EXHIBIT 10.31
THE U
UNIVERSITY
OF UTAH
MASTER AGREEMENT
#_______________
BETWEEN
HUMAN PHEROMONE SCIENCES, INC.
AND
THE UNIVERSITY OF UTAH
This Agreement ("Agreement") is entered into and effective as of July
15, 2004 by and between Human Pheromone Sciences Inc., a California Corporation
(Tax ID # 94-3107202) having its principal place of business at 84 West Santa
Clara Street, Suite 720, San Jose, California 95113 ("Company") and the
University of Utah, a body politic and corporate of the State of Utah, on behalf
of the University of Utah ("University").
RECITALS
WHEREAS, Company wishes from time to time to have certain research and
services performed by University;
WHEREAS, the performance of such research and services is consistent,
compatible and beneficial to the academic role and mission of University as an
institution of higher education; and
WHEREAS, University is qualified to provide such research and services.
AGREEMENT
NOW, THEREFORE, for and in consideration of the mutual covenants,
conditions and undertakings herein set forth, the parties agree as follows:
1. Term. This Agreement shall commence as July 15, 2004 and shall
remain in effect for a term of five (5) years, or in the event any Task Orders
(as hereinafter defined) are outstanding at the time of expiration of such
five-year period, until such time as all obligations thereunder have been
completed and discharged including expiration of applicable Task Orders.
2. Task Orders. All professional research and services ("Research or Services")
to be provided hereunder shall be as authorized and defined in mutually agreed
upon Task Orders to be executed by the parties which shall reference this
Agreement and become a part hereof. Each such Task Order shall, at a minimum,
contain the following:
a. A detailed description of the Scope of the Work ("Work") to be
performed
b. Applicable specifications
c. A detailed budget for the Scope of Work to be performed
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d. Cost, payment schedule, and whether fixed price or cost
reimbursable
e. Deliverables, and reporting requirements
f. Project start and end dates
g. University Principal Investigator
h. Approved by the Office of Technology Transfer
3. Supervision by University. The person with primary responsibility for
supervision of the performance of the Research or Services on behalf of
University shall be designated in the Task Orders. No other person shall replace
or substitute for him/her in the supervisory responsibilities hereunder without
the prior written approval of University, which may be granted or withheld at
University's sole discretion.
4. Assignments/Subcontracts. Neither party shall assign this Agreement or any
Task Order issued pursuant to the terms hereof, or assign or subcontract any of
its obligations under the Agreement or any such Task Order, without the express
written consent of the other party, which consent shall not be unreasonably
withheld.
5. Place of Performance. It is anticipated that substantially all of the Work
under this Agreement will be performed by University at University's place of
business. However, at the request of Company, University's personnel may, from
time to time, be required to travel and work at Company's offices operated by
Company or Company's affiliated and associated companies (as designated in the
applicable Task Order). Company shall, where necessary or appropriate for the
performance of Work under this Agreement, provide University with reasonable
working space including necessary office furniture and telephones, stationery
supplies and materials, typing services, document reproduction and mail
distribution services at such other offices and/or facilities.
6. Payment for Research or Services. Payment for Research or Services rendered
will be made on a fixed price basis or on the basis of a mutually agreed upon
cost-reimbursable billing rate schedule, in accordance with the terms set forth
in each Task Order issued hereunder.
In the event that the Task Order provides for payment to be made in accordance
with a cost-reimbursable billing rate schedule, University shall be compensated
at the rate(s) specified in the applicable Task Order. Unless otherwise stated
in the Task Order, University will invoice Company on a monthly basis.
In the event that the Task Order provides for payment on a fixed price basis,
University shall be compensated in accordance with a predetermined price set
forth in the Task Order, regardless of the percent of effort of work actually
performed. Unless otherwise stated in the Task Order, Company will pay
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University one-third of the total fixed price within thirty (30) days of the
start date stated in the Task Order, one-third of the total fixed price during
the performance of the agreed work, and the final one-third of the total fixed
price within thirty (30) days after receipt of the final Task Order deliverable.
Except as otherwise expressly provided below, or in the applicable Task Order,
Company will also reimburse University for actual and reasonable costs incurred
for travel expenses, associated living expenses and other out-of-pocket
expenses, in accordance with University's Travel Policy and Procedures. Invoices
received by Company are due and payable within thirty (30) days of receipt.
Notwithstanding any other conditions of this Agreement, the books and records of
University hereunder will be made available upon request, at the University's
regular place of business, for audit by personnel authorized by the Company.
Additionally, the books and records must be retained for a period of three years
following final payment.
The period of access and examination described above, for the records which
relate to (a) litigation or settlement of claims arising out of the performance
of this Agreement or (b) costs and expenses of this Agreement as to which
exception has been taken by any of the organizations named shall continue until
such litigation, claims, or exceptions have been disposed of.
