TASK DEFINITION: In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.
PROBLEM: Exhibit 10.22



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                   Strategic Alliance Agreement                     Intricon Corporation  1260 Red Fox Road  Arden Hills, Minnesota 55112  United States                   and                   Dynamic Hearing Pty Ltd  2 Chapel Street, Richmond, VIC 3121  AUSTRALIA





      AGREEMENT     This Agreement is entered into and is effective as of the 1st day of October, 2008 (Commencement Date) by and between IntriCon  Corporation, a Pennsylvania Corporation having a place of business at 1260 Red Fox Road, Arden Hills, Minnesota 55112 USA (hereinafter  IntriCon) and Dynamic Hearing Pty Ltd a Corporation organized under the laws of Victoria, Australia and having a place of business at 2 Chapel  Street, Richmond, Victoria 3121, Australia (hereinafter Dynamic Hearing) agree to collaborate with each other as a Strategic Alliance. As such, this  Strategic Alliance Agreement (SAA) outlines the principles and the understanding of the parties and defines related terms and conditions.     WHEREAS, Dynamic Hearing has developed technology useful for products in the Hearing Health (HH) Assisted Listening Device  (ALD) and Professional Communications (PADA) markets and DSP platforms which are hereinafter defined.     WHEREAS, IntriCon has also developed technology for the HH, ALD and PADA markets and DSP platforms.

   1.1 The purpose of this alliance is to exploit the parties' complimentary capabilities for producing DSP Technology products for the HH,  ALD, and PADA markets.

   The following terms in the context of this SAA shall have the following meanings:

   An Assisted Listening Device (ALD) is a



   Hearing Aids are amplification devices primarily designed to compensate for hearing loss, designed for listening only (through a  microphone, telecoil, Direct Audio Input or other similar audio pathways and run on a low power hybrid circuit. Hearing Aids may include in-the- ear Hearing Aids (ITE), behind-the-ear Hearing Aids (BTE), or completely-in-the-canal Hearing Aids (CIC).

   Professional Audio/Communication Devices (PADA)  are wired or wireless headsets or other devices used for one-way or two-way  communications in professional or industrial settings such as law enforcement, sport events, professional performances, search and rescue, and  military operations.     2

  1.0    Purpose

  2.0    Definitions

       2.1    Assisted Listening Devices

       1.    One way communications device           2.    Used for hearing protection or listening in challenging environments, and           3.    Contains Ultra Low Power (ULP) DSP and or ULP Wireless technology

       2.2    Hearing Aids:

       2.3    Professional Audio/Communication Devices







   DSP means digital signal processing. More specifically, for the purposes of this SAA, DSP Technology shall mean ON Semiconductor  hardware and firmware algorithms used for the HH, PADA and ALD markets. Hardware shall include the ON Semiconductor Ezairo DSP, and the  Single Chip Hearing Amplifier (SCHA) from ON Semiconductor.

   IntriCon Technology is that technology:







   Dynamic Hearing Technology is that technology:







   K/S HIMPP (hereinafter HIMPP) is a Danish partnership that owns numerous patents relating to Hearing Aids and associated  technologies.

   HIMSA otherwise known as Hearing Instruments Manufacturers'  Software Association is a privately owned company that has  developed a standardized hearing care software system.     3

       2.4    DSP Technology:

       2.5    IntriCon Technology:

       (i)    for which a patent(s) has been granted and all fees relating to the grant including any associated maintenance  or annuity fees have been paid. A granted patent does not include pending applications including those  pending applications which are associated with a granted patent through a claim of priority;

       (ii)    or has a patent pending, or

       (iii)    is Technology under record of invention.

       2.6    Dynamic Hearing Technology:

       (i)    for which a patent(s) has been granted and all fees relating to the grant including any associated maintenance  or annuity fees have been paid. A granted patent does not include pending applications including those  pending applications which are associated with a granted patent through a claim of priority; or

       (ii)    has a patent application pending, or

       (iii)    is Technology under record of invention.

       2.7    K/S HIMPP:

       2.8    HIMSA:







   Base Product means the DSP Technology including the ON Semiconductor Ezairo or SCHA chips, the EEPROM and the firmware loaded  onto the EEPROM and the minimum printed circuit board package necessary to connect and house these items. The Base Product does not  include additional PCB or flex circuits necessary to connect to other components of an Enhanced Product.

   Enhanced Product means a value added assembly or completed Hearing Aid or Assistive Listening Device which includes the Base  Product as one of the component devices. The Enhanced Product may include other electronic components, flex circuitry, microphones, a receiver,  plastic housings, volume controls, trimmer potentiometers, push button switches, programming connectors and other components.

   Contact Center means a group of people who use Contact Center Products and provide telemarketing, mail ordering, customer care,  technical support and similar functions either directly for an enterprise or on an outsourced basis by using automatic call directors for inbound  centers and predictive dialers for outbound centers. A Contact Center may also use software-based systems rather than physical equipment.

   Contact Center Products means any product, including without limitation, headsets (cordless or corded), amplifiers, telephones, soft  phones, and software-based systems that are used in Contact Centers. For purposes of clarification, no product shall be deemed a Contact Center  Product unless it is used in a Contact Center, including, without limitation, Bluetooth Products.











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       2.9    Base Product

       2.10    Enhanced Product

       2.11    Contact Center

       2.12    Contact Center Products

       2.13    Miscellaneous Definitions:

       (a)    headings are for convenience only and do not affect interpretation;

       (b)    the singular includes the plural and conversely;

       (c)    the meaning of general words introduced by including, or for example, or similar expressions is not limited by specific  examples;

       (d)    a reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them;

       (e)    a reference to a clause or Exhibit is a reference to a clause of, or an Exhibit to, this Agreement;















   unless the context requires otherwise terms in bold italics have the meaning given below:     Business Day means a day other than a Saturday, Sunday or public holiday in Victoria, Australia;     Confidential Information means information in relation to a party, including its business activities that

   in connection with this Agreement whether the information is in oral, visual or written form or is recorded or embodied in any other  medium and includes all such information disclosed to, or accessed by, the other party before this Agreement commences;     Exclusivity Date means October 1, 2008, the date Intricon makes its first quarterly payment of the Minimum Payment;     Identified Party means a party identified in Exhibit C before January 1, 2009 and all other parties are unidentified parties;     Improvements mean any modification, improvement, enhancement or development to the Licensed Subject Matter excluding always a  development, modification, improvement or enhancement that is patentable in its own right or which is proprietary information of  IntriCon.     Key Personnel means Elaine Saunders and Anthony Shilton;     5

       (f)    a reference to an agreement or document (including a reference to this Agreement) is to the agreement or document as  amended, varied, supplemented, novated or replaced, except to the extent prohibited by this Agreement or that other  agreement or document;

       (g)    a reference to a party to this Agreement includes the party's successors, permitted substitutes and permitted assigns  (and, where applicable, the party's legal personal representatives);

       (h)    a reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative  provision substituted for it and a regulation or statutory instrument issued under it;

       (i)    if a translation of this Agreement into any other language is produced, the original English version is to be the  definitive version of this Agreement;

       (j)    the term Related Body Corporate has the meaning given in the Corporations Act 2001 (C'th); and

       (a)    is disclosed to the other party by or on behalf of the first party;           (b)    is acquired by the other party directly or indirectly from the first party; or           (c)    otherwise comes to the knowledge of the other party,





      Licensed Subject Matter means Dynamic Hearing's Technology, Software, and Documentation as described in Exhibit A and Exhibit B, in  respect of which IntriCon is granted a license under this Agreement;     Product means a Base Product Unit or an Enhanced Product Unit;     For purposes of computing Royalty Payments, a sale shall occur when IntriCon receives payment from a customer for a Base Product  Unit., or an Enhanced Product containing a Base Product;     Services means technology transfer and other support provided to IntriCon by Dynamic Hearing;     Base Product Unit means a single Base Product item;     Territory means the world; and     Use means, in relation to:

   2.14 Additional definitions are provided in Exhibits A and B attached here to which are considered to be part of this Agreement.

   3.1 Term: The initial term of this Agreement shall be five (5) years from the date of execution and may be extended subject to satisfactory  agreement on ongoing commercial terms, to be agreed two (2) months prior to the expiration of this Agreement.     3.2 Dynamic Hearing grants to IntriCon in accordance with this Agreement, for the Term, a license, to Use Dynamic Hearing's  Technology, Software and Documentation developed as of the Commencement Date to manufacture, import, sell and offer for sale throughout the  Territory, Products containing Dynamic Hearing's Technology and Software. This grant specifically excludes products for Contact Centers, and  the use of ADRO Technology in electrical stimulation of the auditory system.     3.3 IntriCon accepts that Dynamic Hearing owns all rights in relation to the Licensed Subject Matter except for those rights being  specifically granted hereunder, and that Dynamic Hearing is under no obligation to provide the source code of any software.     3.4 Commencing on the Exclusivity Date, and continuing for so long as IntriCon continues to make such payments, the license granted to  IntriCon under this Agreement will, subject to the terms and conditions of this Agreement, be exclusive for Hearing Aids. The exclusivity shall not  prevent Dynamic Hearing entering into agreements with any Identified Party subject to the terms herein. On or before January 1, 2009, Dynamic  Hearing will provide IntriCon with an updated version of Exhibit C which will include a complete list of identified parties. After January 1, 2009, no  additions to Exhibit C are allowed unless agreed to by IntriCon in writing.     6

       (a)    the Technology, make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or  import it; and           (b)    the Software and Documentation to reproduce any copyright works subsisting in such software or documentation.

  3.0    License Grant





      3.5 IntriCon acknowledges that Dynamic Hearing's rights to license technology and software to companies manufacturing implantable  devices is not restricted in any way.     IntriCon acknowledges that Dynamic Hearing's rights to license any Dynamic Hearing Technology or Software to Identified Parties, and  provide support as agreed with Identified Parties, is in no way restricted.     3.6 No further design support will be given to Sound Design Technologies, Ltd (hereinafter Sound Design) which includes the recent  purchase of Gennum Corporation's hearing instrument business after 30 October 2009, if all conditions of IntriCon's exclusivity are met.     3.7 Intricon acknowledges that Dynamic Hearing is negotiating with several third parties regarding licensing Dynamic Hearing  Technology and Software, relating to its Hearing Aid Designer™ and other products and services. The rights granted under such agreements shall  be included as exceptions to the exclusivity of IntriCon's License Grant, if such agreements are executed by Dynamic Hearing and the third party  before January 1, 2009. Such third parties and their relevant subsidiaries will be Identified Parties and added to the Exhibit C. Agreements with  identified parties are allowed exceptions and no Agreements are allowed with unidentified parties.     3.8 Commencing on October 1, 2008, and continuing for so long as IntriCon continues to make minimum payments as defined in 4.3,  Dynamic Hearing agrees that it will not license any Dynamic Hearing Technology for Hearing Aids, subject to Clause 3.5.     3.9 If any Identified Party, (with the exception of Sound Design) purchases DSP product sold or made by IntriCon with Dynamic  Hearing's Hearing Aid Designer™ software and requests assistance to achieve HIMPP compliance for products using such DSP chips, IntriCon  will use its best efforts to comply with the request for HIMPP compliance.     3.10 Where IntriCon supplies Products to a third party, IntriCon will, at its cost:



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       (a)    obtain and maintain all governmental and regulatory approvals necessary for it to exercise, and comply with all laws and  regulations applicable to the exercise of, its license rights under this Agreement; and

       (b)    comply, and ensure that all Products comply, at all times with any technical standards as may reasonably be required  by law, and any licensing requirements, standards, or protocols established by the Hearing Instrument Manufacturers'  Software Association (HIMSA) and the Hearing Instrument Manufacturers'  Patent Partnership (HIMPP), it being  acknowledged that Dynamic Hearing makes no representation or warranty that the exercise of the rights granted under  this Agreement will not infringe any rights held by HIMSA, HIMPP or any other third party.





      3.11 Where Dynamic Hearing supplies Dynamic Hearing Technology directly to a customer on DSP chips supplied by IntriCon, then,  IntriCon will use its best efforts to comply with the request for HIMPP compliance or notify the third party customer of the customers obligations,  as per 3.10 (a) and (b).     3.12 Dynamic Hearing may continue indefinitely selling products and services to new customers using the ON Semiconductor DSP  hybrid chip. For the absence of doubt, the Exclusivity grant of 3.2 does not restrict Dynamic Hearing from licensing Dynamic Hearing Technology  and DSP Software on any ON Semiconductor platform, purchased by a third party or by Dynamic Hearing, from IntriCon. With the exception of the  Identified Parties, Dynamic Hearing agrees that it will not sell the Dynamic Hearing DSP Software for Hearing Aids configured to run on any  hardware other than that provided by ON Semiconductor, except in circumstances as described in this Agreement. Dynamic Hearing may continue  to sell products and services to non-Hearing Aid Customers using the ON Semiconductor DSP hybrid chips including the Bela Signa.     3.13 Dynamic Hearing and IntriCon shall undertake a mutual roadmap review and agree whether or not the current ON Semiconductor  chips will meet market requirements. If the Parties agree that the ON Semiconductor chips will not meet market requirements, IntriCon shall have six  (6) months to correct the material deficiency. Material deficiency means that ON Semiconductors must have a chip that is within 10% of the best in  class performance on each one of these characteristics: physical size, power supply current, computational capability and cost. If IntriCon is  unable or unwilling to remedy such deficiency, IntriCon will lose its exclusivity under this license.     3.14 IntriCon agrees that nothing in this Agreement precludes Dynamic Hearing from licensing Dynamic Hearing Technology, including  the ADRO™ Algorithm to manufacturers, including Siemens AG, Sonova Holdings AG, GN Resound Group, William Demant Holding A/S, Widex  A/S, Starkey Laboratories Inc, and Cochlear Ltd.     3.15 Nothing herein shall preclude Dynamic Hearing from making and selling its own Hearing Aids. Nothing in this agreement prevents  Dynamic Hearing from selling Hearing Aids manufactured by third parties in Dynamic Hearing's own clinics.     3.16 No other exception to IntriCon's exclusive license being granted herein shall exist unless such exception is specifically identified by  a supplemental agreement between IntriCon and Dynamic Hearing.

