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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.
Exhibit 10.6 ATTACHMENT A ERCHONIA CORPORATION EXCLUSIVE DISTRIBUTOR AGREEMENT
This agreement (Agreement) is made by and between Erchonia Corporation. (Erchonia) whose address is 650 Atlantis Rd., Melbourne, Florida, USA, 32904 and InnerScope Hearing Technologies Inc, (Distributor) whose address is 2151 Professional Drive, Second Floor, Roseville, California, USA, 95661 hereafter referred to collectively as the (Parties).
Recitals
A. Erchonia is engaged in, among other things, the business of developing and promoting low level lasers. Erchonia desires to retain Distributor to promote, distribute and sell such equipment listed in Schedule A (the Products). B. Distributor is engaged in the business of, among other things, selling medical products and services, specifically for the treatment of hearing disorders. C. Distributor desires to obtain the exclusive right to distribute the Products pursuant to the terms set for in this Agreement. D. The parties agree that these recitals shall be considered a term of this Agreement. NOW, THEREFORE, the parties agree:
1. Grant of License.
a. Subject to the terms set forth in this agreement, Erchonia grants Distributor the exclusive, non- transferable right and license to promote, distribute and sell the Products identified in Exhibit A to those type of customer specified in Exhibit B and only within the Territory specified in Exhibit B. Distributor shall only distribute or sell the Products to customers who are licensed health care professionals and meet the other requirements set forth in Exhibit B.
b. Erchonia retains the right, in its sole discretion, to add, delete, upgrade, or modify the Products from time to time. Upon receipt of notice of such change, Distributor shall cease to market and distribute earlier versions of the Products and/or Products deleted from Schedule A. Distributor will deliver, at Erchonia's expense, all recalled, discontinued or products otherwise rendered unmarketable (under the terms of this paragraph) to Erchonia. Erchonia will fully reimburse Distributor for all costs related to the cost of materials and products returned to Erchonia
2. Obligations of Distributor.
a. Distributor shall use its best efforts to market, promote and sell the Products to the authorized customers in the Filed of Use and in the Territory during the term of this agreement.
b. Distributor agrees that during the term of this agreement it meet the minimum performance goals set forth in Exhibit C to this agreement. Failure to meet these minimum performance goals for any period, shall, at Erchonia's option (i) be considered a breach of this agreement for which Erchonia shall have all the rights and remedies provided for herein upon a breach of this agreement, including termination of this agreement, or (ii) shall give Erchonia to terminate or limit the exclusivity provisions of this agreement
c. Upon Erchonia's reasonable request, Distributor shall consult with Erchonia regarding Distributor's marketing and promotion efforts in the Territory and Field of Use and shall cooperate with Erchonia's reasonable requests regarding Distributor's marketing and promotional efforts.
d. Distributor shall maintain appropriate records concerning the sales of the Products. Such records shall include at a minimum the name, address and telephone number of each customer, the date of sale, a listing of the Products sold to each customer. Upon Erchonia's request, Distributor shall provide Erchonia with regular periodic reports including the information described in this paragraph. All such information shall be available for inspection by Erchonia, upon reasonable notice. Distributor shall also maintain such other records related to sales of the Products as Erchonia may reasonably request.
e. Distributor shall pay for all products purchased in a timely manner. Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
f. Distributor shall not, and may not permit any other person, including customers, to reproduce, distribute, sell or dispose of the Products, in whole or in part, except as expressly permitted under this Agreement.
g. Distributor will at all times be and represent itself to be an independent distributor, not an agent or employee of Erchonia.
h. Distributor may not make any contracts or commitments on behalf of Erchonia nor make any warranties or other representations regarding the Products other than those authorized herein.
i. Distributor must adhere to and comply with any use recommendations or restrictions for the Products as indicated or recommended by Erchonia. Distributor shall not make any statements, representations, or recommendations inconsistent with any use restriction or limitation.
j. Distributor shall not sell or export the Products outside the United States without prior written consent of Erchonia. To the extent sales of the Products outside the United States are permitted, Distributor will be solely responsible to comply with all applicable import and export laws and regulations.
k. Distributor shall promptly notify Erchonia of any complaint about negative, unwanted, deleterious, or other side effects due to the use of the Products, including the complainant's name, contact information, and date of complaint.
l. During the term of this agreement Distributor shall at all time act in responsible and professional manner. Distributor shall not do anything which is contrary to or which in Erchonia's reasonable business judgment is harmful to its honor, goodwill or reputation.
m. Distributor shall at all times comply with all applicable laws and regulations.
3. Restriction on Promotion of Competing Products. During the term of this agreement, Distributor shall not market, sell advertise or promote the sale or use of any product or device which is competitive with or substantially similar to the Products, without the prior express written consent of Erchonia, nor shall they assist any third party in doing so. Notwithstanding the foregoing, to the extent Distributor or Distributor's customer is a licensed health care professional or licensed health care practitioner, nothing in this paragraph shall prevent or limit Distributor or Distributor's customer from exercising their independent medical judgment with regard to the treatment of any patient.
4. Orders, Payment, and Shipment.
a. Erchonia agrees to provide Products to Distributor pursuant to orders placed by Distributor in the form of individual purchase orders issued by Distributor to Erchonia. Such purchase orders shall set forth the quantity of each product ordered, the required delivery date, and the point of delivery. The price for the Products shall be as designated in Schedule A. Erchonia may revise its prices from time to time and deliver a written 90 day notice of the reasonable price revision to Distributor; provided that Erchonia agrees that the prices listed in Exhibit A shall not be increased during the first 90 days of this agreement.
b. Erchonia shall submit invoices to Distributor after or concurrent with shipment of Products to Distributor at the delivery address. Distributor shall pay half (1/2) of the purchase price prior to shipment and the remaining balance 30 days after shipment of the Products. Payments received after the 30 day calendar period will be subject to a late fee of 1.5% of the invoice amount. All payments shall be made in U.S. Dollars.
c. Distributor is responsible for all shipping costs and applicable sales taxes. Distributor is also responsible for all customs and duties applicable to any sales of the Products outside the United States, to the extent such sales are authorized or permitted.
5. Expenses and Taxes.
a. Distributor is responsible for any out-of-pocket expenses incurred including but not limited to Products for demonstration, Products for treatment, sales and promotional material, seminar costs including room rental, and travel-related expenses.
b. Distributor is responsible for all federal, state and local taxes attributable to compensation received
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
pursuant to this Agreement, including sales, income, social security, and unemployment.
6. Term and Termination.
a. Unless terminated earlier as provided in this agreement, this Agreement shall have an initial term of three (3) years. This agreement shall automatically renew for a period of three (3) years and upon the parties mutual agreement on new minimum performance goals for the renewal period.
b. Either party may terminate this Agreement in the event of a material breach by the other party, provided the breaching party is first given reasonably detailed, written notice of the breach. If the breach is not cured within ten days of such notice, the Agreement will terminate immediately.
c. This Agreement may be terminated immediately by Erchonia under any of the following conditions: (a) if the Distributor is declared insolvent or bankrupt; (b) if a petition is filed in any court to declare Distributor bankrupt or for reorganization under the Bankruptcy Law or any similar statute and such petition is not dismissed within 30 days.
d. Upon termination of this Agreement by either party, Distributor shall immediately cease using the Trademarks (defined below) and discontinue all representations that it is an authorized distributor of the Products or is in anyway affiliated with Erchonia.
e. Except upon termination due to Distributors breach of this agreement, Erchonia will complete delivery of all purchase orders accepted by it prior to termination of this agreement; provided that Distributor shall remain liable for full payment of all such orders.
f. The provisions of paragraphs 2 (c) (reporting), 7 (Confidentiality), 8 (Protection of Intellectual Property, 10 (Warranty; Limitation of Liability), 11 (Indemnification), 12 (General Provisions) shall survive termination of this agreement.
