TECHNICAL SERVICES AGREEMENT VERSION 2, EFFECTIVE MAY 15, 2018
This Technical Services Agreement (“Agreement”) is incorporated into the signed Proposal between Biota Technology, Inc. (“Contractor”) and the customer identified therein (“Company”), as evidenced by Company’s signature thereon. This Agreement is effective as of the date the Proposal is signed (“Effective Date”). Company and Contractor may be hereinafter referred to individually as a “Party” and collectively as the “Parties.”
Contractor will perform for the Company the services described in the attached Proposal (“Services”) on the terms and conditions set forth in this Agreement.
2.1 Services. Company will pay Contractor for performing the Services as shown in the attached Proposal.
2.2 Payments. Payment terms will be net 30 days. Any amounts due Contractor under this Agreement not received by the date due will be subject to a service charge of 1.5% per month, or the maximum charge permitted by law, whichever is less.
3.1 “Confidential Information” means any proprietary or confidential information or material of either Party that is disclosed to the other Party, either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant, and equipment), whether or not such information is identified as “Confidential” or “Proprietary.” Confidential Information will not include any information that the receiving Party can demonstrate 1) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; 2) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no act or omission of the receiving Party; 3) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party; 4) is obtained by the receiving Party from a third party without a breach of the third party’s obligations of confidentiality; 5) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information, as shown by documents and other evidence in the receiving Party’s possession.
3.2 Nondisclosure and Limited Use. Neither Party will disclose any Confidential Information of the other Party to third Parties or its employees, except to those employees of the receiving Party who are required to have the information in order to perform the Party’s obligations under this Agreement. If a Party is required by law to disclose the other Party’s Confidential Information, that Party must give the other Party prompt written notice of the requirement prior to the disclosure and assist the other Party to obtain an order protecting the information from public disclosure. Neither Party will reverse engineer, disassemble, or decompile any prototypes, material, samples, software, or other tangible objects that embody the other Party’s Confidential Information and that are provided to the Party. Neither Party may use the other Party’s Confidential Information for any purpose other than to provide the Services. Neither Party shall make, use, sell, lease or otherwise exploit or commercially benefit from the Confidential Information of the other Party.
3.3 Maintenance of Confidentiality. Each Party will take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party will take at least those measures that it takes to protect its own most highly confidential information.
3.4 Publicity. Either Party shall have the right to publicize through press releases and public announcements, the existence and general terms of this Agreement (without disclosing any commercial terms or other Confidential Information) and the names of the Parties. Upon mutual agreement, which shall not unreasonably be withheld, conditioned or delayed, the objectives and scope of the Agreement, the technical outcomes of the engagement, and any other matters jointly consented to by both Parties may be publicized. The Parties will coordinate any such press releases and public announcements in advance of such external communications. Contractor shall also have the right to disclose to potential investors, under reasonable confidentiality restrictions, the existence and terms of this Agreement (including the commercial terms), the names of the Parties, the general results of the Services, and any other matters determined by the Contractor to be reasonable necessary for funding diligence.
3.5 Residuals. Contractor will have the right to use and exploit Residuals for any purpose after the return of Company’s Confidential Information. “Residuals” means ideas, information, and understandings retained in the memory of the Contractor because of their review, evaluation, and testing of the Confidential Information of Company after its return to Company.
4. INTELLECTUAL PROPERTY
For the purposes of this Agreement, “Intellectual Property” means anything that is, has been, or is capable of being patented, protected as a trade secret, protected by copyright law, protected by trademark law, or protected by or under any other U.S. or foreign laws or statutes relating to intellectual or industrial property rights, including, without limitation, patent applications, patents, trademark applications, trademarks, service marks, trade names, copyrights, trade secrets, works of authorship, moral rights of authorship, know-how, software, data storage, data processing and visualization techniques, predictive algorithms, mathematical or computational models, confidential and proprietary information, including any applications for or registrations of the foregoing, and all other intellectual and industrial property rights, whether or not subject to statutory registration or protection.
