**Exhibit10.70**

 

SPONSORED RESEARCH AGREEMENT— INVENTIONS AND MATERIALS —

 

This Agreement, effective asof August 1, 1999 (the “Effective Date”), is between the University ofMassachusetts (“Institution”), a public institution of higher education of theCommonwealth of Massachusetts, as represented by its Amherst Campus andAdvanced Cell Technology, Inc. (“Sponsor”), a Delaware corporation.

 

R E C I T A L S

 

WHEREAS,the National Institutes of Health (“NIH”) has awarded to Sponsor a “phase I”grant (No. 1 R43 NS38382 01) in support of a research project designed tocreate cloned cattle lacking the prion gene; and

 

WHEREAS,Sponsor desires to subcontract to Institution certain research described in thegrant;

 

NOW,THEREFORE, Institution and Sponsor hereby agree as follows:

 

1. Definitions.

 

1.1“Confidential Information” means any confidential or proprietaryinformation furnished by one party (the “Disclosing Party”) to the other party(the “Receiving Party”) in connection with the performance of the Research Project,provided that such information is specifically designated as confidential. SuchConfidential Information may include, without limitation, trade secrets,know-how, inventions, technical data or specifications, testing methods, andresearch and development activities.

 

1.2.“Inventions” means any potentially patentable invention based on theResearch Results which is (i) conceived during the term of this Agreement byemployees of Institution or Sponsor, or both, and (ii) reduced to practiceeither during the term of this Agreement or thereafter within a period of six(6) months.

 

1.3.“Materials” means any tangible biological, chemical, or physicalmaterials. In the case of biological materials, the term “Materials” shall alsoinclude tangible materials that are routinely produced through use of theoriginal materials, including, for example, any progeny derived from a cellline, monoclonal antibodies produced by hybridoma cells, DNA or RNA replicatedfrom isolated DNA or RNA, recombinant proteins produced through use of isolatedDNA or RNA, and recombinant proteins isolated from a cell extract orsupernatant by non-proprietary affinity purification methods.

 

1.4*.* “Patent Rights” means all United States and foreign patentapplications claiming an Invention, including any divisional, continuation,continuation-in-part (to the extent that the claims are directed to anInvention), and foreign equivalents thereof, as well as any patents issuedthereon or reissues or reexaminations thereof. “Institution Patent Rights”means Patent

 

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Rightsclaiming Inventions that are conceived and reduced to practice solely byemployees of Institution, as determined under the patent laws of the UnitedStates, and assigned to Institution. “Joint Patent Rights” means PatentRights claiming Inventions that are conceived or reduced to practice jointly byemployees of Institution and employees or consultants of Sponsor, as determinedunder the patent laws of the United States, and assigned to Institution orSponsor.

 

1.5.“Principal Investigator” means an employee of Institution who hasprimary responsibility for the performance of the Research Project. ThePrincipal Investigator is identified in Section 2.1. below.

 

1.6.“Project Materials” means Materials that are discovered or developed inthe performance of the Research Project.

 

1.7.“Proprietary Materials” means any proprietary Materials other thanProject Materials that are furnished by one party (the “Supplier”) to the otherparty (the “Recipient”) in connection with the performance of the ResearchProject.

 

1.8.“Research Project” means the research project described on Exhibit A(“Description of Research Project”), which Institution agrees to perform underthe terms and conditions of this Agreement.

 

1.9.“Research Results” means all data, test results, laboratory notes,techniques, know-how, and any other research results that are obtained in theperformance of the Research Project. The term “Research Results” shall notinclude any Project Materials, patentable inventions, copyrighted orcopyrightable works, trademarks or service marks, or other intellectualproperty based on the Research Results. As a matter of policy, Institutionordinarily will not assert trade secret protection for Research Results.

 

1.10.“Technical Representative” means an individual designated by Sponsor asits principal technical representative for consultation and communications withInstitution and the Principal Investigator. The Technical Representative isidentified in Section 2.1. below.

 

2.Performance of Research Project.

 

2.1. Principal Investigator and Technical Representative. ThePrincipal Investigator shall be Deborah J. Good. If Deborah J. Good ceases toserve as Principal Investigator for any reason, Institution will promptlynotify Sponsor, and Institution and Sponsor shall use good faith efforts toidentify a mutually acceptable replacement within sixty (60) days. If asuitable replacement Principal Investigator cannot be identified within thesixty-day period, Sponsor shall have right to terminate this Agreement asprovided in Section 6.2. The Technical Representative shall be Jose Cibelli.Sponsor may change its Technical Representative upon thirty (30) days written noticeto Institution.