7. Confidentiality.
a. In connection with this Agreement, the Distributor will have disclosed to it or otherwise have access to information that is confidential and proprietary to Erchonia. Such information includes but is not limited to Product designs, methods and processes, know-how, business or marketing strategies, Product plans, plans for research and development, development tools, financial information, production costs and information, and supplier and customer lists and information and medical research conducted in pursuit of intended medical applications of the product.
b. Distributor will not copy, reproduce, disclose, disseminate or provide any confidential information to any third party, without the prior written consent of Erchonia. In addition, Distributor agrees that it will use such confidential information only for the purpose of carrying out its obligations under this agreement. Upon termination of this agreement for any reason, Distributor will return all such confidential information and any copies of it to Erchonia and will remove and delete any such confidential information for any computers, computer systems or other electronic, magnetic or optical media in its possession or control.
c. Notwithstanding the above, the following materials will not be deemed confidential:
i. Information which was in the public domain at the time of disclosure
ii. Information which was published or otherwise became part of the public domain after disclosure to the Distributor through no fault of the Distributor; and
iii. Information which was received from a third party who did not acquire it, directly or indirectly, from Erchonia under an obligation of confidence except where required by law.
8. Protection of Intellectual Property.
a. Ownership of all applicable copyrights, trade secrets, patents and other intellectual property rights in the Products are and shall at all times remain vested in Erchonia, its licensors or assigns.
b. Distributor shall promptly inform Erchonia of any suggested modifications or improvements to the Products and shall, upon Erchonia's request and at Erchonia's expense, execute any documents necessary or appropriate to assign or confirm that all intellectual property rights in any modification
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
or improvement related to the Products are fully vested in Erchonia.
c. Distributor shall not modify nor create or attempt to create, by reverse engineering or otherwise, the Products supplied hereunder, or adapt the Products in any way for other uses without Erchonia's prior written consent
d. Several of the Products may be protected by one or more U.S. or international patents. Distributor shall take reasonable steps to ensure that all patent markings and/or notices for or related to the Products are properly placed on the Products, and on any advertising or marketing materials for the Products, and it shall not remove any such markings, notices or labels from any of the Products or related materials or related advertising or marketing materials.
9. Use of Erchonia Trademarks.
a. All trademarks, including service marks, trade names and trade address that Erchonia uses in connection with the license granted hereunder (the Trademarks) are and remain the exclusive property of Erchonia. Nothing contained in this Agreement shall be deemed to give Distributor any right, title or interest in any Trademark. The Trademarks include but are not limited to: the names Erchonia, Erchonia Medical, the phrase Erchonia, Designs Into the Future, the Erchonia logo, packaging design, and Product design.
b. During the term of this Agreement, Erchonia grants Distributor a non-exclusive, non-transferable license to use the Trademarks for advertising and promotion of Products. Distributor shall use the Trademarks according to quality standards defined by Erchonia which shall be reasonable and shall be no greater than the standards used by Erchonia for its own advertising and promotion.
c. Upon Erchonia's request, the Distributor shall at its expense deliver to Erchonia representative samples of labels, advertisements, catalogs, spec sheets, and the like, containing the Trademarks, and to inspect all of Distributors websites, social media accounts and any online information posted by Distributor, to ensure that such Trademarks are used only in a manner complaint with the quality standards. Should such material fail to meet the standards set by Erchonia, as determined by Erchonia in its sole discretion, Distributor shall not use and shall withdraw and retract any promotion or advertising that Erchonia finds unsuitable and will at its expense destroy such materials or make them compliant.
d. All goodwill associated with such trademark use by Distributor inures to the benefit of Erchonia.
10. Warranty; Limitation of Liability.
a. Distributor Warranty. Distributor represents that it has requisite knowledge and experience to provide the products and services contracted for herein.
b. Erchonia Warranty and Warranty Limitations: Other than the written warranty accompanying the Products, Erchonia DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
c. IN NO EVENT SHALL Erchonia BE LIABLE FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGE, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES UNDER ANY CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM MALFUNCTION OR DEFECTS IN THE PRODUCTS.
11. Indemnification.
a. Erchonia shall indemnify, defend and hold Distributor harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, incurred by Distributor as a result of any claim or proceeding against Distributor arising out of or based upon: (i) a claim that the Products infringe upon any U.S. patent, trademark, copyright or other intellectual property rights of any third party, (ii) the products fail to comply with applicable federal law or regulation.
b. Distributor shall promptly notify Erchonia of any suit or claim by a third party relating to the Products or use of the Products and Distributor shall promptly furnished Erchonia with a copy of each
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
communication, notice or other action relating to said claim. Erchonia shall have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related to any claim for which Erchonia is obligated to indemnify Distributor at Erchonia expense; and Distributor shall provide reasonable information and assistance requested by Erchonia in connection with such claim or suit.
c. Distributor shall indemnify, defend and hold Erchonia harmless from any claims, demands, liabilities or expenses, including reasonable attorneys' fees, incurred by Erchonia as a result of any claim or proceeding against Erchonia arising out of or based upon (i) the combination, operation or use of the Products with any hardware, products, programs or data not supplied or approved in writing by Erchonia, if such infringement would have been avoided but for such combination, operation or use; (ii) the modification of the Products by Distributor or its Customers; (iii) any breach of this agreement by Distributor; or (iv) any negligent, grossly negligent, or willful or reckless acts by Distributor, or any of its officers, employees, agents or representatives.
12. General Provisions:
a. Assignment. Distributor may not assign to any person any duties or obligations arising under this Agreement without Erchonia's prior written consent (which consent may be withheld in Erchonia's sole discretion). Notwithstanding the foregoing, the Distributor may engage individuals, at the sole expense and responsibility of the Distributor, to assist the Distributor in performing any of the Distributor's duties or obligations arising under this Agreement. Erchonia may not assign any duties or obligations arising under this Agreement, except to a successor who acquires substantially all of the assets of Erchonia.
b. Arbitration. The parties intend to negotiate in good faith and resolve any dispute arising under this Agreement. In the event the parties are unable to resolve any such dispute to binding arbitration for settlement in accordance with the rules of the American Arbitration Association, the arbitrator will determine the manner in which the parties are to pay the costs of such arbitration, including reasonable attorneys' fees
c. Notices. All notices and communications required under this Agreement will be in writing and will be delivered in person, faxed or mailed, postage prepaid, by overnight express carrier, to the address of the parties listed at the beginning of this Agreement, or to any other address as such party designates in a written notice to the other party. All notices sent pursuant to the terms of this section will be deemed received on the date of delivery if personally delivered or faxed, or if sent by overnight express carrier, on the next business day immediately following the day sent
d. Severability. The provisions of this Agreement will be deemed severable and the invalidity or unenforceability of any provision will not affect the validity or enforceability of any other provisions hereof.
e. Governing Law. This Agreement shall be governed in all respects by the laws of the United States and the State of Florida, except for conflict of laws provisions. The parties agree that for any dispute, controversy or claim arising out of or in connection with this Agreement, venue and personal jurisdiction shall be in the federal or state court with competent jurisdiction located in Brevard Country, Florida.
f. Entire Agreement. This Agreement constitutes and expresses the entire agreement and understanding between the parties hereto with respect to the subject matter, all revisions discussions, promises, representation, and understanding relative thereto, if any, being herein merged.
Dated: .
Erchonia Medical Corporation. By _____________________ Its _____________________
Distributor: ________________________ InnerScope Hearing Technologies, Inc. By _______________________ Its _______________________ Exhibits Exhibit A - Products and Pricing Exhibit B - Territory and Field of Use
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
Exhibit C - Minimum Performance Goals Rev. IMS 8/29/2018 3:38 PM
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
SCHEDULE A ERCHONIA CORPORATION Products and Pricing Erchonia 3LT Laser - Hearing Products Version (product may be renamed) All prices are per unit sold excluding freight, duty, and taxes. Prices will remain in effect for the period of the initial 5 year term. Wholesale Price Item To Be determined when successful research project is complete. The parties agree to cooperate in developing a private label version of the above products on the terms the parties may agree. The private label products shall be versions of the above products labeled and packaged to bear the Distributor's name or the Distributor's trade name. In addition, customized packaging for the private label products may also be developed on the terms agreed to by the parties. Pricing for the private labeled products may be modified due to any increased costs of production or packaging for the private labeled products. In addition, Erchonia may require reasonable minimum purchasing requirements for each run of private labeled products.
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
EXHIBIT B
Licensed Territory
Worldwide
Field of Use
The products will be sold only for the use in the treatment of hearing disorders.
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
Exhibit C
Minimum Performance Goals
Minimum Performance won't be determined until FDA 50k market clearance is obtained. At that time parties will operate in good faith to set performance goals.
Note: Performance goals to begin 120 days after receipt of FDA market clearance.
