cryoport_s8-ex1002.htm


    Exhibit
10.2

     

    MASTER
CONSULTING AND ENGINEERING SERVICES AGREEMENT

     

    This
Master Consulting and Engineering Services Agreement (the “Agreement”),
effective as of October 9, 2007 (the “Effective Date”), is entered
into by and between KLATU Networks, LLC, (hereinafter “KLATU”), a Oregon Limited
Liability Corporation located in Canby, Oregon, and Cryoport, Inc. (hereinafter
“CRYOPORT”), a California Corporation located in Lake Forest,
California.

     

    Recitals

     

    A.           Whereas,
CRYOPORT is in the business of designing, developing, manufacturing and
marketing cryogenic packaging solutions.

     

    B.           Whereas,
KLATU is in the business of designing, developing, manufacturing and marketing
wireless sensor network products including related software, data processing
services and consulting.

     

    C.           Whereas,
CRYOPORT and KLATU desire to work together through a phased development of a
Cryogenic Package Monitoring and Tracking System (hereinafter “CPMS”) that would
be developed collaboratively by the parties based on KLATU Background
Technology.

     

    D.           Whereas,
CRYOPORT desires to have KLATU perform certain consulting, software and hardware
engineering development services as mutually agreed upon and set forth in one or
more “Statements of
Work” to be attached hereto as sequentially labeled Exhibits beginning
with Exhibit A-1 (each, a “Project,”
collectively, the “Projects”).

     

    E.           Now
therefore, KLATU desires to perform such services, subject to the terms and
conditions of this Agreement.

     

    Agreement

     

    1.           Definitions.  All
definitions used herein shall apply to both the single and plural forms, as
context may require.  The following terms when used herein shall have
the following meanings:

     

    1.1           “Background
Technology” means all schematics, development tools, objects, routines,
subroutines, specifications, methodologies, algorithms, designs, drawings,
Source Code, Object Code, data files, inventions (whether patentable or not),
know-how, trade secret or other technology or materials and the Intellectual
Property Rights related to or arising from any of the foregoing owned or
controlled by KLATU prior to the Effective Date.

     

    1.2           “Contracted Hourly
Rates” means the “market rate” or “discounted rate” attached hereto as
sequentially labeled Exhibits beginning with Exhibit B-1 for engineering
development services relating to the Statement of Work.

     

    


    
      
        
           


        

        
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    1.3           “Developed
Software” means the software programs in Executable Code and any
technical documentation related thereto developed by KLATU specifically for
CRYOPORT pursuant to the terms of this Agreement and the applicable Statement of
Work.

     

    1.4           “Developed
Hardware” means hardware devices developed or integrated by KLATU
including embedded firmware developed pursuant to the terms of this Agreement
and the applicable Statement of Work.

     

    1.5           “Developed
Technology” means all schematics, development tools, objects, routines,
subroutines, methodologies, algorithms, specifications, designs, drawings,
software programs (in both Source Code and Object Code form), including, without
limitation, the Developed Software, data files, inventions (whether patentable
or not), know-how, trade secret or other technology or materials and the
Intellectual Property Rights related to or arising from any of the foregoing
created, developed or otherwise reduced to practice by KLATU during the term of
this Agreement.

     

    1.6           “Intellectual
Property Rights” means any and all patents, patent registrations,
business processes, data rights, copyrights, trade names, trademarks, trade
secrets, know-how, mask works, or any other proprietary rights, whether
registered or unregistered, arising or enforceable under U.S. law or the law of
any other jurisdiction or international treaty regime.

     

    1.7           “Object
Code” means the computer code in a format not perceivable by humans and
not suitable for machine execution without the intervening steps of
interpretation or compilation.

     

    1.8           “Source
Code” means the human-readable version of a software program that
requires further compilation or other processing before it can execute on a
computer.

     

    1.9           “Statement of
Work” means a high level description of the Project and all work required
to complete the project.  It describes the problem to solve as well as
the tasks, users of the system and the user environment. The overall technical
capabilities of the system are described, as well as what is not
included.  One of the most important goals of the Statement of Work is
to gain a mutual understanding of the scope, effort and costs involved to
complete the Project.

     

    2.           Services.

     

    2.1           Development.  KLATU
will use commercially reasonable efforts to perform the engineering services set
forth on the applicable Statement of Work.  KLATU shall comply with
all laws applicable to professional software engineers and shall perform in a
manner consistent with generally accepted procedures for the
profession.

