EXHIBIT 10.1


 


PURCHASE
AND SALE AGREEMENT FOR SOFTWARE


 


This Purchase
and Sale Agreement (this “Agreement”) is effective as of September 16, 2015 (the “Effective Date”),
and entered into by and between KLATU Networks, LLC, a Washington limited liability corporation (“KLATU”), and
Cryoport Systems, Inc., a California corporation (“CRYOPORT”).


 


1.    Recitals.
This Agreement is made in contemplation of the following facts and circumstances:


 


1.1.         KLATU
previously developed for and licensed to CRYOPORT certain technology pursuant to that certain Master Consulting and Engineering
Services Agreement between KLATU and CRYOPORT dated October 9, 2007 (the “Original Agreement”), as amended by
First Amendment to Master Consulting and Engineering and Services Agreement dated April 23, 2009 (“First Amendment”),
and as amended by Second Amendment to Master Consulting and Engineering Services Agreement dated November 1, 2010 (the “Second
Amendment”) (the Original Agreement, First Amendment and Second Amendment are collectively referred to herein as the
“Master Agreement”);


 


1.2.         Concurrently
with entering into this Agreement, KLATU and CRYOPORT are entering into an Amended and Restated Master Consulting and Engineering
and Services Agreement (“Restated Master Agreement”).


 


1.3.         Words
and phrases used in this Agreement shall have the meaning as defined in the Restated Master Agreement, unless otherwise defined
herein. The Shipping Logistics and Package Tracking System developed pursuant to the Master Agreement is sometimes referred to
herein as “Cryoportal.”


 


1.4.         CRYOPORT wishes to purchase and KLATU is willing
to sell to CRYOPORT the Developed Technology.


 


2.    Sale and Transfer.


 


2.1.         KLATU
hereby irrevocably assigns, conveys, sells, grants and transfers (and agrees to assign, convey, sell, grant and transfer) exclusively
and in perpetuity to CRYOPORT, its successors and assigns, all of its right, title and interest of every kind and character throughout
the world in the Developed Technology; provided KLATU retains and reserves unto itself a license as provided in the Restated Master
Agreement.


 


3.    Delivery and Inspection.


 


3.1.         Delivery.
To the extent not already in CRYOPORT’s possession or control, upon request from CRYOPORT, KLATU shall promptly deliver to
CRYOPORT the Source Code and Object Code for the Developed Software and all tools, documentation and other information used by
KLATU to compile, revise, update and correct the Developed Software in an electronic format reasonably acceptable to CRYOPORT and
reasonably deliverable by KLATU. Alternatively the Source Code and Object Code shall continue to be maintained in a secure, private
environment that will be hosted by a third party and fully accessible to CRYOPORT and to KLATU on a remote basis twenty-four (24)
hours a day, seven (7) days a week subject to unavoidable interruptions. CRYOPORT shall pay all costs of the third party to host
and maintain such secure, private environment.


 


3.2.         Inspection and Acceptance. CRYOPORT
acknowledges it has inspected and accepted the Developed Technology in its “AS IS” condition.


 









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4.    Purchase Price.


 


4.1.         Technology.    As
full compensation for the sale and assignment of the Developed Technology from KLATU to CRYOPORT, CRYOPORT shall pay to KLATU an
amount equal to Four Hundred Thousand United States Dollars (US$400,000) as follows: (a) one-half (1/2) of the balance (US$200,000)
no later than five (5) days after the Effective Date and (b) one-half (1/2) of the balance (US$200,000) on or before the date forty-five
(45) days after the Effective Date.


 


4.2.         Taxes.
All amounts are in U.S. Dollars and are exclusive of all applicable taxes, levies and duties. CRYOPORT assumes the sole responsibility
for the payment of any sales, use or other transaction fee or tax payable on any sums due under this Agreement and agrees to indemnify
and hold KLATU harmless from any claim, demand or liability for any such tax or fee.


 


5.    Further
Assurances; Appointment. Upon CRYOPORT’s request, KLATU shall promptly take such actions, including, without limitation,
the prompt execution and delivery of documents in recordable form, as may be reasonably necessary to vest, secure, perfect, protect
and enforce the rights and interests of CRYOPORT in and to the Developed Technology, including, without limitation, filings in
the U.S. Copyright Office and U.S. Patent and Trademark Office, and under the Uniform Commercial Code within ten (10) days of having
documents necessitating such filings.