Source: INNERSCOPE HEARING TECHNOLOGIES, INC., 8-K, 11/9/2018
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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Exhibit 10.2
STRICTLY PRIVATE AND CONFIDENTIAL
1 April, 2020
THERAVANCE BIOPHARMA UK LIMITED and BRETT HAUMANN
SERVICE AGREEMENT
THIS AGREEMENT is entered into between the parties on 1 April, 2020.
PARTIES (1) Theravance Biopharma UK Limited is a company registered in the United Kingdom and whose registered office is at 12 New Fetter Lane, London, United Kingdom, EC4A 1JP (the Employer); and (2) Brett Haumann of [address removed] (the Executive).
AGREED TERMS 1. Definitions 1.1 The following terms shall have the following meanings unless the context requires otherwise: Capacity means as agent, consultant, director, employee, owner, partner, shareholder or otherwise;
Commencement Date means 1 April 2020;
Confidential Information means trade secrets, knowhow and information (whether or not recorded in documentary form, or stored on any magnetic or optical disk or memory) relating to the business, products, affairs and finances of any Group Company or any of their suppliers, customers, agents, shareholders or management, including (but not limited to): (a) business, financial or strategic information or plans; (b) technical data and know-how; (c) litigation, potential litigation or legal advice; (d) employment terms or pay of the Executive or others; (e) commercial terms with business partners; (f) products or services in the course of development; (g) processes or know-how; (h) details of any joint ventures, which (in each case) the Executive creates, develops, learns, receives or obtains in connection with the Executive's employment before or after the date of this agreement, whether or not such information is marked confidential;
Copies means copies or records of any Confidential Information in whatever form (including, without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) including, without limitation, extracts, analysis, studies, plans, compilations or any other way of representing or recording and recalling information which contains, reflects or is derived or generated from Confidential Information;
Garden Leave means any period during which the Company has exercised its rights under clause 19; Group Company means the Company and any group undertaking (as such term is defined in section 1161(5) of the Companies Act 2006) of the Company in any jurisdiction from time to time; Intellectual Property Rights means patents, rights to Inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case
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whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world; Invention means any invention, idea, discovery, development, improvement or innovation, whether patentable or capable of registration, and whether or not recorded in any medium; Permitted Investment has the meaning given to it in clause 14.2; and Termination means the termination of the Executive's employment under this Agreement however caused, whether lawful or not, and Termination Date means the date of Termination. 1.2 In this Agreement, unless the context otherwise requires: 1.2.1 words in the singular include the plural and in the plural include the singular; 1.2.2 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms; 1.2.3 the headings are inserted for convenience only and shall not affect its construction; 1.2.4 reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension or re-enactment and includes any subordinate legislation for the time being in force made under it; 1.2.5 reference to any regulator or other body includes a reference to any successor. 2. Term of Employment 2.1 The Executive's employment with the Company will commence on the Commencement Date and shall continue, subject to the remaining terms of this Agreement, until terminated by either party giving the other the following minimum advance written notice: 2.1.1 6 weeks' notice;
2.1.2 such other longer period as required by law.
2.2 The Executive's period of continuous employment for the purposes of the Employment Rights Act 1996 commenced on 29 October 2013. 3. Pre-Conditions and Warranties The Executive's employment under this Agreement is conditional upon the Executive having produced to the Company for inspection original documents proving the Executive's right to work lawfully in the United Kingdom.
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4. Duties 4.1 The Executive shall serve as Chief Medical Officer and Senior Vice President, Development (reporting to Rick Winningham) or in such other role as the Company may determine. 4.2 During the employment the Executive shall: 4.2.1 devote the whole of their working time, attention and abilities to the business of the Company and any other Group Company for which the Executive is required to work from time to time; 4.2.2 promptly make such reports to the Company in connection with the Executive's duties or other such matters at such times as are reasonably required; 4.2.3 faithfully and diligently exercise such powers and perform such duties for each Group Company as may from time to time be assigned by the Company; 4.2.4 comply with all reasonable and lawful directions given by the Company; 4.2.5 report their own wrongdoing and any wrongdoing or proposed or potential wrongdoing of any other employee, officer or consultant of any Group Company to the Company immediately on becoming aware of it; 4.2.6 use their utmost endeavours to promote, protect, develop and extend the business of the Company; 4.2.7 comply with their common law, statutory, regulatory and fiduciary duties as well as any policies put in place by the Company from time to time; 4.2.8 exercise the Executive's powers jointly with such other person that the Company may appoint; and 4.2.9 at all times conduct the business of each Group Company for which the Executive is responsible in a lawful and ethical manner. 5. Place of Work 5.1 The normal place of work of the Executive is at the Executive's home (or such other location as agreed between the Company and the Executive from time to time). 5.2 The Executive agrees to travel on any business of any Group Company (both within the United Kingdom and abroad) as may be required for the proper performance of the Executive's duties. 5.3 The Executive shall not be required to work outside the United Kingdom for any continuous period of more than one month. If the Executive is required to do so, their terms of employment during this time will be communicated with them separately.
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6. Hours of Work 6.1 The Executive shall work such hours as are required for the proper and efficient performance of their duties including the Company's normal business hours which are 9am until 5:30pm from Monday to Friday. 6.2 The Executive agrees that the limit on weekly working time contained in Regulation 4 of The Working Time Regulations 1998 does not apply because Regulation 20 applies to the Executive. 7. Salary 7.1 The Executive shall be paid a basic salary of £448,903 per annum subject to deductions required by law. The Executive's salary shall accrue from day to day, shall be payable in equal monthly instalments in arrears on or about the last day of each month. 7.2 The salary paid to the Executive will be reviewed on or around 1 April 2021. The Company is under no obligation to award an increase following a salary review. 7.3 The Company may deduct from the salary or any other sums payable to the Executive any money owed to any Group Company by the Executive. The Executive will reimburse the Company upon demand for the personal use of any Company credit card, any other unauthorised transactions entered into by the Executive or any overpayments made to the Executive. 8. Expenses The Company shall reimburse any reasonable travel expenses wholly, exclusively and necessarily incurred by the Executive in the proper performance of the Executive's duties under this Agreement subject always to the rules and policies of the Company from time to time and subject to the Executive providing receipts or other evidence of payment as the Company may require. 9. Annual Bonus 9.1 The Executive shall be entitled to participate in an annual bonus plan on such terms and with such individual, team or corporate targets as the Company may communicate from time to time which shall provide the Executive with an opportunity to be considered each year for a bonus equivalent to up to 50% of the Executive's basic salary. The Company shall be entitled to determine whether such targets have been met and where such targets have been met in full or part shall have a discretion to determine whether to make payments and, if so, in what amount and when. 9.2 The Company may suspend, alter or discontinue any bonus payment(s) or any bonus plan and its eligibility requirements at any time (whether generally or in relation to the Executive only) at its absolute discretion. If the Executive receives any bonus payment the Company is not obliged to make any further bonus payments and any bonus payment will not become part of the Executive's contractual remuneration or fixed salary. In order to be eligible to receive a bonus payment, the Executive must be in the Company's employment and not under notice, given or received on the date that the bonus is paid. Bonus entitlement does not accrue in the course of a year, and the Executive is not entitled to
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payment of a bonus, or any pro rata portion of it, if the Executive leaves employment prior to the date that the bonus is paid. 9.3 The Executive shall not be eligible to be considered for any bonus nor shall any bonus be paid if the Executive is subject to any disciplinary action or investigation at the date any bonus is being considered and/or at the bonus payment date (as applicable) although the Company may reconsider the matter upon the conclusion of the disciplinary action or investigation in question. 10. Pensions 10.1 The Company intends to comply with the employer pension duties in respect of the Executive in accordance with Part 1 of the Pensions Act 2008. 10.2 The Executive's participation in the Company's pension arrangements is subject to the rules of the relevant scheme and the statutory requirement as each are varied from time to time. In particular the Company reserves the right to change the scheme provider, the funds available, the charging structure and the default fund from time to time. 11. Benefits During the course of employment the Executive may participate in benefit plans operated by the Company. The Executive's participation in any such benefit plans are subject to the terms and conditions of any such plan. The Company reserves the right to discontinue, vary or amend each benefit plan (including the level of cover) at any time on reasonable notice to the Executive. 12. Holidays 12.1 The Executive shall be entitled to 28 days' paid holiday in each holiday year (which includes public holidays) to be taken at times convenient to the Company and authorised in advance. 12.2 The Company's holiday year runs from 1 January to 31 December. If the Executive's employment commences or terminates part way through a holiday year, the Executive's entitlement during that holiday year shall be calculated on a pro rata basis rounded up to the nearest whole day. 12.3 The Executive shall have no entitlement to any payment in lieu of accrued but untaken holiday except on Termination. The amount of such payment in lieu shall be 1/260 of the Executive's salary for each untaken day of entitlement. 12.4 If on Termination the Executive has taken in excess of their accrued holiday entitlement, the Company shall be entitled to recover from the Executive by way of deduction from any payments due to the Executive or otherwise, one day's pay for each excess day calculated at 1/260 of the Executive's salary. 12.5 If either party has served notice to terminate the employment, the Company may require the Executive to take any accrued but unused holiday entitlement during the notice period. Any accrued but unused holiday entitlement shall be deemed to be taken during any period of Garden Leave.