     

    2.2           Changes. Either
party may, from time to time, provide written notice to the other party
proposing changes to the Project or the development schedule related thereto
(“Change
Proposal”).  Following a Change Proposal, the parties shall
promptly (not to exceed two (2) weeks), determine the financial and schedule
impact, if any, and whether, and with what modifications the proposed change is
mutually agreeable.  No Change Proposal will have any contractually
binding effect until formally agreed to in writing by both
parties.  KLATU will be paid its contracted hourly rates to evaluate
the effect of any change proposed by CRYOPORT (not to exceed four (4) person
hours of evaluation time without advance written approval of
CRYOPORT).  The parties shall then execute an amendment to the
applicable Statement of Work to reflect any such changes.

     

    


    
      
        
           


        

        
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    3.           Acceptance.  If
applicable, within fourteen (14) days after the Effective Date, CRYOPORT and
KLATU shall prepare a mutually agreeable acceptance test plan which corresponds
with the Developed Software (each, an “ATP”) which defines criteria for final
acceptance of the Developed Software by CRYOPORT. Primary responsibility for the
preparation of each ATP shall be set forth in the applicable Statement of Work.
KLATU shall provide written notice to CRYOPORT upon completion of the Developed
Software or any relevant component thereof.  Within ten (10) business
days after delivery by KLATU of such notice, CRYOPORT shall complete testing of
the Developed Software or component thereof in accordance with the applicable
ATP.  If such Developed Software passes the criteria of the ATP,
CRYOPORT shall immediately issue to KLATU a Certificate of Final
Acceptance.  If no such Certificate of Final Acceptance is received by
KLATU within such time period, such Developed Software shall be deemed accepted
hereunder.  If the Developed Software does not pass the applicable
ATP, CRYOPORT shall promptly provide written notice thereof to KLATU describing
the nature of the failure, and KLATU shall use commercially reasonable efforts
to correct any reproducible error.  Upon correction of such error,
KLATU shall send notice of completion to CRYOPORT, and the Developed Software
shall be tested again pursuant to the terms of this Section 3 until final
acceptance is achieved.

     

    4.           Ownership and
Licensing.  KLATU or its licensors shall retain and are the
sole and exclusive owners of any and all rights in and to the Background
Technology and Developed Technology.

     

    5.           Fees
and Payment.

     

    5.1           Fee Estimate.  KLATU
shall provide an estimate of fees for each Project, which shall be set forth in
the applicable Statement of Work.  CRYOPORT acknowledges and agrees
that KLATU is providing an estimate of such fees only, that such estimate is not
binding, and that it may be subject to change during the course of performing
such Project; provided, however, that, the total fees actually invoiced for such
Project shall not exceed KLATU’s estimate by more than ten percent (10%) without
CRYOPORT’s prior written approval.  Estimated fees may consist of
engineering services, prototyping fees, travel expenses or other miscellaneous
expenses associated with a given Project.

     

    5.2           Retainer.  An
initial retainer payment for each Project may be due and if required it shall be
stated in each Statement of Work.  The contracted hourly rates
applicable to each Project shall be set forth in Exhibit B.  If a
retainer is specified, work on such Project will not begin until such initial
retainer payment is received by KLATU.

     

    


    
      
        
           


        

        
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    5.3           Weekly Engineering Services
Invoice.  CRYOPORT shall pay KLATU its contracted hourly rates
pursuant to Exhibit B for engineering services performed under each Statement of
Work.  KLATU will not increase such published rates during the
Project.  Each week, or in accordance with agreed upon milestones
which ever is specified in the applicable Statement of Work, KLATU shall invoice
CRYOPORT for engineering services performed under this
Agreement.  Payment of such invoice is due within ten (10) days after
receipt thereof.  If the applicable Statement of Work provides for an
initial retainer payment paid pursuant to Section 5.2, it shall be credited
against the fees to be paid pursuant to each such invoice in an amount equal to
twenty-five percent (25%) of such invoice, until the total amount of the
retainer has been credited. KLATU will refund to CRYOPORT the balance of any
uncredited initial retainer payment upon the completion of the
Project.

     

    5.4           Prototype Fees.  The
prototype fees, if applicable, shall be estimated and set forth in each
Statement of Work and shall be based on average costs of similar projects
performed by KLATU.  Third party prototyping services will be invoiced
to CRYOPORT with a thirty-five percent (35%) mark-up from the cost of such
services.  Internal prototyping services will be invoiced at KLATU’s
contracted hourly rates.  The estimated prototype fees set forth in
each Statement of Work shall be due and payable one (1) week after the execution
of the applicable Statement of Work.  If the actual prototype costs
exceed the prototype estimate set forth in the applicable Statement of Work, the
excess will be invoiced to CRYOPORT each month during the Project, and payment
on such invoice shall be due within thirty (30) days after receipt of such
invoice. If the prototype estimate exceeds actual prototype cost, the excess
will be refunded to CRYOPORT at the end of the Project.

