Parties.
WHEREAS, Heritage and Premier entered into the Agreement;
WHEREAS, the Parties wish to amend the Agreement in accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and of the mutual covenants, representations and warranties contained in the Agreement and set forth herein, the Parties hereby agree that the following changes shall be made to the Agreement:
1. The Parties hereby agree to remove Schedule C-1 in its entirety and replace it with the following:
Schedule C-1. The following is attached to an incorporated into the Agreement as Schedule C-1:
Schedule C-1([***])
[***]
2. Except as otherwise specified above in this Amendment, all other terms, conditions and covenants of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be signed by their respective duly authorized representatives as of the Amendment Effective Date. Premier Nutrition Corporation Stremick's Heritage Foods, LLC.
By: /s/ Darcy Davenport By: /s/ Sam Stremick Name: Darcy Davenport Name: Sam Stremick Title: President Title: President
Source: BELLRING BRANDS, INC., S-1, 9/20/2019
Question: Highlight the parts (if any) of this contract related to Effective Date that should be reviewed by a lawyer. Details: The date when the contract is effective
A:
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287
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task598_cuad_answer_generation
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NIv2
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fs_opt
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test
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In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write the index where the answer starts. If multiple answers seem to exist, write the index of the answer that is the most plausible. If multiple indices must be used to answer the question, the output should be a common separated list of indices.
One example: Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong. 1. General provisions 1.1 This is a framework agreement, the terms and conditions are applied to all purchase orders which signed by this agreement (hereinafter referred to as the order ). 1.2 If the provisions of the agreement are inconsistent with the order, the order shall prevail. Not stated in order content will be subject to the provisions of agreement. Any modification, supplementary, give up should been written records, only to be valid by buyers and sellers authorized representative signature and confirmation, otherwise will be deemed invalid. 2. The agreement and order 2.1 During the validity term of this agreement, The buyer entrust SHENZHEN YICHANGTAI IMPORT AND EXPORT TRADE CO., LTD or SHENZHEN LEHEYUAN TRADING CO, LTD (hereinafter referred to as the entrusted party or YICHANGTAI or LEHEYUAN ), to purchase the products specified in this agreement from the seller in the form of orders. 2.2 The seller shall be confirmed within three working days after receipt of order. If the seller finds order is not acceptable or need to modify, should note entrusted party in two working days after receipt of the order, If the seller did not confirm orders in time or notice not accept orders or modifications, the seller is deemed to have been accepted the order. The orders become effective once the seller accepts, any party shall not unilaterally cancel the order before the two sides agreed . 2.3 If the seller puts forward amendments or not accept orders, the seller shall be in the form of a written notice to entrusted party, entrusted party accept the modified by written consent, the modified orders to be taken effect. 2.4 Seller\'s note, only the buyer entrust the entrusted party issued orders, the product delivery and payment has the force of law.
1
Source: LOHA CO. LTD., F-1, 12/9/2019
3. GOODS AND COUNTRY OF ORIGIN: 4. Specific order: The products quantity, unit price, specifications, delivery time and transportation, specific content shall be subject to the purchase order issued by entrusted party which is commissioned the buyer. 5. PACKING: To be packed in new strong wooden case(s) /carton(s), suitable for long distance transportation and for the change of climate, well protected against rough handling, moisture, rain, corrosion, shocks, rust, and freezing. The seller shall be liable for any damage and loss of the commodity, expenses incurred on account of improper packing, and any damage attributable to inadequate or improper protective measures taken by the seller in regard to the packing. One full set of technical All wooden material of shipping package must be treated as the requirements of Entry-Exit Inspection and Quarantine Bureau of China, by the agent whom is certified by the government where the goods is exported. And the goods must be marked with the IPPC stamps, which are certified by the government agent of Botanical-Inspection and Quarantine Bureau. 6. SHIPPING MARK: The Sellers shall mark on each package with fadeless paint the package number, gross weight, net weight, measurements and the wordings: KEEP AWAY FROM MOISTURE , HANDLE WITH CARE THIS SIDE UP etc. and the shipping mark on each package with fadeless paint. 7. DATE OF SHIPMENT: According to specific order by YICHANGTAI or LEHEYUAN. 8. PORT OF SHIPMENT:
2
Source: LOHA CO. LTD., F-1, 12/9/2019
9. PORT OF DESTINATION: SHENZHEN, GUANGDONG, CHINA 10. INSURANCE: To be covered by the Seller for 110% invoice value against All Risks and War Risk. 11. PAYMENT: Under Letter of Credit or T/T: Under the Letter of Credit: The Buyer shall open an irrevocable letter of credit with the bank within 30 days after signing the contract, in favor of the Seller, for 100% value of the total contract value. The letter of credit should state that partial shipments are allowed. The Buyer\'s agent agrees to pay for the goods in accordance with the actual amount of the goods shipped. 80% of the system value being shipped will be paid against the documents stipulated in Clause 12.1. The remaining 20% of the system value being shipped will be paid against the documents stipulated in Clause 12.2. The Letter of Credit shall be valid until 90 days after the latest shipment is effected. Under the T/T The trustee of the buyer remitted the goods to the seller by telegraphic transfer in batches as agreed upon after signing each order. 12. DOCUMENTS: 12.1 (1) Invoice in 5 originals indicating contract number and Shipping Mark (in case of more than one shipping mark, the invoice shall be issued separately). (2) One certificate of origin of the goods. (3) Four original copies of the packing list. (4) Certificate of Quality and Quantity in 1 original issued by the agriculture products base. (5) One copy of insurance coverage (6) Copy of cable/letter to the transportation department of Buyer advising of particulars as to shipment immediately after shipment is made.
