Mobius^® Breez Microbioreactor

Evaluation License

This Evaluation License (this "Agreement"), effective as of the Licensee’s acceptance of a Licensor issued quote, (the “Quote”), (the "Effective Date"), is by and between the parties identified on the Quote as Seller or Licensor and Customer or Licensee, each a Party and together the Parties. For purposes of this Agreement and the Quote, the Seller or Licensor is an Affiliate of Merck KGaA Darmstadt Germany. “Affiliate” means any other legal entity that, directly or indirectly, controls, is controlled by, or is under common control with a Party, for as long as such control exists. “Control” refers (i) to the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting securities or the capital stock of, or other comparable equity or ownership interest in the respective legal entity, or (ii) in the absence of such ownership interest, to the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the respective legal entity, by contract or otherwise.

WHEREAS, by the Licensee’s acceptance of the Quote, Licensor desires to license to Licensee, and Licensee desires to obtain an evaluation license, for the Mobius^® Breez Microbioreactor system including any hardware, third-party components, and software installed thereon, (the “System”), as further described in the Quote, solely for Licensee's internal evaluation purposes during the time period set forth in the Quote, subject to the terms and conditions set forth herein. For purposes of this Agreement, a Quote shall mean the document describing the System, and other commercial terms, to which this Agreement is attached and made a part thereof. Together the Quote and this Agreement constitute a binding agreement between the Parties.

1.  Evaluation License Grants.

(a)  System. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-sublicensable, and non-transferable limited evaluation license during the time period set forth in the Quote, ("Evaluation Period") to: (a) use the System solely for Licensee's internal evaluation purposes; and (b) use the Licensor's user manuals, handbooks, and installation guides and any other materials relating to the System provided by Licensor to Licensee either electronically or in hard copy form relating to the System, (the "Documentation") solely for Licensee's internal evaluation purposes in connection with Licensee's use of the System. Licensee will not use the System for any purpose other than evaluating and testing such System internally in connection with assessing whether Licensee desires to enter into a commercial license agreement with Licensor for the System. Furthermore, Licensee agrees it shall not move the System or any part thereof from the Premises without prior written express consent of Licensor. Premises is defined as the Licensee’s designated place of installation and operation of the System during the Term of the Agreement.

(b) This Agreement does not provide a commercial license to either the System or the Licensee's use of the System.

2. Use Restrictions.

(a) Licensee shall not use the  System or Documentation for any purposes beyond the scope of the license granted in this Agreement. Without limiting the foregoing and except as otherwise expressly set forth in this Agreement, Licensee shall not at any time, directly or indirectly: (a) copy, modify, or create derivative works of the System or the Documentation, in whole or in part; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the System or the Documentation; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code or any other associated technology of the System, in whole or in part; (d) remove any proprietary notices from the System or the Documentation; or (e) use the System in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other rights of any person, or that violates any applicable law.

(b) Licensee further represents and warrants that it shall use the System solely for (a) the purposes of evaluating the performance of the System and for no other purpose.  Licensee shall not analyze, reverse engineer, or otherwise assess the System components or any third-party components except as expressly provided herein.  Licensee represents and warrants that the System shall be used and operated in strict conformity with applicable statutes, laws, regulations, ordinances, and the procedures and requirements set forth in Licensors’s standard product literature, manuals, and any other written documentation provided by Licensor.  To the extent necessary, Licensee shall obtain, at its sole expense, any and all applicable governmental permits and licenses pursuant to such statutes, laws, regulations, and ordinances prior to using the System.

3. Reservation of Rights. Licensor reserves all rights not expressly granted to Licensee in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee or any third party any intellectual property rights or other right, title, or interest in or to the System.

4. System Delivery and Installation.

(a)  Licensor shall deliver the System to Licensee in accordance with the requirements and further details described in the Quote and/or Documentation.

(b)  Installation of the System at the Premises is the sole responsibility of the Licensee and any costs or expenses associated with such installation shall be borne solely by Licensee. Licensee represents and warrants that shall, at its sole cost and expense ensure its Premises are properly equipped and maintained in order to accept and install the  System in accordance with the instructions provided by Licensor in the Quote and/or Documentation.

5. Risk and Liability of Loss. Licensee assumes and shall bear the entire risk of loss, theft, destruction or damage to the System including without limitation any damage which in the Licensor’s sole reasonable judgment occurred in the following circumstances: (a) repair by anyone other than an authorized Licensor-trained service technician or abuse, alteration or misuse or damage in any way; (b) damage due to Licensee’s failure to perform standard operating procedures; (c) damage due to decomposition resulting from chemical action, environmental or operation conditions; (d) failure to operate in strict conformity with the procedures and requirements set forth in Licensor’s Documentation; or (e) failure to operate solely by competent and qualified personnel who have been properly trained in the use of the System.  In such an event, Licensee shall promptly notify Licensor in writing, and at Licensor’s option, Licensee shall do all or some of the following: (i) pay for Licensor to restore the System to good condition, or (ii) pay Licensor the fair market value of the System, as reasonably determined by Licensor.

