1. General Definitions
1.1. This Beta Testing Agreement (the “Agreement”) governs the Beta Testing Program of Integral Molecular, Inc., d.b.a. Cell Surface Bio (CSB). The Agreement shall be binding between CSB and the entity (the “Tester”) testing the experimental product(s) being developed by CSB (each a “Beta Product”). CSB and Tester may be referred to hereinafter individually as a “Party” and collectively, the “Parties.”
1.2. The purpose of the Beta Testing Program is to test and study the properties of certain pre-release experimental Beta Products, which CSB is willing to make available to the Tester and the Tester is willing to perform certain tests on for such purposes.
1.3. CSB’s offer to provide Beta Products to Tester is expressly conditioned upon Tester’s acceptance of the terms of this Agreement (the “Terms”). When Tester accepts to participate in the Beta Testing Program, Tester is deemed to have accepted these Terms. These Terms override any other terms or condition proffered by Tester unless CSB explicitly agrees to such terms or conditions with a written instrument. CSB’s failure to object to any terms and conditions contained in any document from Tester shall not be construed as CSB’s acceptance of such terms and conditions, or a waiver of these Terms.
2. Participation in the Beta Testing Program
2.1. CSB may select Testers to participate in the Beta Testing Program. To participate in the Beta Testing Program, Tester shall agree to participate in the Beta Testing Program by accepting this Agreement.
2.2. The technical testing activities to be conducted shall be specified in a Work Plan (Appendix A) and incorporated into this Agreement.
3. Material Transfer; License
3.1. After Tester has agreed to participate in the Beta Testing Program, CSB will supply to Tester the Beta Product and other materials and information necessary (the “Materials”) for Tester to perform testing of the Materials as may be set forth in the Work Plan (the “Evaluation Research”). Upon receipt of the Materials, Tester will use commercially reasonable efforts to carry out the Evaluation Research in accordance with any specifications and schedules set forth in the Work Plan.
3.2. Tester will use the Materials solely to perform the Evaluation Research and will not disclose, use, or transfer any Material to any third party except as expressly permitted in the Work Plan or otherwise authorized by CSB in writing. Tester shall not use the Materials delivered to Tester to attempt to ascertain its chemical or biological structure, including but not limited to its nucleic acid or amino acid sequence, engage in any testing of the Materials except permitted hereunder, or use the Materials for any purpose other than for the Evaluation Research.
3.3. Tester acknowledges and agrees that CSB is and shall continue to be the sole owner of the Materials and any intellectual property rights thereto. CSB hereby grants to Tester a non-exclusive, royalty free, fully paid up license (with no right to subcontract or otherwise sublicense) to use the Materials solely for the purpose of Tester conducting the Evaluation Research during the Term of this Agreement.
3.4. Except as specifically provided herein, neither Party grants to the other Party any other rights or licenses to any intellectual property rights or other proprietary property, technologies or information owned or controlled by that Party.
3.5. Tester will be entitled to conduct the Evaluation Research for the period specified in the Work Plan (the “Initial Research Period”). The Parties may extend the time for the Evaluation Research (an “Extension Period”) upon written agreement. The Initial Research Period and the Extension Period (if any) shall collectively comprise the “Evaluation Research Period.”
3.6. The Materials will be provided free of charge. Tester shall be responsible for certain shipping and handling charges. Tester may provide their carrier account for direct billing.
4. Confidentiality
4.1. CSB may disclose CSB Confidential Information to Tester. “CSB Confidential Information” means all information related to (a) Materials; (b) CSB Data (defined in Section 5); (c) CSB Inventions (defined in Section 6); and (d) any other non-public, proprietary CSB information disclosed by or on behalf of CSB to Tester in connection with this Agreement, including but not limited to information relating to CSB’s financial condition or status, business plans, strategies, technical plans, materials, methods, procedures, processes and the like, and in the case of (d), marked as confidential at the time of disclosure, or in the case of oral disclosure, promptly thereafter summarized in writing and marked as confidential, or disclosed in a manner such that a reasonable person would understand its confidential nature.
4.2. Tester may disclose Tester Confidential Information to CSB. “Tester Confidential Information” means all information related to (a) Tester Technology; (b) Tester Data (defined in Section 5); and (c) any other non-public, proprietary Tester information disclosed by or on behalf of Tester to CSB in connection with this Agreement, including but not limited to information relating to Tester’s financial condition or status, business plans, strategies, technical plans, materials, methods, procedures, processes and the like, and in the case of (c), marked as confidential at the time of disclosure, or in the case of oral disclosure, promptly thereafter summarized in writing and marked as confidential, or disclosed in a manner such that a reasonable person would understand its confidential nature.