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13. Sickness 13.1 The Company may in its absolute discretion pay the Executive an amount equal to the Executive's normal basic pay (Company Sick Pay) for the first 3 months of sickness absence in any rolling 12-month period, subject to such conditions as the Company may specify. Company Sick Pay will include any entitlement to statutory sick pay or any benefits provided by virtue of any permanent health insurance scheme. Company Sick Pay is also subject to the Executive's compliance with this Agreement and will not be paid in respect of any period of illness that commences during the first 6 months of the Executive's employment or whilst the Company is addressing performance or disciplinary issues. 13.2 The Executive must comply with the Company's sickness absence notification procedures. Any period of absence of up to five days may be self-certified and any period of absence of more than five days must be supported by doctor's certificate. 13.3 The Executive consents to undergo a medical examination by a doctor nominated by the Company at the Company's request and expense. The Executive agrees that any report produced in connection with any such examination may be disclosed to the Company and the Company may discuss the contents of any such report with the relevant doctor. 13.4 The rights of the Company to terminate the Executive's employment under the terms of this Agreement apply even when such termination would or might cause the Executive to forfeit any entitlement to sick pay, permanent health insurance or other benefits. 14. Outside Activities and Interests 14.1 The Executive shall not during the employment except as a representative of the Company or with the Company's prior written consent (whether directly or indirectly, paid or unpaid) be employed, engaged, concerned or interested in any other actual or prospective business, organisation, occupation or profession. 14.2 Nothing in this Agreement shall prevent the Executive from holding an investment by way of shares or other securities to in any entity listed or dealt on a recognised stock exchange (a Permitted Investment) provided always that during the term of the employment the Permitted Investment shall not constitute more than 3% of the issued share capital of the entity concerned . 15. Confidential Information 15.1 Without prejudice to the Executive's common law and fiduciary duties, the Executive shall not during employment or at any time after Termination and whether for their own benefit or for the benefit of any third party: 15.1.1 use any Confidential Information; or 15.1.2 disclose any Confidential Information to any person, company or other organisation whatsoever, except in the proper course of their duties, as required by law or as authorised by the Company in writing.
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15.2 The Executive shall be responsible for protecting the confidentiality of the Confidential Information and shall use best endeavours to prevent the misuse of Confidential Information by others. 15.3 All Confidential Information and Copies shall be the property of the Company and the Executive shall not make any Copies save in the proper course of their employment. 15.4 Save as authorised by the Company, the Executive shall not make or publish any comment regarding to the business or affairs of any Group Company or any Group Companies' current or former employees or directors to the media (including on social media). 16. Intellectual Property 16.1 The Executive shall disclose to the Company details of all Inventions and of all works embodying Intellectual Property Rights made solely or jointly with others at any time during the term of the employment which relate to, or are capable of being used in, the business of any Group Company whether or not in the course of their ordinary duties and whether or not made in working time (together, the Company IP). The Executive acknowledges that all Intellectual Property Rights subsisting (or which may in the future subsist) in such Company IP shall automatically, on creation, vest in the Company absolutely. To the extent that the Company IP does not vest automatically in the Company the Executive hereby assigns all right, title and interest in the Company IP to the Company with full title guarantee by way of a present assignment of all future rights and shall otherwise hold them on trust for the Company. The Executive agrees promptly to execute all documents and to do all acts as may, in the opinion of the Company, be necessary or desirable to give the Company full benefit of this clause. 16.2 The Executive irrevocably waives all moral rights under the Copyright, Designs and Patents Act 1988 (and, to the fullest extent permitted by law, all similar rights in other jurisdictions) which the Executive has or will have in any Company IP. 16.3 By way of security for the Executive's obligations under this Agreement, the Executive irrevocably appoints the Company to be the Executive's attorney to execute any instrument or to do anything and generally to use the Executive's name for the purpose of giving the Company or i ts nominee the benefit of this clause. The Executive acknowledges in favour of a third party that a certificate in writing signed by the Company that any instrument or act falls within the authority conferred by this clause shall be conclusive evidence that such is the case. 16.4 The Executive agrees that the Executive's work for the Company will be the Executive's own original work and the Executive will not violate the intellectual property rights of third parties. The Company does not want and does not need any confidential information relating to any former employer of the Executive and the Executive agrees to not to copy, use or disclose such information. 17. Payment in Lieu of Notice 17.1 The Company may, in its sole and absolute discretion, terminate the Executive's employment under this Agreement at any time and with immediate effect by notifying the Executive that the Company is exercising its right under this clause 17 and that it will make a payment in l ieu of not ice (PILON) to the Executive. The Executive's employment will terminate immediately and any PILON due to the Executive in accordance with the
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provisions of this clause 17 will be paid within 28 days. The PILON will be equal to the basic salary (as at the Termination Date) which the Executive would have been entitled to receive under this Agreement during the notice period referred to at clause 2 (or, if notice has already been given, during the remainder of the notice period) less deductions required by law. 17.2 The Executive shall have no right to receive a PILON unless the Company has exercised its discretion in clause 17.1. 17.3 Notwithstanding clause 17.1, the Executive shall not be entitled to any PILON if the Company would otherwise have been entitled to terminate the Executive's employment under this Agreement without notice in accordance with clause 18. In that case the Company shall also be entitled to recover from the Executive any PILON already made. 18. Termination Without Notice 18.1 The Company may terminate the Executive's employment under this Agreement with immediate effect without notice and with no liability to make any further payment to the Executive (other than in respect of amounts accrued at the Termination Date) if in the reasonable opinion of the Company the Executive: 18.1.1 is guilty of gross misconduct; or 18.1.2 commits any serious or repeated breach or non-observance of any of the provisions of this Agreement or refuses to comply with any reasonable and lawful directions of the Company; or 18.1.3 commits any serious or repeated breach of the Company's policies or procedures; or 18.1.4 is grossly negligent or grossly incompetent in the performance of their duties; 18.1.5 is declared bankrupt or makes any arrangement with or for the benefit of their creditors or has a county court administration order made under the County Court Act 1984; or 18.1.6 is convicted of any criminal offence (other than an offence under any road traffic legislation in the United Kingdom or elsewhere for which a fine or non-custodial penalty is imposed); or 18.1.7 is no longer eligible to work in the United Kingdom; or 18.1.8 is guilty of any fraud or dishonesty or acts in any manner which brings or is likely to bring the Executive or any Group Company into disrepute or is materially adverse to the interests of any Group Company; or 18.1.9 makes any statement or other form of communication that disparages or undermines the goodwill or reputation of any Group Company. 18.2 The rights of the Company under clause 18.1 are without prejudice to any other rights that it might have at law to terminate the Executive's employment or to accept any breach of
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this Agreement by the Executive as having brought the Agreement to an end. Any delay by the Company in exercising it rights to terminate shall not constitute a waiver thereof. 18.3 The Company may suspend the Executive from any or all of the Executive's duties during any period in which the Company is investigating any disciplinary matter involving the Executive or while any disciplinary procedure or regulatory investigation is outstanding. Any such suspension shall not constitute disciplinary action. During any period of suspension, the Company may impose the same conditions that apply to Garden Leave. 19. Garden Leave 19.1 Following service of notice to terminate the employment by either party, or if the Executive purports to terminate the employment in breach of contract, the Company may by written notice place the Executive on Garden Leave for the whole or part of the remainder of the employment. 19.2 During any period of Garden Leave: 19.2.1 the Company shall be under no obligation to provide any work to the Executive and may revoke any powers the Executive holds on behalf of any Group Company; 19.2.2 the Executive shall continue to receive their basic salary but shall not be entitled to receive any bonus or other incentives in respect of the period of Garden Leave; 19.2.3 the Company may require the Executive to carry out alternative duties or to only perform such specific duties as are expressly assigned to the Executive, at such location (including the home of the Executive) as the Company may reasonably decide; 19.2.4 the Company may appoint another person to carry out the Executive's normal duties; 19.2.5 the Executive shall remain an employee of the Company and bound by the terms of this Agreement; 19.2.6 the Executive shall be contactable during each working day (except during any periods taken as holiday in the usual way); 19.2.7 the Company may exclude the Executive from any premises of any Group Company, require the Executive to return any Group Company property and remove the Executive's access from some or all of its information systems; and 19.2.8 the Company may require the Executive not to contact or deal with (or attempt to contact or deal with) any officer, employee, consultant, client or other business contact of any Group Company as it may reasonably determine. 20. Obligations Upon Termination 20.1 On Termination or, if earlier, at the start of a period of Garden Leave following the service of notice or purported Termination by the Executive, the Executive shall:
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20.1.1 immediately deliver to the Company all documents, books, materials, records, correspondence, papers, Copies, Confidential Information and other business information (on whatever media and wherever located) relating to the business or affairs of any Group Company or its business contacts, any keys and any other property of any Group Company, which is in the Executive's possession or control; 20.1.2 irretrievably delete any information relating to the business of any Group Company stored on any magnetic or optical disk or memory (including on any personal computer, personal device, personal email account or web account), and all matter derived from such sources which is in their possession or under their control outside the premises of the Company; 20.1.3 provide such handover of their duties as the Company shall consider appropriate; and 20.1.4 provide a signed statement confirming full compliance with the obligations under clauses 20.1.1 and 20.1.2 together with such reasonable evidence of compliance as the Company may request. 21. Post Termination Restrictions During the term of employment and for one (1) year thereafter, the Executive will not directly or indirectly, either themselves or through others, encourage or solicit any employee of the Company to leave the Company for any reason. This obligation shall not affect any responsibility the Executive has as an employee of the Company with respect to the bona fide hiring and firing of Company personnel. 22. Statutory Particulars 22.1 The Executive is subject to the Company's disciplinary and grievance procedures, copies of which are available upon request (although the Company reserves the right to deviate from these procedures in light of the Executive's seniority). These procedures do not form part of the Executive's contract of employment. 22.2 If the Executive wishes to raise a grievance or appeal a disciplinary decision the matter should be raised in writing with Rick Winningham. 22.3 There is no collective agreement which affects the Executive's employment or this Agreement. 23. Workplace Privacy 23.1 The Executive's attention is drawn to the Company's Privacy Notice which is available upon request. 23.2 The Executive consents to the Company monitoring their communication and electronic equipment including, without limitation, the Company's telephone, chat and e-mail systems, information stored on the Company's computer equipment (including all electronically stored information that is the property of the Company), recordings from the Company's closed circuit television cameras and any other computer equipment or other device used by the Executive in the performance of their duties.
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24. General 24.1 The Executive will, at the request of the Company at any time after the Termination Date, co-operate and provide assistance to any Group Company in any internal investigation, administrative, regulatory, quasi-judicial proceedings or any threatened or actual litigation concerning any Group Company where the Executive is aware of any facts or other matters which the Company reasonably considers is relevant to such process or legal proceedings (including, but not limited to, giving statements/affidavits, meeting with their legal and other professional advisers, attending any legal hearing and giving evidence) on the understanding that the Company will pay any reasonable expenses for which receipts and other supporting documents are provided to the reasonable satisfaction of the Company and provided any expense is authorised in advance by the Company). 24.2 If the Executive's employment is terminated at any time by reason of any reconstruction or amalgamation of any Group Company, whether by winding up or otherwise, and the Executive is offered employment with any concern or undertaking involved in or resulting from the reconstruction or amalgamation on terms which (considered in their entirety) are no less favourable to any material extent than the terms of this Agreement, the Executive acknowledges and agrees that there shall be no claim against the Company or any undertaking arising out of or connected with such termination. 24.3 This clause applies if the Executive subscribes for or is awarded shares in the Company or any Group Company or participates in any share option, restricted share, restricted share unit, long term incentive, carried interest, co-invest or any other form of profit sharing, incentive, bonus or equity plan or arrangement (each, an Incentive) or may do so. Upon Termination, the Executive's rights (if any) in respect of each Incentive shall be solely determined by the articles of association, rules or other documents governing each Incentive which are in force on the Termination Date and the Executive hereby irrevocably waives all claims or rights of action in respect of the loss of any rights or benefits under or in respect of any Incentive granted or not yet granted to the Executive (including any loss relating to the lapse of, or their ineligibility to exercise, any share options, the value of any shares, the operation of any compulsory transfer provisions or the operation of any vesting criteria)
24.4 A notice given to a party under this Agreement shall be in writing in the English language and signed by or on behalf of the party giving it. It shall be delivered by hand or sent to the party at the address given for that party in this Agreement, in the case of the Executive to their personal email address or as otherwise notified in writing to the other party. A notice given by email shall be deemed to take effect one hour after it is sent, a notice sent by first class post shall be deemed to take effect on the next working day and notice sent by courier upon delivery at the address in question. A notice required to be given to the Company under this Agreement shall not be validly given if sent by email. 24.5 This Agreement and any document referred to in it constitutes the entire agreement between the parties and supersedes and extinguishes all previous discussions, correspondence, negotiations, drafts, agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
24.6 The Executive agrees that in entering into this Agreement the Executive does not rely on and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not expressly set out in this
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Agreement. The Executive waives any claim for innocent or negligent misrepresentation or negligent misstatement including in respect of any statement set out in this Agreement. 24.7 No variation or agreed termination of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). If the Executive commences employment or continues in employment without executing a copy of this Agreement and fails to object within one month of the Commencement Date then the Executive will be deemed to have agreed to its terms. 24.8 The Executive shall not be contractually entitled to receive any benefit from the Company which is not expressly provided for by this Agreement. 24.9 This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same agreement. 24.10 The Contracts (Rights of Third Parties) Act 1999 shall only apply to this Agreement in relation to any Group Company. No person other than the parties to this Agreement and any Group Company shall have any rights under it and it will not be enforceable by any person other than those parties. 24.11 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. 24.12 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
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Signed by Rick E Winningham for and on behalf of Theravance Biopharma UK Limited
/s/ Rick E Winningham
Signature Signed as a deed by Brett Haumann in the presence of: /s/ Brett Haumann Signature
/s/ Connor Haumann Witness's Signature Name of witness Connor Haumann Address of witness [address removed] Occupation of witness Student
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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?
27816
Exhibit 10.1 NOTE: Certain information indicated with [***] in this document has been omitted from this exhibit because it is both (i) not material and (ii) would be competitively harmful if publicly disclosed. MASTER JOINT DEVELOPMENT AGREEMENT This Master Joint Development Agreement (Agreement) is between iBio Inc., a Public corporation, with a location at iBio Inc., 600 Madison Ave, Suite 01601 NY, NY 10022-1735 and Beijing CC-Pharming Ltd. of Beijing, China (CC-Pharming), a Chinese Corporation with a location at Shunyi District, Beijing, China, 101312, each of the foregoing being individually referred to as a Party and collectively as the Parties. WHEREAS, iBio and CC-Pharming wish to establish a long-term working relationship for various joint research and development projects (Projects) related to the development of various products, with the work for each Project to be described in a separate Statement of Work (SOW) agreed by the Parties; WHEREAS, iBio has developed and owns proprietary technology used to produce proteins using proprietary vector systems that support transient gene expression and protein production in plants, and iBio has developed and/or acquired additional proprietary biopharmaceutical technology, cGMP manufacturing expertise (iBio's Technology), and a facility design team that provides capabilities for application to the development of biotherapeutics; and WHEREAS, iBio and CC-Pharming, wish to develop one or more biopharmaceuticals Product(s) (each a Product) based on iBio's proprietary and patented plant-based protein production technology and know-how; WHEREAS, iBio and CC-Pharming wish to develop a long-term, mutually beneficial relationship for the production and sale of biopharmaceuticals in China and to form a collaborative business venture to be majority owned and controlled by CC-Pharming and minority owned by iBio; and NOW, THEREFORE, for good and valuable consideration as stated herein, the sufficiency of which is hereby expressly acknowledged by each Party, iBio and CC-Pharming agree as follows: 1.0 Limited Technology License 1.1 iBio hereby grants to CC-Pharming for the term of this Agreement, a nonexclusive, non- assignable, non-sublicensable, limited right and license to use iBio's Technology in order to manufacture, process, prepare, and obtain regulatory approval for the development and production of Product(s) and work to be performed under this Agreement. Each Product will be set forth in a separate Statement of Work in the form set forth in Appendix A, which will be signed by representatives of each Party with signing authority. Each phase of the project(s) will be subject to the terms and conditions set forth in this Agreement unless otherwise provided for or in a Statement of Work (SOW), including but not limited to project purpose, project phases, and a project budget.