   4.1 IntriCon's payments to Dynamic Hearing will comprise two payment components. A first payment component (minimum payment) will  be a technology access fee for access to Dynamic Hearing Technology on a non-exclusive basis. A second payment component hereinafter  (Second Component) will be for exclusive rights to Dynamic Hearing Technology as such exclusive rights are defined herein. The second  component may comprise a combination of a royalty payment and fees for services.     8

  4.0    Payments





      4.2 IntriCon will pay to Dynamic Hearing a fixed technology access fee of US$300,000 annually (hereinafter Access Fee), the payment  of the technology access fee to be paid on a quarterly basis at the beginning of each calendar quarter. Payment of the technology Access Fee will  maintain IntriCon's non-exclusive rights to Dynamic Hearing Technology.     4.3 To maintain exclusive rights to Dynamic Hearing Technology for Hearing Aids IntriCon will make minimum annual payments to  Dynamic Hearing as set out in the Minimum Payment Schedule. The Minimum Payment consists of the Access Fee of US$300,000 per annum and  the Second Component that increases from year to year.     Minimum Payment Schedule (All amounts are in US Dollars):

   The Minimum Payments will be paid quarterly in advance in equal installments at the beginning of each royalty quarter, as defined in 4.7.  The first quarterly Minimum Payment (for the quarter beginning 1st October, 2008) shall be made at the date of signing of this Agreement and the  second quarterly minimum payment shall be made at January 1, 2009 with all further quarterly Minimum Payments following the schedule as  defined in 4.7.     4.4 Intricon is entitled to credit for any amounts payable to Dynamic Hearing arising from per unit royalties and fees for services up to the  value of the corresponding quarterly Second Component. In quarters where the per unit royalties and fees for services are less than the  corresponding quarterly Second Component, IntriCon may carry forward the remaining credit to be offset against future quarters per unit royalties  and fees for services.     Any amounts due from per unit royalties and fees for services that exceed the value of the corresponding quarterly payment of the  Second Component, net of any carried forward credit, will be paid within 30 days of the end of that royalty quarter.     4.5 Once IntriCon has paid the minimum payments in 4.3, no further minimum payments, both Access Fee and Second Component, are  required for access to Dynamic Hearing Technology or to maintain exclusivity over the term of this Agreement. IntriCon will continue to have the  obligation to pay royalty payments under 4.9 and fees for services under 4.8.     4.6 In the event IntriCon has not yet paid the minimum payments and should IntriCon choose not to continue access to Dynamic Hearing  Technology on an exclusive basis as referred to in 4.3, the following amounts will be payable:

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            PAYMENT  YEAR

MINIMUM PAYMENT    ACCESS FEE    SECOND COMPONENT

Year 1    $400,000    $300,000    $100,000    Year 2    $700,000    $300,000    $400,000    Year 3    $1,100,000    $300,000    $800,000    Year 4    $1,600,000    $300,000    $1,300,000    Year 5    $2,100,000    $300,000    $1,800,000

       (1)    the technology Access Fee payable quarterly in advance in equal installments at the beginning of each royalty quarter  and;







   4.7 Payment year 1 of this agreement shall start at the commencement date and the first royalty quarter will be completed at the end of the  calendar quarter. Subsequent royalty quarters will correspond with the calendar quarters ending on the last days of March, June, September and  December respectively.     4.8 Dynamic Hearing shall provide engineering and other services (hereinafter Fees For Services)  to IntriCon on a timetable to be  agreed upon in writing forming part of this agreement as an exhibit. Dynamic Hearing will invoice IntriCon on a quarterly basis 30 days from the  end of the quarter for engineering and services that exceed 260 hours in a single month at the rate of $150 per hour. Payments for such services  shall be due and payable within 30 days of the end of that royalty quarter. There will be no charge by Dynamic Hearing to IntriCon for the first 260  hours of engineering and services provided each month, however, any unused hours will not be carried forward as credit to subsequent months or  be entitled to be offset against any future monthly amounts payable for engineering and services. IntriCon is entitled to utilize such engineering  services for the HH, ALD or PADA markets.     Other service support (e.g. marketing or audiology) may be contracted at the same rates. If Dynamic Hearing staff are required by IntriCon  to travel to meetings, all airfares, ground transportation, hotel bills and other out of pocket expenses will be paid by IntriCon.     4.9 Royalty Payments will be made only on the Base Product Unit, or on the Base Product portion of an Enhanced Product for any Base  Product included in an Enhanced Product. The initial base rate of royalty shall include the use of the DSP Framework. In no case shall IntriCon pay  Royalty Payments on any product or portion of any product other than for revenue received for Base Product Unit or for the Base Product portion  of an Enhanced Product, and in the case a Base Product portion of an Enhanced Product such Base Product portion shall not be given a value that  is influenced by its inclusion in the Enhanced Product. Royalty Payment for HH, ALD and PADA units that incorporate Dynamic Hearing  Technology shall be paid according to the table set forth below:

   The maximum royalty rate identified in the table herein includes an initial base rate of 3% for each Ezairo DSP platform and 1% for each  Single Chip Hearing Aid (SCHA) sold. A 2% royalty rate per Base Product Unit shall be added to the initial base rate for each DSP feature/module  that is based on Dynamic Hearing Technology and that is added to a Base Product Unit. However, such additional Royalty Payments when added  to the initial base rate shall not exceed in total the stated maximum rates specified in the table herein.     10

       (2)    any monthly fees for services and royalties are payable in accordance with clause 4.8 and royalty payments under 4.4  and 4.9.

                Cumulative annual HH & ALD  Volume that use the Framework

Ezairo Maximum Royalty Rate    SCHA Maximum Royalty Rate

Less Than 20,000 Units    10%    8%    20,000-50,000 units    9%    7%    50,000-100,000 units    8%    6%    100,000-200,000 units    7%    5%    200,000-500,000 units    6%    4%    500,000 to 1,000,000 units    5%    3%    Over 1,000,000    5%    1.5%





      4.10 All amounts payable by IntriCon under this Agreement must be paid free and clear of and without any deduction or withholding for  or on account of any present or future withholding tax, including any interest or penalties in relation to such tax (Withholding Taxes). If IntriCon is  required to make any deduction or withholding for any Withholding Tax, then IntriCon must pay to Dynamic Hearing such additional amount to  ensure that Dynamic Hearing receives such amount that would have been received by it as if no such withholding or deduction had been required.







   5.1 Within thirty (30) days of the end of each payment quarter IntriCon must provide to Dynamic Hearing a statement of the actual  number and value of Base Product Units Sold along with the number and value of DSP features/models sold with those Base Product Units by it  or any Related Body Corporate. The statement must also include calculations of the per unit royalty in accordance with clause 4.9. Any royalty  due for payment by IntriCon to Dynamic Hearing is payable at the same time the statement is provided.     5.2 A Royalty Payment will be due only once in respect of each Base Product Unit Sold, and the Royalty Payment will be due on the first  Sale of the Base Product Unit by IntriCon or a Related Body Corporate.     5.3 Where, in any payment quarter, a Base Product Unit is, in good faith, returned to IntriCon, IntriCon is not required to pay any  Royalty Payment on the Sale of that Base Product Unit. If IntriCon has paid a Royalty Payment on that Base Product Unit in a previous payment  quarter, IntriCon may reduce the Royalty Payment due for the payment quarter in which the Base Product Unit is returned by the amount of any  such Royalty paid.



       1)    IntriCon must bear all stamp duty that may be levied on this Agreement. IntriCon must bear any other taxes, levies,  imposts, charges, rates and duties that may be levied or imposed by a governmental authority on any person (including  fines, penalties and interest) in connection with this Agreement (other than income tax payable to the Commonwealth of  Australia by Dynamic Hearing).

       2)    Each party must bear its own costs arising out of the negotiation, preparation and execution of this Agreement.

       3)    All amounts payable to Dynamic Hearing under this Agreement must be made without set-off, counterclaim or  deduction.

  5.0    Reports

  6.0    Records and Audit


   6.1 IntriCon must keep accurate and complete records of orders received, Base Product Units / DSP Features/Modules Sold and  returned and all other records reasonably necessary to substantiate all Royalty Payments to be made to Dynamic Hearing under this Agreement.     11


      6.2 IntriCon must make all such records available for inspection, copying and audit by an independent auditor appointed by Dynamic  Hearing (and to which IntriCon has no reasonable objection) during ordinary business hours at any time during the Term and for a period of one  year following the expiration or earlier termination of this Agreement, provided that:







   6.3 If in any audit, the auditor finds an underpayment or an overpayment of fees due under this Agreement, the party who has received  the overpayment or has underpaid will within 7 days repay the excess or pay the shortfall (as the case may be) to the other party.

   7.1 Each party must:









   7.2 This Agreement is confidential and each party must not disclose any part of this Agreement to any person without the prior written  consent of the other party.     12

       (a)    such inspection, copying or audit must only be made after at least one Business Day's written notice;

       (b)    such audit must not unreasonably interfere with the day to day operations of IntriCon; and

       (c)    such audit must be at Dynamic Hearing's expense unless the auditor finds an underpayment royalty due under this  Agreement in excess of 5% in which case IntriCon must reimburse Dynamic Hearing's reasonable cost of such audit;  and

       (d)    Audits will be limited to one audit in any calendar year.

  7.0    Confidentiality

       (a)    not disclose any Confidential Information to any person, except in confidence as permitted by this Agreement;

       (b)    not use any Confidential Information except as reasonably necessary for the purpose of putting this Agreement into  effect (Permitted Purpose);

       (c)    restrict access to Confidential Information to those of its employees and officers for whom such access is not  reasonably necessary for the Permitted Purpose;

       (d)    ensure that its employees and officers comply with this Agreement; and

       (e)    not reproduce or record, or permit or cause any reproduction or recording of, any Confidential Information except to  the extent reasonably necessary for the Permitted Purpose.





      7.3 This clause 7.0 does not apply where the party receiving the Confidential Information can prove that:















   8.1 Dynamic Hearing will be solely responsible at its cost and at its discretion for applying for, obtaining, maintaining, defending and  enforcing all aspects of all rights in respect of the Licensed Subject Matter and IntriCon must:



   8.2 IntriCon must notify Dynamic Hearing immediately upon becoming aware of:

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       (a)    the information has become generally available to the public other than because of a breach of this Agreement, or any  obligation of confidence owed to the disclosing party;

       (b)    it has received the information from a third person, legally entitled to possess the information and provide it to that  party, if that information is used, disclosed or otherwise dealt with in accordance with the rights or permission lawfully  granted to that party by that third person; or

       (c)    the disclosure of information is necessary to comply with any applicable law or legally binding order of any court,  government, semi-government authority or administrative or judicial body or the applicable rules of any stock  exchange, provided that before any such disclosure, the receiving party must, at its cost:

       (i)    immediately notify the other party giving full details of the circumstances of the proposed disclosure and of  the relevant information to be disclosed;

       (ii)    give the other party a reasonable opportunity to protect or preserve the confidentiality of the relevant  information;

       (iii)    co-operate with the other party in any action taken under this paragraph (c); and

       (iv)    in any event, take all reasonable steps to preserve the confidentiality of the information being disclosed.

  8.0    Maintenance, Infringement and Third Party Proceedings

       (a)    provide all reasonable assistance to Dynamic Hearing in any action which Dynamic Hearing may take in relation to any  such matters; and

       (b)    not take any action in relation to any such matters without the prior written consent of Dynamic Hearing, to be given at  Dynamic Hearing's absolute discretion.

       (a)    any claim or allegation that the exercise of the rights under this Agreement constitutes an infringement of the rights of  any third party; and









   9.1 Dynamic Hearing hereby represents that, as at the Commencement Date none of the Key Personnel has any actual knowledge that,  save for any rights claimed to be owned or held by the HIMPP, any rights of any third person may be infringed by the exercise, in accordance with  this Agreement of the rights licensed under clause 3.     9.2 IntriCon accepts that neither Dynamic Hearing nor any person acting on its behalf has made any representation that (a) any patent  applications comprised in the Technology will be granted in any part of the Territory or (b) any registered rights arising should any such  applications be granted, will be, or any registered rights comprised in the Technology are, valid or enforceable.     9.3 Dynamic Hearing will not be responsible for:





   10.1 IntriCon must indemnify Dynamic Hearing and its Related Bodies Corporate and their respective directors, officers, employees and  agents from and against any claims, losses, liabilities, costs, expenses (including investigative costs, court costs, legal fees, penalties, fines and  interest) and damages of any kind (including those which are prospective or contingent) whatsoever and howsoever, directly or indirectly arising  out of or in connection with this Agreement, including liability arising in connection with:





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       (b)    any third party's infringement or threatened infringement of any rights subsisting in the Licensed Subject Matter.

  9.0    Representations and Warranties

       (a)    the delivery, installation, or support of the Software to end-users of any Product or any other third party; or

       (b)    the supply, service, installation, and maintenance of any product (including any Product) or any ancillary software  required for communication with any other software or device used by IntriCon in relation to the Applications Software  Platform or the DSP Platform (including those known as the HiPro interface, the MicroCONNECT interface, the NOAH  Hearing Aid fitting database and the NOAH link interface).

  10.0    Indemnity and Limitation of Liability

       (a)    any infringement of third party rights but only to the extent that such third party infringement results from the use of  IntriCon Technology;

       (b)    injury to any person (including death) or loss of or damage to property which may arise from or as a result of  manufacture, importation, sale, offer for sale or use of any Product by IntriCon; or

       (c)    any breach of this Agreement by IntriCon or its Related Bodies Corporate and their respective directors, officers,  employees and agents or any unlawful or negligent act or omission of any of them but subject to the provisions of 10.3.





      10.2 Dynamic Hearing must indemnify IntriCon and its Related Bodies Corporate and their respective directors, officers, employees and  agents from and against any claims, losses, liabilities, costs, expenses (including investigative costs, court costs, legal fees, penalties, fines and  interest) and damages of any kind (including those which are prospective or contingent) whatsoever and howsoever, directly or indirectly arising  out of or in connection with this Agreement, including liability arising in connection with:



   10.3 To the maximum extent permitted by law and notwithstanding anything to the contrary in this Agreement:

   (a)    any infringement of third party rights that arise out of the exercise of the rights licensed under this Agreement; or

   (b)    any breach of this Agreement by Dynamic Hearing or its Related Bodies Corporate and their respective directors,  officers, employees and agents or any unlawful or negligent act or omission of any of them but subject to the  provisions of 10.3.

   (a)    all terms and warranties expressed or implied by any legislation, the common law, equity, trade, custom or usage or  otherwise in relation to this Agreement are expressly excluded;

   (b)    Dynamic Hearing is not liable in any way to IntriCon for any indirect, consequential, third party, special or incidental  harm, liability, expense, cost, loss or damage, loss of profits, loss of data, exemplary damages or any other indirect  commercial or economic loss of any kind whatsoever incurred by IntriCon whether in negligence, tort, equity, contract  or otherwise, arising in connection with this Agreement;

   (c)    IntriCon is not liable in any way to Dynamic Hearing for any indirect, consequential, third party, special or incidental  harm, liability, expense, cost, loss or damage, loss of profits, loss of data, exemplary damages or any other indirect  commercial or economic loss of any kind whatsoever incurred by Dynamic Hearing whether in negligence, tort, equity,  contract or otherwise, arising in connection with this Agreement;

   (d)    Dynamic Hearing's aggregate liability to IntriCon for direct loss and damages and all other liability not described herein  arising in connection with this Agreement whether in negligence, tort, equity, contract or otherwise, is limited to  payment of damages recoverable at law or equity up to a maximum of (and, for the sake of clarity must not exceed) $5m;  and

   (e)    if any legislation implies in this Agreement any term or warranty which cannot be excluded or modified, the liability of  Dynamic Hearing for a breach of any such term or warranty is limited, at the option of Dynamic Hearing, to any one or  more of the following:



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          (i)    if the breach relates to goods:

          (A)    the replacement of goods or the supply of equivalent goods; or

          (B)    the repair of such goods; and

          (ii)    if the breach relates to services: the supplying of the services again.