4.1 IP Developed Any Intellectual Property relating to, referring to, comprising, or claiming, microbial information, technologies relating to microbial information, or the use of microbial information for the hydrocarbon industry developed during the course of the Services (“Microbial IP”) shall be solely and exclusively owned by Contractor. To the extent that Company, its employees, agents or contractors, conceive, develop, invent or contribute to any Microbial IP, Company hereby assigns, and agrees to assign, to Contractor the Company’s entire right, title and interest in, and to, such Microbial IP. Contractor may, in its sole judgment, file patent applications, whether in the United States, Patent Cooperation Treaty and/or another jurisdiction, with respect to such Microbial IP in its own name and at its own expense, and take such other steps as are necessary, in the sole judgment of Contractor, to protect its rights in such Microbial IP. Upon the reasonable request of Contractor, Company agrees that it will take all reasonable actions and execute all reasonable documents and will cause its employees, agents, and contractors to take all actions and execute all documents as are reasonably necessary or appropriate to carry out the provisions of this Section or to assist Contractor in the preparation, filing, prosecution, defense and enforcement of patent applications or securing such protection referenced in this Section.
4.2 Background Technology. For the purposes of this Agreement, “Background Technology” means: (a) all patents, patent applications that were filed by Contractor prior to the Effective Date of this Agreement and any patent or patent application that claims the benefit of, or a right of, priority to such patents or patent applications; and (b) technology, know-how, trade secrets, engineering, services, data, data storage, data processing and visualization techniques, predictive algorithms, mathematical or computational models related to the use of microbial information for the hydrocarbon industry in the possession of the Contractor prior to the Effective Date of this Agreement.
4.3 Background Technology and Microbial IP Ownership – Contractor is the sole and exclusive owner of the Background Technology and Microbial IP. No licenses express, implied or otherwise are provided to Company in the Background Technology or Microbial IP. Company agrees that it will not challenge or dispute, or assist others in challenging or disputing, Contractor’s ownership of and rights in the Background Technology and Microbial IP.
5. TERM AND TERMINATION
5.1 Term. This Agreement will commence on the date first written above and will continue until, the end of the Term provided in the attached Proposal, completion of the Services, or termination as provided below.
5.2 Termination. Either Party may terminate this Agreement upon thirty days’ notice of any uncured material breach of this Agreement by the other Party.
5.3 Survival. Upon termination all rights and duties of the Parties toward each other will cease except Sections 3, 4, 5, 6, 7, 8 and 9 will survive termination of this Agreement.
5.4 Samples. Upon termination, Contractor may, in its sole discretion, retain the samples provided by the Company as part of the Services, but Contractor is not obligated to maintain such samples and will have no liability for the loss or destruction of samples after the deliverables identified in the Proposal are made.
6. WARRANTY DISCLAIMER
In interpreting information and making recommendations, either written or oral, as to the type or amount of material or service to be furnished, or manner of performance, or in predicting results to be obtained therefrom, Contractor will give Company recommendations based on good oilfield practices. Nevertheless, all such recommendations or predictions are opinions only; and, in view of the impracticability of obtaining first-hand knowledge of the many variable conditions and/or the necessity of relying on facts and supporting services furnished by others, CONTRACTOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. CONTRACTOR EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR COMPANY’S PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. CONTRACTOR DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF ANY MATERIALS PROVIDED TO COMPANY BY CONTRACTOR OR AGAINST INFRINGEMENT. CONTRACTOR DOES NOT WARRANT THAT THESE MATERIALS ARE ERROR-FREE OR THAT THEIR OPERATION WILL BE SECURE OR UNINTERRUPTED. COMPANY WILL NOT HAVE THE RIGHT TO MAKE OR PASS ON ANY REPRESENTATION OR WARRANTY ON BEHALF OF CONTRACTOR TO ANY THIRD PARTY.
7. LIMITATION OF REMEDIES AND DAMAGES
7.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, CONTRACTOR WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO COMPANY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR LOSS OF BUSINESS, EVEN IF CONTRACTOR IS APPRISED OF THE LIKELIHOOD OF THESE DAMAGES OCCURRING. UNDER NO CIRCUMSTANCES WILL CONTRACTOR HAVE ANY LIABILITY FOR LOSS OF OR DAMAGE TO WELL, WELLBORE, RESERVIOR, FORMATION, MINERALS, MINERAL INTERESTS OR PRODUCTION.
7.2 Cap on Liability. UNDER NO CIRCUMSTANCES WILL CONTRACTOR’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY COMPANY TO CONTRACTOR UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE DATE OF THE ACTION OR CLAIM.
