Sponsored Research Agreement

DARTMOUTH - ABC RESEARCH AGREEMENT

This Agreement, effective this___________ day of__________ 1996, between

TRUSTEES OF DARTMOUTH COLLEGE, a non-profit educational institution existing under the laws of the State of New Hampshire, and being located at Hanover, New Hampshire 03755, hereinafter called Dartmouth, and ABC CORPORATION, a corporation of the State of _________, with a principal place of business at ________________________, hereinafter called ABC.

WHEREAS, Dartmouth under the direction of Principal Investigator _______, Ph.D., wishes to further research and development for ______________________, as described in the Research Plan (Attachment B); and

WHEREAS, ABC wishes to sponsor such research under the terms and conditions hereinafter set forth; and

WHEREAS, Dartmouth has provided initial development of the technology, and Dartmouth and ABC have jointly pursued in further improvements thereof;

NOW THEREFORE, in consideration of the premises and the faithful performance of the covenants herein contained, IT IS AGREED:

Section 1. Subsidiary. "Subsidiary" shall mean a legal entity at least 50% of the voting stock of which is owned directly or indirectly by ABC.

Section 2. Agreement. "Agreement" shall mean this Research Agreement.

Section 3. Effective Date. "Effective Date" shall mean the date first written above and shall be the Effective Date of this Agreement.

Section 4. Dartmouth Know-How. "Dartmouth Know-How" shall mean the ideas, methods, inventions, improvements, characterization and techniques hereinafter developed by Dartmouth relating to _______________ , pursuant to the terms of this agreement.

Section 5. Dartmouth Patent Rights. "Dartmouth Patent Rights" shall mean any United States or foreign patent applications and any United States Patent issuing from such applications, and any continuations, continuations-in-part, divisions, reissues, reexaminations or extensions thereof, owned or assignable to Dartmouth, containing one or more claims based upon Dartmouth Know–p;How.

Section 6. Joint Patent Rights. "Joint Patent Rights" shall mean any United States or foreign patent applications and any United States Patent issuing from such applications, and any continuations, continuations-in-part, divisions, reissues, reexaminations or extensions thereof, owned or assignable to Dartmouth and ABC, containing one or more claims based upon joint inventions.

Section 7. Contract Period. The "Contract Period" shall mean the period commencing on the Effective Date and ending ___________.

Section 8. Research Support. ABC shall provide research support to Dartmouth for laboratory research concerning the _______________________ at a level of $xx,xxx for the Contract Period, according to the budget which makes up Attachment A, and the Research Plan which makes up Attachment B. Dartmouth shall have the flexibility to rebudget the funds as necessary during the Contract Period so as to provide the Principal Investigator the opportunity to use the funds as he deems most reasonable, provided that the funds are used within the scope of the Research Plan. Dartmouth shall use reasonable efforts to perform the research as described in the Research Plan.

Section 9. Inventions. All inventions arising from the development ______________ under the Research Plan, conceived solely by Dartmouth inventors, shall be assigned to Dartmouth, and all inventions conceived solely by the ABC inventors shall be assigned to ABC. For inventions that are conceived jointly by Dartmouth and ABC inventors, Dartmouth and ABC will hold joint title.

Section 10. License Rights. Upon notice, Dartmouth will offer ABC the option of a world-wide, royalty-bearing license under Dartmouth Patent Rights, and Dartmouth Know-How, and Joint Patent Rights, to make, have made, use and sell (in a designated field of use, where appropriate) the products embodying or produced through the use of Dartmouth's or joint inventions, at reasonable terms and conditions as the parties may agree; except to the extent of any rights required to be granted to the Government of the United States of America pursuant to 35 U.S.C. §§200-211. ABC shall have forty five (45) days after the expiration of the Contract Period to exercise this option. If within ninety (90) days from the option exercise after good faith negotiations parties fail to reach an agreement on the license terms, or if ABC decides to forgo the option, Dartmouth shall be free to offer commercial license rights to any third party or to dispose of its inventions or other rights resulting therefrom in any other way it deems appropriate.