3
Source: LOHA CO. LTD., F-1, 12/9/2019
12.2 (1) Invoice in 3 originals indicating contract number and L/C number. (2) Final acceptance certificate signed by the Buyer and the Seller. 13. SHIPMENT: CIP The seller shall contract on usual terms at his own expenses for the carriage of the goods to the agreed point at the named place of destination and bear all risks and expenses until the goods have been delivered to the port of destination. The Sellers shall ship the goods within the shipment time from the port of shipment to the port of destination. Transshipment is allowed. Partial Shipment is allowed. In case the goods are to be dispatched by parcel post/sea-freight, the Sellers shall, 3 days before the time of delivery, inform the Buyers by cable/letter of the estimated date of delivery, Contract No., commodity, invoiced value, etc. The sellers shall, immediately after dispatch of the goods, advise the Buyers by cable/letter of the Contract No., commodity, invoiced value and date of dispatch for the Buyers. 14. SHIPPING ADVICE: The seller shall within 72 hours after the shipment of the goods, advise the shipping department of buyer by fax or E-mail of Contract No., goods name, quantity, value, number of packages, gross weight, measurements and the estimated arrival time of the goods at the destination. 15. GUARANTEE OF QUALITY: The Sellers guarantee that the commodity hereof is complies in all respects with the quality and specification stipulated in this Contract. 16. CLAIMS: Within 7 days after the arrival of the goods at destination, should the quality, specification, or quantity be found not in conformity with the stipulations of the Contract except those claims for which the insurance company or the owners of the vessel are liable, the Buyers, on the strength of the Inspection Certificate issued by the China Commodity Inspection Bureau, have the right to claim for replacement with new goods, or for compensation, and all the expenses (such as inspection charges, freight for returning the goods and for sending the replacement, insurance premium, storage and loading and unloading charges etc.) shall be borne by the Sellers. The Certificate so issued shall be accepted as the base of a claim. The Sellers, in accordance with the Buyers\' claim, shall be responsible for the immediate elimination of the defect(s), complete or partial replacement of the commodity or shall devaluate the commodity according to the state of defect(s). Where necessary, the Buyers shall be at liberty to eliminate the defect(s) themselves at the Sellers\' expenses. If the Sellers fail to answer the Buyers within one weeks after receipt of the aforesaid claim, the claim shall be reckoned as having been accepted by the Sellers.