 

2.2. Performance of Research Project. Institution shall usereasonable efforts to complete the Research Project; however, Institution makesno warranties regarding the completion of the Research Project or theachievement of any particular results. The Principal Investigator shall

 

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directthe Research Project and shall control the manner of its performance. TheTechnical Representative may consult informally with the PrincipalInvestigator, both in person and by telephone, regarding the performance of theResearch Project. The Technical Representative shall have reasonable access toInstitution facilities where the Research Project is being conducted, but theexact time and manner of such access shall be determined by the PrincipalInvestigator.

 

2.3.Records, Materials, and Reports. The Principal Investigator will prepareand maintain records containing all Research Results, including laboratorynotebooks maintained in accordance with customary academic practice. During theterm of this Agreement, and at the convenience of the Principal Investigator,the Technical Representative shall have reasonable access to such researchrecords, and the Principal Investigator agrees to furnish Sponsor, uponrequest, with reasonable amounts of any Project Materials, subject toavailability. Within ninety (90) days after the expiration or termination ofthis Agreement, the Principal Investigator shall deliver to Sponsor a finalreport describing all significant Research Results in reasonable detail;provided, however, that the Principal Investigator may extend this ninety-daydeadline with the consent of Sponsor, which consent shall not be unreasonablywithheld.

 

3.Contributions of Sponsor.

 

3.1.Contributions to Research Project. Sponsor shall contribute to the ResearchProject the financial support, equipment, personnel, technology, and otherresources listed on Exhibit B (“Sponsor Contributions”). Sponsor mayalso furnish Institution and the Principal Investigator with certainConfidential Information and Proprietary Materials, which shall remain theproperty of Sponsor. Institution and the Principal Investigator reserve theright to refuse to accept any Confidential Information or Proprietary Materialsoffered by Sponsor.

 

3.2.Payments to Institution. In consideration of the performance of theResearch Project, Sponsor shall make or shall cause NIH to make, the paymentsto Institution in the amounts listed on Exhibit B (“SponsorContributions”). Payments should be made in the name of “University of Massachusetts”and sent to Controllers Office, 405 Goodell Building, University of Massachusetts,Amherst, MA 01003. If this Agreement is terminated prior to its expiration for anyreason other than a material breach by Institution (as described in Section 6.3.),then on the effective date of such termination, Sponsor shall pay Institutionthe entire amount of any uncancellable financial commitments that Institutionintended to pay through Sponsor Contributions, including without limitation (i)salaries for appointed employees for the remainder of their term of appointment(e.g., postdoctoral fellows) and stipends for graduate students and (ii)Institution expenses previously incurred for equipment, travel, and associatedindirect costs. Upon the request of Sponsor made within thirty (30) days afterthe expiration or termination of this Agreement, Institution shall furnishSponsor with a final accounting of all expenses incurred in connection with theResearch Project and all funds received from Sponsor pursuant to this Section3.2., together with a check payable to Sponsor in the amount of any unexpendedand uncommitted funds, failing which Institution shall retain any unexpendedfunds.

 

3.3.Use of Funds. Institution shall monitor expenditures, in accordance withits institutional policies, to ensure that the funds provided by Sponsor arespent in connection with

 

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the performance of theResearch Project.

 

3.4.Ownership of Equipment. Upon termination or expiration of this Agreement,Institution shall retain title to all equipment purchased or fabricated byInstitution with funds provided by Sponsor.

 

4. ConfidentialInformation; Proprietary Materials; Publications.

 

4.1.Confidential Information.

 

(a)Designation. Confidential Information that is disclosed in writing shallbe marked with a legend indicating its confidential status (such as “Confidential”or “Proprietary”). Confidential Information that is disclosed orally orvisually shall be documented in a written notice prepared by the DisclosingParty and delivered to the Receiving Party within thirty (30) days of the dateof disclosure; such notice shall summarize the Confidential Information disclosedto the Receiving Party and reference the time and place of disclosure.