  11.0    Termination
   11.1 Notwithstanding any provision to the contrary in this Agreement, this Agreement may not be terminated by either party prior to two  years from the commencement date other than for the failure to pay the first and second yearly minimum payments as defined in section 4.3.     11.2 Subject to the provisions of 11.1, either party may terminate this Agreement immediately by written notice to the other party if:

   11.3 Dynamic Hearing may terminate this Agreement immediately by written notice to IntriCon if IntriCon:












       (a)    the other party breaches a material term of this Agreement (unless the breach is capable of remedy, in which case if the  other party fails to remedy the breach within 30 days after being required by written notice to do so)

       (a)    enters into any form of insolvency or administration including the following:

       (i)    stops or suspends or threatens to stop or suspend payment of all or a class of its debts; or

       (ii)    becomes insolvent, has an application or order made, proceedings commenced, a resolution passed or  proposed in a notice of meeting, an application to a court made or other steps taken against or in respect of it  for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition  with or assignment for the benefit of its creditors, a class of them or any of them;

       (b)    sells a significant portion of its assets or undertaking.









   11.4 IntriCon may terminate this Agreement immediately by written notice to Dynamic Hearing if Dynamic Hearing:       16
   (a)    enters into any form of insolvency or administration including the following:

   (i)    stops or suspends or threatens to stop or suspend payment of all or a class of its debts; or

   (ii)    becomes insolvent, has an application or order made, proceedings commenced, a resolution passed or  proposed in a notice of meeting, an application to a court made or other steps taken against or in respect of it  for its winding up, deregistration or dissolution or for it to enter an arrangement, compromise or composition  with or assignment for the benefit of its creditors, a class of them or any of them;

   (b)    sells a significant portion of its assets or undertaking.


   11.5 (a) Subject to the provisions of 11.1, IntriCon may terminate this Agreement upon three (3) months written notice to Dynamic  Hearing, such notice stating that IntriCon will cease making payments, either minimum or second component payments or both, and such  termination shall not be considered a breach of this Agreement.













     17



       (b)    Subject to the provisions of 11.1, Dynamic Hearing may terminate this Agreement upon three (3) months written notice  to IntriCon of such termination.

       11.6    Termination or expiry of this Agreement will not affect:

       (a)    any rights or remedies of the parties which may have accrued before the date of termination;

       (b)    the rights and obligations of the parties which by their nature survive termination, including clauses 6, 7, 8, 9, and 10.

       11.7    Upon the effective date of expiry or termination of this Agreement for any reason whatsoever:

       (a)    IntriCon must return all original media and documentation and all copies thereof relating to the Licensed Subject  Matter and Confidential Information and all associated documents supplied under this Agreement or otherwise in  IntriCon's possession, custody or control except for such media and documentation necessary to continue selling  existing products;

       (b)    On Dynamic Hearing's request, IntriCon must procure one of its executive officers to certify (by way of statutory  declaration) that it has complied with its obligations under clause 11.7(a).







   provided that IntriCon may







   11.8 Upon the Effective Date of expiry or termination of this Agreement for any reason whatsoever:



   11.9 Nothing in this clause 11.0 is intended to prevent end-users of Products continuing to use the Products or to require such end-users  to return or destroy any Product.       18

       (c)    All rights granted under this Agreement in relation to the Licensed Subject Matter will cease except as otherwise  provided herein as to existing products;

       (i)    retain one copy of the Software until the fifth anniversary of such effective date; and

       (ii)    Use such Software until the fifth anniversary of such effective date solely as reasonably necessary to repair  and maintain any Base Product Units Sold under this Agreement on or before such effective date, for the  period (if any, until such anniversary) while such Base Product Unit is covered by a warranty granted by  IntriCon and as otherwise provided herein as to existing products.

       (d)    Notwithstanding anything herein to the contrary, IntriCon shall have a right after termination to continue selling  existing products that include the Dynamic Hearing Technology as long as IntriCon pays the appropriate royalties in  accordance with the payment clauses in section 4.9 and, for the avoidance of doubt, such other clauses of this  Agreement (including 4.3, 4.10, 5, 6 and 10.1 will continue to apply in respect of such sales. Existing products are those  products that IntriCon is selling at the date of termination of this Agreement.

       (e)    IntriCon is not obligated to pay any royalties, Minimum Payments or technology Access Fee after termination of this  agreement if IntriCon stops selling Base Product Units, and/or Basic Product Units incorporated into Enhanced  Products.

       (a)    Dynamic Hearing must return all original media and documentation and all copies thereof relating to IntriCon's  Technology and Confidential Information provided to Dynamic Hearing from IntriCon and all associated documents  supplied under this Agreement to Dynamic Hearing from IntriCon under Dynamic Hearing's possession, custody  control;

       (b)    on IntriCon's request, Dynamic Hearing must procure one of its directors to certify (by way of statutory declaration)  that it has complied with its obligations under clause 11.7(a).







   12.1 Any notice, demand, consent or other communication (Notice) given or made under this Agreement:













   12.2 This Agreement contains the entire agreement between the parties with respect to its subject matter and supersedes all prior  agreements and understandings between the parties in connection with such subject matter.     12.3 No amendment or variation of this Agreement is valid or binding on either party unless made in writing and executed by both parties.     19

12.0 General Provisions

       (a)    must be in writing and signed by a person duly authorized by the sender;

       (b)    must be delivered to the intended recipient by prepaid post (or, if posted to an address in another country, by  registered airmail or private air courier) or by hand or fax to the address or fax number below or the address or fax  number last notified by the intended recipient to the sender:

      (i) to Dynamic Hearing:    Chief Executive Officer  2 Chapel Street, Richmond, VIC 3121  AUSTRALIA  Fax :+613 8420 8599              (ii) to IntriCon:    President  1260 Red Fox Road  Arden Hills, Minnesota 55112  United States  Fax: +651 636 9503

       (c)    will be taken to be duly given or made:

       (i)    in the case of delivery in person, when delivered;

       (ii)    in the case of delivery by post, two Business Days after the date of posting (if posted to an address in the  same country) or seven Business Days after the date of posting (if posted to an address in another country);  and

       (iii)    in the case of fax, on receipt by the sender of a transmission control report from the dispatching machine  showing the relevant number of pages and the correct destination fax machine number or name of recipient  and indicating that the transmission has been made without error, but if the result is that a Notice would be  taken to be given on a day that is not a Business Day in the place to which the Notice is sent or is later than  4:00pm (local time) it will be taken to have been duly given or made at the commencement of business on the  next Business Day in that place.





      12.4 Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent  necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement.     12.5 No failure to exercise or any delay in exercising any right, power or remedy by a party operates as a waiver. A single or partial  exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not  valid or binding on the party granting that waiver unless made in writing.     12.6 IntriCon may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of  Dynamic Hearing. Likewise, Dynamic Hearing may not assign or transfer any of its rights or obligations under this Agreement without the prior  written consent of IntriCon.     12.7 This Agreement may be executed in any number of counterparts. All counterparts together will be taken to constitute one  instrument.     12.8 This Agreement is governed by the laws of Victoria, Australia and the parties submit to the jurisdiction of the courts of Victoria,  Australia. The 1980 United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

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            DYNAMIC HEARING PTY LTD         INTRICON CORPORATION                   /s/ Elaine Saunders         /s/ Mark S. Gorder    Printed Name:     Elaine Saunders         Printed Name:     Mark S. Gorder    Title:     CEO         Title:     President & CEO    Dated:     July 20, 2008         Dated:     July 16, 2008





      EXHIBIT A

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                          Technology    DSP FrameWorkTM means DSP software implementing program switching, volume control, reading and  writing programs, program beeps, and battery monitoring.                   ADRO® Technology means the invention described in patent application PCT/AU99/00076 which is the  subject of the following patents and patent applications:  AU761865  EP11172020  US 6,731,767  CA 2,361,544  JP 2000-597976         and 32 channel ultra-low-delay ADRO ® amplification the subject of Patent application US11/283540.

                 Note that Dynamic Hearing does not have rights to ADRO for electrical stimulation of the auditory system  and that the rights to ADRO for electrical stimulation are thus explicitly excluded from this Agreement.                   Wide Dynamic Range Compression Technology means digital signal processing technology that provides  level-dependent amplification of the input signal in multiple frequency bands.                   Adaptive Directional Microphone Technology means the technology that is the subject of Australian Patent  Application 2004310722 entitled Adaptive Directional Systems.                   Fixed Directional Microphone Technology means digital signal processing technology that implements a  preferential fixed response to sound from a forward direction.







        22

     Omni-Directional Microphone Technology means digital signal processing technology that implements a  fixed response to sound from all directions.

                 The  Adaptive Directional Microphone Technology, Fixed Directional Microphone Technology and  Omni-Directional Microphone Technology are collectively known as the Microphone Technology.

                 Single-channel Noise Reduction Technology means digital signal processing technology that reduces the  output signal level by an amount related to the internal noise level in multiple frequency bands.

                 Multi-channel Noise Reduction Technology means digital signal processing technology that reduces the  output signal level by an amount related to the internal noise level in multiple frequency bands.

                 Active Feedback Cancellation Technology means the technology of the subject of US patent 6876751.                       Oscillation Detection Technology means the technology of the subject of United States Patent 7302070.                       Oscillation Suppression Technology means digital signal processing technology that reduces the maximum  gain temporarily, in an individual frequency band, when a sustained oscillation is detected in that band as  more particularly described in European Patent Application 04734786.9 entitled Oscillation Suppression.

                 (The Active Feedback Cancellation Technology, Oscillation Detection Technology a n d  Oscillation  Suppression Technology are collectively known as the Feedback Technology).

                 Datalogging Technology means software that allows recording of events occurring during use of the device  to non-volatile memory.

                 Dynamic Display is a feature that allows parameters of each DSP module to be accessed and displayed in  real time without interrupting normal operation of the device.

                 Environmental Noise Reduction means digital signal processing that suppresses environmental noise.





      EXHIBIT B  HEARING AID DESIGNER SOFTWARE

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                          Software    The Hearing Aid DesignerTM is software comprising the DSP Software, the Manufacturers'  Toolkit, the  designCOMTM applications programming interface, and source code sufficient to enable the development and  integration of new DSP modules by the Licensee.                   (DSP Software means the embedded software that implements the Technology on the DSP Platform.)                   Library Software means the designCOM software that runs on the Applications Software Platform to  communicate with, and configure, the DSP Software on the DSP Platform, and the ADROpredict software  that provides initial estimates of the ADRO fittings for a given audiogram and comfortable level measures.                   Manufacturers'  Toolkit means the manufacturing software that allows configuration and calibration of  Products.                   Unless expressly specified in this Exhibit, Dynamic Hearing will have no obligation to provide updates or  revisions to, or new versions of, any software.                   (Collectively, the above software is known as the Hearing Aid Designer SoftwareTM).              Applications  Software Platform

The Applications Software Platform for Library Software is:  Windows 2000, Windows XP, or Windows Vista operating system running on a Personal Computer  connected to the Hearing Aid via a HiPro, or NOAHLink interface device.





      EXHIBIT C  Dynamic Hearing's Identified Customers                                                              GN RESOUND GROUP and INTERTON ELECTRONIC HÖRGERÄTE GMBH    Existing License Agreement         RION CO. LTD.    Existing License Agreement         SONIC INNOVATIONS INC.    Existing License Agreement         AUDIO CONTROLE INC.    Existing License Agreement         EARLENS CORPORATION    Existing License Agreement         AUSTRALIA HEARS PTY LTD    Existing License Agreement





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       AMERICA HEARS INC.    Existing License Agreement         VITASOUND AUDIO INC.    Existing License Agreement         SONOMAX HEARING HEALTH INC.    Existing License Agreement         PANASONIC    Commercial negotiations underway 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

SOLUTION: Dynamic Hearing is not liable in any way to IntriCon for any indirect, consequential, third party, special or incidental  harm, liability, expense, cost, loss or damage, loss of profits, loss of data, exemplary damages or any other indirect  commercial or economic loss of any kind whatsoever incurred by IntriCon whether in negligence, tort, equity, contract  or otherwise, arising in connection with this Agreement;

PROBLEM: Exhibit 10.1   Text Marked By [* * *] Has Been Omitted Pursuant To A Request For Confidential Treatment And Was Filed Separately With The Securities And Exchange Commission.   STRATEGIC ALLIANCE AGREEMENT Effective Date: April 17, 2017   THIS STRATEGIC ALLIANCE AGREEMENT (this Agreement), is entered into by and between Lion Biotechnologies, Inc., with a place of business located at 999 Skyway Road, Suite 150, San Carlos, CA 94070 (LBIO), and The University of Texas M. D. Anderson Cancer Center, with a place of business located at 1515 Holcombe Blvd., Houston, TX 77030 (MD Anderson), a member institution of The University of Texas System (System), as of the date set forth above (the Effective Date). MD Anderson and LBIO are hereinafter individually referred to as a Party and are collectively known as the Parties.   WHEREAS, as a comprehensive cancer research, treatment, and educational center, MD Anderson undertakes research and experimental activities in a variety of disciplines; and   WHEREAS, the Parties hereby wish to establish a collaboration (Collaboration) with respect to the performance of one or more research studies to be conducted pursuant to this Agreement (each such study, a Study, and collectively the Studies, and the activities to be performed with respect to the Studies collectively, the Research).   NOW, THEREFORE, in consideration of the mutual covenants contained herein, the receipt and sufficiency of which are hereby acknowledged, LBIO and MD Anderson hereby agree to be legally bound as follows:   1. Governance.   1.1 Joint Steering Committee. The Parties will establish a joint steering committee (JSC) of equal representation, comprised of three members from each Party, with the members of each Party collectively having one vote on all matters to be decided upon by the JSC. Each Party can appoint and replace its members in the JSC at its own discretion through timely written notice to the other Party. The Principal Investigators for each Study (as defined hereinafter) shall attend each JSC meeting, except in the event of exigent circumstances that do not permit such attendance.   1.2 JSC Meetings. The JSC will have meetings (either in person, by teleconference or via electronic means) at least quarterly. At least one meeting per year will be conducted in person or by videoconference (including the kick-off meeting), with the location alternating between a site a selected by LBIO and a site selected by MD Anderson. LBIO will choose the location of the first such in-person meeting. Subject to Section 1.4 below, the JSC will decide on matters by unanimous vote; provided, however, that no action may lawfully be taken at any meeting unless at least two members from each Party (including for this purpose any proxy member appointed as provided below) are present at the meeting. If a member of the JSC is unable to attend a meeting, he or she may appoint, in writing, a proxy to participate and vote in his or her stead.