7. Equipment. All equipment, instruments and materials purchased or used by
University in connection with performance of the Research or Services shall at
all times remain under the sole control and ownership of University, except
where Company is providing their equipment, and in that case ownership resides
with the Company.
8. Publication and Confidentiality.
8.1 Publication. In furtherance of University's role as a public
institution of higher education, it is necessary that significant results
of Research or Services activities be reasonably available for publication
by the University, and Company acknowledges that University may publish the
results of Research or Services conducted in connection with this
Agreement.
Notwithstanding the foregoing, University agrees that it shall not publish
the results of Research or Services conducted in connection with, each Task
Order without the prior written consent of Company, until the expiration of
six (6) months following the first to occur of either the termination of
this Agreement or submission of the final written report required with each
Task Order. In the event University wishes to publish Research or Services
results prior to the expiration of the above described six (6) month
period, University shall first provide to Company written notice of
University's intent to publish and a draft of such publication. Company
shall have thirty (30) days after receipt of the draft publication to
request in writing the removal of portions deemed by Company to contain
confidential or patentable material owned by Company, or to request a delay
in submission of the draft for publication pending Company's application
for patent protection. In either event, University shall have no obligation
to delay publication of the draft for longer than six (6) months following
delivery of University's notice to Company of intent to publish. If
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University does not receive Company's written response to the notice of
intent to publish within the thirty (30) day period, then Company shall be
deemed to have consented to such publication. Information supplied to
University by Company and identified by Company as proprietary information
shall not be included in any material published by University without prior
written consent of Company.
Company shall also publish providing the same prior notification to
University and to allow appropriate authorship as appropriate and as may be
required and/or appropriate.
8.2 Confidentiality. Company acknowledges that University is a governmental
entity and thus subject to the Utah Governmental Records Access Management
Act, Section 63-2-101 et seq., Utah Code Ann. (1997 and supp 1998 as
amended) ("GRAMA") and Section 53B-16-301 et seq., Utah Code Ann. (1994 and
Supp. 1998). Pursuant to GRAMA and Section 53B-16-301 et seq., this
Agreement, and confidential information provided pursuant hereto, may be
subject to public disclosure. Any person who provides University with
records that such person believes should be protected from disclosure for
business reasons must, pursuant to Section 63-2-308 of GRAMA and Section
53B-16-304, provide University with a written claim of business
confidentiality and a concise statement of reasons supporting such claim.
9. Indemnification.
9.1 Indemnification by University. Indemnification by University.
University is a governmental entity and is subject to the Utah Governmental
Immunity Act, Section 63-30-1 et seq., Utah Code Ann. (1993 and Supp. 1999
as amended) ("Act"). Nothing in this Agreement shall be construed as a
waiver of any rights or defenses applicable to the University under the
Act, including without limitation, the provisions of Section 63-30-34
regarding limitation of judgements. Subject to the provisions of the Act,
University agrees to indemnify, defend and hold harmless Sponsor, its
directors, officers, agents and employees against any actions, suits,
proceedings, liabilities and damages that may result from the negligent
acts or omissions of University, its officers, agents or employees in
connection with this Agreement up to the limits of the Utah Governmental
Immunity Act.
9.2 Indemnification by Company. Company shall indemnify, defend and hold
harmless University, its directors, officers, agents and employees against
any actions, suits, proceedings, liabilities and damages that may result
from the negligent acts or omissions of Company, its officers, agents or
employees in connection with this Agreement.
10. Compliance With Laws. In performance of the Research or Services, University
shall comply with all applicable federal, state and local laws, codes,
regulations, rules and orders.
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11. Patents and Inventions. Except as otherwise expressly provided in an
applicable Task Order, the University shall own all right, title and interest in
all inventions and improvements conceived or reduced to practice by University
or University personnel in the performance of the Research (hereinafter
collectively "Invention") and may, at its election, file all patent applications
relating thereto. In consideration of Sponsor's support of University in
performance of the Research, University grants to Sponsor an option for an
exclusive license on said option shall expire six months after University has
provided written notice to Sponsor of any such invention, improvement,
application or patent ("Option Period"). Upon execution of the option in
writing, the parties will meet within thirty (30) days to begin negotiating the
terms of the license. The parties agree to negotiate in good faith and the terms
of the license will be reasonable in relation to licenses in the field and
industry. In the event a license is not executed within six (6) months from the
exercise of the option, or the option is not exercised within the Option Period
the University shall be free to license the Invention to others in the
University's sole discretion. In the event the University shall abandon its
rights to any such Invention prior to exercise of said option, University shall
assign to Sponsor all of the University's rights, title and interest therein.