 

(b)Obligations. During the term of this Agreement and thereafter for a**periodof five (5) years, the Receiving Party shall (i) maintain all ConfidentialInformation in strict confidence, except that the Receiving Party may discloseor permit the disclosure of any Confidential Information to its directors,officers, employees, consultants, and advisors who are obligated to maintainthe confidential nature of such Confidential Information and who need to knowsuch Confidential Information for the performance of the Research Project; (ii)use all Confidential Information solely for the performance of the ResearchProject; and (iii) allow its directors, officers, employees, consultants, andadvisors to reproduce the Confidential Information only to the extent necessaryfor the performance of the Research Project, with all such reproductions beingconsidered Confidential Information.

 

(c)Exceptions. The obligations of the Receiving Party under Section 4.1.(b)above shall not apply to the extent that the Receiving Party can demonstratethat certain Confidential Information (i) was in the public domain prior to thetime of its disclosure under this Agreement; (ii) entered the public domainafter the time of its disclosure under this Agreement through means other thanan unauthorized disclosure resulting from an act or omission by the Receiving Party;(iii) was independently developed or discovered by the Receiving Party withoutuse of the Confidential Information; (iv) is or was disclosed to the ReceivingParty at any time, whether prior to or after the time of its disclosure underthis Agreement, by a third party having no fiduciary relationship with theDisclosing Party and having no obligation of confidentiality with respect tosuch Confidential Information; or (v) is required to be disclosed to complywith applicable laws or regulations, or with a court or administrative order,provided that the Disclosing Party receives reasonable prior written notice ofsuch disclosure.

 

(d)Ownership and Return. The Receiving Party acknowledges that theDisclosing Party (or any third party entrusting its own information to theDisclosing Party) claims ownership of its Confidential Information in thepossession of the Receiving Party. Upon the expiration or termination of this Agreement,and at the request of the Disclosing Party, the Receiving Party shall return tothe Disclosing Party all originals, copies, and summaries of documents,materials,

 

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and other tangiblemanifestations of Confidential Information in the possession or control of theReceiving Party, except that the Receiving Party may retain one copy of theConfidential Information in the possession of its legal counsel solely for thepurpose of monitoring its obligations under this Agreement.

 

4.2.Proprietary Materials.

 

(a)Limited Use and Transfer. The Recipient shall use Proprietary Materialsonly for the performance of the Research Project. The Recipient shall use theProprietary Materials only in compliance with all applicable federal, state,and local laws and regulations. The Recipient shall not use the ProprietaryMaterials in any in vivo experiments on human subjects. The Recipient shallnot transfer any Proprietary Materials to any third party without the priorwritten consent of the Supplier.

 

(b)Warranty Disclaimer. Any Proprietary Materials that are furnished to aparty pursuant to this Agreement are provided for experimental purposes and mayhave hazardous properties. THE SUPPLIER MAKES NO REPRESENTATIONS, AND EXTENDSNO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPRIETARYMATERIALS. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY ORFITNESS FOR A PARTICULAR PURPOSE, OR THAT THE USE OF PROPRIETARY MATERIALS WILLNOT INFRINGE ANY PATENT RIGHTS OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY.

 

(c)Ownership and Return. The Recipient acknowledges that the Supplier (orany third party entrusting its Materials to the Supplier) claims ownership ofits Proprietary Materials in the possession of the Recipient. The Recipientagrees to cause its employees to execute and deliver any documents ofassignment or conveyance to effectuate the ownership rights of the Supplier in ProprietaryMaterials. Upon the expiration or termination of this Agreement, the Recipientshall at the instruction of Supplier either destroy or return any unusedProprietary Materials.

 

4.3.Publications. Institution and its employees will be free to publiclydisclose (through journals, lectures, or otherwise) the Research Results,provided that the Principal Investigator shall have provided a copy of theproposed disclosure to Sponsor at least sixty (60) days prior to the submissionof any written publication and at least thirty (30) days prior to any oral publicdisclosure (the “Review Period”) to allow Sponsor to determine whether anyInvention or its Confidential Information would be disclosed. The partiesexpressly agree that research grant proposals submitted to federal, state, orlocal agencies or non-profit organizations shall not be subject to review underthis Section. If Sponsor reasonably determines that the proposed disclosurewould reveal an Invention or Sponsor Confidential Information, then Sponsorshall notify Institution and the Principal Investigator of such determinationand its basis prior to the expiration of the Review Period. With respect todisclosure of an Invention, upon receipt of timely notice by Sponsor, thePrincipal Investigator agrees to delay submission of the written publication orpresentation of the oral public disclosure until one of the following eventsoccurs: (i) Sponsor and Institution agree that no patentable Invention exists;(ii) Institution or Sponsor files a patent application claiming the relevantInvention pursuant to Article 5; (iii) Sponsor, Institution, and PrincipalInvestigator jointly agree upon deletions that prevent disclosure of any

 

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Invention;or (iv) a period of sixty (60) days elapses commencing with the effective dateof notice to Institution. With respect to disclosure of Sponsor ConfidentialInformation, upon receipt of timely notice by Sponsor, the PrincipalInvestigator agrees to delete such information from any proposed disclosure.