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  1.3 JSC Responsibilities. The main task of the JSC will be to oversee the Collaboration. In order to achieve the objectives of the Collaboration, the JSC will oversee each Study under the Collaboration. The JSC will provide technical, scientific, clinical, and regulatory guidance regarding the Studies and will be responsible for monitoring progress of the Studies. In addition, the JSC will be responsible for coordinating resolution of problems arising in the Studies or in the Collaboration as a whole. Additional members can be invited by the JSC on a case by case basis should discussion of certain topics require so; provided, that such members will be subject to obligations of confidentiality and non-use at least as strict as those set forth in Section 5 below.   1.4 Dispute Resolution. Decisions regarding Study design, changes and/or additions to the initially-agreed Protocols must be unanimous, with each Party exercising one vote each, and in the absence of such unanimity the status quo shall be maintained. For all other matters before the JSC, a unanimous decision, with each Party exercising one vote, is required; provided, that, if unanimity cannot be achieved regarding such other matters, then LBIO's chief executive officer may make the decision on behalf of the JSC, provided that LBIO's chief executive officer will first make a good faith effort to consult with a designated executive at MD Anderson to resolve such matter.   2. Performance of Studies.   2.1 Studies.   (a) During the Term (as defined below), LBIO and MD Anderson may periodically agree to collaborate with respect to the performance of one or more Studies. In connection with each Study, the Parties shall execute, as applicable, a Study-specific clinical trial agreement or a pre-clinical work order where a clinical trial is not being conducted (each, a Study Order). Study Orders shall be numbered sequentially and, when executed, appended to this Agreement and made a part hereof. The first three Study Orders, when completed, will be incorporated into this Agreement as Exhibit I, Exhibit II, and Exhibit III, and the Studies that are the subject of such Study Orders are also referred to herein as the Initial Studies. Each Study Order shall detail the specifics of the Study to be performed under such Study Order including (i) a detailed Study-specific protocol (Protocol) that will be developed jointly by the Parties working together in good faith and (ii) any Study-specific resources or support to be provided by LBIO, including any financial consideration (Collaboration Funding, but excluding financial support associated with the Initial Studies to the extent addressed in Section 4 of this Agreement). Any revisions or amendments to a Study Order or Protocol shall be implemented, if at all, solely in accordance with the terms of the relevant Study Order and shall be subject to the approval of the JSC. The Parties acknowledge and agree that MD Anderson will be the sponsor of the Initial Studies that are clinical studies, as defined at 21 C.F.R. §§ 50.3(f) and 312.3(b), and will be the holder of the investigational new drug applications (INDs) submitted to the FDA (as defined hereinafter) for such Initial Studies.   (b) In the event of any conflict of any terms of this Agreement and the terms of a Study Order, the terms of this Agreement shall govern, unless the Study Order specifically and expressly supersedes this Agreement with respect to a specific term, and then only with respect to the particular Study Order and specific term. If there is any discrepancy or conflict between the terms contained in a Protocol and this Agreement and/or the relevant Study Order, the terms of the Protocol shall govern and control with respect to clinical matters and the terms of this Agreement and/or the relevant Study Order shall govern and control with respect to all other matters (e.g., legal and financial matters).

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  2.2 Investigators.   (a) Principal Investigator. Each Study Order will identify the individual that will serve as the Principal Investigator for the relevant Study at MD Anderson and shall be responsible for MD Anderson's administration and supervision of its portion of such Study. If the originally named Principal Investigator becomes unable or unwilling to continue a Study for any reason, MD Anderson shall propose a substitute Principal Investigator with comparable qualifications within two business days of MD Anderson becoming aware of such event. If the proposed candidate is not available or is not acceptable to LBIO, LBIO may terminate the applicable Study in accordance with Section 8.3(ii).   (b) MD Anderson and Principal Investigator may appoint one or more collaborating physicians (Sub-Investigators) to participate in a Study. Such Sub-Investigators shall work under the supervision of, shall report to and be the sole responsibility of Principal Investigator, and Principal Investigator and MD Anderson shall each ensure that all Sub-Investigators undertake all activity related to the Study in accordance with the terms of this Agreement, the applicable Study Order, and the Protocol.   (c) On a Study Order-by-Study Order basis, in the event that a Principal Investigator leaves or is removed from MD Anderson (or is otherwise unwilling or unavailable to direct the applicable Study in accordance with this Agreement and the applicable Study Order), then MD Anderson shall, as soon as practicable but in any event within two (2) business days of such event, provide written notice of such event to LBIO. Any subsequently appointed principal investigator must be approved, in writing in advance, by LBIO and such new principal investigator shall be required to agree to all the terms and conditions of the applicable Study Order and this Agreement and to sign each such document as evidence of such agreement (although failure to so sign will not relieve such new principal investigator from abiding with all the terms and conditions of the applicable Study Order and this Agreement). If LBIO does not approve of the new principal investigator, or the new principal investigator does not sign this Agreement, then LBIO may terminate the applicable Study Order in accordance with Section 8.3(ii).   2.3 Performance; Compliance with Law.   (a) MD Anderson shall, and shall cause each of its employees, agents, contractors, and subcontractors performing Research activities or other obligations under this Agreement, including the Principal Investigator (collectively, Representatives) to, conduct such activities, and use, store and handle all materials used in the performance of activities under this Agreement and each Study Order, or cause the same to be done, in accordance with (i) all applicable laws, regulations, and guidelines, including, to the extent applicable, the Federal Food, Drug, and Cosmetic Act (FFCDA); the anti-kickback and related provisions of the Social Security Act; the Public Health Services Act; the regulations promulgated by the Food and Drug Administration (FDA), including 21 C.F.R. Parts 50, 56, and 58, and, with respect to clinical Studies, the requirements of the Statement of Investigator, FDA Form 1572 (as described in 21 312.53), the terms of which are incorporated by reference into any Study Order pertaining to a clinical Study (and the Principal Investigator for any such clinical Study shall complete, sign, and deliver a Form 1572 to LBIO prior to the commencement of such Study); the United States Health Insurance Portability and Accountability Act of 1996, as amended by the HITECH Act, including the Standards for Privacy of Individually Identifiable Health Information; the EU Data Protection Directive; and all other applicable privacy, security and data protection laws (collectively, this sub-clause (i), Laws), and, as applicable, the quality standards of Good Clinical Practice (which term shall mean generally accepted good clinical practices including those set out in the current version of the Declaration of Helsinki and the International Conference on Harmonization Guidelines for Good Clinical Practice in force from time to time and FDA's most recent guidance and regulations concerning current Good Clinical Practice), (ii) the provisions of this Agreement (including each applicable Study Order and Protocol), and (iii) all written instruction from LBIO, as well as MD Anderson's internal policies and procedures to the extent they do not conflict with the foregoing subsections (i) and (ii).

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  (b) LBIO is a United States corporation subject to the provisions of the Foreign Corrupt Practices Act (the FCPA). Under the FCPA it is unlawful to pay or to offer to pay anything of value, directly or indirectly, to foreign government officials, government employees, political candidates, or political parties, or to persons or entities who will offer or give such payments to any of the foregoing, in order to obtain or retain business or to secure an improper commercial advantage for LBIO. MD Anderson shall not, and MD Anderson shall ensure that its Representatives do not, take or permit any action, including paying or transferring anything of value, directly or indirectly, to any official or other person to influence any decision to obtain or retain business or gain an advantage in the conduct of business, or to induce such official or other person to perform a function in violation of any Laws, that will either constitute a violation under, or cause LBIO to be in violation of, the provisions of the FCPA or applicable local bribery and corruption Laws.   (c) MD Anderson shall register each Study that is a clinical study with the relevant governmental authorities and government websites (including http://www.clinicaltrials.gov) and make all updates as required under the Laws, and shall identify LBIO as a financial collaborator (e.g., a Collaborator for the purposes of www.clinicaltrials.gov) in such registrations.   (d) To the extent required by Law, MD Anderson and Principal Investigator shall be responsible for ensuring that the Research and all applicable documents, including any Protocol and informed consent and authorization forms are properly approved by applicable regulatory authorities and an Institutional Review Board (IRB). As may be required by Law, and with respect to any given applicable Study hereunder, MD Anderson and Principal Investigator shall further be responsible for making all reports and obtaining the continuing approval from the applicable IRB. Prior to making any submission to an IRB with respect to any given applicable Study hereunder (including a Protocol, and information to be provided to potential Study subjects including the informed consent and HIPAA authorization, and as applicable, the Case Report Forms (CRFs) or supporting source documentation), MD Anderson shall provide the proposed submission to LBIO for LBIO's review and approval. MD Anderson shall promptly further provide LBIO with documentation of the IRB's initial and continuing review and approval with respect to any given applicable Study hereunder, as well as any other communications and/or interactions with the IRB (summaries in the case of oral interactions and/or communications) that is related to or which may impact the Research, prior to the commencement of the Research and promptly thereafter. In the event MD Anderson's IRB requires changes in any Protocol, informed consent or related forms for a Study after the Effective Date of the applicable Study Order, LBIO shall be advised in advance and all such modifications must be approved in advance and in writing by the JSC under this Agreement. MD Anderson and Principal Investigator shall not modify a Study described in a Protocol without the prior written approval of the JSC.

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  (e) MD Anderson and/or Principal Investigator shall be responsible for reporting and tracking of all adverse events with respect to a Study (AEs) in compliance with all Laws and each applicable Protocol and Principal Investigator shall be responsible for updating all AEs, including any expedited safety reports. MD Anderson and LBIO will share information with each other of any findings that may impact the safety of a Study Drug including as Study Drug safety may adversely affect the health and safety of any Study subject, influence the conduct of a Study, alter an IRB's approval to continue a Study, or affect the willingness of a Study subject to continue participation in the Study. Principal Investigator and MD Anderson shall notify LBIO within twenty-four (24) hours after learning of any serious AE and any special situation report (both as defined in the applicable Protocol) incurred during or as the result of the Study, and provide a written confirmation report of such individual serious adverse event and special situation report promptly thereafter, as well as a monthly listing of all such serious adverse events and special situation reports, by electronic mail to: lionbiosafety@lionbio.com. LBIO shall have the ability to request additional information related to any such safety finding, serious AE or special situation report, if applicable, thereafter. Additionally, MD Anderson and/or Principal Investigator will promptly provide LBIO with all information in their possession or control as may be needed to assist LBIO in the identification and resolution of problems or unexpected occurrences involving the Study Drug or its use in the Study.   2.4 Facilities. MD Anderson shall cause its Representatives to perform the Research only at the facility(ies) identified in the applicable Study Order (the Facility(ies)). MD Anderson may not utilize any facility, other than the Facility(ies), for performing any portion of the Research without obtaining LBIO's prior written consent to do so. MD Anderson shall maintain, or cause to be maintained, the Facility(ies), all personal property, equipment, machinery, excipients, materials, systems, intangibles, intellectual property and contract rights in use at the Facility(ies) free of defects, except for defects attributable to wear and tear consistent with the age and usage of such assets, and except for such defects as do not and will not, in the aggregate, materially impair the ability to use such assets in connection with the Research.   2.5 No Inducement. MD Anderson agrees that LBIO's support of the Research is not conditioned on the value or volume of business generated between the Parties and is not being provided or received as a reward or in exchange for recommending, prescribing, dispensing, purchasing, supplying, selling, administering, referring, arranging for, or ordering any product that is manufactured, sold, or distributed by LBIO, or to induce recommending, prescribing, dispensing, purchasing, supplying, selling, administering, referring, arranging for, or ordering any product that is manufactured, sold, or distributed by LBIO in the future.

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  3. Materials.   3.1 Study Materials and Equipment. Unless otherwise provided by this Agreement (including as expressly set forth in a Study Order), Principal Investigator shall conduct the Research with MD Anderson's materials and equipment. MD Anderson shall be responsible for the acquisition, purchasing, replacement, repair, maintenance, and calibration, to the extent applicable, of all materials and equipment, unless otherwise provided by this Agreement (including as expressly set forth in a Study Order), necessary for MD Anderson to conduct the Research. LBIO shall have no role, responsibilities, and or liability with regard to any materials and equipment necessary for MD Anderson and Principal Investigator to conduct the Research, except as provided in this Agreement (including as expressly set forth in a Study Order).   3.2 Informed Consent. MD Anderson shall ensure that all patients from whom Patient Materials (as defined below) were obtained, provided their informed consent and authorization for MD Anderson's and Principal Investigator's transfer of the applicable Patient Materials, data, and information to LBIO as called for in any applicable Study Order, LBIO's use of Patient Materials, data, and information, and LBIO's further transfer of the Patient Materials, data, and information to governmental or regulatory authorities and other third parties, as applicable. Upon LBIO's request, MD Anderson shall provide LBIO with copies of the patient informed consent and authorization forms for LBIO to confirm the provisions of this Section 3.2.   3.3 LBIO Materials.   (a) Material shall mean the tangible materials, Patient Materials (as defined below) and equipment described in an exhibit to a given Study Order (such exhibit, if provided, the Materials Exhibit). The Parties will amend a given Materials Exhibit from time to time as additional Materials are provided by or to LBIO in connection with a given Study Order. The Parties shall provide, or cause to be provided, Materials, and rights with respect to associated intellectual property, to each other in the quantities described in the applicable Study Order (or if no such quantities are described, in reasonable quantities) and at the times set forth in the applicable Study Order (or if no such times are set forth, as soon as reasonably practicable and necessary after the effective date of the applicable Study Order). All Materials supplied to MD Anderson by or on behalf of LBIO shall, as between LBIO and MD Anderson, remain the exclusive property of LBIO.   (b) THE MATERIALS PROVIDED TO INSTITUTION BY LBIO ARE PROVIDED BY LBIO ON AN AS IS BASIS. LBIO HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE MATERIALS, INCLUDING ANY WARRANTIES OF TITLE, INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OFFICER, EMPLOYEE, AGENT OR REPRESENTATIVE OF LBIO HAS ANY AUTHORITY TO BIND LBIO TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY CONCERNING THE MATERIALS, EXCEPT AS SET EXPRESSLY FORTH HEREIN. THE MATERIALS PROVIDED TO LBIO BY INSTITUTION ARE PROVIDED BY INSTITUTION ON AN AS IS BASIS. INSTITUTION HEREBY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE MATERIALS, INCLUDING ANY WARRANTIES OF TITLE, INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO OFFICER, EMPLOYEE, AGENT OR REPRESENTATIVE OF INSTITUTION HAS ANY AUTHORITY TO BIND INSTITUTION TO ANY AFFIRMATION, REPRESENTATION OR WARRANTY CONCERNING THE MATERIALS, EXCEPT AS SET EXPRESSLY FORTH HEREIN.