12. Relationship of Parties. In assuming and performing the obligations of this
Agreement, University and Company are each acting as independent parties and
neither shall be considered or represent itself as a joint venturer, partner,
agent or employee of the other. Neither party shall use the name or any
trademark of the other party in any advertising, sales promotion or other
publicity matter without the prior written approval of the other party. Such
approval will not be unreasonably withheld.
13. Termination. This Agreement or any Task Order may be terminated by either
party at any time and from time to time, by giving written notice thereof to the
other party. Such termination shall be effective thirty (30) days after receipt
of such notice. Termination shall not relieve either party of any obligation or
liability accrued hereunder prior to such termination, or rescind or give rise
to any right to rescind any payments made prior to the time of such termination.
Termination of this agreement will terminate all Task Orders existing at the
time of termination.
14. Uncontrollable Forces. Neither Company nor University shall be considered to
be in default of this Agreement if delays in or failure of performance shall be
due to uncontrollable forces the effect of which, by the exercise of reasonable
diligence, the nonperforming party could not avoid. The term "uncontrollable
forces" shall mean any event which results in the prevention or delay of
performance by a party of its obligations under this Agreement and which is
beyond the control of the nonperforming party. It includes, but is not limited
to, fire, flood, earthquakes, storms, lightning, epidemic, war, riot, civil
disturbance, sabotage, inability to procure permits, licenses, or authorizations
from any state, local, or federal agency or person for any of the supplies,
materials, accesses, or services required to be provided by either Company or
University under this Agreement, strikes, work slowdowns or other labor
disturbances, and judicial restraint.
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15. Miscellaneous.
15.1 Assignment. Neither party shall assign or transfer any interest in
this Agreement, nor assign any claims for money due or to become due under
this Agreement, without the prior written consent of the other party.
15.2 Entire Agreement. This Agreement, with its attachments, constitutes
the entire agreement between the parties regarding the subject matter
hereof and supersedes any other written or oral understanding of the
parties. This Agreement may not be modified except by written instrument
executed by both parties
15.3 Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties, their successors and permitted assigns.
15.4 Notices. Except as provided in Section 3 hereof regarding payment of
invoices, any notice or other communication required or permitted to be
given to either party hereto shall be in writing and shall be deemed to
have been properly given and effective: (a) on the date of delivery if
delivered in person during recipient's normal business hours; or (b) on the
date of delivery if delivered by courier, express mail service or
first-class mail, registered or certified, return receipt requested. Such
notice shall be sent or delivered to the respective addresses given below,
or to such other address as either party shall designate by written notice
given to the other party as follows:
In the case of Company:
HUMAN PHEROMONE SCIENCES, INC.
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84 W. Santa Clara St.
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Suite 720
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San Jose, CA 95113
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Attn: CEO
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In the case of University:
AMY SIKALIS
UNIVERSITY OF UTAH
OFFICE OF SPONSORED PROJECTS
1471 E FEDERAL WAY
SALT LAKE CITY UT 84102-1870
15.5 Order of Precedence. In the event of any conflict, inconsistency or
discrepancy amount, the Agreement and any other documents listed below
shall be resolved by giving precedence in the following order.
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(a) Task Orders with Appendixes
(b) This Agreement
(c) Purchase Order issued by Company. In the event a purchase order is
issued under this Agreement and such purchase order contains
standardized terms and conditions, the terms and conditions of this
Agreement shall supercede and replace all such purchase order
standardized terms and conditions.
15.6 Governing Law and Disputes. This Agreement shall be interpreted and
construed in accordance with the laws of the State of Utah, without
application of any principles of choice of laws. Disputes that cannot be
resolved by Company and University shall be determined by a court of
competent jurisdiction in the State of Utah.
15.7 Nonwaiver. A waiver by either party of any breach of this Agreement
shall not be binding upon the waiving party unless such waiver is in
writing. In the event of a written waiver, such a waiver shall not affect
the waiving party's rights with respect to any other or further breach.
15.8 Attorney Fees. The prevailing Party in any action or suit to enforce
the terms or conditions of this Agreement shall be entitled to recover its
costs of court and reasonable attorneys' fees incurred in enforcing the
terms or conditions of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized representatives effective as of the day and year first
written above.
HUMAN PHEROMONE SCIENCES, INC. UNIVERSITY OF UTAH
"Company" "University"
By: /s/ WILLIAM P. HORGAN By: /s/ ELLIOTT C. KULAKOWSKI, PH.D.
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Signature Signature
Name: WILLIAM P. HORGAN Name: Elliott C. Kulakowski, Ph.D.
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(Please print)
Title: Chairman, CEO Title: Director, Sponsored Projects
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Date: 7/13/04 Date: 6/23/04
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