6. Licensee Responsibilities. Licensee is responsible and liable for all uses of the System and Documentation resulting from access provided by the Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by the Licensee will be deemed a breach of this Agreement by Licensee. Licensee shall take reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the System and shall cause Authorized Users to comply with such provisions.

7. Support. Licensor has no obligation under this Agreement to provide support, maintenance, upgrades, modifications, or new releases of the System or Documentation to Licensee unless otherwise agreed upon by the Parties and subject to any additional fees or costs as indicated by Licensor in the Quote or thereafter. 

8. Maintenance and Repair. During the Term, Licensee shall promptly notify Licensor if the System malfunctions in any way and shall follow the instructions in such event provided by Licensor.  Otherwise, Licensee shall take all steps necessary to maintain and preserve the System in good condition and repair and in good and efficient working order, ordinary wear and tear resulting from proper use thereof alone excepted.  Licensee shall not make or permit to be made any alteration, additions or improvements to, or deletions from the System without Licensor’s prior written consent.  Licensee shall not permit any repair or maintenance work to be performed by any person other than an authorized Licensor’s representative. Licensee may not modify, disassemble, reproduce, create or attempt to create, decompile or otherwise reverse engineer, as applicable, the System.

9. Access. Licensee agrees to give or cause to be given to Licensor’s authorized representative access to the Premises to ensure compliance with this Agreement or for purposes of repairing or inspecting the System and to observe Licensee’s operation thereof, in order to assure that proper operating procedures are being followed.

10. Network Access. If Licensee requests Licensor to access the System for support or otherwise as may be agreed to by the Parties, the Licensee agrees to provide Licensor with such cooperation, materials, information, network access, and support which Licensor deems to be reasonably required to allow Licensor to successfully access the System, without limitation, as may be set forth in the Documentation.   Licensee understands and agrees that Licensor’s network access to the System are expressly conditioned upon Licensee providing such cooperation, materials, information, network access, and support. Licensor acknowledges any network access policies Licensee may have, which Licensee shall provide in writing prior to any network access by Licensor but no less than ten (10) days prior.

11. Return of System. Within ten (10) business days of either expiration or termination of this Agreement, the System in its entirety shall be returned by Licensee, at its sole cost and expense, to Licensor at the location set forth in the Quote, free and clear of liens, encumbrances and rights of others. The System shall be in good and operable condition and in the same condition as at the time of delivery to the Premises, normal wear and tear excepted.  Prior to returning the System and if applicable and as set forth in the Quote, Licensee shall follow the decontamination protocol and certifiy to Licensor in writing that such decontamination has been completed in accordance with such protocol.  Licensee hereby agrees to indemnify and hold Licensor harmless from and against any and all liabilities, losses, damages, claims, costs and expenses, including attorneys’ fees and expenses, of every kind and nature whatsoever in any way arising out of Licensee’s use of the System to process any toxic, hazardous or biologically active materials or the failure of Licensee to fulfill its obligations to clean and remove all such materials from the System prior to their return.

12. Evaluation Fee. In consideration of Licensor's grant of the Evaluation License, Licensee shall pay to Licensor the amount stated in the Quote, if any, (the "Evaluation Fee") subject to the terms of payment as stated in the Quote.

13. Confidential Information. From time to time during the Evaluation Period, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media that is/and whether or not marked, designated or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

14. Intellectual Property Ownership; Feedback.

(a) Licensee acknowledges that, as between Licensee and Licensor, Licensor owns all right, title, and interest, including all intellectual property rights, in and to the System and Documentation.

(b) The System shall be the sole and exclusive property of Licensor.  Licensee shall have no rights or property interest therein, except the right to use the System in accordance with this Agreement.  The System is and shall remain the sole and exclusive personal property of Licensor, and shall not become part of the Premises or any other real estate owned or leased by Licensee, whether as a fixture or otherwise.  Licensee shall not pledge, create, make subject to a security interest or lien, or allow any other encumbrance in the System.  Licensee shall at all times protect and defend, at its own cost and expense, the ownership of Licensor against all claims, liens and legal processes of creditors of Licensee and other persons, and shall keep the System at all times free and clear from all claims, liens, legal processes, levies and encumbrances.  Licensee shall give Licensor immediate written notice of any attachment or other judicial process affecting any article of the System and shall take prompt action to remove the same. Licensee shall not relocate, export, sell, assign, donate, hypothecate, rent, lease, or otherwise transfer possession of the System to any third-party without the prior written consent of Licensor, which may be granted or denied in Licensor’s absolute and sole discretion.  Licensor shall be entitled to display notice of its ownership of the System by means of a suitable stencil, label, sticker, or plaque affixed thereto and Licensee agrees to maintain any such stencil, label, sticker, or plaque in good condition.  Subject to any obligations that Licensor may have pursuant, Licensee shall take all steps necessary to maintain and preserve the System in good condition and repair and in good and efficient working order, ordinary wear and tear resulting from proper use thereof alone excepted.  Licensee shall not make or permit to be made any alteration, additions or improvements to, or deletions from the System without Licensor’s prior written consent.  Licensee shall not permit any repair or maintenance work to be performed by any person other than an authorized Licensor representative unless otherwise agreed in writing by an authorized Licensor representative.  Except as otherwise agreed by Licensor in writing, all repairs, replacements, parts, devices, accessories and improvements of whatever nature furnished or affixed to the System shall become a part of the System and shall belong to Liensor.