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  (c) The Materials provided by or on behalf of LBIO shall only be used as necessary to conduct the Research, in accordance with the Research Plan, this Agreement, all written instructions from LBIO and all Laws and not for any other uses or activities whatsoever, including in connection with research for any third person or entity. MD Anderson shall maintain control over Materials received by it from or on behalf of LBIO hereunder and shall not transfer any portion of such Materials to any third party for any purpose other than the purposes of performing its obligations under, and in accordance with, this Agreement, the Research Plan, all written instructions from LBIO and all Laws. MD Anderson shall maintain complete and accurate records relating to the disposition of all Materials provided by or on behalf of LBIO. MD Anderson shall return to LBIO all unused supplies of Materials provided by or on behalf of LBIO in accordance with Section 8.4 or at LBIO's earlier request. MD Anderson shall have no right to provide samples of the Materials provided by or on behalf of LBIO (or products created thereby) to any person or entity.   3.4 Patient Materials. Patient Materials shall mean those certain biological materials, and derivatives thereof and related patient data and information, received from individual patients and described in an applicable Materials Exhibit. Without limiting Section 3.3, MD Anderson shall further handle, transport, use and store Patient Materials exclusively at the Facility(ies) or otherwise in accordance with this Agreement, unless otherwise requested by LBIO in writing, and at all times strictly in accordance with (a) MD Anderson's standards of security and confidentiality and (b) all applicable privacy, security and data protection Laws (including the United States Health Insurance Portability and Accountability Act of 1996, as amended by the HITECH Act, including the Standards for Privacy of Individually Identifiable Health Information, and the EU Data Protection Directive).

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  4. Certain Financial Matters.   4.1 Initial Funding. LBIO agrees to commit funding in an amount not to exceed $14,211,864.00 for the performance of the Studies during the Term (collectively, Initial Funding), with the Initial Funding specifically allocated as follows: (a) $[* * *] for an upfront payment, and a minimum of $[* * *] for enrollment and treatment of a minimum of 40 patients in the Study described in Exhibit I (i.e., the Minimum Enrollment Target as defined in Exhibit 1) or up to $[* * *] (an Individual Study Budget) for enrollment and treatment of up to 60 patients in the Study described in Exhibit I (i.e., the Maximum Enrollment Target as defined in Exhibit 1); (b) $[* * *] (which shall also be considered an Individual Study Budget) for enrollment, manufacturing of product, and treatment of 30 patients in the Study described in Exhibit II; and (c) $[* * *] for the Study described in Exhibit III. LBIO shall pay the Initial Funding in accordance with Section 4.3. For clarity, the Initial Funding is Collaboration Funding. MD Anderson agrees that all costs of this Collaboration, with the sole exceptions of any costs to supply clinical-grade aldesleukin and 4-1BB agonist for use in the expansion of tumor infiltrating lymphocytes (TILs), and in the case of aldesleukin, for use in the treatment of patients, are included in the Initial Funding. Subject to the foregoing exceptions, MD Anderson shall be solely responsible for any costs it incurs in performing the Studies that are in excess of the Initial Funding.   4.2 Collaboration Funding Generally. MD Anderson shall use the Collaboration Funding solely to conduct the applicable Study and MD Anderson shall be responsible for managing cash flow between payments. It is understood and agreed that the Collaboration Funding shall cover all administrative, IRB review, patient recruitment, and all other fees, costs and expenses of MD Anderson and any of its Representatives for the conduct of the Studies or the provision of equipment or services to facilitate the Studies, and that no other form of compensation shall be paid to MD Anderson in connection with the Studies except as otherwise may be specifically and mutually agreed upon by the Parties in writing.   4.3 Payments. LBIO shall pay the Initial Funding to MD Anderson as follows. An upfront payment of $[* * *] (the Upfront Payment) shall be invoiced by MDACC on the Effective Date. The remainder of the Initial Funding shall be paid as follows:   (a) In the event that the Study Order covers the performance of a clinical trial, funding shall be invoiced based on Study patient enrollment as follows, based on the Maximum Enrollment Target as defined in each Study Order:

Milestone (on Study Order-by-Study Order basis)

 Payment (% of the Individual Study  Budget) to be provided in  connection with such Study Order* Enrollment of [* * *]% of the target patient enrollment as set forth in the applicable Protocol  [* * *]%

Enrollment of [* * *]% of the target patient enrollment as set forth in the applicable Protocol  [* * *]%

Enrollment of [* * *]% of the target patient enrollment as set forth in the applicable Protocol  [* * *]%

Enrollment of final patient as set forth in the applicable Protocol  [* * *]% Receipt by LBIO of both (a) the final clinical study report and (b) all raw clinical data (anonymized and without including any identifying information)

 [* * *]%

  *With respect to Exhibit 1, the Individual Study Budget shall be the one associated with the Minimum Enrollment Target (as defined in Exhibit 1), and in the event that the Parties move to the Maximum Enrollment Target (as defined in Exhibit 1) then this table shall be applied to the incremental additional patients as if the incremental additional patients constitute their own protocol/budget. For example, if LBIO decides to add ten (10) additional patients to the clinical study in Exhibit 1, each patient will be accrued at $[* * *] per patient, and LBIO will be invoiced for percentage enrollment of these ten (10) patients based on the table above.

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  (b) In the event that the Study Order covers activities other than the performance of a clinical trial, a payment schedule will be set forth in the relevant Study Order.   (c) Notwithstanding the foregoing, LBIO may suspend payment if, in LBIO's reasonable opinion after review of the Reports (as defined below), MD Anderson has not been performing the Research diligently and in the manner agreed upon herein.   (d) Upon the occurrence of one of the milestones identified in the table in Section 4.3(a), or described in an applicable Study Order for a non-clinical Study according to Section 4.3(b), MD Anderson shall invoice LBIO for the related payment amount. In each case, invoices shall be itemized, including by reference to Study Order title, and otherwise shall include such supporting documentation as LBIO may reasonably request. LBIO shall pay all undisputed invoices within thirty (30) days of receipt of such invoice.   (e) If the Study described in Exhibit II is not commenced, the portion of the Upfront Payment that would have been applied to that Study ($[* * *]) will be credited by MD Anderson towards the Studies described in Exhibit I and Exhibit III.   (f) All terms and payments of compensation, benefits, and any other conditions of engagement, including payment of taxes, for any person working with Principal Investigator and any other support staff who may be used in the performance of a Study (including any Sub- Investigator) shall be solely a matter between MD Anderson and such individuals. Principal Investigator and any MD Anderson personnel shall not be deemed to be employees of LBIO or entitled to any benefits offered by LBIO to LBIO's employees.   5. Records and Reports.   5.1 Records. MD Anderson shall, and shall cause its Representatives to, keep appropriate records of the Research, including laboratory notebooks, in accordance with MD Anderson policies and all Laws, sufficient to properly document the results of the Research and otherwise sufficient to determine identity and dates of inventorship of Inventions (as defined in Section 7.1(a)). MD Anderson shall make such records available to LBIO upon reasonable notice during MD Anderson's normal business hours. LBIO may use the records and Reports (as defined below) for any purpose, including interactions and communications with, and/or submissions and filings to the applicable governmental or regulatory authorities.

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  5.2 Reports. MD Anderson, through the Principal Investigator, shall provide to LBIO (a) interim written reports regarding the Research, no less than once per calendar quarter, and (b) on Study-by-Study basis, (i) a draft final written Study report within thirty (30) days after completion (or earlier termination) of each such Study and (ii) a final written Study report within thirty (30) days after receipt of LBIO's comments to the draft final written Study report with respect to each such Study, which shall be given by LBIO not later than thirty (30) days after LBIO's receipt of the draft final Study report (collectively, the Reports); provided, that, if this schedule of reports differs from the reporting obligations provided in a Study Order, the schedule listed in the Study Order shall be followed. LBIO shall own all Reports and data compilations resulting from the Research, excluding the physical original lab notebooks themselves (but not excluding the data and data compilations contained therein, which shall be deemed to be owned by LBIO) and any patient medical records.   5.3 Electronic Transfer. In addition to MD Anderson's reporting obligations under Section 5.2, no less than once per calendar quarter, MD Anderson shall provide to LBIO an electronic transfer of all data and results (including all raw data and process data) generated through the performance of the Research.   5.4 Other Notifications. During the performance of the Research, MD Anderson shall notify LBIO promptly if the Research reveals any unexpected result or any accident or harm occurs, and shall also comply with any safety notifications required under each Study Order.

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  6. Confidentiality and Publications.   6.1 Confidential Information.   (a) Confidential Information means any proprietary or confidential information, technical data, trade secrets or know-how, including research, product plans, products, services, customer lists and customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, marketing, distribution and sales methods and systems, sales and profit figures, finances and other business information disclosed by a Party or its Representatives (Disclosing Party) to the other Party or its Representatives (Receiving Party), whether in writing, orally or by drawings or inspection of documents or other tangible property; provided that: (i) Confidential Information shall not include any of the foregoing items to the extent that (1) they are or have become publicly known and made generally available through no wrongful act of Receiving Party, (2) they were known to Receiving Party prior to disclosure by Disclosing Party, as evidenced by pre-existing written records promptly provided to Disclosing Party by Receiving Party, (3) they were disclosed to Receiving Party without an obligation of confidentiality by a third party having a lawful right to make such disclosure, or (4) they were developed by Receiving Party without use or aid of Disclosing Party's Confidential Information, and (ii) the results of the Research (including the contents of each Report and any Inventions) shall be deemed to be LBIO's Confidential Information, subject to MD Anderson's right to publish any Research data and information as set forth in and in accordance with Section 6.4, MD Anderson's right to use any Inventions (and any Work) as set forth in and in accordance with Section 7.2, and MD Anderson's right to use any Research data and information for internal research, academic, and non-commercial patient care purposes prior to publication or public disclosure and for any purpose thereafter. LBIO shall be deemed the Disclosing Party with respect to such results of the Research, regardless of the Party initially disclosing the same.     (b) Receiving Party shall take reasonable steps to ensure that Disclosing Party's Confidential Information (as defined in Section 6.1(a)) is maintained in confidence, used only for the purpose of exercising rights and performing obligations under this Agreement, and disclosed only to persons and/or entities authorized under this Agreement. As used herein, reasonable steps means the steps that Receiving Party takes to protect its own, similar confidential and proprietary information, which shall not be less than a reasonable standard of care. Receiving Party further agrees not to reveal, publish or otherwise disclose Disclosing Party's Confidential Information to any third party without the prior written consent of Disclosing Party as described in Section 6.4 below, however, Receiving Party is permitted to disclose Confidential Information obtained under the terms of this Agreement to its Representatives on a need-to-know basis related to the exercise of rights and performance of its obligations under this Agreement and only if such Representatives are informed by Receiving Party of the confidential nature of such information and are bound by confidentiality obligations consistent with those set forth in this Section 6.1. Receiving Party shall ensure that its Representatives having a need- to-know Disclosing Party's Confidential Information observe these obligations of confidentiality. These obligations of confidentiality and nondisclosure shall remain in effect after the termination or expiration of this Agreement for a period of five (5) years.

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  (c) Neither Party shall improperly use or disclose to the other Party or any of its directors, officers, employees or agents, any confidential information of any current or former client or other person or entity with whom such Party has an agreement or duty to keep such information confidential, and such Party shall not bring onto the premises of the other Party any such information in any medium unless consented to in writing by such client, person or entity. In the event of a Party's breach of this Section 6.1(c), the breaching Party shall ensure that the other Party may freely and fully utilize the information so disclosed for any and all purposes.   6.2 Required Disclosure of Confidential Information.   (a) If Receiving Party is required by Law or court order to disclose Disclosing Party's Confidential Information, Receiving Party shall give Disclosing Party prompt written notice of such requirement such that Disclosing Party shall have the opportunity to apply for a protective order, injunction or for confidential treatment of such Confidential Information. Receiving Party shall cooperate with Disclosing Party in seeking any Disclosing Party requested protective order, injunction or confidential treatment of such Confidential Information and shall only disclose the minimal amount of such Confidential Information required under Law or court order. Notwithstanding the forgoing, any information disclosed by Receiving Party pursuant to Law or a court order shall remain Confidential Information hereunder, and may not be disclosed under any other circumstances unless and until the Confidential Information so disclosed falls into one of the exceptions set forth in subclauses (1) through (4), inclusive, in Section 6.1(a).   (b) If Principal Investigator is a member of or affiliated with any committee that sets formularies or develops clinical practice guidelines that could influence the prescribing of medicines or is otherwise affiliated with any other healthcare institution, medical committee, or other medical or scientific organization, Principal Investigator will inform the committee of the existence and nature of Principal Investigator's relationship with LBIO under this Agreement. Principal Investigator also agrees to disclose Principal Investigator's relationship with LBIO as needed to comply with any disclosure requirements of any healthcare institution, medical or formulary committee, or other medical or scientific organization with which Principal Investigator is affiliated and agrees to comply with any such entities' recusal or other requirements relating to the relationship with LBIO. This duty to disclose will continue during the term of this Agreement and for two years after its termination   6.3 LBIO Mandatory Disclosures. MD Anderson and Principal Investigator recognize that LBIO may be required under Law, including the Physician Payment Sunshine Act, to report to the relevant governmental or regulatory authorities or publicly disclose information related to this Agreement and/or the Research, including any payments, reimbursements, or other transfers of value made to MD Anderson or Principal Investigator. Nothing herein shall prevent LBIO from making any reports or disclosures required under Law or by a relevant governmental or regulatory authority. Moreover, nothing herein shall prevent LBIO from disclosing any information relating to this Agreement and/or the Research for the purpose of making any regulatory or other submissions, patent applications and pursuing patent prosecution.