 

5.Intellectual Property.

 

5.1. Assignment of Rights in Inventions and Project Materials. The Principal Investigator agrees to assignto Institution all rights in Inventions and commercial rights in ProjectMaterials. The Principal Investigator shall certify that every person who maybe involved in the Research Project shall have signed the UniversityParticipation Agreement, which assigns to Institution all rights in Inventionsand commercial rights in Project Materials. Sponsor represents and warrants thatall of its employees and consultants who may be involved in the ResearchProject shall have agreed to assign to Sponsor all rights in Inventions and allcommercial rights in Project Materials.

 

5.2.Ownership of Patent Rights and Project Materials. In accordance with UnitedStates patent law, Institution shall have sole ownership of all InstitutionPatent Rights and Institution and Sponsor shall have joint, undivided ownershipof all Joint Patent Rights. Institution shall have sole ownership of commercialrights in all Project Materials not claimed in the Patent Rights; however, if aProject Material incorporates one or more Sponsor Proprietary Materials, Institutionmay not exploit commercial rights in that Project Material without the writtenconsent of Sponsor.

 

5.3.Notice of Inventions and Project Materials. The Principal Investigatorshall promptly disclose to Institution the conception or reduction to practiceof any Invention and the development or discovery of any commercially valuableProject Material that is not otherwise disclosed as an Invention. Institutionand Sponsor shall provide prompt written notice to the other of the internaldisclosure by its employees of any Invention. Institution and Sponsor shall discusswhether to obtain Patent Rights for the Invention and whether such PatentRights would constitute Institution Patent Rights or Joint Patent Rights.Institution shall provide prompt written notice to Sponsor of the internaldisclosure of any commercially valuable Project Material that is not otherwise disclosedas an Invention.

 

5.4.Responsibility for Patent Rights.

 

(a)Primary Responsibility with Institution. Institution shall have primaryresponsibility, at the expense of Sponsor, for the preparation, filing,prosecution, and maintenance of all Institution Patent Rights and Joint PatentRights, using patent counsel reasonably acceptable to Sponsor. Institutionshall consult with Sponsor as to the preparation, filing, prosecution, and maintenanceof all such Patent Rights reasonably prior to any deadline or action with theU.S. Patent & Trademark Office or any foreign patent office and shallfurnish Sponsor with copies of all relevant documents reasonably in advance ofsuch consultation.

 

(b)Secondary Responsibility with Sponsor. In the event that Institutiondesires to abandon any patent or patent application within the Patent Rights,or if Institution declines to

 

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assumeresponsibility for obtaining patent protection for any Invention, Institutionshall provide Sponsor with reasonable prior written notice of such intendedabandonment or decline of responsibility, and Sponsor shall have the right, atits expense, to prepare, file, prosecute, and maintain the relevant PatentRights.

 

(c)Cooperation. Institution and Sponsor shall cooperate fully in thepreparation, filing, prosecution, and maintenance of all Institution PatentRights and Joint Patent Rights. Such cooperation includes, without limitation,(i) promptly executing all papers and instruments or requiring employees ofInstitution or Sponsor to execute such papers and instruments as reasonable andappropriate so as to enable Institution or Sponsor to file, prosecute, andmaintain such Patent Rights in any country; and (ii) promptly informing theother party of matters that may affect the preparation, filing, prosecution, ormaintenance of any such Patent Rights.

 

(d)Payment of Expenses. Within thirty (30) days after Institution invoicesSponsor, Sponsor shall reimburse Institution for all reasonable patent-relatedexpenses incurred by Institution pursuant to Subsection 5.4(a). Institutionshall have no obligation to reimburse Sponsor for expenses incurred by Sponsorpursuant to Subsection 5.4(b). Sponsor may elect, upon sixty (60) days writtennotice to Institution, to cease payment of the expenses associated withobtaining or maintaining patent protection for one or more Patent Rights in oneor more countries. In such event, Sponsor shall lose all rights under thisAgreement with respect to such Patent Rights in such countries.