4
Source: LOHA CO. LTD., F-1, 12/9/2019
17. FORCE MAJEURE: The Sellers shall not be held responsible for the delay in shipment or non-delivery, of the goods due to Force Majeure, which might occur during the process of manufacturing or in the course of loading or transit. The Sellers shall advise the Buyers immediately of the occurrence mentioned above and within fourteen days thereafter, the Sellers shall send by airmail to the Buyers a certificate of the accident issued by the competent government authorities, Chamber of Commerce or registered notary public of the place where the accident occurs as evidence thereof. Under such circumstances the Sellers, however, are still under the obligation to take all necessary measures to hasten the delivery of the goods. In case the accident lasts for more than 10 weeks, the Buyers shall have the right to cancel the Contract. 18. LATE DELIVERY AND PENALTY: Should the Sellers fail to make delivery on time as stipulated in the Contract, with exception of Force Majeure causes specified in Clause 17 of this Contract, the Buyers shall agree to postpone the delivery on condition that the Sellers agree to pay a penalty which shall be deducted by the paying bank from the payment. The penalty, however, shall not exceed 5% of the total value of the goods involved in the late delivery. The rate of penalty is charged at 0.5% for every seven days, odd days less than seven days should be counted as seven days. In case the Sellers fail to make delivery ten weeks later than the time of shipment stipulated in the Contract, the Buyers have the right to cancel the contract and the Sellers, in spite of the cancellation, shall still pay the aforesaid penalty to the Buyers without delay, the seller should refund the money received and pay the 30% of the total goods price of the penalty 19. ARBITRATION: All disputes in connection with this Contract or the execution thereof shall be settled friendly through negotiations. In case no settlement can be reached, the case may then be submitted for arbitration to the Foreign Economic and Trade Arbitration Committee of the China Beijing Council for the Promotion of International Trade in accordance with its Provisional Rules of Procedures by the said Arbitration Committee. The Arbitration shall take place in Beijing and the decision of the Arbitration Committee shall be final and binding upon both parties; neither party shall seek recourse to a law court nor other authorities to appeal for revision of the decision. Arbitration fee shall be borne by the losing party. 20. This final price is the confidential information. Dissemination, distribution or duplication of this price is strictly prohibited.
5
Source: LOHA CO. LTD., F-1, 12/9/2019
21. Law application It will be governed by the law of the People\'s Republic of China ,otherwise it is governed by United Nations Convention on Contract for the International Sale of Goods. 22. <<Incoterms 2000>> The terms in the contract are based on (INCOTERMS 2000) of the International Chamber of Commerce. 23. The Contract is valid for 5 years, beginning from and ended on . This Contract is made out in three originals in both Chinese and English, each language being legally of the equal effect. Conflicts between these two languages arising there from, if any, shall be subject to Chinese version. One copy for the Sellers, two copies for the Buyers. The Contract becomes effective after signed by both parties. THE BUYER: THE SELLER: SIGNATURE: SIGNATURE: 6
Source: LOHA CO. LTD., F-1, 12/9/2019
Question: Highlight the parts (if any) of this contract related to Document Name that should be reviewed by a lawyer. Details: The name of the contract
Solution is here: 14
Explanation: This question is based on the following sentence in the passage "Exhibit 10.16 SUPPLY CONTRACT Contract No: Date: The buyer/End-User: Shenzhen LOHAS Supply Chain Management Co., Ltd. ADD: Tel No. : Fax No. : The seller: ADD: The Contract is concluded and signed by the Buyer and Seller on , in Hong Kong.". The name of the contract starts at the mentioned index in the answer.
Now, solve this: -8- 9
EXECUTION COPY
11.6. COUNTERPARTS. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
11.7. INTELLECTUAL PROPERTY RIGHTS, CONFIDENTIALITY AND NON-USE. The Professional acknowledges her obligations under the provisions of the Intellectual Property Rights Confidentiality and Non-Use Obligations Agreement attached hereto as Exhibit A and made a part hereof by this reference. The rights and obligations of the parties set forth in Exhibit A shall survive the termination or expiration of this endorsement agreement, regardless of cause or circumstances of the termination or expiration.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
SQUARE TWO GOLF, INC.
By: /s/DOUGLAS A. BUFFINGTON --------------------------------- Douglas A. Buffington President
PROFESSIONAL
/s/ KATHY WHITWORTH ------------------------------ Kathy Whitworth
-9- 10
EXECUTION COPY
EXHIBIT A
Intellectual Property Rights Confidentiality and Non-Use Obligations Agreement
This Agreement by and between SQUARE TWO GOLF INC., a New Jersey corporation (the Company) and KATHY WHITWORTH, an individual residing at 302 La Mancha Court, Santa Fe, New Mexico 87501 (the Recipient), is part of the Endorsement Agreement of the parties. In consideration of and as an inducement for the Company entering into said Endorsement Agreement with Recipient:
(a) Recipient acknowledges and agrees that communications for the purpose of proposing to work for or working for the Company have in the past or will entail the disclosure, observation and display to Recipient of information and materials of the Company that are proprietary, confidential and trade secret, which include, but are not limited to, golf equipment marketing plans, research, development and designs, computer software, screens, user interfaces, systems designs and documentation, processes, methods, fees, charges, know-how and any result from the work performed by Recipient or the Company, new discoveries, Intellectual Property (as defined below) and improvements to the Company's products made for or on behalf of the Company (all of which, singly and collectively, Information).