Section 11. Patents and Patent Expenses. ABC will reimburse Dartmouth for all costs associated with obtaining and maintaining Dartmouth Patent Rights. Provided, however, if ABC decides that it is not appropriate to apply for Dartmouth Patent Rights, ABC shall have no obligation to reimburse Dartmouth for such costs and in such event the option granted under Section 10 to ABC by Dartmouth shall lapse in respect to the Dartmouth Patent Rights for which ABC declines to reimburse the cost to Dartmouth. Dartmouth shall also have the right to obtain patent protection on its own and at its own expense for Joint Patent Rights in the names of Dartmouth and ABC in case ABC decides not to support such filings, in which event the option granted under Section 10 to ABC by Dartmouth shall lapse in respect to Dartmouth's rights under Joint Patent Rights.

Section 12. Mutual Confidentiality. ABC and Dartmouth realize that some information received by one party from the other pursuant to this Agreement shall be confidential. It is therefore agreed that any information received by one party from the other, and clearly designated in writing as "CONFIDENTIAL" at the time of transfer, shall not be disclosed by either party to any third party and shall not be used by either party for purposes other than those contemplated by this Agreement for a period of three (3) years from the termination of the Agreement, unless or until --

(a) said information shall become known to third parties or shall become
publicly known through no fault of the receiving party, or

(b) said information was already in the receiving party's possession prior to
the disclosure of said information to the receiving party, or

(c) said information shall be subsequently disclosed to the receiving party
by a third party who is not under any obligation of confidentiality to the disclosing party, or

(d) said information is approved for disclosure by prior written consent of the disclosing
party, or

(e) said information is required to be disclosed by court rule or governmental law or regulation, provided that the receiving party gives the disclosing party prompt notice of any such requirement and cooperates with the disclosing party in attempting to limit such
disclosure.

Section 13. Corporate Action. Dartmouth and ABC each represent and warrant to the other party that they have full power and authority to enter into this Agreement and carry out the transactions contemplated hereby and that all necessary corporate action had been duly taken in this regard.

Section 14. Payments. For the rights and privileges granted under this Agreement, ABC shall pay to Dartmouth research support as defined in Section 8, of $XX,XXX for the first year in quarterly payments of $XX,XXX; $XX,XXX for the second year in quarterly payments of $XX,XXX; and $XX,XXX for the third year in quarterly payments of $XX,XXX.

Section 15. Reports. Dartmouth shall furnish ABC with quarterly reports during the term of this Agreement summarizing the research conducted in accordance with the Research Plan. A final written report stating the accomplishments and significant research findings shall be submitted to ABC within 90 days of the expiration of this Agreement.

Section 16. Publications. Dartmouth retains the rights to report on the results of research under this Agreement in professional journals, meetings, seminars, and the like. Appropriate recognition of ABC's support will be included in all such reports. However, in recognition of ABC's desire for patent protection, Dartmouth shall provide ABC with the final draft of any manuscript describing studies within the pertinent field and resulting from the sponsored research at least thirty (30) days prior to publication.

Section 17. Use of Name. ABC shall not use and shall not permit to be used by any other person or entity the name of Dartmouth, nor any adaptation thereof, or the name of Dartmouth's employees, in any advertising, promotional or sales literature, or for any other purpose without prior written permission of Dartmouth.

Section 18. Indemnity. ABC shall defend and indemnify and hold Dartmouth its trustees, employees, officers and agents harmless for any judgments and other liabilities based upon claims or causes of action against Dartmouth or its employees which arise out of (i) the design, production, manufacture, sale, use in commerce, lease or promotion by ABC, its Subsidiaries and Licensees, affiliates or agents of ABC of any product, process or service relating to, or developed pursuant to, this Agreement or (ii) any other activities to be carried out pursuant to this Agreement, except to the extent that such judgements or liabilities arise in whole or in part from the gross negligence or willful misconduct of Dartmouth or its employees, provided that Dartmouth promptly notifies ABC of any such claim coming to its attention and that it cooperates with ABC in the defense of such claim. If any such claims or causes of action are made, Dartmouth shall be defended by counsel to ABC, subject to Dartmouth's approval, which shall not be unreasonably withheld.