     

    5.5           Payments and
Taxes.  All payments made pursuant to this Agreement shall be
made in U.S. Dollars.  All amounts invoiced hereunder exclude any
applicable taxes.  CRYOPORT agrees to pay, and to indemnify, and hold
KLATU harmless from, any sales, use excise, import or export, value added or
similar tax or duty not based on KLATU’s income, as well as the collection or
withholding thereof, including penalties and interest, arising from payment of
amounts due hereunder, and all government permit or license fees and all customs
and similar fees levied upon the performance of the engineering services
performed hereunder and any costs associated with the collection of any of the
foregoing. 

     

    5.6           Schedule, Parts Availability and
Expediting.  Each Project
schedule set forth in the applicable Statement of Work is based on standard
parts availability and normal delivery schedules of KLATU’s vendors. KLATU will
not be responsible for schedule delays caused by parts availability or long lead
time parts. However, if CRYOPORT makes a written request for expedited component
procurement and fabrication, KLATU will use it best efforts to meet earlier
delivery dates and CRYOPORT shall be responsible for all fees and costs relating
to the request.

     

    5.7           CRYOPORT Furnished and CRYOPORT
Specified Materials.  KLATU is not
responsible for any deficiency or omission in CRYOPORT furnished or CRYOPORT
specified materials, including, without limitation, CRYOPORT Deliverables. Time
expended by KLATU in isolation, debug or modification of CRYOPORT furnished or
CRYOPORT specified materials, including, without limitation, CRYOPORT
Deliverables, will be charged to CRYOPORT at KLATU’s contracted hourly rates,
provided however, that KLATU shall provide prior written notice to CRYOPORT with
a description of the deficiency with a good faith estimate of the costs involved
to correct the deficiency. Within five (5) business of days of receiving such
notice, CRYOPORT shall either correct or accept KLATU’s written offer to cure
the deficiency.

     

    


    
      
        
           


        

        
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    5.8           Travel Expenses.  Any travel
required by KLATU employees or its subcontractors in connection with any Project
must be approved in writing by CRYOPORT, and CRYOPORT will reimburse KLATU for
any and all reasonable travel and living expenses in connection
therewith.  While traveling pursuant to this Agreement, CRYOPORT will
be billed at contracted hourly rates for the actual time each KLATU employee or
its subcontractor is in transit, to a maximum of eight (8) hours per
day.   In cases of multi-day on-site work, CRYOPORT will be
billed, at contracted hourly rates, a minimum of eight (8) hours per day or
actual time worked by KLATU employees and its subcontractors, whichever is
higher, including weekends and holidays.  

     

    6.           Confidentiality

     

    6.1           Confidential Information.  The parties
acknowledge that in the course of performance of their obligations under this
Agreement, each party (the “Recipient”)
may obtain certain confidential and proprietary information of the other party
(the “Disclosing
Party”), including without limitation, information concerning copyrighted
works, patents or patent pending investigations, development, or general
information regarding such party’s technology, customers, financial, business,
or marketing matters. All such information disclosed which has been identified
in writing to be confidential and proprietary, or, if disclosed orally, followed
by a writing designating the confidential nature of the information within
thirty (30) days after its disclosure, shall be referred to hereafter as “Confidential
Information.”  All
such Confidential Information shall be protected and held in the strictest
confidence and trust by the Recipient and not disclosed to any third parties;
provided however, that Recipient may disclose the Disclosing Party’s
Confidential Information to employees, agents, or subcontractors who have
executed non-disclosure agreements with terms at least as restrictive as those
set forth herein and who have a need to know such Confidential Information
without the prior written permission of the Disclosing
Party.  Further, Confidential Information shall only be used for the
purpose of performing obligations under this Agreement. The obligations set
forth in this Section 6.1 shall remain in effect for a period of five (5) years
after termination of this Agreement.

     

    6.2           Exclusions.  Notwithstanding
the foregoing, Confidential Information shall not include any information which
the Recipient can prove is:  (a) available to the public other than by
breach of this Agreement by the Recipient; (b) rightfully received by the
Recipient from a third party without confidential limitations; (c) entirely
and independently developed by employees or subcontractors of the Recipient
having no access to the Disclosing Party’s Confidential Information;
(d) known to the Recipient prior to its first receipt of same from the
Disclosing Party; (e) approved for release by written authorization of the
Disclosing Party; or (f) disclosed by reason of legal, accounting or
regulatory requirements beyond the reasonable control of the Recipient or the
Disclosing Party, provided however that if Recipient is required to disclose
Confidential Information, Recipient shall promptly notify the Disclosing Party
of the order or request and permit the Disclosing Party (at its own expense) to
seek an appropriate protective order.