 

5.5.Option for Exclusive License. Institution hereby grants Sponsor a firstoption to obtain a worldwide, royalty-bearing, exclusive license (with theright to sublicense) under its commercial rights in any Institution PatentRights and Joint Patent Rights (the “Option Right”). Sponsor may exercise theOption Right with respect to a particular Patent Right or Project Material (ifany) by written notice to Institution together with payment of Ten ThousandDollars ($10,000.00) license fee for each invention in which Institution claimsrights, both of which must be received by Institution not later than sixty (60)days after the disclosure to Sponsor of the relevant Invention (the “OptionPeriod”). If Sponsor elects not to exercise the Option Right, or fails toexercise the Option Right during the Option Period, Institution shall be freeto license its commercial rights under the relevant Patent Right to any thirdparty. If Sponsor does elect to exercise the Option Right, Institution andSponsor shall negotiate in good faith a license agreement containingcommercially reasonable terms and conditions. If Institution and Sponsor areunable to reach agreement within six (6) months after Sponsor exercised theOption Right (the “Negotiation Period”), Institution may offer its commercialrights in the relevant Patent Right to any third parties; provided, however,that for a period of one (1) year after the Negotiation Period expires,Institution may only offer such rights to third parties on terms and conditionsthat are not more favorable than the last offer made by Institution to Sponsor,unless Institution first provides Sponsor with written notice of the morefavorable offer and Sponsor either (i) declines in writing to accept the offeror (ii) fails to respond to the offer within thirty (30) days after receivingsuch notice.

 

5.6.Use of Research Results and Project Materials. Each party shall have theunrestricted right to use Research Results for any purpose and to use ProjectMaterials for internal research (but not in a commercial product or inconnection with a commercial service); provided,

 

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however, that in the case ofSponsor, such use does not infringe any claim of a patent application or anissued patent included in the Institution Patent Rights for which Sponsor hasfailed to obtain a license as provided in Section 5.5. above. If Sponsordesires to obtain a license under the commercial rights of Institution in anyProject Materials, Institution agrees to discuss the possibility of grantingsuch a license, provided that such commercial rights are available forlicensing when Sponsor makes its request.

 

5.7.Copyrightable Works. Institution or its employees shall have sole ownershipof any copyrighted or copyrightable works (including reports and publications)that are created by Institution employees in the performance of the ResearchProject. Institution and the Principal Investigator hereby grant Sponsor anirrevocable, royalty-free, nontransferable, non-exclusive right to copy anddistribute any research reports furnished to Sponsor under this Agreement andto prepare, copy, and distribute derivative works based on these researchreports.

 

6. Term and Termination.

 

6.1.Term. This Agreement shall commence on the Effective Date and shallremain in effect until completion of the Research Project, unless earlierterminated in accordance with the provisions of this Agreement.

 

6.2.Loss of Principal Investigator. If the Principal Investigator leavesInstitution or otherwise terminates his involvement in the Research Project,and if Institution and Sponsor fail to identify a mutually acceptablesubstitute as provided in Section 2.1.,Sponsor may terminate this Agreement upon sixty (60) days prior writtennotice to Institution.

 

6.3.Termination for Default. In the event that either party commits amaterial breach of its obligations under this Agreement and fails to cure thatbreach within sixty (60) days after receiving written notice thereof, the otherparty may terminate this Agreement immediately upon written notice to the partyin breach. If the alleged breach involves nonpayment of any amounts dueInstitution under this Agreement, Sponsor shall have only one opportunity tocure a material breach for which it receives notice as described above; anysubsequent material breach by Sponsor will entitle Institution to terminatethis Agreement immediately upon written notice to Sponsor, without thesixty-day cure period.

 

6.4.Force Majeure. Neither party will be responsible for delays resultingfrom causes beyond the reasonable control of such party, including withoutlimitation fire, explosion, flood, war, strike, or riot, provided that thenonperforming party uses commercially reasonable efforts to avoid or removesuch causes of nonperformance and continues performance under this Agreementwith reasonable dispatch whenever such causes are removed.

 

6.5.Effect of Termination. The following provisions shall survive theexpiration or termination of this Agreement: Articles 1, 4, and 7; Sections 2.3.(obligation to deliver final report), 3.2. (obligation to deliver finalaccounting), 6.5., 8.2., 8.3., 8.5., 8.14., and 8.15. In addition, theprovisions of Article 5 shall survive termination of this Agreement, asnecessary to effectuate the rights of Sponsor, unless Institution hasterminated this Agreement because of a material breach by Sponsor pursuant toSection 6.3.