 


6.    Representations and
Warranties.


 


6.1.         KLATU
Representations and Warranties. KLATU represents, warrants and covenants: (a) KLATU has the full power and authority to enter
into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet
obtained; (b) KLATU’s execution of and performance under this Agreement shall not breach any oral or written agreement with
any third party or any obligation owed by KLATU to any third party to keep any information or materials in confidence or in trust;
(c) the Developed Technology is not subject to any mortgages, liens, pledges, security interests, encumbrances or encroachments
other than the terms of any open source license or third party software purchased for use therein; and (d) KLATU has not heretofore
granted, sold, transferred, assigned, hypothecated, pledged, encumbered or otherwise disposed of in any manner whatsoever, any
right, title or interest in the Developed Technology other than license rights granted to CRYOPORT or licenses granted with respect
to the portions of the Developed Technology described on Schedule 1.


 


6.2.       
CRYOPORT Representations and Warranties. CRYOPORT represents, warrants and covenants that: (a) CRYOPORT has the full power
and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals
or immunities not yet obtained; (b) CRYOPORT’s execution of and performance under this Agreement shall not breach any oral
or written agreement with any third party or any obligation owed by CRYOPORT to any third party to keep any information or materials
in confidence or in trust; (c) the Developed Technology was developed at the direction and under the supervision of CRYOPORT; and
(d) CRYOPORT has thoroughly inspected and used the Developed Technology and accepts the Developed Technology as “AS IS”
with all fault and without any warranty, express or implied, including, without limitation, warranties of merchantability or fitness
for a particular purpose or patent infringement except as warranted in this Agreement or the Restated Master Agreement.


 


7.    Indemnification.


 


7.1.    
Indemnification by KLATU. KLATU shall indemnify and hold harmless, and at CRYOPORT’s request defend, CRYOPORT and
its affiliates, successors and assigns (and its and their members, officers, directors, employees, sublicensees, customers and
agents) (collectively, the “CRYOPORT Indemnified Parties”) from and against any and all costs, damages, liabilities,
losses, and expenses (including, but not limited to, reasonable attorneys’ fees and court costs) (collectively, “Losses”)
resulting from any claim, suit, action, or proceeding (each, an “Claim”) brought by any third party which arise
out of or relate to any breach (or Claim or threat thereof that, if true, would be a breach) of this Agreement by KLATU, including,
without limitation, any breach or alleged breach of any representation or warranty of KLATU set forth in Section 1.1.


 






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7.2.         
Indemnification by CRYOPORT. CRYOPORT shall indemnify and hold harmless, and at KLATU’s request defend, KLATU
and its members or stockholders, affiliates, successors and assigns (and its and their officers, directors, employees, sublicensees,
customers and agents) (collectively, the “KLATU Indemnified Parties”) from and against any and all Losses resulting
from any Claim brought by any third party which arises out of or relates to any breach (or Claim or threat thereof that, if true,
would be a breach) of this Agreement by CRYOPORT, including, without limitation, any breach or alleged breach of any representation
or warranty of CRYOPORT set forth in Section 6.2, or CRYOPORT’s or CRYOPORT’s licensee’s use of the Developed
Technology.


 


7.3.         
Notice; Cooperation; Settlement. The indemnified party shall notify the indemnifying party promptly of any Claim for
which indemnification is sought, provided, however, that the failure to give such notice shall not relieve the indemnifying party
of the indemnifying party’s obligations hereunder except to the extent the indemnifying party was actually and materially
prejudiced by such failure. The indemnified party may, at its option and expense, participate and appear on an equal footing with
the indemnifying party in the defense of any Claim that is conducted by the indemnifying party as set forth herein. The indemnifying
party may not settle any Claim without the prior written approval of the indemnified party, which approval shall not be unreasonably
withheld or delayed. From the date of written notice from the indemnified party to the indemnifying party of any such Claim, the
indemnified party shall have the right to withhold from any payments due the indemnifying party under this Agreement the amount
of any defense costs, plus additional reasonable amounts as security for the indemnifying party’s obligations under this
Section 7.


 


7.4.        Limitation on Liability.


 


KLATU MAKES NO WARRANTY, EXPRESS
OR IMPLIED, OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR PERFORMANCE REGARDING THE DEVELOPED TECHNOLOGY,
AND EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT IN NO EVENT SHALL KALTU BE LIABLE, WHETHER OR NOT DUE TO ITS OWN NEGLIGENCE, FOR
ANY: (A) ACT OR OMISSION OF A THIRD PARTY; (B) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS, OR DEFECTS
RESULTING FROM CRYOPORT’S USE OF THE DEVELOPED TECHNOLOGY; (C) ANY DAMAGE OR INJURY CAUSED BY THE USE OF THE DEVELOPED TECHNOLOGY;
AND (D) ANY CLAIMS AGAINST CRYOPORT BY THIRD PARTIES. IN NO EVENT SHALL THE LIABILITY OF KLATU FOR ANY OR ALL CLAIMS RELATING TO
THIS AGREEMENT OR THE DEVELOPED TECHNOLOGY EXCEED THE AMOUNT PAID BY CRYOPORT TO KLATU UNDER SECTION 4.1 OF THIS AGREEMENT.