     

    7.           Term
and Termination.

     

    7.1           Term.  The term of
this Agreement shall begin on the Effective Date and shall continue until
December 31, 2008, unless earlier terminated as set forth below.

     

    


    
      
        
           


        

        
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    7.2           Termination by CRYOPORT.  This Agreement (or any
Project) may be terminated by CRYOPORT upon thirty (30) days written notice from
CRYOPORT to KLATU.  CRYOPORT shall pay KLATU for all work performed
under this Agreement (or in connection with the applicable Project as the case
may be) through the date of such termination, including, but not limited to,
engineering services and reasonable costs and expenses related thereto incurred
prior to such termination.

     

    7.3           Termination by
KLATU.  KLATU may terminate this Agreement upon written notice
to CRYOPORT at any time after completion of all active Projects
hereunder.

     

    7.4           Termination for Breach.  Either party may
terminate this Agreement upon written notice if the other party breaches any
material obligation under this Agreement and fails to cure such breach within
thirty (30) days after receiving written notice of the breach. Such notice shall
specify the nature of the breach in reasonable detail.  Should KLATU
terminate this Agreement for CRYOPORT’s breach, the terms of Section 7.2
(with respect to reimbursement of costs) shall apply.

     

    7.5           Effect of
Termination.  Upon termination of this Agreement for any
reason, any amounts owed to KLATU under this Agreement before such termination,
or as a result of such termination, will be due and payable within thirty (30)
days of such termination, and each party shall promptly return to the other
party or destroy all Confidential Information of such other party in such
party’s possession or control and certify in writing to such other party that it
has fully complied with these requirements.

     

    7.6           Survival.  Sections
4 (Services), 5.5 (Payments and Taxes), 6 (Confidentiality), 7.5 (Effect of
Termination), 8 (Arbitration), 9 (Governing Law), 10 (Warranty) and 11
(Miscellaneous) shall survive any termination of this Agreement.

     

    8.           Arbitration
and Equitable Relief

     

    8.1           Disputes.  Except as
provided in Section 8.4 below, KLATU and CRYOPORT agree that any dispute or
controversy arising out of, relating to or in connection with the
interpretation, validity, construction, performance, breach or termination of
this Agreement shall be settled by binding arbitration to be held in San Diego,
California, in accordance with the Commercial Arbitration Rules, supplemented by
the Supplemental Procedures for Large Complex Disputes, of the American
Arbitration Association as then in effect (the "Rules").  The
arbitrator may grant injunctions or other relief in such dispute or
controversy.  The decision of the arbitrator shall be final,
conclusive and binding on the parties to the arbitration.  Judgment
may be entered on the arbitrator's decision in any court of competent
jurisdiction.

     

    8.2           Consent to Jurisdiction. The
arbitrator(s) shall apply California law to the merits of any dispute or claim,
without reference to conflicts of law rules.  KLATU and CRYOPORT
hereby consent to the jurisdiction of the state and federal courts located in
California for any action or proceeding arising from or relating to this
Agreement or relating to any arbitration in which the parties are
participants.

     

    


    
      
        
           


        

        
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    8.3           Costs.  KLATU and
CRYOPORT shall each pay one-half of the costs and expenses of such arbitration,
and each shall separately pay its counsel fees and expenses unless otherwise
required by law.

     

    8.4           Equitable
Relief.  The parties may apply to any court of competent
jurisdiction for a temporary restraining order, preliminary injunction, or other
interim or conservatory relief, as necessary, without breach of this arbitration
agreement and without abridgment of the powers of the arbitrator.

     

    8.5           Acknowledgment.  THE
PARTIES AGREE TO SUBMIT ANY CLAIMS ARISING OUT OF, RELATING TO, OR IN CONNECTION
WITH THIS AGREEMENT, OR THE INTERPRETATION, VALIDITY, CONSTRUCTION, PERFORMANCE,
BREACH OR TERMINATION THEREOF, TO BINDING ARBITRATION, EXCEPT AS PROVIDED IN
SECTION 9 (5), AND THAT THIS ARBITRATION CLAUSE CONSTITUTES A WAIVER OF
CRYOPORT'S AND KLATU’S RIGHTS TO A JURY TRIAL AND RELATES TO THE RESOLUTION OF
ALL DISPUTES RELATING TO ALL ASPECTS OF THE RELATIONSHIP BETWEEN THE
PARTIES.