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  6.4 Publications. MD Anderson agrees to provide LBIO with a copy of any manuscript, abstract or other proposed publication or presentation relating to the Research or the Materials (a Publication), prior to submission thereof to a publisher or to any third party, and in any case, not less than 45 days prior to any public disclosure, for the purpose of protecting proprietary or intellectual property of LBIO that might be contained in such Publication. Following receipt of such proposed Publication, LBIO shall have the right to cause MD Anderson to (i) withhold publication or other public disclosure thereof for a period of up to 90 days in order to provide LBIO time to obtain appropriate intellectual property protection thereof, and (ii) remove any proprietary, or otherwise confidential, information of LBIO contained in such Publication (excluding Research results). In any event, MD Anderson will not disclose proprietary, or otherwise confidential, information in an unblinded manner when it can be done so in a blinded manner. In the event of any Publication (including any public presentation relating to the Research or the Materials), MD Anderson agrees to acknowledge LBIO and/or give credit to LBIO scientists, as scientifically appropriate, based on any contribution they may have made to the work which shall be in accordance with any relevant policies and guidelines of the publication, presentation forum, as well as policies and guidelines of general applicability, such as the International Committee of Medical Journal Editors recommendations. In addition, to the extent that it is legally able to do so, MD Anderson hereby grants LBIO a royalty-free right and license to use and reproduce any Publication. LBIO shall be acknowledged as a financial collaborator of the Study reported in a Publication.   6.5 Unauthorized Disclosure. Receiving Party shall be responsible for any breach of this Section 6 by any of its Representatives. Receiving Party shall take reasonable steps to ensure that unauthorized persons do not gain access to Disclosing Party's Confidential Information. Receiving Party shall promptly notify Disclosing Party of any unauthorized release of or access to Disclosing Party's Confidential Information. For clarity, such notice shall not remedy any breach of this Agreement resulting from such unauthorized release or access.   6.6 Prior CDA. This Agreement supersedes that certain Confidentiality Agreement between LBIO and MD Anderson, dated July 22, 2016 (Prior CDA), which is hereby terminated; provided, however, that all information disclosed or received by the Parties under the Prior CDA will be deemed Confidential Information hereunder (to the extent applicable) and will be subject to the terms and conditions of this Agreement. The Parties agree that this Agreement provides the written notice required for termination of the Prior CDA pursuant to Section 6.8 of the Prior CDA.   6.7 Publicity. LBIO shall be permitted to publicly disclose the existence of this Agreement, and the title and purpose of each clinical Study, in LBIO's electronic materials, printed materials, oral presentations, and press releases, and LBIO shall be permitted to include each clinical Study as a component of LBIO's clinical product pipeline.   6.8 Health Information. Notwithstanding anything to the contrary in this Agreement or any Study Order, all individually identifiable health information shall be treated as confidential by the Parties in accordance with all Laws governing the confidentiality and privacy of individually identifiable health information, including HIPAA, and any regulations and official guidelines promulgated thereunder, and the Parties agree to take such additional steps and/or to negotiate such amendments to this Agreement as may be required to ensure that the Parties are and remain in compliance with the HIPAA regulations and official guidance.

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  7. Inventions.   7.1 Background Intellectual Property and Definitions.   (a) Neither Party will, as a result of this Agreement, acquire any right, title or interest in, to, or under any Intellectual Property (as defined below) owned or controlled by the other Party or the other Party's affiliates prior to the Effective Date or developed independently of this Agreement (Background Intellectual Property), except for the licenses expressly granted under this Agreement.   (b) Invention means any idea, invention or discovery, whether or not patented or patentable, that is first conceived, discovered, developed or reduced to practice by a Party in connection with this Agreement, including through MD Anderson's performance of the Research (solely or jointly with others) or that result, to any extent, from use of Confidential Information or the Study article that is the subject of a given Study, including any developments, discoveries, improvements, compositions, know-how, trade secrets, procedures, technical information, data, reports, processes, methods, devices, formulae, protocols, techniques, designs, drawings, methodologies, and biological or chemical material.   (c) Intellectual Property Rights means any and all moral rights and intellectual property rights, including all patent rights, copyrights, trademarks, know-how and trade secrets and the rights to apply for the same.   (d) Fields means the treatment of platinum resistant ovarian cancer, chondrosarcoma, and pancreatic ductal adenocarcinoma, and, solely for the purposes of Section 7.3(b), double refractory melanoma, such treatment being performed using TILs manufactured by MD Anderson using a 4-1BB agonist; provided that Fields shall also include the treatment of other diseases in the event that the JSC decides to amend or replace the initially-agreed clinical Protocol for the Study Order provided in Exhibit II to include the treatment of such other diseases.   7.2 Assignment of Inventions; Further Assurances.   (a) MD Anderson shall promptly make full written disclosure to LBIO, shall hold in trust for the sole right and benefit of LBIO, and hereby assigns, transfers and conveys to LBIO, or its designee, all of MD Anderson's worldwide right, title and interest in and to any and all Inventions and all Intellectual Property Rights therein and relating thereto[, provided that MD Anderson shall retain the right to use any such Invention for internal research, academic, and patient care purposes]. MD Anderson further acknowledges and agrees that all original works of authorship that are made by MD Anderson (solely or jointly with others) in the performance of the Research, excluding any publication made in accordance with Section 6.4 (a Work) and that are protectable by copyright are works made for hire, as that term is defined in the United States Copyright Act. However, to the extent that any Work may not, by operation of any Laws, be a work made for hire, MD Anderson hereby assigns, transfers and conveys to LBIO all of MD Anderson's worldwide right, title and interest in and to such Work, including all Intellectual Property Rights therein and relating thereto, subject to MD Anderson's right to use such Work for internal research, academic, and non-commercial patient care purposes prior to publication or public disclosure.

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  (b) Upon the request and at the reasonable expense of LBIO, MD Anderson shall execute and deliver any and all instruments and documents and take such other acts as may be reasonably necessary to document or perfect the assignment and transfer described in Section 7.2(a) or to enable LBIO to secure its rights in the Inventions, Works and Intellectual Property Rights therein and relating thereto in any and all jurisdictions, or to apply for, prosecute and enforce Intellectual Property Rights in any and all jurisdictions with respect to any Inventions or Works, or to obtain any extension, validation, re-issue, continuance or renewal of any such Intellectual Property Right.   (c) As between the Parties, and without limiting MD Anderson's assistance obligations under Section 7.2(b), LBIO shall have the sole and exclusive right to file patents covering or claiming Inventions and shall bear all costs with respect to the prosecution and maintenance thereof. In furtherance of the foregoing, the Parties shall work together in good faith to, as expeditiously as possible following the Effective Date, put in place a power of attorney granted by the System to LBIO for purposes of enabling LBIO to apply for or to pursue any application for any United States or foreign patent, trademark, copyright or other registration covering Inventions or Works assigned to LBIO hereunder in the event that LBIO is unable to secure MD Anderson's assistance in connection with the same.   7.3 Background Licenses.   (a) MD Anderson hereby grants LBIO a non-exclusive, royalty free, perpetual license (with rights to sub-license) under, in and to all Background Intellectual Property that is: (a) owned by MD Anderson; (b) consists of and/or comprises the manufacturing protocol utilized by MD Anderson in the conduct of a Study; and (c) reasonably necessary to exploit (including developing, obtaining and maintaining regulatory approval for, manufacturing, or commercializing) any Invention, Study result, or Study article, or any improvement or derivative thereof, strictly limited to the Fields (collectively, the Non-Exclusively Licensed MD Anderson Background Intellectual Property), to the extent that such Non- Exclusively Licensed MD Anderson Background Intellectual Property does not include Third Party IP (as defined hereinafter).   (b) MD Anderson also grants LBIO a non-exclusive, royalty free, perpetual license (with rights to sub-license) under, in and to any and all data generated by MD Anderson in conducting studies of TILs in double refractory melanoma outside of the Collaboration and as of the Effective Date, and LBIO shall have unrestricted rights to use such double refractory melanoma data in governmental and regulatory submissions, including submissions that may become public.   7.4 Third Party Intellectual Property. To the extent that MD Anderson controls any Background Intellectual Property that it will use in conducting a Study or manufacturing any Study article through a license agreement with a third party (Third Party IP), MD Anderson shall notify LBIO thereof as soon as any such Third Party IP is identified. MD Anderson shall not use any Third Party IP in performing activities under this Agreement or otherwise in connection with a Study unless and until the JSC approves the use thereof. In addition, MD Anderson shall provide such assistance as is reasonably requested by LBIO in connection with LBIO obtaining a license in and to any such Third Party IP.

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  7.5 No Implied Licenses; Retained Rights. Except as explicitly set forth in this Agreement, neither Party grants any license, express or implied, under its intellectual property rights to the other Party, whether by implication, estoppel or otherwise, and each Party hereby agrees that it does not have rights under any intellectual property of the other Party that are broader than the licenses expressly granted herein.   7.6 Effectiveness. The provisions of Section 7 shall become effective upon payment by LBIO of the Upfront Payment and the approval by LBIO of the Study Orders in Exhibit I and Exhibit III. For clarity, the commencement of work, or the lack thereof, under the Study Order in Exhibit II shall have no effect upon the effectiveness of the provisions of Section 7.   8. Term and Termination.   8.1 Term. The term of this Agreement commences on the Effective Date and shall continue in effect until the later of (a) the fourth (4th) anniversary of the Effective Date, or (b) the completion or termination of the Research and receipt by LBIO of all deliverables due from MD Anderson hereunder, unless sooner terminated in accordance with the provisions of Section 2.2 or Section 9.14.   8.2 Termination. Either Party may terminate this Agreement for the material breach or default of any of the terms or conditions of this Agreement by the other Party upon thirty (30) days' written notice and the opportunity to cure during such notice period; and such termination shall be in addition to any other remedies that it may have at law or in equity. Additionally, LBIO may terminate this Agreement if MD Anderson is declared insolvent or enters into liquidation or has a receiver or an administrator appointed over all or any part of its assets or ceases or threatens to cease to carry on business, or a resolution is passed or a petition presented to any court for the winding up of the Party or for the granting of an administration order in respect of MD Anderson, or any proceedings are commenced relating to the insolvency or possible insolvency of MD Anderson.   8.3 Termination of a Study Order. LBIO may terminate a Study Order immediately upon written notice to MD Anderson if:   (i) the applicable approvals, authorizations, and/or continuing reviews for a Study are not obtained or maintained;   (ii) Principal Investigator is no longer available for the Study and a replacement deemed acceptable by LBIO is not provided;   (iii) the Study is canceled, terminated, suspended, delayed or placed on hold for any reason;   (iv) an Institutional Review Board or other review authority, including governmental or regulatory authorities, does not approve a Study or recommends the cancelation, termination, suspension, or hold of a Study for any reason;   (v) immediate termination of the Study is necessary due to LBIO's evaluation of risks to Study subjects, such risks including the futility of treatment; or

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  (vi) MD Anderson or Principal Investigator materially breaches any obligations with respect to the Study, including failure to comply with this Agreement, the Protocol or the Study Order or any Law relevant to the Study.   8.4 Obligations upon Termination. Upon expiration or termination of this Agreement, in addition to its other obligations hereunder, including Section 5.2, MD Anderson shall return to LBIO all of its Confidential Information and all Materials or, at LBIO's option, destroy or completely delete such Confidential Information and Materials, at LBIO's option. With respect to each item of Confidential Information and Materials destroyed or completely deleted, such destruction or complete deletion shall be certified in writing to LBIO. In the event that this Agreement is terminated prior to MD Anderson's receipt of all internal approvals to commence work on the Study Orders in Exhibit I, Exhibit II and/or Exhibit III, MD Anderson shall refund the Upfront Payment to LBIO.   8.5 Effects of Termination. Termination of this Agreement by either Party shall not affect the rights and obligations of the Parties accrued prior to the effective date of termination. No termination of this Agreement, however effectuated, shall release the Parties, the Principal Investigator, or any other Representative of MD Anderson having access to Confidential Information from their respective rights and obligations under Sections 6, 7, and 9.   9. Miscellaneous.   9.1 Mutual Representations. Each Party hereto hereby represents, warrants and covenants to the other that: (a) it is duly incorporated or otherwise formed, validly existing and in good standing; (b) it has taken all necessary actions on its part to authorize the execution, delivery and performance of the obligations undertaken in this Agreement, and no other corporate or regulatory actions (e.g., obtaining permits, licenses or authorizations) are necessary with respect thereto; (c) it is not a party to, and will not become a party to, any agreement or understanding and knows of no law or regulation that would prohibit it from entering into and performing this Agreement, or that would conflict with this Agreement; and (d) when executed and delivered by it, this Agreement will constitute a legal, valid and binding obligation of it, enforceable against it in accordance with this Agreement's terms.   9.2 MD Anderson Representations. MD Anderson represents, warrants, and, to the extent applicable, covenants, that:   (a) MD Anderson and all of its Representatives maintain as current the applicable licenses and permits, including medical practitioner licenses as required by the applicable national, state, and/or local licensing body and that no license or permit has been revoked, limited, suspended, or otherwise modified.   (b) Neither MD Anderson nor any of its Representatives have (i) violated or caused a violation of any federal or state health care fraud and abuse or false claims statute or regulation, including the anti-kickback provisions of the Social Security Act, 42 U.S.C. § 1320a-7b(b), (ii) violated or caused a violation of any federal or state privacy or security law or regulation, including HIPAA, (iii) not been excluded or threatened with exclusion under state or federal statutes or regulations, including under 42 U.S.C. § 1320a-7 or relevant regulations in 42 C.F.R. Part 1001, or (iv) not been assessed or threatened with assessment of civil money penalties pursuant to 42 C.F.R. Part 1003, or any foreign equivalent.

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  (c) Neither MD Anderson nor any of its Representatives have been charged, named in an action, found liable, or convicted for conduct relating to the development or approval of, or otherwise related to the regulation of any healthcare product or the practice of medicine.   (d) Neither MD Anderson nor any of its Representatives (i) have been found by the FDA or any other relevant governmental or regulatory authority to have violated any Laws, regulations or guidelines concerning the conduct of clinical investigations or related services; (ii) have been debarred, denied, or suspended by the FDA under 21 U.S.C. § 335a, disqualified or restricted by the FDA, named on any FDA list related to investigator disqualifications, restrictions, restrictions removed, or adequate assurances, or are otherwise ineligible to participate in federal procurement or non-procurement programs or any foreign equivalents of the above; and (iii) have any unresolved FDA warning letter, Form 483, or other regulatory enforcement action threatened against or issued to them;   (e) MD Anderson and its Representatives will not make and have not made any untrue statement of material fact to or filed a false claim or report with any governmental or regulatory authority, or failed to disclose a material fact required to be disclosed to any governmental or regulatory authority, or have ever been investigated by the FDA, National Institutes of Health (NIH), Office of the Inspector General for the Department of Health and Human Services (OIG), Department of Justice or other comparable governmental or regulatory authority for data or healthcare program fraud.   (f) There is no investigation, threat, pending, or proposed proceeding, notice, or action by a governmental or regulatory entity which could result in 9.2(a)-9.2(e) above.   (g) MD Anderson has no knowledge of any facts or circumstances that may affect the accuracy or completeness of any the foregoing representations and warranties. MD Anderson is responsible for (i) requiring all of its Representatives to disclose the occurrence of 9.2(a)-9.2(f) above and (ii) reviewing on reasonable intervals all available public filings and lists to confirm that it and its Representatives are not subject to 9.2(a)-9.2(f) above. If MD Anderson becomes aware of any such facts or circumstances during the Term or otherwise determines that any representation or warranty made by it under this Agreement is no longer true, correct, or complete, MD Anderson will notify LBIO immediately, but in no case later than twenty-four (24) hours after MD Anderson becomes aware of such facts, circumstances, or determination. MD Anderson shall immediately remove any of its Representatives from performing activities relating to the Research to which the facts, circumstances, or determination relate. Any such facts, circumstances, or determinations shall be grounds for termination of this Agreement.   (h) Each of MD Anderson's Representatives is under a written obligation to assign to MD Anderson all Inventions and any Intellectual Property Rights therein or relating thereto made by such Representative in the course of his or her employment.   (i) Neither the United States government nor any agency thereof nor any other third party has funded or will fund any part of the Research.