DARTMOUTH MAKES NO WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE RESULTS OF RESEARCH PERFORMED UNDER
THE RESEARCH PLAN OR OF THE MERCHANTABILITY, OR FITNESS FOR
A PARTICULAR PURPOSE OF SUCH RESEARCH OR RESULTS

Section 19. Termination. Performance under this Agreement may be terminated by ABC upon sixty (60) days written notice; performance may be terminated by Dartmouth if circumstances beyond its control preclude continuation of the research. Upon termination, Dartmouth will be reimbursed as specified in Section 14 for all costs and non-cancellable commitments incurred in the performance of the research, such reimbursement not to exceed the total estimated project cost specified in Section 8.

Section 20. Prior Obligations. Termination of this Agreement for any reason shall not release either party from any obligation theretofore accrued.

Section 21. Governing Law. This Agreement shall be construed, governed, interpreted and enforced according to the laws of the State of New Hampshire.

Section 22. Notices. Any notice or communication required or permitted to be given by either party hereunder, shall be deemed sufficiently given, if mailed by certified mail, return receipt requested, and addressed to the party to whom notice is given as follows:

If to ABC, to:
--------------------
If to Dartmouth, to:
Alla Kan, Associate Director
Technology Transfer Office
Dartmouth College
11 Rope Ferry Road
Hanover, NH 03755-1404
Tel.: (603) 646-3027
Fax: (603) 646-3670

Section 23. Assignment. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto. However, ABC may not assign this Agreement in whole or in part without the written consent of Dartmouth.

Section 24. Entire Agreement. This Agreement represents the entire Agreement between the parties as of the Effective Date hereof and may only be subsequently altered or modified by an instrument in writing. This Agreement cancels and supersedes any and all prior agreements between the parties which relate to the subject matter of this Agreement.

Section 25. Waiver. A failure by one of the parties to this Agreement to assert its rights for or upon any breach or default of this Agreement shall not be deemed a waiver of such rights nor shall any such waiver be implied from acceptance of any payment. No such failure or waiver in writing by any one of the parties hereto with respect to any rights, shall extend to or affect any subsequent breach or impair any right consequent thereon.

Section 26. Severability. The parties agree that it is the intention of neither party to violate any public policy, statutory or common laws, and governmental or supranational regulations; that if any sentence, paragraph, clause or combination of the same is in violation of any applicable law or regulation, or is unenforceable or void for any reason whatsoever, such sentence, paragraph, clause or combinations of the same shall be inoperative and the remainder of the Agreement shall remain binding upon the parties.

Section 27. Mediation and Arbitration. Both parties agree that they shall attempt to resolve any dispute arising from this Agreement through mediation. Both parties agree that at least one company employee, capable of negotiating an agreement on behalf of his company, shall, within three weeks of receipt of written notification of a dispute, meet with at least one employee of the other party who is also capable of negotiating an agreement on behalf of his company. If no agreement can be reached, both parties agree to meet again within a four week period after the initial meeting to negotiate in good faith to resolve the dispute. If no agreement can be reached after this second meeting, both parties agree to submit the dispute to binding arbitration under the Rules of the American Arbitration Association before a single arbitrator.

Section 28. Headings. The headings of the paragraphs of this Agreement are inserted for convenience only and shall not constitute a part hereof.


IN WITNESS WHEREOF, the parties hereto have executed this Agreement, in duplicate originals, by their respective officers hereunto duly authorized, the day and year herein written.


THE TRUSTEES OF DARTMOUTH COLLEGE

By___________________________________
John Kavanagh
Director, Grants & Contracts
Date_________________________________




ABC CORPORATION

By___________________________________

Date_________________________________