 

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7. Dispute Resolution.

 

7.1.Procedures Mandatory. The parties agree that any dispute arising out ofor relating to this Agreement shall be resolved solely by means of theprocedures set forth in this Article, and that such procedures constitutelegally binding obligations that are an essential provision of this Agreement;provided, however, that all procedures and deadlines specified in this Articlemay be modified by written agreement of the parties. If either party fails toobserve the procedures of this Article, as modified by their written agreement,the other party may bring an action for specific performance in any court ofcompetent jurisdiction.

 

7.2.Dispute Resolution Procedures.

 

(a)Negotiation. In the event of any dispute arising out of or relating tothis Agreement, the affected party shall notify the other party, and theparties shall attempt in good faith to resolve the matter within ten (10) daysafter the date such notice is received by the other party (the “Notice Date”).Any disputes not resolved by good faith discussions shall be referred to seniorexecutives of each party, who shall meet at a mutually acceptable time andlocation within thirty (30) days after the Notice Date and attempt to negotiatea settlement.

 

(b)Mediation. If the matter remains unresolved within sixty (60) days afterthe Notice Date, or if the senior executives fail to meet within thirty (30)days after the Notice Date, either party may initiate mediation upon writtennotice to the other party, whereupon both parties shall be obligated to engagein a mediation proceeding under the then current Center for Public Resources (“CPR”)Model Procedure for Mediation of Business Disputes, except that specific provisionsof this Section shall override inconsistent provisions of the CPR Model Procedure.The mediator will be selected from the CPR Panels of Neutrals. If the partiescannot agree upon the selection of a mediator within ninety (90) days after theNotice Date, then upon the request of either party, the CPR shall appoint themediator. The parties shall attempt to resolve the dispute through mediationuntil one of the following occurs: (i) the parties reach a written settlement;(ii) the mediator notifies the parties in writing that they have reached animpasse; (iii) the parties agree in writing that they have reached an impasse;or (iv) the parties have not reached a settlement within one hundred and twenty(120) days after the Notice Date.

 

(c)Trial Without Jury. If the parties fail to resolve the dispute throughmediation, or if neither party elects to initiate mediation, each party shallhave the right to pursue any other remedies legally available to resolve thedispute, provided, however, that the parties expressly waive any right to ajury trial in any legal proceeding under this Section.

 

7.3.Preservation of Rights Pending Resolution.

 

(a)Performance to Continue. Each party shall continue to perform itsobligations under this Agreement pending final resolution of any disputearising out or relating to this Agreement; provided, however, that a party maysuspend performance of its obligations during any period in which the otherparty fails or refuses to perform its obligations.

 

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(b)Provisional Remedies. Although the procedures specified in this Articleare the sole and exclusive procedures for the resolution of disputes arisingout of relating to this Agreement, either party may seek a preliminaryinjunction or other provisional equitable relief if, in its reasonablejudgment, such action is necessary to avoid irreparable harm to itself or to preserveits rights under this Agreement.

 

(c)Statute of Limitations. The parties agree that all applicable statutesof limitation and time-based defenses (such as estoppel and laches) shall be tolledwhile the procedures set forth in Subsections 7.2.(a) and 7.2(b) are pending.The parties shall take any actions necessary to effectuate this result.

 

8. Miscellaneous.

 

8.1.Compliance with Law and Policies. Sponsor agrees to comply withapplicable law and the policies of Institution in the area of technologytransfer, and shall promptly notify Institution of any violation that Sponsorknows or has reason to believe has occurred or is likely to occur.

 

8.2.Indemnification.

 

(a)Indemnity. Sponsor shall indemnify, defend, and hold harmlessInstitution and its trustees, officers, faculty, students, employees, andagents and their respective successors, heirs and assigns (the “Indemnitees”),against any liability, damage, loss, or expense (including reasonable attorneysfees and expenses of litigation) incurred by or imposed upon any of the Indemniteesin connection with any claims, suits, actions, demands or judgments arising outof any theory of liability (including without limitation actions in the form oftort, warranty, or strict liability and regardless of whether such action hasany factual basis) relating to this Agreement or concerning any product,process, or service that is made, used, or sold pursuant to any right or licensegranted under this Agreement; provided, however, that such indemnificationshall not apply to any liability, damage, loss, or expense to the extentdirectly attributable to (i) the negligent activities or intentional misconductof the Indemnitees or (ii) the settlement of a claim, suit, action, or demandby Indemnitees without the prior written approval of Sponsor.