With regard to such Information, whether or not labeled or specified as confidential, proprietary or trade secret, Recipient agrees:
(i) to use the Information solely for the purpose of making proposals to or working under contracts with the Company; and
(ii) not to disclose or transfer the Information to others without the Company's written permission.
(b) Recipient will not be prevented from using or disclosing Information:
(i) which Recipient can demonstrate, by written records, was known to it before the disclosure or display of the Information by the Company to Recipient; or
(ii) which is now, or becomes in the future, public knowledge other than by breach of this Agreement or the endorsement agreement by Recipient, its employees or agents; or
(iii) that is lawfully obtained by Recipient from a source independent of the Company, which source was lawfully in possession of the Information and which source had the unrestricted right to disclose or display the Information to the Recipient; or
(iv) that is required by legal process to be disclosed, provided that Recipient will timely inform the Company of the requirement for disclosure, will permit the Company to attempt, by appropriate legal means, to limit such disclosure and will itself
A-1
11
EXECUTION COPY
use appropriate efforts to limit the disclosure and maintain confidentiality to the extent possible.
(c) The confidentiality and non-use obligations of Recipient will remain in effect after all work for the Company has been completed.
(d) All Information, including any copies thereof, in any media, in the possession or control of Recipient and Information embodied or included in any software or data files loaded or stored on computers in the possession or control of Recipient, its agents or employees, shall be removed and returned to the Company upon demand, but no later than the completion of work for the Company.
(e) Recipient agrees that she will not copy the Information in whole or in part or use all or any part of the Information to reverse engineer, duplicate the function, sequence or organization of the Information for any purpose without the prior written permission of the Company.
(f) Recipient further acknowledges and agrees that all new discoveries, inventions, improvements, processes, formulae, designs, drawings, training materials, original works of authorship, photos, video tapes, electronic images, documentation, trademarks and copyrights (the Intellectual Property), that may be developed, conceived, or made by Recipient, alone or jointly with others during her work for the Company, shall be the exclusive property of the Company and shall be deemed a work for hire. Recipient hereby assigns and agrees to assign all Recipient's rights in any Intellectual Property to the Company. Recipient hereby grants to the Company power of attorney for the purpose of assigning all Recipient's rights in Intellectual Property to the Company for the purposes of filings, registrations and other formalities deemed necessary by the Company to prosecute, protect, perfect or exploit its ownership and interests in Intellectual Property. Recipient further agrees to execute, acknowledge and deliver any documentation, instruments, specifications or disclosures necessary to assign, prosecute, protect, perfect or exploit the Company ownership of Intellectual Property.
(g) Recipient acknowledges and agrees that the Company possesses valuable know-how, proprietary, confidential and trade secret Information that has been procured or developed by the Company at great expense and that its unauthorized disclosure would result in substantial damages to the Company that may not be adequately compensated by monetary relief. Accordingly, Recipient hereby consents to the jurisdiction of the Federal and County Courts in Essex County, New Jersey and agrees that the Company may seek temporary restraining orders against it or other extraordinary relief necessary to protect the Information.
A-2
Question: Highlight the parts (if any) of this contract related to Ip Ownership Assignment that should be reviewed by a lawyer. Details: Does intellectual property created by one party become the property of the counterparty, either per the terms of the contract or upon the occurrence of certain events?
Solution:
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6148
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task598_cuad_answer_generation
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NIv2
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fs_opt
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validation
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Detailed Instructions: Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
See one example below:
Problem: Tweet: @anonymized_account @anonymized_account @anonymized_account Gdzie jest @anonymized_account . Brudziński jesteś kłamcą i marnym kutasem @anonymized_account, Question: Does the tweet contain cyberbullying (harmful) content?
Solution: Yes
Explanation: The tweet contains Bullying content
Problem: Tweet: RT @anonymized_account Robert Biedroń robiący sobie selfie z narodowcem w koszulce „zakaz pedałowania” to mój mood , Question: Is the tweet free of any cyberbullying (harmful) content?
Solution:
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Yes
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task839_cdt_classification
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NIv2
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fs_opt
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train
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You will be given a definition of a task first, then an example. Follow the example to solve a new instance of the task.
Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
Tweet: @anonymized_account @anonymized_account @anonymized_account Gdzie jest @anonymized_account . Brudziński jesteś kłamcą i marnym kutasem @anonymized_account, Question: Does the tweet contain cyberbullying (harmful) content?
Solution: Yes
Why? The tweet contains Bullying content
New input: Tweet: jakim trzeba być zjebem zeby myśleć ze bedzie rehabilitacja dla osób ktorych nawet nie stać zeby dojechać , Question: Does the tweet contain cyberbullying (harmful) content?