     

    9.           Governing
Law

     

    9.1           This
Agreement shall be governed by the internal substantive laws, but not the choice
of law rules, of the State of California without reference to conflict of law
principles.  The parties agree that the United Nations Convention on
Contracts for the International Sale of Goods is specifically excluded from
application to this Agreement. Both parties agree to submit to exclusive
jurisdiction in the State of California, USA, and further agree that any and all
disputes arising under or related to this Agreement shall be brought and
resolved solely and exclusively in San Diego, California, USA.

     

    10.           Warranty,
Disclaimers and Limitations or Liability.

     

    10.1           Warranty.  KLATU
warrants to CRYOPORT that the Developed Hardware and Developed Software licensed
to CRYOPORT under this Agreement shall conform in all material respects to the
specifications for each applicable Exhibit A.  If the Developed
Hardware or Developed Software is non-conforming, then KLATU will correct or
replace non-conforming Developed Hardware or Developed Software, in accordance
with the maintenance procedures and terms and conditions set forth in the
attached Exhibit C ("Maintenance Procedures").  This warranty shall
become effective as of the Delivery Date of the Developed Hardware and Developed
Software (or delivery of the relevant Revision, as the case may be) and shall
continue in effect for a sixty (60) day period ("Warranty Period") following
such date. CRYOPORT must notify KLATU in writing of any non-conformance within
the Warranty Period.

     

    10.2           Post Warranty Maintenance and Support
Services. In consideration of an optional payment as specified in the
applicable Exhibit A, KLATU shall continue to provide maintenance and support
services relating to the Developed Technology.  The effect of such a
payment will be to extend support of the Project deliverable for twelve (12)
months beginning on the 31st day
following the Delivery Date of the Developed Technology.  KLATU shall
provide service and support on the same terms, conditions and using the same
procedures as specified in Appendix C.

     

    


    
      
        
           


        

        
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    10.3           Warranty Disclaimers and
Limitations.  THE WARRANTIES ABOVE ARE EXCLUSIVE AND IN LIEU OF
ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.  The warranties above shall apply only if KLATU's examination
discloses to KLATU's satisfaction that alleged defects actually exist and were
not caused by misuse, unauthorized modifications, neglect, improper installation
or testing, attempts to repair, or the like, or by accident, fire, power surge
or failure, or other hazard.  Repair or replacement of code or other
item does not extend the warranty Period.  KLATU specifically does not
warrant that (i) the Developed Technology will meet CRYOPORT's or CRYOPORT's
Customers' requirements, or (ii) the Modified Hardware and/or Software or
Documentation in combination with the CRYOPORT System will operate in
combinations with other hardware and software products which may be selected for
use by CRYOPORT or CRYOPORT's Customers.

     

    10.4           No Warranty
Pass-Through.  CRYOPORT shall not pass through to its Customers
or any other third party the warranties made by KLATU under this Section 10,
shall make no other representations to its Customers or any other third party on
behalf of KLATU, and shall expressly indicate to its Customers that they must
look solely to CRYOPORT in connection with any problems, warranty claims, other
claim or other matters concerning Customer Systems or the Developed
Technology.  No warranty, representation or agreement in this
Agreement shall be deemed to be made for the benefit of any Customer of CRYOPORT
or any other third party.

     

    10.5           Limitation of
Liability.  IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY
INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF
PROFITS, REVENUE, DATA OR USE, INCURRED BY EITHER PARTY OR ANY THIRD PARTY,
WHETHER IN AN ACTION IN CONTRACT OR TORT OR BASED ON A WARRANTY, EVEN IF THE
OTHER PARTY OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.  KLATU’S LIABILITY FOR DAMAGES SHALL IN NO EVENT EXCEED THE
AMOUNTS ACTUALLY PAID BY CRYOPORT UNDER THIS AGREEMENT TO KLATU IN THE TWELVE
(12) MONTHS PRECEEDING THE CLAIM GIVING RISE TO SUCH LIABILITY BY CRYOPORT TO
KLATU UNDER THIS AGREEMENT. EACH PARTY ACKNOWLEDGES THAT THIS LIMITATION IS AN
ESSENTIAL ELEMENT OF THE BARGAIN BETWEEN THE PARTIES AND THAT IN ITS ABSENCE THE
TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.

     

    11.           Miscellaneous

     

    11.1           Relationship of the
Parties.  KLATU
is an independent contractor and is not an agent, joint venturer, partner or
employee of CRYOPORT. The detailed manner and method of performing the services
contemplated hereunder are under the sole control of KLATU.

     

    11.2           Non-Solicitation.  CRYOPORT
hereby agrees not to recruit or offer employment to any KLATU personnel who have
been introduced to CRYOPORT, or who are or have been assigned to perform
services for CRYOPORT until one (1) year after the expiration or termination of
this Agreement.