(c) If Licensee or any of its employees or contractors submits, orally or in writing, suggestions or recommended changes to the Services, System or Documentation, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Licensor is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Licensee hereby assigns to Licensor on Licensee's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Licensor is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Licensor is not required to use any Feedback.

15. Disclaimer of Warranties. THE SYSTEM AND DOCUMENTATION ARE PROVIDED "AS IS" AND LICENSOR HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SYSTEM AND DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SERVICES, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

16. Indemnification. Licensee agrees to indemnify, defend, and hold harmless Licensor and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, or costs (including  attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding based on Licensee's or Licensee's Authorized Users' (a) negligence or willful misconduct or (b) use of the System or Documentation in a manner not authorized or contemplated by this Agreement. In the event Licensor seeks indemnification or defense from Licensee under this provision, Licensor shall promptly notify Licensee in writing of the claim(s) brought against Licensor for which Licensor seeks indemnification or defense. Licensor reserves the right, at its option and in its sole discretion, to assume full control of the defense of claims with legal counsel of Licensor's choice. Licensee may not enter into any third-party agreement, which would, in any manner whatsoever, affect Licensor's rights, constitute an admission of fault by Licensor or bind Licensor in any manner, without Licensor's prior written consent.                                                                          

17. Limitations of Liability. IN NO EVENT WILL LICENSOR BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED ONE HUNDRED DOLLARS ($100.00).

18. Term and Termination. This Agreement is effective as of the Effective Date and, unless terminated earlier pursuant to this Section 13, will continue in effect until the expiration of the Evaluation Period. Either party may terminate this Agreement at any time, without cause, upon seven (7) days prior written notice. Licensor may terminate this Agreement on written notice to Licensee if Licensee materially breaches or fails to comply with any terms or conditions of this Agreement and does not cure such breach or failure within one (1) day after receiving written notice thereof. Upon expiration or earlier termination of this Agreement, the license granted hereunder will also terminate and Licensee shall cease using and delete, destroy, or return all copies of the Services and Documentation and certify in writing to the Licensor that the Services and Documentation has been deleted or destroyed. This Section and all other Sections of this Agreement which are intended to survive any termination or expiration of this Agreement shall survive such Termination. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement. 

19.  Insurance. Licensee shall, at its own cost and expense, purchase and maintain insurance throughout the Term, including: (a) property insurance with an insurer of sound financial standing sufficiently covering loss, theft, damage and destruction of the System in an amount equal to their full replacement value; and (b) liability insurance in an amount of $5 million per occurrence covering liability for personal injury, death and property damage arising from or related to the use or operation of the System.  In either case, Licensee shall name Licensor as an additional insured and loss payee, as its interest may appear.  Upon request, Licensee shall provide Licensor with a certificate of insurance evidencing such coverage.

20. Miscellaneous. 

(a) Publication and Publicity. Subject to the limitations set forth herein, each Party shall be free to publish or otherwise disclose the data, information and other results arising out of the evaluation of the System, provided however, neither Party shall publish or otherwise disclose any Confidential Information or any other proprietary information including any contents of Documentation or other materials provided by Licensor to Licensee. At least sixty (60) days prior to submission for publication or any public presentation Licensee shall provide Licensor with a copy of any such disclosure for review. The Licensor may reject, provide required changes or approve the public presentation in its sole discretion upon thirty (30) days from receipt of such public presentation from Licensee. Furthermore, Licensee shall not use or refer to this Agreement in the public media or use the name or the marks of the Licensor without Licensor’s prior express written permission, which may be withheld for any reason.

(b) Licensee Identification. Licensee consents to Licensor’s identification of Licensee as a user of the System, as applicable, on its website, through a press release issued by Licensor and in other promotional materials. Licensee also agrees to cooperate with Licensor in writing a case study exposing how the System is being used and the benefits the Licensee is deriving from this evaluation.

(c) Entire Agreement. This Agreement, together with the Quote, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.

(d) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile[, email] (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.

(e) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(f) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(g) Governing Law; Submission to Jurisdiction. This Agreement and the Quote referenced herein is governed by and construed in accordance with the laws of the Licensor’s domicile as identified in the Quote.

(h) Assignment. Licensee may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Licensor. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns. Licensor may assign this Agreement to its Affiliates without notice to Licensee.

(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 9(a), or, in the case of Licensee, Section 2 would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.