Solution:
|
No
|
task839_cdt_classification
|
NIv2
|
fs_opt
| 0
|
train
|
Teacher:Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
Teacher: Now, understand the problem? Solve this instance: Tweet: Urban 120 tyś za jakieś serce jezuska , a za wieszanie na szubienicy wizerunków europosłów nawet nie wszczęto postępowania , Question: Does the tweet contain cyberbullying (harmful) content?
Student:
|
No
|
task839_cdt_classification
|
NIv2
|
zs_opt
| 6
|
train
|
Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
[Q]: Tweet: @anonymized_account Albo: \n- Jaki tytuł miała ta piosenka?\n- Która?\n- No ta \"na na na naa naaa na. , Question: Does the tweet contain cyberbullying (harmful) content?
[A]: No
[Q]: Tweet: @anonymized_account Już nic nie będzie takie samo. , Question: Does the tweet contain cyberbullying (harmful) content?
[A]: No
[Q]: Tweet: @anonymized_account @anonymized_account @anonymized_account Mamy swoich, proszę nie podsyłać biskup Paetz zadbał, baranek boży , Question: Does the tweet contain cyberbullying (harmful) content?
[A]:
|
No
|
task839_cdt_classification
|
NIv2
|
fs_opt
| 5
|
train
|
Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
One example: Tweet: @anonymized_account @anonymized_account @anonymized_account Gdzie jest @anonymized_account . Brudziński jesteś kłamcą i marnym kutasem @anonymized_account, Question: Does the tweet contain cyberbullying (harmful) content?
Solution is here: Yes
Explanation: The tweet contains Bullying content
Now, solve this: Tweet: @anonymized_account Krzyż przeciw prezydenturze, krzyż obłędu , Question: Is the tweet free of any cyberbullying (harmful) content?
Solution:
|
Yes
|
task839_cdt_classification
|
NIv2
|
fs_opt
| 6
|
train
|
Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
One example: Tweet: @anonymized_account @anonymized_account @anonymized_account Gdzie jest @anonymized_account . Brudziński jesteś kłamcą i marnym kutasem @anonymized_account, Question: Does the tweet contain cyberbullying (harmful) content?
Solution is here: Yes
Explanation: The tweet contains Bullying content
Now, solve this: Tweet: @anonymized_account Kurwa! Co to jest? Bo nie kumam?😂😂😂😂😂😂😂😂 , Question: Does the tweet contain cyberbullying (harmful) content?
Solution:
|
No
|
task839_cdt_classification
|
NIv2
|
fs_opt
| 6
|
train
|
Given the task definition and input, reply with output. Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
Tweet: @anonymized_account @anonymized_account Lektura?! To powinno być karalne. , Question: Does the tweet contain cyberbullying (harmful) content?
|
No
|
task839_cdt_classification
|
NIv2
|
zs_opt
| 5
|
train
|
Instructions: Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
Input: Tweet: @anonymized_account @anonymized_account @anonymized_account ale ty debil jesteś, a o Twoich lajkujących i dających RT nie wspomnę. , Question: Does the tweet contain cyberbullying (harmful) content?
Output:
|
Yes
|
task839_cdt_classification
|
NIv2
|
zs_opt
| 3
|
train
|
Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
[Q]: Tweet: @anonymized_account Ale to Lech dwukrotnie zapewnił Legii mistrzostwo 😄 , Question: Is the tweet free of any cyberbullying (harmful) content?
[A]: Yes
[Q]: Tweet: @anonymized_account @anonymized_account po komentarzach widać że dla tych dzieci nie ma już ratunku.Współczuje rodzicom. , Question: Is the tweet free of any cyberbullying (harmful) content?
[A]: Yes
[Q]: Tweet: RT @anonymized_account PZPR - Płatni Zdrajcy i Pachołki Rosji ! #woronicza17 , Question: Is the tweet free of any cyberbullying (harmful) content?
[A]:
|
No
|
task839_cdt_classification
|
NIv2
|
fs_opt
| 5
|
test
|
Q: Indicate if the following Polish tweet contains cyber-bullying content with 'Yes'; otherwise, respond with 'No'.
Tweet: Już wiadomo, dlaczego Piotr Stokowiec jednak ściągnął do Lechii Pawła Habrata. , Question: Is the tweet free of any cyberbullying (harmful) content?
A:
|
Yes
|
task839_cdt_classification
|
NIv2
|
zs_opt
| 7
|
validation
|
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