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  (j) MD Anderson's applicable database applications and electronic records systems and facilities which are used in the performance of the Research, including the database to be used by MD Anderson and Principal Investigator for the tracking, handling, recording, reporting and transmitting of data generated during a Study, have been fully validated and are compliant with all Laws.   (k) MD Anderson is not entering into this Agreement (i) as a result of any pre-existing or future business relationships between MD Anderson and/or Principal Investigator and LBIO, (ii) as a result of any business or other decisions MD Anderson and/or Principal Investigator have made or may make in the future relating to LBIO or LBIO products, or (iii) as a reward or in exchange for MD Anderson or Principal Investigator prescribing or purchasing LBIO products or to induce the prescription or purchase of LBIO products by MD Anderson or Principal Investigator.   9.3 Warranty of cGMP. LBIO represents and warrants that any Study Drug (as defined in an applicable Study Order) manufactured by and provided by it for any Study hereunder has been and will be manufactured in accordance with current Good Manufacturing Practice regulations.   9.4 Independent Status. MD Anderson shall not be considered a partner, co-venturer, agent, employee, or representative of LBIO by reason of this Agreement, but shall remain in all respects an independent contractor, and neither Party shall have any right or authority to make or undertake any promise, warranty or representation, to execute any contract or otherwise to assume any obligation in the name of or on behalf of the other Party. MD Anderson's employees, including the Principal Investigator and the other Representatives of MD Anderson, are not and shall not be deemed to be employees of LBIO, and MD Anderson shall indemnify and hold harmless LBIO from all liabilities arising from any allegation or determination to the contrary.   9.5 Notices. All notices and other communications required or permitted hereunder shall be in writing and deemed to have been given when hand delivered, or mailed by registered or certified mail or overnight courier with tracking capabilities, as follows or as a Party may otherwise notify to the other in accordance with this Section 9.5 (provided that such notice of change of address or recipient shall be deemed given only when received), with an electronic copy to an email address if specified below:   If to LBIO, to:  If to MD Anderson: Lion Biotechnologies, Inc.  The University of Texas   M.D. Anderson Cancer Center 999 Skyway Road, Suite 150  1515 Holcombe Blvd. San Carlos, CA 94070  Houston, TX 77030 Attention: Legal Department  Attention: Chief Legal Officer With a copy to: legal@lionbio.com

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  9.6 Assignment; No Third Party Beneficiaries. LBIO may assign or transfer this Agreement without the prior written consent of but with written notice to MD Anderson promptly following consummation of the relevant transaction. MD Anderson hereby acknowledges and agrees that the rights and obligations hereunder are of a personal nature and, therefore, neither this Agreement nor any right or obligation contained within shall be assignable, transferable or delegable in whole or in part by MD Anderson and MD Anderson shall not, without the prior written consent of LBIO, sub-contract or otherwise engage any consultant or other third party to perform any of MD Anderson's activities or obligations under this Agreement or any Study Order. All of the terms and provisions of this Agreement shall be binding upon, and inure to the benefit of and be enforceable by, the respective successors and permitted assigns of the Parties. Nothing in this Agreement, express or implied, is intended to confer on any person or entity, other than the Parties or their respective successors and permitted assigns, any benefits, rights or remedies.   9.7 Governing Law, Jurisdiction. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, United States of America, without giving effect to any conflict of laws provisions. The Parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement may be brought in a United States District Court in Texas, or if such court does not accept jurisdiction or will not accept jurisdiction, in any court of general jurisdiction in the State of Texas.   9.8 Equitable Relief. MD Anderson agrees that it may be impossible or inadequate to measure and calculate LBIO's damages from any breach of MD Anderson's obligations under Section 6 and/or Section 7 of this Agreement, and that a breach of such obligations could cause serious and irreparable injury to LBIO. Accordingly, LBIO shall have available, in addition to any other right or remedy available to it, the right to seek an injunction from a court of competent jurisdiction restraining such a breach (or threatened breach) and to specific performance of any such Section. MD Anderson further agrees that no bond or other security shall be required in obtaining such equitable relief.   9.9 Entire Agreement, Amendment and Waiver. This Agreement contains the entire understandings of the Parties and supersedes all previous agreements (oral and written), negotiations and discussions with respect to the subject matter herein. The Parties may modify any of the provisions hereof only by an instrument in writing duly executed by the Parties. No waiver of any rights under this Agreement shall be effective unless in writing signed by the Party to be charged.   9.10 Severability. In the event of the invalidity of any provisions of this Agreement containing any gaps, the Parties agree that such invalidity or gap shall not affect the validity of the remaining provisions of this Agreement. The Parties will replace an invalid provision or fill any gaps with valid provisions, which most closely approximate the purpose and economic effect of the invalid provision or, in the case of a gap, the Parties' presumable intentions.   9.11 Further Assurances. Each Party shall, as and when reasonably requested by the other Party, do all acts and execute all documents as may be reasonably necessary to give effect to the provisions of this Agreement.   9.12 Interpretation. The headings in this Agreement are intended solely for convenience or reference and shall be given no effect in the construction or interpretation of this Agreement. This Agreement shall be construed as if both Parties drafted it jointly, and shall not be construed against either Party as principal drafter. The words include, includes and including (and words of similar meaning) shall be deemed to be followed by the phrase without limitation.

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  9.13 Counterparts. This Agreement may be executed in two (2) or more counterparts, including by PDF exchange, each of which shall be deemed to be an original as against any Party whose signature appears thereon, but all of which together shall constitute but one and the same instrument.   9.14 Texas State Agency. MD Anderson is an agency of the State of Texas and under the constitution and laws of the State of Texas possesses certain rights and privileges and only such authority as is granted to it under the constitution and laws of the State of Texas. Notwithstanding any provision hereof, nothing herein is intended to be, nor will it be construed to be, a waiver of the sovereign immunity of the State of Texas or a prospective waiver or restriction of any of the rights, remedies, claims, and privileges of the State of Texas. Moreover, notwithstanding the generality or specificity of any provision hereof, the provisions of this agreement as they pertain to MD Anderson are enforceable only to the extent authorized by the constitution and laws of the State of Texas.   9.15 DISCLAIMER OF SPECIAL DAMAGES. NEITHER LBIO NOR MD ANDERSON, NOR ANY OF THEIR AFFILIATES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS OR EMPLOYEES, SHALL HAVE ANY LIABILITY OF ANY TYPE, FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF OPPORTUNITY, LOSS OF USE, OR LOSS OF REVENUE OR PROFIT, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY STUDY ORDER; PROVIDED, THAT, THE FOREGOING DISCLAIMER SHALL NOT APPLY WITH RESPECT TO (1) A PARTY'S INDEMNIFICATION OBLIGATIONS, (2) A PARTY'S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO CONFIDENTIALITY AND NON-USE OR INTELLECTUAL PROPERTY-RELATED MATTERS OR (3) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.   [Signature Page Follows]

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  IN WITNESS WHEREOF, the undersigned, intending to be legally bound, have duly executed this Agreement as of the Effective Date.   LION BIOTECHNOLOGIES, INC.  THE UNIVERSITY OF TEXAS M. D. ANDERSON CANCER CENTER     /s/ Maria Fardis  /s/ Chris McKee Authorized Signature  Authorized Signature     Name: Maria Fardis  Name: Chris McKee, M.H.A. Title: CEO & President  Title: VP, Business Operations Date: April 17, 2017  Date: April 12, 2017   This Agreement is to be executed in duplicate. Please return one fully executed copy to LBIO at the address for notices set forth above. 
Question: Highlight the parts (if any) of this contract related to Cap On Liability that should be reviewed by a lawyer. Details: Does the contract include a cap on liability upon the breach of a party’s obligation? This includes time limitation for the counterparty to bring claims or maximum amount for recovery.

SOLUTION: NEITHER LBIO NOR MD ANDERSON, NOR ANY OF THEIR AFFILIATES, NOR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, MEMBERS OR EMPLOYEES, SHALL HAVE ANY LIABILITY OF ANY TYPE, FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING THE LOSS OF OPPORTUNITY, LOSS OF USE, OR LOSS OF REVENUE OR PROFIT, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY STUDY ORDER; PROVIDED, THAT, THE FOREGOING DISCLAIMER SHALL NOT APPLY WITH RESPECT TO (1) A PARTY'S INDEMNIFICATION OBLIGATIONS, (2) A PARTY'S BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO CONFIDENTIALITY AND NON-USE OR INTELLECTUAL PROPERTY-RELATED MATTERS OR (3) A PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

PROBLEM: EXHIBIT 10.8

DISTRIBUTOR AGREEMENT         Tripath Technology, Inc. 3900 Freedom Circle Suite # 200 Santa Clara, CA 95054 Tel: (408) 567-3000 Fax: (408) 567-3003

This Agreement is effective 7/1/98 (Effective Date) between Tripath Technology, Inc. (Tripath), and

Uniquest Corporation 780 Montague Expressway Suite 406 Santa Jose, CA 95131

Tripath and Distributor intend to establish Distributor as a non-exclusive Distributor for Tripath products in the following designated Territory, subject to the terms and conditions of this Agreement.

Korea

1. Products

1.1 Products means the Tripath semiconductor products identified by Tripath in writing from time to time.

1.2 Tripath may discontinue manufacture or sale, or otherwise treat as obsolete, any or all of the Products covered by this Agreement upon thirty days written notice.

2. Appointment and Term

2.1 For the term of this Agreement, Tripath appoints Distributor as a non-exclusive distributor for the Products in the Territory, subject to Tripath's direct sales activities under Section 4.

2.2 Distributor will use best efforts to develop the local market and promote the sales of Products within the Territory. Distributor will not sell outside the Territory without Tripath's prior written permission, which will not be unreasonably withheld.

2.3 After one month's written notice, Tripath may in its discretion amend (i) the Products, and/or (ii) the Territory.

2.4 Tripath reserves the right to appoint other distributors in or out of the Territory who may sell into the Territory.

2.5 Distributor's appointment is for a term of one year from the Effective Date, renewable automatically unless terminated under Section 18

3. Distributor Responsibilities

3.1 Distributor will maintain an adequately trained sales organization, capable of fulfilling its obligation under Subsection 2.2.

3.2 Tripath will furnish technical and marketing information (such as sales aids and







Distributor Agreement

literature, data sheets, application notes, etc.) for the Products, and Distributor will maintain an organized and well stocked collection of such technical and marketing information for distribution to prospective customers.

3.3 Distributor will employ sufficient trained personnel (Application Engineers) to provide technical and marketing support for Tripath's Products. Distributor and Tripath will cooperate to ensure that the Application Engineers are and remain adequately trained and qualified.

3.4 Distributor will maintain a reasonable number of Demonstration Products (customer samples), with appropriate technical and marketing literature, available for demonstration by knowledgeable Distributor personnel, provided that Distributor must obtain prior approval by Tripath before any customer receives demonstration Products (customer samples).

3.5 Distributor has no authorization to make, and will not make, any guarantee or warranty with respect to any Product — all Product warranties are to be communicated to Customers directly by Tripath in writing. Distributor will make no representations as to quality, performance, capabilities, and the like except as are expressly authorized in writing by Tripath (such as in Tripath's standard, published specifications for a Product).

4. Other Product Lines

4.1 In appointing Distributor, Tripath is relying to a significant extent on Distributor's undertaking in Subsection 2.2.

4.2 Distributor will not carry any competitive products without Tripath's consent, which shall not be unreasonable.

5. Tripath Direct Sales Activity

5.1 Tripath may in its sole discretion, immediately upon written notice to Distributor, make direct sales to certain accounts in the Territory (Direct Sales Accounts), including accounts to which Distributor has made sales.

6. Pricing, credits, and allowances

6.1 Prices for Products will be as set forth in the then effective distributor price list (Distributor Price List) which will be furnished to Distributor from time to time. Any suggested resale prices shown in the Distributor Price List are to be considered as guidelines only.

6.2 The Distributor Price List may be changed without prior notice, and will be effective as of the effective date indicated. The amount and timing of such change will be exclusively at Tripath's discretion.

6.3 Orders for Products received and acknowledged by Tripath prior to a change in the Price List but shipped after the effective date of such change will be invoiced as follows: (a) in the case of a price decrease, the existing order backlog will be invoiced at the lower price, and (b) in the case of a price increase, the existing order backlog due for delivery within one month of the effective date of such change will be invoiced at the lower price. Outstanding written quotations will be held good for the same two-month period.

6.4 Distributor's inventory of any Product will be price protected for reductions in the price of such Product as follows: the lesser of Distributor's (a) entire inventory of the Product, or (b) previous one month's shipments of the Product from Tripath.

7. Purchase Orders and Payment

7.1 Distributor will maintain sufficient inventory of Products (but not less than one month's inventory without Tripath's approval) to provide prompt delivery to Distributor's customers, in furtherance of Distributor's undertaking in Subsection 2.2.

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7.2 Distributor will purchase Products for resale to its customers in accordance with Tripath's then effective terms and conditions of sale set forth in the Tripath sales order acknowledgment (Sales Order Acknowledgment), and the pricing terms of the then effective Distributor Price List (including minimum order quantities). The terms and conditions of sale in the Sales Order Acknowledgment may be changed without prior notice, exclusively at Tripath's discretion.

7.3 No purchase order from Distributor is binding on Tripath until Tripath issues a Sales Order Acknowledgment to Distributor for such order, or makes a shipment against such order. Tripath will use commercially reasonable efforts to acknowledge Distributor purchase orders promptly.

7.4 Tripath will invoice Distributor for Products when Tripath ships such Products.

7.5 All credits will be handled as separate financial transactions from the original invoice, and will be evidenced by a written credit request submitted to Tripath. Distributor will not reduce any payment to Tripath to account for anticipated or unauthorized credits (except for short shipments and non-receipt of Products), either at the time of the payment of original invoice, or at the time of providing a credit request. Credit requests should be submitted by Distributor within one month after the date of Distributor's invoice for the related transactions.