 


KLATU IS NOT
LIABLE TO CRYOPORT FOR CHANGES IN OPERATION, EQUIPMENT, OR TECHNOLOGY THAT CAUSE THE DEVELOPED TECHNOLOGY TO BE RENDERED OBSOLETE
OR REQUIRE MODIFICATION. KLATU SHALL NOT BE LIABLE FOR ANY PRESENT OR FUTURE CONSEQUENTIAL OR SPECIAL DAMAGES OR FOR LOSS, EXPENSE,
OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM USE OF THE DEVELOPED TECHNOLOGY OR AS MAY ARISE AS A RESULT OF CHANGES MADE BY EMPLOYEES
OR CONTRACTORS OF CRYOPORT, OR THIRD PARTIES WORKING UNDER THE DIRECTION OF CRYOPORT. CRYOPORT ACCEPTS FULL AND COMPLETE RESPONSIBILITY
FOR ANY AND ALL INABILITY TO USE THE DEVELOPED TECHNOLOGY WITH ANY OTHER HARDWARE, SOFTWARE OR HOSTING SERVICES.


 









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8.    Termination.


 


8.1.         Termination
for Cause. If either party defaults on any of its material obligations under this Agreement prior to payment in full for the
Developed Technology, the non-defaulting party, at its option shall have the right to terminate this Agreement by written notice
to the other party unless the defaulting party remedies such default within thirty (30) calendar days after receipt of written
notice thereof from the non-defaulting party, provided any payment default shall be remedied within five (5) days after written
notice of default is delivered to the defaulting party.


 


8.2.         Effect of Termination.
Termination of this Agreement by either party pursuant to Section 8.1 above shall not act as a waiver of any breach of this
Agreement and shall not act as a release of either party from any liability for breach of such party’s obligations
under this Agreement. Should this Agreement be terminated by CRYOPORT due to KLATU’s material beach, rights in the
Developed Technology shall revert to KLATU and KLATU shall refund any monies paid to KLATU under Section 4.1. Should KLATU
terminate this Agreement due to CRYOPORT’s material breach, KLATU may elect to either (i) enforce CRYOPORTS obligation
to pay all remaining amounts due hereunder, in which event upon collection of such amounts all rights in the Developed
Technology transferred to CRYOPORT under this Agreement shall continue to vest in CRYOPORT, subject to the terms of this
Agreement, or (ii) refund to CRYOPORT all monies paid to KLATU and all rights in the Developed Technology and Background
Technology transferred or licensed to CRYOPORT under this Agreement shall revert to KLATU.


 


8.3.         Delivery
of Materials. Upon any termination of this Agreement each party shall promptly return to the other any and all confidential
information of the other, including, without limitation, any delivery pursuant to Section 3 of this Agreement.


 


9.    General Provisions.


 


9.1.         Force
Majeure. Neither party shall be liable to the other for failure or delay in performing its obligations hereunder if such failure
or delay is due to circumstances beyond its reasonable control, including, without limitation, acts of any governmental body, war,
insurrection, sabotage, embargo, fire, flood, strike or other labor disturbance, interruption of or delay in transportation, unavailability
of, interruption of or delay in telecommunications or third party services, or inability to obtain raw materials, supplies or power
used in or equipment needed for provision of the services hereunder.


 


9.2.         Governing
Law; Venue. This Agreement is to be construed in accordance with and governed by the internal laws of the State of California
(as permitted by Section 1646.5 of the California Civil Code or any similar successor provision) without giving effect to any
choice of law rule that would cause the application of the laws of any jurisdiction other than the internal laws of the State
of California to the rights and duties of the parties. Subject to the dispute resolution provisions below, any legal suit, action
or proceeding arising out of or relating to this Agreement shall be commenced in a federal court in the Central District of California
or in state court in the County of Los Angeles, California, and each party hereto irrevocably submits to the exclusive jurisdiction
and venue of any such court in any such suit, action or proceeding. Except as otherwise provided in this Agreement, any controversy
or dispute arising out of this Agreement, the interpretation of any of the provisions hereof, or the action or inaction of any
party to this Agreement shall be submitted to arbitration pursuant to the commercial arbitration rules of the American Arbitration
Association, JAMS, or ADR Services, Inc. (collectively, “Approved Service”), or other recognized arbitration
service selected by the party instituting such action provided if any other party objects to the selection of a service other
than an Approved Service, the arbitration shall be moved to an Approved Service selected by the party objecting. Any award or
decision obtained from any such arbitration proceeding shall be final and binding on the parties, and judgment upon any award
thus obtained may be entered in any court having jurisdiction thereof. No action at law or in equity based upon any claim arising
out of or related to this Agreement shall be instituted in any court by any party except: (a) an action to compel arbitration
pursuant to this Section, (b) an action to enforce an award obtained in an arbitration proceeding in accordance with this Section,
or (c) injunctive relief to restrain the disclosure or misuse of confidential information or other intellectual property rights.
If instituted against CRYOPORT, the arbitration shall take place in Los Angeles, California, and if instituted against KLATU,
the arbitration shall take place in Seattle Washington.


