VivoSim: LABORATORY SERVICES AGREEMENT TERMS AND CONDITIONS
Services: “Services” means laboratory research services conducted using VivoSim’s proprietary Human Tissues, as set forth in the applicable Work Plan.
Deliverables: Deliverables shall mean any deliverables identified in a Work Plan to be delivered to Client.
VivoSim Core Technology: VivoSim Core Technology shall mean VivoSim’s 3D bioprinting technology, 3D healthy and diseased bioprinted tissue models and their applications, fabrication methodologies, methods of inducing and/or characterizing transitions to various healthy and disease states in 3D tissue models, assays, use of VivoSim’s 3D tissues to enable drug discovery, target identification and biomarker discovery (and uses thereof), donor selection, cell sourcing, study design, testing techniques and toxicology screening used by VivoSim in the operation of its business, VivoSim’s development and commercialization of its own therapeutic candidates (including tissue applications, compounds, and other products and services), and all related patents, trade secrets information, know-how, inventions, technology, data and other intellectual property rights.
Study Materials: Study Materials shall mean any byproducts of the Services, or derivatives of VivoSim’s healthy or diseased tissue models, generated during the Services through contact with proprietary Client Materials. Such Study Materials may include tissue samples, supernatants, reagents, and RNA. For example, a tissue block from a diseased ExVive Human Liver Tissue that was modulated using proprietary Customer Materials shall be considered Study Material.
Study Material Results: Study Material Results means any and all results, reports, data and information, generated by VivoSim in connection with testing of the Study Materials.
Client Results: Client Results shall mean any results, reports, data and information, generated in connection with the testing/analysis of the Study Materials (as defined below), and provided to VivoSim as set forth in the applicable Work Plan.
Inventions: “Inventions” means any and all discoveries, inventions, concepts and ideas, whether patentable or not, processes, methods, formulas, products, results, compositions, techniques, articles and machines, including trade secrets, trademarks, and know-how, as well as improvements thereof, and works of authorship that are protectable under copyright laws that are conceived, created, developed, made, or reduced to practice by either Party or its employees, agents, or subcontractors as a result of performance of the Services, individually or in conjunction with others.
Process for Initiating Service: If Client would like to initiate Services as set forth in this Agreement and the attached Work Plan, Client must send to VivoSim (1) a signed Laboratory Services Agreement (“Agreement”), (2) a Purchase Order to VivoSim referencing the Quotation Number in this Agreement, and (3) as applicable, a completed Test Article Submission (“TAS”) form.
Payment Schedule and Terms: Prices will be as set forth in the Work Plan, and do not include applicable taxes, customs, packaging or shipment expenses. All Study Materials, Study Material Results, and other Deliverables will be delivered Ex Works VivoSim premises. Study Materials will be deemed to be delivered when VivoSim notifies Client that the Materials are available to be released to Client or released to storage at Client’s request. If VivoSim stores Materials at Client’s request, VivoSim does not bear any risk or responsibility for loss or damage to the Materials. Client acceptance will be deemed to have occurred unless Client notifies VivoSim to the contrary in writing within ten (10) days after delivery of Results, or completion of a milestone.
The Company will issue invoices for non-refundable set-up fees upon receipt of a signed Purchase Order; and upon completion of milestones for Services and/or delivery of Deliverables. Payment is due within thirty (30) days of the invoice date. A late fee of 1.5% per month will be charged on all outstanding balances not received within thirty (30) days of invoice date.
Amendments: Any Work Plan under this Agreement may be amended from time to time upon written agreement between the parties. Modifications to any applicable Work Plan may result in changes to the pricing and timeline set forth in the Work Plan.
Termination: Unless otherwise specified in the Work Plan, this Agreement may be terminated by either party without cause on thirty (30) days’ prior written notice to the other party. In the event of such notice by Client, VivoSim shall be paid for all Deliverables provided and Services conducted prior to termination, including non-cancelable obligations incurred prior to the notice of termination and reasonable costs associated with winding up such Services. Client shall also pay VivoSim any cancellation or termination fees set forth in the Work Plan.
Either party may terminate this Agreement or an applicable Work Plan at any time, on thirty (30) days’ prior written notice to the other party, provided that the party has identified the alleged breach, and the other party has failed to remedy the breach within the thirty day notice period to the non-breaching party’s satisfaction.
Upon termination, the obligations that by their terms survive termination, including the applicable confidentiality, intellectual property, and indemnity provisions, shall survive termination.
Ownership: Ownership hereunder shall be as follows:
Client Results – Client
Study Materials – VivoSim
Study Material Results – Joint
VivoSim Core Technology – VivoSim
Intellectual Property:
Rights to any Inventions resulting hereunder shall be disposed of as follows:
Inventions/improvements relating to VivoSim Core Technology – VivoSim
Inventions arising from use/testing of the Study Materials (including novel biomarkers) – Client
For the avoidance of doubt, the term “Joint” above shall mean that either party hereto has the full rights to use the Invention for any purpose without any obligations to the other party. Those rights include the right to make, use, offer for sale, sell, and sublicense any such Invention.
Rights of Publication/Disclosure:
The parties hereto shall have the right to publish, or otherwise disclose, VivoSim Service Material Results and Study Material Results as stated in the following table:
Study Material Results – Joint
Client Results – VivoSim may use the Client Results for any internal. Client has full rights to publish and otherwise disclose any and all Client Results.