     

    


    
      
        
           


        

        
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    11.3           Conflict.  In the
event there are any express or implied inconsistencies between the provisions of
this Agreement and any attached Statement of Work, the provision of this
Agreement shall control. Any purchase order or other documents issued by
CRYOPORT is for administrative convenience only.  In the event any
such purchase order or other document issued by CRYOPORT is in addition to or
conflicts with any term or provision of this Agreement, this Agreement shall
prevail and the additional or conflicting term is hereby rejected.

     

    11.4           Severability.  If any provision
of this Agreement is found to be invalid, unlawful or unenforceable by a court
of competent jurisdiction, such invalid term will be severed from the remaining
portion of this Agreement, which will continue to be valid and enforceable to
the fullest extent permitted by law.

     

    11.5           Notices.  All notices and
other communications required or permitted under this Agreement shall be in
writing and shall be deemed given when delivered personally, transmitted via
facsimile transmission (fax) or five days after being deposited in the United
States registered mail, postage prepaid and addressed as follows, or to such
other address as each party may designate in writing:

     

    CRYOPORT:

     

    Cryoport,
Inc.

    Peter
Berry, CEO

    20382
Barents Sea

    Lake
Forrest, CA 92630

    (714) 256
6100

    (714) 256
6110

    pberry@cryoport.com

    


    KLATU:

     

    KLATU Networks, LLC.

    Rick Kriss, Managing
Director

    8030 S Vale Garden Rd

    Canby,
Oregon 97013

    (760) 389
5012

    rkriss@klatunetworks.com

    


    With a
copy to:

     

    Robert W.
Blanchard

    Blanchard,
Krasner & French, P.C.

    800
Silverado Street, Second Floor

    La Jolla,
Ca. 92037

    Phone 858
551-2440

    Fax 858
551-2434

    bblanchard@bkflaw.com

    


     

    


    
      
        
           


        

        
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    11.6           Entire
Agreement.  This Agreement, each Statement of Work attached
hereto and the Commercial Services and Distribution Agreement contains the final
and entire agreement and understanding between the parties with respect to the
subject matter hereof and merges and supersedes all prior or contemporaneous
agreements, understandings, and representations. No addition or modification to
this Agreement is valid unless made in writing and signed by both parties
hereto.

     

    11.7           Force Majeure.  There shall be no
breach of an obligation under this Agreement (except breach for failure to make
any payment due hereunder) if the breach results solely from a cause beyond the
reasonable control of the party in breach including, but not limited to, acts of
God, riots, revolutions, war, power outages, government acts, fires, flood,
epidemics, protests, lockouts, strikes, or slowdowns, and the need to perform
the obligation shall be suspended by such cause; provided, however, that the
maximum period of suspension is sixty (60) days, after which time performance
shall be resumed or the Agreement shall be deemed terminated, unless otherwise
agreed to in writing by both parties.  To be eligible for a force
majeure delay a party must notify the other in writing immediately upon the
occurrence of the force majeure.

     

    11.8           Headings and References.  The headings and
captions used in this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. All references in this
Agreement to Sections and Statements of Work will, unless otherwise provided,
refer to Sections hereof and the Statements of Work attached hereto, all of
which are incorporated herein by this reference.

     

    11.9           Authority.  The parties
executing this Agreement on behalf of KLATU and CRYOPORT warrant that they have
the authority to enter into this Agreement and to bind their respective KLATU to
all of the terms and conditions of this Agreement.

     

    11.10         Waiver.  The failure
of either party to require performance by the other party of any provision
hereof will not affect the full right to require such performance at any time
thereafter; nor will the waiver by either party of a breach of any provision
hereof be taken or held to be a waiver of the provision itself.

     

    11.11         Non-Exclusivity.  CRYOPORT
acknowledges that KLATU may be and could be performing services for businesses
other than CRYOPORT including, without limitation, other companies engaged in
businesses similar to that of CRYOPORT.  This Agreement shall not
prohibit KLATU from performing services for such other businesses.

     

    11.12         Assignment.  Neither party
shall assign or delegate this Agreement, in whole or in part, without the prior
written consent of the other party, which consent shall not be unreasonably
withheld or delayed; provided, however, that KLATU may delegate certain of its
obligations hereunder to independent subcontractors; provided, further, however
that either party may assign this Agreement to a parent, subsidiary, or
successor-in-interest to its business (whether by merger, acquisition,
consolidation, or sale of substantially all of the assets of such party) if such
assignee assumes all of the obligations of the assignor hereunder. Any attempted
assignment or delegation in violation of the preceding sentence will be null and
void. Subject to the foregoing, this Agreement shall be binding on and inure to
the benefit of the parties and their respective successors and permitted
assigns.