4.3. CSB Confidential Information and Tester Confidential Information are individually and collectively “Confidential Information.” Except as required by law, neither Party will use any Confidential Information of the other Party (except as necessary to conduct the Evaluation Research) or disclose to any third party any Confidential Information of the other Party, during the Term and for a period of five (5) years from the expiration or termination of this Agreement, without the prior written consent of the other Party. Notwithstanding any other provision of this Agreement, this obligation does not apply to either Party’s Confidential Information that can be established by competent proof:
(a) is or later becomes generally available to the public by use, publication or the like, through no fault of the receiving Party;
(b) is obtained from a third Party who had the legal right to disclose the same without confidentiality or other restrictions to the receiving Party;
(c) the receiving Party already possesses, as evidenced by its written records, predating receipt thereof from the other Party;
(d) is independently discovered or developed by the receiving Party without reference to or use of the Confidential Information of the other Party; or
(e) is information that the receiving Party believes in good faith, based on the written advice of legal counsel skilled in the subject matter, is required to be disclosed to comply with any applicable law, regulation or order of a government authority or court of competent jurisdiction, provided that the receiving Party uses best efforts to promptly inform the other Party of the need for such disclosure, but in no event less than five (5) business days in advance of such disclosure.
5. Data and Reports
5.1. All data and results generated in the course of the Evaluation Research (“Data”) shall be owned as follows:
5.1.1 Data solely related to the Materials shall be the sole property of CSB (“CSB Data”) and shall be CSB’s Confidential Information.
5.1.2 Data solely related to the Tester Technology (defined in Section 6) shall be the sole property of Tester (“Tester Data”) and shall be Tester’s Confidential Information.
5.1.3 Data related to the testing and evaluation of Materials (“Evaluation Data”) shall be owned by CSB.
5.2. After the conclusion of the Evaluation Research Period, Tester shall provide to CSB within thirty (30) days a final written report presenting all of the material CSB Data, Evaluation Data and, Tester Data (the “Evaluation Report”). The Parties will keep the Evaluation Report and all Data of the other Party confidential, unless otherwise agreed in writing. In addition, each Party may retain one archival copy of the Data and Evaluation Report following the expiration or earlier termination of this Agreement. Notwithstanding any confidentiality provisions in this Agreement indicating otherwise, after the Term of the Agreement, CSB shall be allowed to use the Evaluation Report, CSB Data and Evaluation Data for any purposes, including patent application or marketing purposes on its website.
6. Intellectual Property
6.1. “Tester Technology” means any technologies, materials or information (i) owned or controlled by Tester prior to the Effective Date, or (ii) developed by Tester outside of the scope of this Agreement without use of or reference to the Materials. CSB acknowledges and agrees that Tester is and shall continue to be the sole owner of Tester Technology.
6.2. Any inventions or discoveries, whether patentable or not, that (a) arise out of the Evaluation Research; and (b) are modifications, derivatives or improvements primarily to the Materials, shall belong to CSB and be considered the sole property of CSB (“CSB Inventions”). Tester hereby assigns and agrees to assign to CSB all of its rights, title, and interest in and to all CSB Inventions. Tester agrees to cooperate with CSB to secure patent rights to CSB Inventions at CSB’s expense.
6.3. Any inventions or discoveries, whether patentable or not, that (a) arise out of the Evaluation Research; (b) are modifications, derivatives, improvements to Tester Technology; and (c) are developed without use of or reference to the Materials, shall belong to Tester and be considered the sole property of Tester (“Tester Technology Inventions”). CSB hereby assigns and agrees to assign to Tester all of its rights, title, and interest in and to all Tester Technology Inventions. INTG agrees to cooperate with Tester to secure patent rights to Tester Technology Inventions at Tester’s expense.
6.4. Ownership of any inventions arising out of the Evaluation Research that are not addressed in Sections 6.2-6.3 shall be determined in accordance with the principles of inventorship under U.S. patent law.
6.5. Tester acknowledges and agrees that, so long as CSB does not use or disclose any Tester Confidential Information, Tester Technology or Tester Technology Inventions in breach of this Agreement, nothing set forth in this Agreement shall restrict CSB’s ability to develop on its own, or in collaboration with third parties, products involving modifications, derivatives, or conjugates to the Materials. CSB acknowledges and agrees that, so long as Tester does not use or disclose any CSB Confidential Information, the Materials or CSB Inventions in breach of this Agreement, nothing set forth in this Agreement shall restrict Tester’s ability to develop on its own, or in collaboration with third parties, products with materials similar to the Materials.