 

(b)Procedures. The Indemnitees agree to provide Sponsor with prompt writtennotice of any claim, suit, action, demand, or judgment for whichindemnification is sought under this Agreement. Sponsor agrees, at its ownexpense, to provide attorneys reasonably acceptable to Institution to defendagainst any such claim. The Indemnitees shall cooperate fully with Sponsor insuch defense and will permit Sponsor to conduct and control such defense andthe disposition of such claim, suit, or action (including all decisionsrelative to litigation, appeal, and settlement); provided, however, that anyIndemnitee shall have the right to retain its own counsel, at the expense ofSponsor, if representation of such Indemnitee by the counsel retained bySponsor would be inappropriate because of actual or potential differences inthe interests of such Indemnitee and any other party represented by suchcounsel. Sponsor agrees to keep Institution informed of the progress in thedefense and disposition of such claim and to consult with Institution withregard to any proposed settlement.

 

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8.3. PublicityRestrictions. Sponsor shall not use the name of Institution or any of its trustees,officers, faculty, students, employees, or agents, or any adaptation of suchnames, or any terms of this Agreement in any promotional material or otherpublic announcement or disclosure without the prior written consent ofInstitution. The foregoing notwithstanding, Sponsor shall have the right todisclose such information without the consent of Institution in any prospectus,offering memorandum, or other document or filing required by applicable securitieslaws or other applicable law or regulation, provided that Sponsor shall havegiven Institution at least ten (10) days prior written notice of the proposedtext for the purpose of giving Institution the opportunity to comment on suchtext.

 

8.4. Warranty Disclaimer.Institution makes no express warranties and disclaims any implied warranties asto any matter relating to this Agreement, including without limitation the performanceor results of the Research Project; the availability of legal protection for anyResearch Results, Project Materials, Inventions, copyrightable works, or anyother work product of the Research Project; or the validity or enforceabilityof any Patent Right that may be obtained pursuant to this Agreement. THERE ARENO EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULARPURPOSE FOR ANY PROJECT MATERIALS OR RESEARCH RESULTS, OR THAT THE USE OFPROJECT MATERIALS OR RESEARCH RESULTS WILL NOT INFRINGE ANY PATENT RIGHTS OROTHER PROPRIETARY RIGHTS OF A THIRD PARTY.

 

8.5. Notice to OtherInvestigators. The Principal Investigator shall furnish all investigatorsinvolved in the Research Project, including faculty, staff, students, and post-doctoralfellows, with written notice of their obligations under Articles 4 and 5 ofthis Agreement.

 

8.6. ResearchPartially Funded by Grants.

 

(a) Federal Government.To the extent that any Invention has been partially funded by the federalgovernment, this Agreement and the grant of any rights in such Invention issubject to and governed by federal law as set forth in 35 U.S.C.§§ 201-211, and the regulations promulgated thereunder, as amended, or anysuccessor statutes or regulations. Sponsor and Institution acknowledge that thereferenced laws and regulations reserve to the federal government aroyalty-free, non-exclusive, non-transferable license to practice any government-fundedinventions. If any term of this Agreement fails to conform with such laws andregulations, the relevant term shall be deemed an invalid provision and modifiedby the parties pursuant to Section 8.16.

 

(b) OtherOrganizations. To the extent that any Invention has been partially fundedby a non-profit organization or state or local agency, this Agreement and thegrant of any rights in such Invention is subject to and governed by the termsand conditions of the applicable research grant. If any term of this Agreementfails to conform with such terms and conditions, the relevant term shall bedeemed an invalid provision and modified by the parties pursuant to Section8.16. At the request of Sponsor, Institution shall make available to Sponsorthe terms and conditions of any research grants that will partially fund theResearch Project.

 

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8.7. Tax-Exempt Status.Sponsor acknowledges that Institution, as a public institution of theCommonwealth of Massachusetts, holds the status of an exempt organization underthe United States Internal Revenue Code. Sponsor also acknowledges that certainfacilities in which the Research Project may be performed were financed throughofferings of tax-exempt bonds. If the Internal Revenue Service determines, orif counsel to Institution reasonably determines, that any term of thisAgreement jeopardizes the tax-exempt status of Institution or the bonds used tofinance Institution facilities, the relevant term shall be deemed an invalidprovision and modified by the parties pursuant to Section 8.16.