     

    11.13         Injunctive
Relief.  Notwithstanding any other provision of this Agreement,
a breach of Section 6 or 7 will cause irreparable harm to the non-breaching
party.  Therefore, any such attempted or actual breach shall entitle
the non-breaching party to seek, wherever it deems appropriate, injunctive
relief in addition to all other remedies available.

     

    


    
      
        
           


        

        
          10

          
            

          

        

        
           


        

      

    

    


    


     

    In Witness
Whereof, the parties have executed this Agreement as of the Effective
Date.

     

    
      
        
          
            
              
                
                  
                    
                      
                        	
                                KLATU
      NETWORKS, LLC

                              	
                                Cryoport,
      Inc.

                              
	
                                By:  /s/ Richard
      Kriss                                        
      

                              	
                                By:  /s/ Peter
      Berry                                  
      

                              
	
                                Name: Richard Kriss

                              	
                                Name:
      Peter Berry

                              
	
                                Title:  Managing
    Director

                              	
                                Title:   CEO

                              
	
                                Date: November 2, 2007

                              	
                                Date:  November 1,
2007

                              


                      

                    

                  

                

              

            

          

        

      

    

    


     

    


    
      
        
           


        

        
          11

          
            

          

        

        
           


        

      

    

    


    


     

     

    EXHIBIT
A-1

    PHASE
1 STATEMENT OF WORK


     

    (FEDERAL
EXPRESS SYSTEM DESIGN, PROJECT PLAN AND ROAD MAP)

    


     

    Objective:
Working with Cryoport’s management team, develop high-level planning
documentation for the , Project Plan, Product Plan, Product Road Map, System
Architecture, budgets and milestones for the development of the CPMS end-to-end
solution.  Additionally and in parallel, prepare a technology
assessment of competitive offerings in the market space for “cold chain
monitoring”

    


    Audience:
The document will be written with a operational emphasis and the intended
audience is Cryoport.  The document will be used as a planning and
management tool and as a guide to manage the development process and
budgets.

    


    Deliverables:

    


    
      	
               
      

            	
              1.

            	
              Technology
      assessment matrix of competitive technologies
  (Kriss)

            


    

     

    
      	
               
      

            	
              2.

            	
              High
      Level Project Plan, Milestones and Budgets (
  Fouskarinis)

            


    

     

    
      	
               
      

            	
              3.

            	
              High
      level Product Road Map (Kriss)

            


    

     

    
      	
               
      

            	
              4.

            	
              High
      level market requirements document for the shipper module
      (Kriss).

            


    

     

    
      	
               
      

            	
              5.

            	
              Draft
      system diagrams into requirements and systems architecture documentation
      including identification of proposed technologies such as servers, hosting
      options, server frameworks, and development tools (Kadel (Lead),
      Fouskarinis Maheshwari, Malhotra.)

            


    

     

    Budget
estimate $25,000 (See Exhibit B-1)

    


    Terms:
$12,500 upon signing of this Agreement, $5,000 upon completion and delivery of
items 1, 3 and 4 above, balance upon delivery of items 2 and 5.

    


    Time
Frame: 4-6 weeks.

    


    
      
        
           


        

        
          12

          
            

          

        

        
           


        

      

    

    


     

    EXHIBIT
B-1

    CONTRACTED
HOURLY RATES & PROJECT BUDGET

    


    


     

    The
following hourly rates (October 2007) and budget shall apply to Statement of
Work (SOW) referenced herein as Exhibit A-1

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                	
                                                        Type
      of Work Provided

                                                      	 	
                                                        Est.
      Hours

                                                      	 	 	
                                                        Hourly
      Rate

                                                      	 	 	
                                                        Budget

                                                      	 
	