7.3 Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY CONTRACTOR TO COMPANY AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
For the purposes of this Agreement, “Claims” shall include, without limitation, any and all claims, losses, damages, causes of action, fines, penalties, enforcement proceedings, suits, diminutions in value, and liabilities of every kind (including interest and all expenses of litigation, court costs, and attorneys’ fees), whether arising in tort, contract, strict liability, under statute, or of any other character whatsoever.
8.1 Mutual Indemnification for Bodily Injury and Property Damage
(a) Company shall release Contractor, its subcontractors, its and their affiliated entities, or any of their employees, officers, directors, contractors or invitees (“Contractor Entities”), and shall defend, indemnify and hold harmless Contractor Entities from and against any and all Claims brought by or on behalf of Company, Company’s partners, co-venturers, co-operators, joint interest owners or contractors of any level (other than Contractor Entities) its or their affiliated entities, or any of their employees, contractors or invitees (“Company Entities”) alleging bodily injury, personal injury, illness, or death; or damage, loss, or loss of use of any property of Company Entities that arise out of, relate to, or are connected with this Agreement or the performance thereof. Company shall further release Contractor Entities, and shall defend, indemnify and hold harmless Contractor Entities from and against any and all Claims by any person related to loss or damage of property downhole, formation damage, loss of hydrocarbons, blowouts or uncontrolled releases occurring in or at the wellheads of the formations identified in the Proposal.
(b) Contractor shall release Company Entities, and shall defend, indemnify and hold harmless Company Entities from and against any and all Claims brought by or on behalf of Contractor Entities alleging bodily injury, personal injury, illness, or death; or damage, loss, or loss of use of any property of Contractor Entities that arise out of, relate to, or are connected with this Agreement or the performance thereof.
8.2 Environmental Impact. Company shall release Contractor from any liability for, and shall protect, defend and indemnify Contractor from and against any and all Claims resulting from control, removal, clean up and remediation of pollution or contamination to the environment related to the formations and wellsites identified in the Proposal.
9. GENERAL TERMS
9.1 Assignment. Neither this Agreement nor any right or interest in this Agreement may be assigned or transferred by either Party without the express written consent of the other.
9.2 Independent Contractor. Nothing in this Agreement will in any way be construed to constitute Contractor as an agent, employee or representative of Company, but Contractor will perform the Services as an independent contractor.
9.3 Arbitration. Any Claim, dispute or controversy arising out of or relating to the interpretation, construction, performance, or breach of this Agreement will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules then in effect and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Claims shall be heard by a single arbitrator. The place of arbitration shall be Houston, Texas. The arbitration shall be governed by the laws of the State of Texas. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party’s actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this section. The standard provisions of the Commercial Rules shall apply. Arbitrators will have the authority to allocate the costs of the arbitration process among the parties, but will only have the authority to allocate attorneys’ fees if a particular law permits them to do so. Notwithstanding the above, the Parties may seek injunctive relief in any court of competent jurisdiction for a breach of Sections 3 or 4 of this Agreement.
9.4 No limitation on Other IP Rights – This Agreement is in addition to, and does not, limit any rights that the Company may have under trade secret, copyright, patent or other laws that may apply to the subject matter of this Agreement both during and after the term of this Agreement. It is expressly understood and agreed that the Arbitration provision of section 9.3 herein does not apply to patent infringement, copyright infringement, trademark infringement and trade secret misappropriation actions.
9.5 Governing Law. This Agreement will be governed by the laws of the State of Texas.
9.6 Non-Solicitation. Company acknowledges and agrees that the employees and contractors of Contractor who perform the Services are a valuable asset to Contractor and are difficult to replace. Accordingly, for the term of this Agreement and for a period of 24 months thereafter, Company will not offer employment as an employee or independent contractor to nor employ or contract for services with any employees or contractors of Contractor.
9.7 Entire Agreement. This Agreement and all Exhibits form the entire agreement of the Parties and supersede any prior agreements between them with respect to the subject matter of this Agreement.
9.8 Waiver. Waiver of any term or provision of this Agreement or forbearance to enforce any term or provision by either Party will not constitute a waiver as to any subsequent breach or failure of the same term or provision or a waiver of any other term or provision of this Agreement.