Master Joint Development Agreement iBio CC-Pharming Page 1 of 12
Source: IBIO, INC., 8-K, 3/13/2020
1.2 No right or license is being conveyed to CC-Pharming to export Products or to otherwise use the Technology in any country other than China. 1.3 iBio will work with CC-Pharming to perform a thorough Manufacturing Development Program based from an initial comprehensive two- day charrette to be held at its subsidiary iBio CDMO LLC facility in Bryan, Texas with the goals of CC-Pharming understanding the definitive capital expenditure necessary and initiating a preliminary design for the first Product. iBio will provide an architect, construction supervisor, mechanical engineer and process engineer with knowledge of the iBio CDMO facility currently in operation in Bryan, Texas. 1.4 CC-Pharming hereby expressly acknowledges the validity and highly confidential and proprietary nature of iBio's Technology and technical information, know-how, documents, materials, software, vectors, constructs, trade secrets, and other valuable business or scientific information that iBio will share with CC-Pharming in order to fulfill the purpose of this Agreement, namely, to form a legal structure for a collaborative business venture in which CC-Pharming and iBio shall share revenue from product sales. iBio's double-digit percentage, minority interest in this structure will provide compensation to iBio for providing CC-Pharming with a license to use iBio's Technology and enabling know-how and will provide CC-Pharming with ongoing and mutually agreed technology transfer services relevant to the evolving business and Product(s) of the collaborative venture. 1.5 The parties agree that the first product focus of the joint business collaboration will be a bio-better or bio-similar version of the therapeutic monoclonal antibody, rituximab. iBio will provide all necessary gene expression and vector technology for the transient expression and cGMP manufacturing of this protein in plants and will also provide pilot plant design services, construction consulting, product and process development services, training, quality management system design, and clinical planning and regulatory consulting. The tasks to be conducted in the first stage of the joint business collaboration will apply specifically to the rituximab product candidate but will be applicable, in part, to additional products to be selected by mutual agreement for development, with the timeline for such work to be determined by CC-Pharming. 1.5 Any milestones or completion dates set forth in a Statement of Work will be estimates only, and are not binding on the Parties. 2.0 Coordinators and Governance Terms 2.1 Project Technical Coordinators will be appointed by each the Parties for each Statement of Work. The Project Technical Coordinators will be responsible for exchanging information with the other Party, coordinating any visits and arranging all other matters pertinent to that Statement of Work.
Master Joint Development Agreement iBio CC-Pharming Page 2 of 12
Source: IBIO, INC., 8-K, 3/13/2020
2.2 Agreement Administration. The Agreement administrator for each Party must be contacted regarding all business-related matters, including any proposed modifications to this Agreement, the phasing plan of the SOW, for each project. An iBio Agreement Administrator is to be named on or before the Effective Date of the First Phase of the SOW. A CC-Pharming Agreement Administrator is to be named on or before the Effective Date of the First Phase of the SOW. 2.4 Governance Terms 2.4.1 The Agreement Administrators shall oversee the overall direction and management of this Agreement and to provide guidance and direction when needed, which agreement shall be unanimous. The responsibilities of the Agreement Administrator for iBio and CC- Pharming will include the following: a) Perform oversight for each of the ongoing projects, per phase, under the SOW's. b) Agreement on any modifications to the tasks and responsibilities for an ongoing project under the SOW's, will fall under the oversight of the Agreement Administrators. c) Neither Agreement Administrator is authorized to modify or change any term or condition of the Agreement or the overall scope of work for any SOW. d) Review any disputes between or among the Parties, and, if resolution of the dispute cannot be achieved, escalate the dispute to the Designated Executives of iBio and CC-Pharming. Designated Executive means the executive designated by iBio and by CC-Pharming, who will be responsible for general oversight of the Agreement and for resolving issues that require escalation under this Agreement. iBio and CC-Pharming shall each inform the other of the name and contact information of their respective Designated Executives on or before the Effective Date of the first SOW. 2.4.2 The Agreement Administrators may agree to change the tasks, task responsibilities and milestones as set forth in a Statement of Work, provided the changes do not alter the overall scope of work in a phase of the SOW, which agreement shall not be unreasonably withheld. Any modifications to the overall scope of work of phase of the SOW must be reduced to writing as an amendment to the SOW and signed by authorized representatives of iBio and CC-Pharming. 2.4.3 The Agreement Administrators shall meet regularly as required during the term of this Agreement, but at least two (2) times each calendar year, at a mutually agreeable location, which agreement shall not be unreasonably withheld. The face-to-face meetings may be replaced with conference calls or video conferences upon request by a Party. 2.4.4 The Parties shall be responsible for their own respective costs incurred relating to their participation in oversight meetings.
Master Joint Development Agreement iBio CC-Pharming Page 3 of 12
Source: IBIO, INC., 8-K, 3/13/2020
2.5 Each Party may change its Agreement Administrators, at any time, with written notice to the other Party. 3.0 Costs and Expenses 3.1 Upon execution of this Agreement and acceptance of iBio's proposal for the development of a Plant-Made Rituximab, and in consideration for providing the technology transfer contemplated herein, CC-Pharming shall pay iBio [***], which shall be paid as follows: 3.1.1 First payment of [***] is required to initiate the project: [***]. 3.1.2 Second payment of [***]. Due upon presentation of the following deliverables: a) Detailed design drawings of the pilot plant; b) Schematic design of the commercial facility; c) Purified antibody for pre-clinical testing and development; and d) The quality management system (QMS) development up to and including governance documents and governance standard operating procedures (SOP's). 3.1.3 Final payment of [***], due upon presentation of the following deliverables: a) Detailed Design drawings for the commercial facility; b) Completion of QMS documentation for rituximab including batch records, release documents, and assay SOPs; c) Completion of all training sessions and training documentation; d) Delivery of antibody drug substance for clinical trials; and e) Completion of a chemistry, manufacturing, and controls (CMC) document to support an (investigational new drug application (IND) or equivalent. 4.0 Inventions 4.1 Inventorship of inventions, developments, or discoveries first conceived or actually reduced to practice under this Agreement (Agreement Inventions) will be determined under U.S. Patent Law. All inventions, developments, or discoveries made solely by iBio prior to this Agreement is, and shall be, the sole property of iBio. All inventions, developments, or discoveries made solely by CC- Pharming thereof prior to this Agreement is, and shall be, the sole property of CC-Pharming. 4.2 All rights to inventions, patentable or non-patentable, made solely by employees of iBio during the term of this Agreement shall belong solely to iBio. All rights to inventions, patentable or non-patentable, made solely by employees of CC-Pharming during the term of this Agreement shall belong solely to CC-Pharming. All rights to Agreement Inventions, patentable or non-patentable, made jointly by employees of iBio and employees of CC-Pharming (Joint Inventions) will belong jointly to iBio and CC-Pharming, with inventorship determined as described in 35 U.S.C. § 262 and (Chin Patent Law). The Parties contemplate that each will benefit from Joint Inventions, as such, iBio will be responsible for direct control over the drafting and prosecution of any patents to Joint Inventions, with copy to CC- Pharming. The parties shall share equally in the costs of patent protection for Joint Inventions.