 

8.8. Relationship ofParties. For the purposes of this Agreement, each party is an independentcontractor and not an agent or employee of the other party. Neither party shallhave authority to make any statements, representations, or commitments of anykind, or to take any action which shall be binding on the other party, exceptas may be explicitly provided for in this Agreement or authorized in writing bythe other party.

 

8.9. Counterparts.This Agreement may be executed in one or more counterparts, each of which shallbe deemed an original, and all of which together shall be deemed to be one andthe same instrument.

 

8.10. Headings.All headings are for convenience only and shall not affect the meaning of anyprovision of this Agreement.

 

8.11. Binding Effect.This Agreement shall be binding upon and inure to the benefit of the partiesand their respective permitted successors and assigns.

 

8.12. Assignment.This Agreement may not be assigned by either party without the prior writtenconsent of the other party, except that Sponsor may assign this Agreement to anaffiliate or to a successor in connection with the merger, consolidation, orsale of all or substantially all of its assets or that portion of its businessto which this Agreement relates.

 

8.13. Amendment andWaiver. This Agreement may be amended, supplemented, or otherwise modified onlyby means of a written instrument signed by both parties. Any waiver of anyrights or failure to act in a specific instance shall relate only to suchinstance and shall not be construed as an agreement to waive any rights or failto act in any other instance, whether or not similar.

 

8.14. Governing Law.This Agreement shall be governed by and construed in accordance with the lawsof the Commonwealth of Massachusetts irrespective of any conflicts of law principles.

 

8.15. Notice. Anynotices required or permitted under this Agreement shall be in writing, shallspecifically refer to this Agreement, and shall be sent by hand, recognizednational overnight courier, confirmed facsimile transmission, confirmedelectronic mail, or registered or certified mail, postage prepaid, returnreceipt requested, to the following addresses or facsimile numbers of theparties:

 

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If to Institution:

 

University ofMassachusetts

408 Goodell Building

Amherst, MA 01003

Attention: Director,Office of Grant and Contract Administration

Tel: (413) 545-0698

Fax: (413) 545-1202

E-Mail:ogca@resgs.umass.edu

 

If to Sponsor:

 

Advanced Cell Technology,Inc.

One Innovation Drive

Worcester, MA

Attention: Jose Cibelli,Ph.D.

Invoices to: JoseCibelli, Ph.D.

Tel: (508) 756-1212

Fax: (508) 756-0931

E-Mail: jcibelli@advancedcell.com

 

All notices under thisAgreement shall be deemed effective upon receipt. A party may change itscontact information immediately upon written notice to the other party in themanner provided in this Section.

 

8.16. Severability.In the event that any provision of this Agreement shall be held invalid orunenforceable for any reason, such invalidity or unenforceability shall notaffect any other provision of this Agreement, and the parties shall negotiatein good faith to modify the Agreement to preserve (to the extent possible)their original intent. If the parties fail to reach a modified agreement withinsixty (60) days after the relevant provision is held invalid or unenforceable,then the dispute shall be resolved in accordance with the procedures set forthin Article 7. While the dispute is pending resolution, this Agreement shall beconstrued as if such provision were deleted by agreement of the parties.

 

8.17. Entire Agreement.This Agreement constitutes the entire agreement between the parties withrespect to its subject matter and supersedes all prior agreements orunderstandings between the parties relating to its subject matter.

 

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IN WITNESS WHEREOF, theparties have caused this Agreement to be executed by their duly authorizedrepresentatives as of the date first written above.

 
| UNIVERSITY OF MASSACHUSETTS | ADVANCED CELL TECHNOLOGY, INC. |
|-----------------------------|--------------------------------|
| AT AMHERST                  |                           |
|                        |                           |
|                        |                           |
| By:                         |                           |   | By: | /s/ Jose Cibelli |   |
| Carol Sprague               | Jose Cibelli                   |
| Acting Associate Director   | Vice President of Research     |
|                             |                                |  |  |  |  |

 

 

I hereby acknowledge andagree to the terms of Articles 4 and 5 and Sections 2.2., 2.3., and 8.5. ofthis Agreement, and I reaffirm that I will assign to Institution all of myright, title, and interest in any Inventions and Project Materials.

 
| ACKNOWLEDGED AND AGREED: |
|--------------------------|
|                     |
|                     |
|                     |   |
| Deborah J. Good          |
| Principal Investigator   |

 

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