 









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9.3.         Severability.
If the application of any provision of this Agreement to any particular facts or circumstances shall for any reason be held to
be invalid, illegal or unenforceable by a court, arbitration panel or other tribunal of competent jurisdiction, then (a) the validity,
legality and enforceability of such provision as applied to any other particular facts or circumstances, and the other provisions
of this Agreement, shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum
extent possible so as to effect the intent of the parties. If, moreover, any provision contained in this Agreement shall for any
reason be held to be excessively broad as to duration, geographical scope, activity or subject, it shall be construed by limiting
and reducing it, so as to be enforceable to the extent compatible with applicable law.


 


9.4.         Assignment.
This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted
assigns.


 


9.5.        
Notices. Any notice, request, demand, or other communication required or permitted hereunder shall be in writing, shall
reference this Agreement and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by facsimile, with
written confirmation of receipt by the sending facsimile machine; (c) five (5) business days after having been sent by registered
or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with a private industry
express courier, with written confirmation of receipt. All notices shall be sent to the address set forth on the signature page
of this Agreement and to the notice of the person executing this Agreement (or to such other address or person as may be designated
by a party by giving written notice to the other party pursuant to this Section).


 


9.6.         Waiver.
The waiver by either party of a breach of or a default under any provision of this Agreement shall not be effective unless in writing
and shall not be construed as a waiver of any subsequent breach of or default under the same or any other provision of this Agreement,
nor shall any delay or omission on the part of either party to exercise or avail itself of any right or remedy it has or may have
hereunder operate as a waiver of any right or remedy.


 


9.7.         Construction.
This Agreement has been negotiated by the parties and shall be interpreted fairly in accordance with its terms and without any
construction in favor of or against either party.


 


9.8.         Captions
and Section Headings. The captions and section and paragraph headings used in this Agreement are inserted for convenience only
and shall not affect the meaning or interpretation of this Agreement.


 


9.9.         Counterparts.    This
Agreement may be executed (including, without limitation, by facsimile signature) in one or more counterparts, with the same effect
as if the parties had signed the same document. Each counterpart so executed shall be deemed to be an original, and all such counterparts
shall be construed together and shall constitute one Agreement.


 


9.10.       Entire
Agreement; Amendment. This Agreement and the Restated Master Agreement (including the Exhibits attached hereto and the Statements
of Work defining the Developed Technology, which are incorporated herein by reference) are the final, complete and exclusive agreement
of the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations,
discussions, proposals, negotiations, conditions, communications and agreements, whether written or oral, between the parties
relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this
Agreement shall be effective unless in writing and signed by each of the parties.


 


[Signatures Continued on Following Page]


 









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Signature
Page To


Purchase
And Sale Agreement For Software


 


In
Witness Whereof, the parties have caused this Agreement to be executed by their duly authorized representatives as of the
Effective Date.


 


	CRYOPORT SYSTEMS, INC.,	 	KLATU Networks, LLC,
	a California corporation	 	a Washington limited liability company


 


	BY:	/s/ Robert S. Stefanovich	 	 	/s/ Richard Kriss
	NAME:	Robert S. Stefanovich	 	NAME:	Richard Kriss 
	TITLE:	Chief Financial Officer	 	TITLE:	Managing Director
	ADDRESS:	20382 Barents Sea Circle	 	ADDRESS:	4174 NE Lookout Lane
	 	Lake Forest, CA 92630	 	 	Poulsbo, Washington 98370
	DATED:	September 16, 2015	 	DATED:	September 16, 2015


 





CONFIDENTIAL


 











     


     


    

 


Schedule
1


 


Developed
technology licensed to KLATU


 


Portions of the Developed Technology, excluding Developed
Software, relating to the following:


 


		1.	Integration with third party and carrier API’s;



		2.	Devices for determining the status, health, remaining thermal
capacity and location of an article, package, container or pallet while in transit.



 


CONFIDENTIAL