Master Joint Development Agreement iBio CC-Pharming Page 4 of 12
Source: IBIO, INC., 8-K, 3/13/2020
4.3 Each Party shall promptly provide to the other Party a written invention disclosure of each Agreement Invention made by its employees that results directly from the present Agreement for worked performed under the SOWs herein. The other Party agrees to delay making public, by publication or otherwise, until the earlier of (a) the first filing of a patent application claiming the Agreement Invention by the Inventing Party; or (b) six months after the date the Agreement Invention is disclosed to the other Party; or (c) mutual agreement of the Parties that neither will pursue legal protection of an Agreement Invention. 4.5 Each disclosure shall be held in confidence and not revealed to any third party without the written consent of the other Party. The other Party must advise the Inventing Party in writing within 60 days of each disclosure to the other Party whether or not the other Party elects to negotiate a license agreement to obtain commercial rights to such Agreement Invention. In the event that the other Party elects to negotiate for a commercial license to an Agreement Invention, the Parties must initiate negotiation of a license agreement, with negotiations not to extend beyond ninety (90) days from notice of election without the consent of both Parties. The Parties will negotiate in good faith a license containing reasonable business terms common to the other party's field of commercial interest and proposed application. 5.0 Copyrights 5.1 Title to and the right to determine the disposition of any copyrights or copyrightable material first produced or composed in the performance of this research program (Copyright Materials) will remain with the Party whose employees solely created such materials or works of authorship (the Creating Party). Copyright Materials that are jointly created by the Parties shall be jointly owned. Either Party may license and assign its rights to jointly owned Copyright Materials without the consent of or accounting to the other Party, subject to the applicable confidentiality obligations set forth in Section 7 of this Agreement and/or a SOW. 5.2 The Creating Party grants to the other Party a time-limited first right to negotiate a commercial license to use, reproduce, display, and perform commercially valuable Copyright Materials for commercial purposes, and to distribute and/or sublicense such commercially valuable Copyright Materials to third parties. The other Party must advise the Creating Party in writing within sixty (60) days following disclosure or delivery of such commercially valuable Copyright Materials to the other Party whether or not the other Party elects to negotiate a license agreement to obtain commercial rights to the Copyright Materials. In the event that the other Party elects to negotiate for a commercial license to Copyright Materials, the Parties must initiate negotiation of a license agreement, the negotiations not to extend beyond ninety (90) days from notice of election without the consent of both Parties. The Parties will negotiate in good faith a license containing reasonable business terms common to the other Party's field of commercial interest and proposed application.
Master Joint Development Agreement iBio CC-Pharming Page 5 of 12
Source: IBIO, INC., 8-K, 3/13/2020
6.0 Term and Termination 6.1 The term of this Agreement (Term) will begin on the date this Agreement is signed by the last signatory (Effective Date) and remain in effect for [***]; provided, however, that the terms of this Agreement shall remain applicable to any SOW that was executed by the Parties prior to the expiration or termination of this Agreement but whose period of performance extends beyond the expiration or termination of this Agreement. 6.2 The term of any SOW will be as provided in the Statement of Work. 6.3 If either Party to this Agreement fails to perform or violates any material obligation of this Agreement, then, upon thirty (30) days written notice to the breaching Party specifying such failure or violation, the non-breaching Party may terminate this Agreement without liability, unless: (a) the failure or violation specified in the default notice has been cured within the thirty (30) day notice period; or (b) the failure or violation reasonably requires more than thirty (30) days to correct, and the breaching Party has begun substantial corrective action to remedy the failure or violation within the thirty (30) day notice period and diligently pursues such action, in which event, termination shall not be effective unless sixty (60) days has expired from the date of the default notice without such corrective action being completed and the failure or violation remedied. 7.0 Confidentiality 7.1 Except as provided in a Statement of Work and Article 5.3 regarding non-disclosure of Agreement Inventions, any information provided by either Party under this Agreement or under any Statement of Work will be treated as follows. 7.2 Confidential Information includes but is not limited to, technologies, discoveries, inventions, know-how, methods, procedures, trade secrets, business information and other proprietary intellectual property (Information). All such Information is considered by the parties to be secret and confidential and constitutes valuable commercial assets. 7.3 Each of the parties agrees that for five (5) years from the date of disclosure, the receiving Party agrees to limit disclosure of the disclosing Party's Confidential Information to those of the receiving party's employees and contractors, and employees and contractors of its Subsidiaries, who have a need to know it, and the receiving Party agrees to use the same care and discretion to avoid disclosure, publication or dissemination outside of those employees and contractors as the receiving Party does with similar information of its own which it does not desire to publish, disclose or disseminate. 7.4 The receiving Party may disclose Confidential Information if the disclosure is required by law, but the receiving Party must give the disclosing Party reasonably prior notice to allow the disclosing Party an opportunity to obtain a protective order. The obligations of Article 7.3 will not apply to information that is:
Master Joint Development Agreement iBio CC-Pharming Page 6 of 12
Source: IBIO, INC., 8-K, 3/13/2020
a) already rightfully in the possession of the receiving Party or its Subsidiaries without an obligation of confidence; b) independently developed by the receiving Party of its Subsidiaries as evidenced by written documentation; c) publicly available when received by the receiving Party, or becomes publicly available through no fault of the receiving Party or its Subsidiaries; d) disclosed by the disclosing Party without obligation of confidence; or e) inherently disclosed by the receiving Party or its Subsidiaries in the use, distribution or marketing of any product or service. 7.5 The Parties agree that the disclosure of Confidential Information under this Agreement does not limit either Party from assigning or reassigning employees in any way. 7.6 Confidential Information must be identified as Confidential at the time of disclosure, and all material containing Confidential Information must have a restrictive marking. Any Confidential Information disclosed orally or visually must be summarized by the disclosing Party in writing and the writing must be provided to the receiving Party within twenty (20) days after the disclosure. In the case of inadvertent disclosure of Confidential information that was not marked as Confidential, the Disclosing Party has ten (10) business days from the time they discover that the information should have been marked Confidential, to inform the other Party of such a designation, and the parties agree to retroactively mark any such information as Confidential. 7.7 The parties agree that limitations on disclosure of Confidential information under section 7.3 shall last 5 years from signing date. 8.0 Representations, Warranties, Disclaimers and Limitation of Liability 8.1 ANY PROTOTYPES, MATERIALS, COMPONENT PARTS, DESIGNS, SPECIFICATIONS, KNOW-HOW, PROCEDURES, PROCESSES, DATA, INFORMATION, INVENTIONS AND WORK PERFORMED UNDER THIS AGREEMENT BY EITHER PARTY, ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. EACH PARTY SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OF NONINFRINGEMENT OF PATENTS, COPYRIGHTS, OR ANY OTHER INTELLECTUAL PROPERTY RIGHT. 8.2 EACH PARTY ALSO SPECIFICALLY DISCLAIMS ANY GUARANTEE THAT IT WILL BE ABLE TO SUCCESSFULLY ACHIEVE THE DESIRED RESULTS REGARDING THE WORK UNDER ANY STATEMENT OF WORK, OR THAT ANY PROTOTYPE(S) WHICH MAY BE DEVELOPED PURSUANT TO THIS AGREEMENT WILL MEET ANY DEVELOPMENT OBJECTIVES, OR ANY REQUIREMENTS OF EITHER PARTY. THE FOREGOING NOTWITHSTANDING, EACH PARTY WILL MAKE REASONABLE GOOD FAITH EFFORTS TO COMPLETE THE ACTIVITIES DESCRIBED IN THE STATEMENTS OF WORK. FAILURE TO ACHIEVE THE DESIRED RESULTS UNDER A STATEMENT OF WORK DOES NOT CONSTITUTE BREACH OF CONTRACT.
Master Joint Development Agreement iBio CC-Pharming Page 7 of 12
Source: IBIO, INC., 8-K, 3/13/2020
8.3 Except for claims arising out of Articles 4.3 and 7.0, or as may be set forth in a SOW, neither Party will be liable for any consequential damages, lost profits, lost savings, loss of anticipated revenue, or any exemplary, punitive, special or indirect damages, even if advised of their possibility. 8.4 CC-Pharming represents and warranties that it shall maintain all of iBio's Technology and technical information, how-how, documents, materials, software, vectors, constructs, trade secrets, and other valuable business or scientific information strictly confidential at all times, and shall take all steps necessary to safe-guard iBio's Technology and technical information with reasonable business care and will be of the same types as currently practiced by iBio to maintain its highly confidential information. 8.5 Equitable Relief for iBio. CC-Pharming acknowledges that a breach by CC-Pharming of this Agreement shall cause iBio irreparable damages, for which an award of damages would not be adequate compensation, and agrees that, in the event of a breach or threatened breach, iBio will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance and any other relief that may be available from any court, in addition to any other remedy to which iBio may be entitled at law or in equity. iBio's equitable remedies are not exclusive but are in addition to all other remedies available at law or in equity. 8.6 Attorney's Fees. In the event that any claim, suit, action or proceeding is instituted or commenced by any Party hereto against any other Party arising out of or related to this Agreement, the prevailing Party will be entitled to recover its reasonable attorneys' fees, expert fees, expenses and court costs from the non-prevailing Party. 9.0 General Provisions 9.1 Independent Contractor. Each Party is an independent contractor. Neither Party is, nor will claim to be, a legal representative, partner, franchisee, agent or employee of the other. Neither Party will assume or create obligations for the other. Each Party is responsible for the direction and compensation of its employees. 9.2 Trademarks. Except as otherwise provided herein, this Agreement does not confer any rights to use in advertising, publicity or other marketing activities any name, trade name, trademark, or other designation of either Party hereto, including any contraction, abbreviation, or simulation of any of the foregoing, without prior written agreement, and each Party agrees not to use or refer to this Agreement or its terms in any such activities without the express written approval of the other Party.