The above notwithstanding, Client may not make any publication or presentation which describes specific tissue model designs or describes any methods related to the fabrication, maintenance, or treatment of bioprinted tissues without VivoSim’s prior written consent, which shall not be unreasonably withheld.
Rights of Use:
The parties hereto shall have the rights to use the Study Materials as follows:
Study Materials – VivoSim may use the Study Materials for any purposes. Client has the right to use VivoSim Service Materials for any purposes. Client will not reverse engineer the Study Materials nor transfer them to a third party without VivoSim’s written consent.
Confidentiality: Each party (the “Receiving Party”) will maintain in strict confidence all information received from the other party (the “Disclosing Party”) in connection with this Agreement and, without the prior written consent of the Disclosing Party, will not disclose that information to any third party except as required by applicable law or regulation, nor use the same for any purpose other than to perform its obligations or exercise its rights under this Agreement; provided, however, that the foregoing will not apply to (a) any information which is or becomes part of the public domain by publication or otherwise, except by breach of this Agreement; (b) information disclosed to the Receiving Party by the Disclosing Party which the Receiving Party can establish by written records was already in its possession at the time of disclosure; or (c) which is rightfully disclosed to the Receiving Party a third party who did not receive such information from the Disclosing Party under an obligation of confidentiality. The VivoSim Service Materials and information relating to the VivoSim Core Technology shall be deemed confidential information of the VivoSim; information related to Study Material Results and Client Core Technology shall be deemed confidential information of the Client.
Assignment: This Agreement and the rights granted herein may not be assigned by either party, whether by operation of law or otherwise, without the prior written consent of the other party, except that either party may assign this Agreement without such consent in connection with a merger or sale of all or substantially all of its assets. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
Right to Subcontract: VivoSim may use subcontractors to fulfill any aspect of the Services. VivoSim shall nevertheless remain at all times fully responsible for performance of its obligations hereunder. Should VivoSim use subcontractors in the performance of the Services, VivoSim shall cause each of its subcontractors to execute an agreement consistent with the rights of Client and obligations of VivoSim as set forth in this Agreement.
Warranties: If applicable, Client warrants that it owns all rights, title, and interest in the Client Materials provided to VivoSim in connection with this Agreement and attached Work Plan, and the intellectual property related thereto. Client further warrants that VivoSim’s use of such Client Materials does not infringe any third party rights.
The Study Materials and Study Material Results (collectively, “Services”), are for Research Use Only and are not currently manufactured nor performed under GLP. VivoSim warrants that to its knowledge the Services provided hereunder conform to the specifications contained in the Work Plans and applicable Law. VivoSim does not warrant or represent that the Services are fit for any purpose. THIS WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FOR NON-INFRINGEMENT OF A PATENT, TRADEMARK, OR OTHER INTELLECTUAL PROPERTY RIGHT. Any claim for breach of this warranty must be made in writing to VivoSim within ten (10) business days after the delivery of any Deliverables.
Limitation of Liability: TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL VIVOSIM BE LIABLE TO CLIENT FOR ANY SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS). VIVOSIM’S LIABILITY, REGARDLESS OF THE CLAIM, SHALL BE LIMITED TO ACTUAL DAMAGES AND SHALL NOT EXCEED THE TOTAL AMOUNT PAYABLE TO VIVOSIM BY CLIENT UNDER THIS AGREEMENT. IN NO EVENT SHALL VIVOSIM HAVE LIABILITY ARISING FROM OR IN CONNECTION WITH ANY DECISION BY CLIENT OR ANY THIRD PARTY TO FURTHER RESEARCH, DEVELOP, OR MARKET, CLIENT MATERIALS (OR ANY DERIVATIVE THEREOF).
Entire Agreement: This Agreement, together with the attached Work Plan, sets forth the entire agreement and understanding between the parties regarding the subject matter of the Agreement, superseding any and all previous statements, negotiations, documents, agreements, and understandings, whether oral or written, as to the subject matter of this Agreement and accompanying Work Plan (including subsequent or conflicting terms and conditions of Client). No modification or wavier of the provisions of this Agreement shall be valid or binding on either party unless set forth in writing and signed by both parties. Notwithstanding the foregoing, any previously executed Non-Disclosure Agreement or Master Services Agreement still in effect between the parties shall remain in full force and effect.
Severability: In the event that any one or more provisions contained in this Agreement is for any reason held to be invalid, illegal, or unenforceable in any respect, this will not impact the other provisions of this Agreement, which will remain in full force and effect.
Applicable Law: Disputes arising under this Agreement will be governed by, and construed in accordance with, the laws of the State of California, without reference to its conflict of laws principles.
Dispute Resolution: Any controversy or claim between the parties arising from this Agreement, including without limitation those based on contract, tort, fraud, or misrepresentation, shall be settled by final and binding arbitration conducted in San Diego, California under the then current rules and supervision of the American Arbitration Association. Client and VivoSim will select an arbitrator from a panel of individuals knowledgeable in the field of contract research or contract testing services. The parties will bear their own attorneys fees and will share equally the filing fees, arbitration fees, and any other costs of such proceedings. The decision of the arbitrator shall be final and binding and may be entered and enforced in any court having jurisdiction.
Return of Materials: Upon completion of any applicable Work Plan, Client will either destroy or return to VivoSim any applicable unused Study Materials, at VivoSim’s expense and in accordance with VivoSim’s instructions. Client will notify VivoSim upon return or destruction of such items.