                                                        Purchasing

                                                      	 	 	 	 	$	70.00	 	 	$	0.00	 
	
                                                        Software
      Technician

                                                      	 	 	 	 	$	70.00	 	 	$	0.00	 
	
                                                        Software
      Engineer

                                                      	 	 	 	 	$	80.00	 	 	$	0.00	 
	
                                                        Senior
      Software Engineer

                                                      	 	 	
                                                        40

                                                      	 	 	$	110.00	 	 	$	4,400.00	 
	
                                                        Software
      Architect

                                                      	 	 	 	 	 	$	120.00	 	 	$	0.00	 
	
                                                        Senior
      Software Architect

                                                      	 	 	
                                                        80

                                                      	 	 	$	150.00	 	 	 	12,000.00	 
	
                                                        Project
      Manager & Documentation

                                                      	 	 	 	 	 	$	90.00	 	 	$	3,600.00	 
	
                                                        Senior
      Project Manager

                                                      	 	 	 	 	 	$	120.00	 	 	$	0.00	 
	
                                                        Software
      QA Technician

                                                      	 	 	 	 	 	$	80.00	 	 	$	0.00	 
	
                                                        Software
      QA Engineer

                                                      	 	 	 	 	 	$	90.00	 	 	$	0.00	 
	
                                                        Software
      QA Manager

                                                      	 	 	 	 	 	$	120.00	 	 	$	0.00	 
	
                                                        Technical
      Doc Writer

                                                      	 	 	 	 	 	$	80.00	 	 	$	0.00	 
	
                                                        Specialized
      Expertise

                                                      	 	 	 	 	 	
                                                        Market
      Rate

                                                      	 	 	$	0.00	 
	
                                                        R
      Kriss Retainer (10/9 – 11/9)

                                                      	 	
                                                        Fixed

                                                      	 	 	 	 	 	 	$	5,000.00	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                                                        Fee
      SOW A-1

                                                      	 	 	 	 	 	 	 	 	 	$	25,000.00	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 
	 	 	 	 	 	 


                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


     

    *NOTE: In cases where
specialty skills such as User Interface Engineering, FDA Compliance CRYOPORT,
ESD Specialists, Database Design Engineer, etc., are required, the hourly rate
will be based on the actual market rate for the skill. Customers subject to this
rate will be notified in advance if this rate applies.

     

    


    
      
        
           


        

        
          13

          
            

          

        

        
           


        

      

    

    


     

    EXHIBIT
C

    MAINTENANCE
PROCEDURES

    


    


    During
the Warranty Period, KLATU shall use its best commercial efforts to correct any
non-conforming Hardware and/or Software and Documentation or
Revisions.

    


    All units
will be tested by KLATU prior to shipment and should be tested by CRYOPORT upon
arrival.   Defective units detected in the CRYOPORT incoming QA
process, where that defect is manufacturing defect in one or more units, will be
replaced by KLATU at no charge if returned within the warranty
period.  CRYOPORT must notify KLATU that a failure has occurred and
obtain an RMA (Return Material Authorization) number for the units to be
returned.

    


    Design or
implementation issues will be dealt with in accordance with the following
schedule:

    


    
      
        
          
            
              
                
                  
                    
                      	
                              Error
      Level One1

                            	
                              within
      5 business days

                            
	
                              Error
      Level Two2

                            	
                              within
      10 business days

                            
	
                              Error
      Level Three3

                            	
                              on
      the next regular release to

                            
	 
      	
                              CRYOPORT,
      but no longer than 180
days.

                            


                    

                  

                

              

            

          

        

      

    

    


    Among
other things, KLATU's response may include (i) instructions for solving the
problem, or (ii) a bug fix not otherwise contained in a release, or (iii) a
functionally equivalent software package which is free of such problems, or (iv)
a suitable workaround, temporary repair or an emergency bypass, all to the
extent that KLATU diagnoses the problem as a defect in an unaltered, current
release of the Hardware and/or Software and Documentation.  It is
expressly understood and agreed by CRYOPORT that KLATU is under no obligation to
include any one or more of items (i) - (iv) in or as part of its
response.  It is also expressly understood and agreed by CRYOPORT that
if a claimed error is the results of CRYOPORT's misuse, modification, neglect,
improper installation or testing of the Hardware and/or Software and
Documentation or a problem with hardware or software not supplied by KLATU,
KLATU is under no obligation to correct the problem, and CRYOPORT may be charged
for KLATU's time and materials in responding to CRYOPORT's claimed error at
KLATU's then standard time and material rates.  Finally, it is also
expressly understood and agreed that each set of instructions, updated version
and functionally equivalent software package provided under this Exhibit shall
be regarded as the item of licensed software to which it relates and shall
thereupon be subject to all of the terms and conditions of this Agreement that
relates to such item.

    


    
      	
               
      

            	
              1.

            	
              Error Level One
      shall mean an error that causes the product to be unusable for the
      function being performed.

            


    

    


    
      	
               
      

            	
              2.

            	
              Error Level Two
      shall mean an error that does leave the product unusable, but incorrectly
      performs a function and either causes a loss of data or cannot be easily
      circumvented or avoided.

            


    

    


    
      	
               
      

            	
              3.

            	
              Error Level
      Three shall mean an error that incorrectly performs a function, but
      there is no loss of data and the error can be easily circumvented or
      avoided.

            


    

    


    
      
        
           


        

        
          14

          
            

          

        

        
           


        

      

    

    


     

    EXHIBIT
D-1

     

    PRELIMINARY
ACCEPTANCE TEST PLAN

    (Reference
Section 3)

    


    Does
not apply for services under A-1

    


     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

     

    15