Master Joint Development Agreement iBio CC-Pharming Page 8 of 12
Source: IBIO, INC., 8-K, 3/13/2020
9.3 Publication. iBio and CC-Pharming jointly, may publish and present technical presentations subject to Articles 5.2, 7.0 and this Article 9.2. 9.4 Notice. All notices shall be in writing and shall be valid and sufficient if sent by: (a) registered or certified mail, return receipt required, postage prepaid; (b) by facsimile (provided the receipt of the facsimile is evidenced by a printed record of completion of transmission); or (c) by express mail or courier service providing a receipt of delivery. Notice shall be effective upon receipt. The notices shall be addressed to: iBio, Inc. Beijing CC-Pharming Ltd. Robert L. Erwin Kevin Y. Wang President Chairman 600 Madison Ave, Suit 1601 Shunyi Distict New York, NY 10022-1737 U.S.A Beijing, China, 101312 Attn: Rober L. Erwin Attn: Kevin Y. Wang Either Party may change its address by a notice given to the other Party in the manner set forth above. 9.5 Force Majeure. Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is due to acts of God, acts of the other Party, fire, flood, natural catastrophe, acts of any government or of any civil or military authority, national emergencies, riots, war, insurrection, strikes, or any occurrence beyond the reasonable control of such Party. 9.6 Export Restrictions. Each Party agrees to comply and to reasonably assist the other in complying with applicable government export and import laws and regulations. Further, each Party agrees that unless authorized by applicable government license or regulation, including but not limited to both US and China authorization, both Parties will not directly or indirectly export or re-export, at any time, any technology, software and/or commodities furnished or developed under this or any other, Agreement between the Parties, or its direct product, to any prohibited country (including release of technology, software and/or commodities to nationals, wherever they may be located, of any prohibited country) as specified in applicable export, embargo, and sanctions regulations. This section will survive after termination or expiration of this Agreement and will remain in effect until fulfilled. 9.7 No Implied Licenses. Except as expressly set forth in this Agreement, no license is granted, either directly or indirectly, by implication or estoppel or otherwise, to either Party under any patent, copyright or other intellectual property right of the other Party. 9.8 Assignment. Neither Party may assign its rights or delegate any of its duties under this Agreement without the prior written consent of the other Party. Any unauthorized assignment of this Agreement is void. 9.9 Intent. Neither Party relies on any promises, inducements, representations made by the other, or expectations of more business dealings except as expressly provided in this Agreement. This Agreement accurately states the Parties' agreement.
Master Joint Development Agreement iBio CC-Pharming Page 9 of 12
Source: IBIO, INC., 8-K, 3/13/2020
9.10 Power to Enter Agreement. Each Party represents that it has, or will have, in place appropriate agreements with its employees or others whose services the Party may require, sufficient to enable such Party to comply with all the provisions of this Agreement. 9.11 Independent Parties. Each Party may have similar agreements with others, and may design, develop, manufacture, acquire or market competitive products and services, and conduct its business in whatever way it chooses. Each Party will independently establish prices and terms for its products and services. 9.12 Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby so long as the intent of the Parties can be preserved. 9.13 Governing Law. This Agreement is governed by the laws of the State of Texas, without regard to the conflict of laws provisions thereof. Any proceedings to resolve disputes relating to this Agreement shall be brought only in the State of Texas and in a U.S. federal court if there is jurisdiction. The United Nations' Convention on International Sales of Goods does not apply. 9.14 Survival. Any rights and obligations which by their nature survive and continue after any expiration or termination of this Agreement shall survive and continue and shall bind the Parties and their successors and assigns, until such obligations are fulfilled. 9.15 No Oral Modifications. Any amendment or modification of this Agreement shall be in writing and shall be signed by authorized representatives of the Parties. No approval, consent or waiver will be enforceable unless signed by the granting Party. Failure to insist on strict performance or to exercise a right when entitled does not prevent a Party from doing so later for that breach, or a future breach. 9.16 Incorporation. This Agreement, Appendix A and SOW's added as Appendix A-x (where x is the sequential number of the respectively added SOW's) are the complete and exclusive agreement between the Parties regarding the subject matter hereof and supersedes any prior oral or written communications or understandings between the parties related to the subject matter hereof. 9.17 Independent Judgment. The Parties acknowledge that: (a) they had read this Agreement; (b) they understand the terms and conditions of this Agreement; (c) they have had the opportunity to seek legal counsel and advice; (d) are of equal bargaining power; and (e) they have relied on their own judgment in entering into this Agreement. Signature Page to Follow
Master Joint Development Agreement iBio CC-Pharming Page 10 of 12
Source: IBIO, INC., 8-K, 3/13/2020
By signing below, the parties agree to the terms of this Agreement. iBio Inc. Beijing CC-Pharming Ltd. /s/ Robert L. Erwin /s/ Kevin Yueju Wang Name: Robert L Erwin Name: Kevin Yueju Wang Title: President Title: Chairman Date: August 07, 2018 Date: August 08, 2018
Master Joint Development Agreement iBio CC-Pharming Page 11 of 12
Source: IBIO, INC., 8-K, 3/13/2020
APPENDIX A-1
Proposal to Beijing CC-Pharming Ltd. Development of a Plant-Made Rituximab Prepared by iBio, Inc. for Beijing CC-Pharming Ltd., Beijing, China February 24, 2018 [***] Project Agreement Administrators For iBio: Robert L. Erwin For CC-Pharming: Kevin Y. Wang By signing below, the parties agree to the terms of this Statement of Work. IBio CC-Pharming /s/ Robert L. Erwin /s/ Kevin Yueju Wang Name: Robert L. Erwin Name: Kevin Yueju Wang Title: President Title: Chairman Date: August 7, 2018 Date: August 8, 2018
Master Joint Development Agreement iBio CC-Pharming Page 12 of 12
Source: IBIO, INC., 8-K, 3/13/2020
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.
| 20958
| 0 | NIv2 | task598_cuad_answer_generation | fs_opt |
"In this task, you're given a passage that represents a legal contract or clause between multiple pa(...TRUNCATED) | 2667
| 6 | NIv2 | task598_cuad_answer_generation | fs_opt |
"TASK DEFINITION: In this task, you're given a passage that represents a legal contract or clause be(...TRUNCATED) | 17310
| 8 | NIv2 | task598_cuad_answer_generation | fs_opt |
"Teacher: In this task, you're given a passage that represents a legal contract or clause between mu(...TRUNCATED) | 13227 | 2 | NIv2 | task598_cuad_answer_generation | fs_opt |
"Teacher: In this task, you're given a passage that represents a legal contract or clause between mu(...TRUNCATED) | 7499 | 2 | NIv2 | task598_cuad_answer_generation | fs_opt |
"In this task, you're given a passage that represents a legal contract or clause between multiple pa(...TRUNCATED) | Output: 7499
| 2 | NIv2 | task598_cuad_answer_generation | fs_opt |
"In this task, you're given a passage that represents a legal contract or clause between multiple pa(...TRUNCATED) | 6153
| 6 | NIv2 | task598_cuad_answer_generation | fs_opt |
"In this task, you're given a passage that represents a legal contract or clause between multiple pa(...TRUNCATED) | 79853 | 8 | NIv2 | task598_cuad_answer_generation | fs_opt |
"In this task, you're given a passage that represents a legal contract or clause between multiple pa(...TRUNCATED) | 15954
| 0 | NIv2 | task598_cuad_answer_generation | fs_opt |
"Part 1. Definition\nIn this task, you're given a passage that represents a legal contract or clause(...TRUNCATED) | 18229 | 7 | NIv2 | task598_cuad_answer_generation | fs_opt |
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