7.6 Any credit request will be based on the price shown on the then current Distributor Price List, or the actual net price paid by Distributor for the Product, whichever is lower.

7.7 If Tripath notifies Distributor of any discrepancy in a credit request, Distributor has one month to resolve the discrepancy and pay the amount of the discrepancy.

7.8 No purchase orders for which a Sales Order Acknowledgment has been issued may be canceled or rescheduled within one month of the scheduled shipment date without Tripath's approval.

8. Special Pricing and Other Allowances

8.1 The provisions of this Section 8 will be applicable only to transactions on DPA (distributor price authorization) basis in which Distributor first obtains a DPA confirmation from Tripath.

8.2 Requests for special pricing and/or allowances will be submitted by Distributor to the appropriate Tripath sales office, and must be first approved in writing by that office.

8.3 Quotes for special pricing are good for one month, and must be backed by a Tripath quote number. Distributor will supply supporting documentation showing Products listed by part number, date of transaction, end customer name and address, and the appropriate special pricing details, not later than two weeks after shipment to the associated customer.

8.4 If Tripath has granted Distributor special pricing on a sale in which Distributor's customer has later returned the Product to Distributor, Distributor will reimburse Tripath for the amount of the DPA allowance within one month after such return.

8.5 Any debit memo submitted by Distributor for a DPA allowance will be based on the price shown on the then current Distributor Price List, or the actual net price paid by Distributor for the Product, whichever is lower.

9. Returns

9.1 Distributor may return Products only after receiving written authorization from Tripath. All authorized returns will be shipped by Distributor freight prepaid. Unauthorized returns may be reshipped to Distributor, freight collect.

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Distributor Agreement

9.2 Distributor may request stock rotation return of slow moving Products, which will be authorized by Tripath provided that: (a) the Product is contained in Tripath's then current Distributor Price List, (b) the Product is packaged as it was originally shipped, and (c) a purchase order for equal value accompanies the request for return. Such stock rotation returns will not exceed five percent (5%) of the dollar value of Distributor's previous six (6) months net purchase orders from Tripath.

9.3 Discontinued Product may be returned only with prior written authorization.

9.4 Credit will be allowed for returned Products based on the price actually paid by Distributor, less any prior DPAs, credits and other allowances.

9.5 If, in the reasonable opinion of Tripath, previously authorized returned Products have been used or damaged, a credit or replacement may be refused. Distributor will be notified within one month after receipt of Product by Tripath of any such Product Tripath is claiming to be used or damaged.

10. Limited Warranty

10.1 Tripath provides an end user limited warranty for retail Products, and one-year limited warranty for OEM products. The terms of the end user limited warranty are set forth in documentation provided with the retail Product.

10.2 For OEM Products, Tripath warrants that the Products will be free of manufacturing and workmanship defects for one year from the date of shipment by Distributor to a customer, or eighteen months from the date of shipment to Distributor, whichever is sooner.

10.3 If any OEM Products prove defective during this one year period as set forth in Section 10.2, Tripath will, at its option, either (a) repair or replace the Product with a new or reconditioned Product, (b) use reasonable efforts to provide Distributor with a correction of the defect, or (c) refund to Distributor the purchase price paid for the Product. Any Product replaced will become Tripath property.

10.4 Distributor must return the defective OEM Product pursuant to a return material authorization under Section 9.1 in the original shipping carton (or an equivalent protective carton), and pay the shipping and insurance charges. Distributor assumes the risk of loss or damage during shipment.

10.5 OEM Products that are defective as set forth in Section 10.2 as a result of improper handling, incorrect installation or other misuse, or as a result of accident, disaster, acts of God or other such events, as determined by Tripath in its reasonable discretion, are not covered by this limited warranty.

10.6 For OEM Products, Tripath provides only the warranties set forth in this limited one year limited warranty. For retail Products, Tripath provides to the end user only the warranties set forth in the applicable end user warranty. Any and all other warranties, either express, implied or statutory, including, without limitation, warranties of fitness for a particular purpose, or of merchantability, are hereby expressly excluded and disclaimed by Tripath.

11. Reports and Audits

11.1 Distributor will submit reports as may be reasonably requested by Tripath, including, without limitation, monthly reports of inventory on hand and sales relating to the Products. Sales data will include, without limitation, Product part number, quantity, resale price, special pricing, distributor invoice number, and customer name. Distributor will submit these reports electronically on a timely basis each month and in no case later than two weeks after the beginning of the month.

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Distributor Agreement

11.2 Tripath may have an authorized Tripath representative, at Tripath's cost, audit Distributor's records relating to sales and inventories of Products, including, without limitation, records pertaining to any claims submitted by Distributor for price protection, stock rotation, returned Products, ship from stock and debit, DPA allowances, and credit requests. Upon prior written notice, Distributor will provide reasonable access to such records during normal business hours at Distributor's office. Distributor agrees to maintain all such records for a minimum of three years.

12. Distributor's Financial Condition

12.1 Tripath may withhold shipments because of Distributor's general financial condition and/or conditions of Distributor's account with Tripath. Such withholding will be not construed as a breach of this Agreement.

12.2 Distributor will supply Tripath with credit data sufficient to establish Distributor's credit worthiness.

13. Advertising and Sales Promotion

13.1 Distributor's tradename may be used by Tripath in its advertisements, provided that such use is in proper form.

13.2 Distributor will be eligible to participate in Tripath distributor cooperative advertising programs designated by Tripath for the Territory. However, prior approval must be obtained in writing from Tripath before any expenditures of funds by Distributor are eligible for reimbursement.

14. Tripath Trademarks

14.1 Tripath grants to Distributor a non-exclusive license to use Tripath's trademarks, trade names and service marks only in connection with the Products and in the performance of Distributor's obligations under this Agreement. All such uses are subject to Tripath's prior review and consent, which will not be unreasonably withheld or delayed.

14.2 All use of Tripath trademarks and service marks will be in proper form, giving appropriate attribution to Tripath as the owner of the mark. Distributor will not undertake any use of a mark in a manner that might jeopardize Tripath's rights to use or register such mark, or Tripath's rights to prevent unauthorized use. Distributor will promptly notify Tripath of any acts of unfair competition or trade or service mark infringement, and reasonably cooperate with efforts to protect Tripath's rights.

14.3 All use of Tripath trade marks and service marks by Distributor will inure to the benefit of Tripath, and Distributor will reasonably cooperate, at Tripath's expense with Tripath's efforts to register or otherwise secure rights in such marks. Upon termination of this Agreement, Distributor will immediately cease all further use of Tripath's trademarks, trade names or service marks except as may be required in the sale of Products in inventory.

15. Relationship Between the Parties

15.1 Both Distributor and Tripath are independent contractors, and no agency or other joint relationship is created.

15.2 Neither party has any authority to act for and/or to bind the other in any way, or to represent that either is in any way responsible for the acts of the other.

16. Confidentiality

16.1 Confidential information (Information) of Tripath and/or Distributor will mean information that the disclosing party desires to protect against unauthorized use or disclosure, and which is furnished under this Agreement as follows: (a) written or other tangible information clearly marked with a notice, such as

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Distributor Agreement

CONFIDENTIAL; and (b) oral information that is identified at the time of disclosure as being confidential. Confidential Information will not include information that: (a) enters the public domain without a breach of this Agreement, (b) is known to the recipient prior to the time of disclosure, or is independently developed by the recipient without using any Information, or (c) is obtained from another source that the receiving party has no reasonable cause to believe is under any obligation of confidentiality with respect to Information.

16.2 The recipient of Information will treat it as proprietary and confidential, safeguarding the Information at least as carefully as it would its own confidential information, and will use all reasonable efforts to prevent any unauthorized use or disclosure, including restricting access to the Information within its organization and ensuring that its employees comply with this Agreement. A receiving party will not disclose any information to any third party without prior written consent. Either party learning of any unauthorized use or disclosure of any Information will promptly notify the other party, and will reasonably cooperate with efforts to protect such Information.

16.3 The recipient of information will use it only in the furtherance of the business relationship established by this Agreement, and for no other purpose without prior written consent. All Information will remain the property of the disclosing party, and will be returned or destroyed upon written request.

16.4 The confidentiality obligations in this Agreement will be binding during the Agreement and for a period of three years after any termination or non-renewal of the Agreement.

16.5 Neither party will disclose the existence or terms of this Agreement without prior written consent.

17. Export Control

17.1 Distributor will not engage in exporting activities within the Territory without the prior written approval of Tripath, and the United States Government if such approval is necessary. Nothing in this Subsection is meant to authorize Distributor shipments outside the Territory.

17.2 Distributor understands that the Products and Tripath confidential information are restricted by the United States Government from export to certain countries, and Distributor agrees that it will not sell or license Products or transfer Tripath confidential information in any way will violate any of the export control laws or regulations of the United States.

18. Term and Termination

18.1 The terms of this Agreement shall be one year from the effective date and will be automatically renewed on each anniversary of the effective date, for a renewal term of one year unless either party provides written notification of its intention not to renew this Agreement at least one month prior to the expiration of the initial or any renewal terms. Tripath will honor all orders acknowledged prior to the effective date of any such termination by nonrenewable.

18.2 Tripath or Distributor may terminate this Agreement for any reason with thirty days written notice.

18.3 Either party may terminate this Agreement immediately if the other party becomes insolvent, or takes any steps to make an arrangement with its creditors, or has a receiver appointed.

18.4 If Tripath terminates pursuant to Subsection 18.1 or 18.2, or if Distributor terminates pursuant to Subsection 18.3, Tripath will purchase and Distributor will resell to Tripath Distributor's inventory of Products (excluding

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Distributor Agreement

discontinued and demonstration Products) which Tripath determines to be undamaged and in good condition (including, at Tripath's option on-site inspection). The price for such inventory will be the price actually paid by the Distributor, less any prior credit or allowances.

18.5 If Distributor terminates pursuant to Subsection 18.1 or 18.2, or if Tripath terminates pursuant to Subsection 18.3, Tripath may, at its option, purchase and Distributor will resell to Tripath all or part of Distributor's inventory at the price set forth in Subsection 18.4, less a ten percent restocking charge.

18.6 On termination of this Agreement for whatever cause, Distributor will immediately (a) cease to engage in marketing and distribution activities as Tripath's official distributor, and (b) cease representing in any manner that it is a distributor of Tripath Products in the Territory.

18.7 All obligations of Distributor to make payments under this Agreement will survive any termination of this Agreement for whatever cause, along with the following provisions: Section 10 (Limited Warranty), Section 11 (Reports and Audits), Section 16 (Confidentiality), Section 17 (Export Control), Section 19 (Intellectual Property Indemnity), and Subsection 21.6 (Governing Law), and Subsection 21.7 (Arbitration).

19. Intellectual property indemnity

19.1 Indemnification. Distributor agrees that Tripath has the right to, and Tripath agrees that it will at its expense, defend or at its option settle any claim, suit, proceeding, or other action brought against Distributor or its customer for infringement of any United States copyright, trademark or other United States intellectual property right related to the Products or their use, subject to the limitations set forth in this Section. Tripath will have sole control of any such action or settlement negotiations (Tripath will not be liable for any costs or expenses incurred without its prior written authorization), and Tripath will pay any final judgment entered against Distributor or its customer based on such infringement. Tripath at its sole option will be relieved of the foregoing obligations unless Distributor or its customer notifies Tripath promptly in writing of such action and gives Tripath full information and assistance to settle and/or defend any such action. If it is adjudicated that a Product infringes, or if the sale or use of a Product is, as a result, enjoined, then Tripath will, at its option and expense either: (i) procure for Distributor and its customers the right to sell or use the Product; or (ii) replace the Product with other suitable Product; or (iii) suitably modify the Product to be noninfringing; or (iv) if none of the foregoing are commercially reasonable, as determined by Tripath, accept return of the affected Products and refund Distributor's aggregate payments for such Products, less a reasonable sum for use and/or damage, if any.

19.2 Limitation. Notwithstanding the provisions of Section 19.1, Tripath assumes no liability for, and Distributor agrees to indemnify Tripath to the same extent as Tripath's indemnity under Section 19.1 for: (i) any infringements covering completed equipment or any assembly, circuit, combination, or method in which any of the Products may be used but not covering such Products standing alone; or (ii) any trademark infringements involving any marking or branding not applied by Tripath or involving any marking or branding applied at the request of Distributor; or (iii) any modification of the Products unless such modification was made by Tripath.

19.3 Entire Liability. The foregoing provisions of this section 19 state the entire liability and obligations of Tripath and the exclusive remedy of Distributor and its customers, with respect to any actual or alleged intellectual property infringement by the Products.

20. Limitation of Liability

20.1 Neither Tripath nor Distributor will be liable for any incidental or consequential

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Distributor Agreement

damages (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of this Agreement, even if advised of the possibility of such damages.

21. General

21.1 Assignment. This Agreement is not assignable by Distributor without prior written consent of Tripath, which will not be unreasonably withheld. Tripath is free to assign this contract without Distributor's consent.

21.2 Modifications. This Agreement may be modified only in writing signed by an officer of each party.

21.3 Headings. The headings of the several Sections are inserted for convenience of reference only, and are not intended to be part of nor to affect the meaning or interpretation of this Agreement.

21.4 Notices. All notices under this Agreement will be sent by receipted courier (e.g., U.P.S.).

21.5 Non-Waiver. The failure of either party to enforce at any time any of the provisions of this Agreement will not be construed as a waiver of the right of such party to subsequently enforce any such provisions or a waiver of the provision itself.

21.6 Governing Law. This Agreement will be governed by the laws of California, without reference to conflicts of laws.

21.7 Arbitration. Any dispute or claim arising out of this Agreement will be referred to and resolved by the International Chamber of Commerce (ICC) in accordance with the ICC Arbitration Rules. The venue for such arbitration will be Santa Clara County, California, USA.

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Distributor Agreement

This Agreement supersedes all proposals, oral or written, all negotiations, or discussions between or among the parties relating to this Agreement, and all past course of dealing or industry custom. This Agreement takes precedence over the terms of any Tripath or Distributor order or sales documentation, including the Tripath Sales Order Acknowledgment.

TRIPATH CORPORATION   DISTRIBUTOR             By: /s/ EVERETT ROACH   By: /s/ CHARLES LIM             Name: Everett Roach   Name: Charles Lim             Title: Vice President, World Wide Sales   Title: President             Date: 7/1/98   Date: 7/7/98

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Question: Highlight the parts (if any) of this contract related to Warranty Duration that should be reviewed by a lawyer. Details: What is the duration of any  warranty against defects or errors in technology, products, or services  provided under the contract?

SOLUTION:
For OEM Products, Tripath warrants that the Products will be free of manufacturing and workmanship defects for one year from the date of shipment by Distributor to a customer, or eighteen months from the date of shipment to Distributor, whichever is sooner.