6.6. Each Party agrees to promptly disclose to the other Party any inventions which are to be owned by the other Party as provided in this Section
7. Warranties and Liability
7.1. Each Party warrants that: (i) it is permitted to enter into this Agreement, (ii) the terms of this Agreement are not inconsistent with other contractual obligations (express or implied) it has or may have with third parties, and (iii) all research conducted by that Party under the Evaluation Research will comply with all applicable government laws, regulations and guidelines.
7.2. TESTER ACKNOWLEDGES AND AGREES THAT THE MATERIALS ARE EXPERIMENTAL IN NATURE AND ARE PROVIDED “AS IS” WITH NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. FURTHER, CSB DOES NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE, RESULTS OF THE USE OR APPROPRIATENESS OF THE USE OF THE MATERIALS IN ACCORDANCE WITH THE EVALUATION RESEARCH.
8. Publicity
Each Party will obtain prior written permission before using the name, symbols and/or marks of the other Party in any form of publicity in connection with the Evaluation Research. This Section 8 shall not apply to legally required disclosure by COMPANY or INTG that identifies the existence of the Agreement. If Tester wishes to publish, present, or publicly disclose any Data, it will notify CSB to obtain CSB’s consent sixty (60) days prior to any publication; CSB shall have the right to require redaction of certain information from such publication.
9. Term and Termination
9.1. The term of this Agreement shall commence on the date when Tester has agreed to participate in the Beta Test Program (the “Effective Date”) and expire sixty (60) days after the conclusion of the Evaluation Research Period unless extended by mutual agreement (the “Term”).
9.2. This Agreement may be terminated by Tester for any reason upon thirty (30) days’ prior written notice to CSB.
9.3. This Agreement may be terminated by CSB, with 30-day prior notice.
9.4. If either Party commits any material breach of this Agreement, the non-breaching Party shall have the right to terminate this Agreement upon thirty (30) days’ prior written notice describing (a) the nature of the breach and (b) the non-breaching Party’s intent to terminate, unless the breaching Party has cured or commenced steps to diligently cure the breach within such thirty (30) day period.
9.5. Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties accrued prior to the effective date of the termination. Any rights or obligations set forth herein which of their nature are intended to extend beyond the Term shall survive the expiration or termination thereof, including but not limited to Sections 3.2, 3.4, 4, 5, 6, 8, 9.1, 9.5 and 10.
10. Miscellaneous
10.1. Amendments. This Agreement may only be extended, renewed or otherwise amended or modified by the mutual written consent of Parties hereto.
10.2. Entire Agreement. This Agreement (together with any Work Plan) represents the entire understanding of the Parties with respect to the subject matter hereof, and supersedes any other prior agreement(s), whether written or oral, relating to the subject matter herein.
10.3. Severability. The invalidity or unenforceability of any term or provision of this Agreement shall not affect the validity or enforceability of any other term or provision hereof.
10.4. Assignment. Neither Tester nor CSB may assign, cede or transfer any of their rights or obligations under this Agreement without the prior written consent of the other Party except by way of assignment or sale of all or substantially all of its assets related to this Agreement or by way of merger or acquisition.
10.5. Waiver. No waiver of any term, provision or condition of this Agreement whether by conduct or otherwise in any one or more instances shall be deemed to be or construed as a further or continuing waiver of any such term, provision or condition, or of any other term, provision or condition of this Agreement.
10.6. Applicable Law. This Agreement shall be governed by and construed and interpreted in accordance with the laws of the Commonwealth of Pennsylvania, without application of principles of conflict of laws.
10.7. Headings. All headings and subheadings provided herein are for reference only and shall not be used to construe the terms of this Agreement.
10.8. Notice. Any notice required or permitted hereunder shall be in writing, in the English language and shall be deemed given as of the date it is (a) delivered by hand or (b) received by registered or certified mail, postage prepaid, return receipt requested, or received by facsimile and addressed to the Party to receive such notice at the address specified in writing.
10.9. Further Assurances. Each Party agrees to execute, acknowledge and deliver such further instruments, and do such other acts, as may be necessary and appropriate in order to carry out the purposes and intent of this Agreement.
Appendix A. Work Plan
Tester may test CSB’s antibody under this Beta Testing Agreement for in vitro experiments with cells and proteins, and in vivo experiments in non-human animals, to determine the antibody’s specificity, functionality, and utility in detecting the antibody’s target or affecting the cells that express the target. The Initial Research Period shall be one year from the date CSB’s antibody is delivered to Tester.