EVQLV Terms of Service

This Service Agreement (“Agreement”) is effective as of the date payment is rendered (the “Effective Date”), by and between EVQLV, Inc., a Delaware corporation and its successors and assignees (“EVQLV”), and the undersigned partner (together with its affiliates, “PARTNER”). EVQLV and PARTNER may be referred to herein individually as a “Party” and collectively as the “Parties.” Defined terms not otherwise defined in this Agreement will have the meanings ascribed to such terms in the attached exhibits and schedules.

BACKGROUND

EVQLV is a biotechnology company in the business of developing and operating a platform consisting of proprietary technology for computational biologic design, computational biologic discovery, computational biologic evolution, computational biologic engineering, computational biologic optimization, including making any improvements thereon (the “Platform”). PARTNER wishes to participate in a pilot program (the “Pilot”) offered by EVQLV as set forth in further detail herein and on Exhibit A (the “Pilot Plan”). In furtherance of the Pilot, PARTNER desires to transfer to EVQLV, and EVQLV desires to receive, certain data (the “PARTNER Data”) as set forth in the Pilot Plan. EVQLV desires to transfer to PARTNER, and PARTNER desires to receive, any combination of the following as set forth on the Pilot Plan: (1) certain biological informational of a computational nature and related to the field of antibody design (the “EVQLV Data”) which will include amino acid sequences (“Pilot Sequences”) relevant for the Target, (2) recombinant DNA encoding the Pilot Sequences (“Pilot DNA”), and/or (3) recombinant antibodies encoding the Pilot Sequences (“Pilot Antibodies”). The Pilot DNA and Pilot Antibodies may be collectively referred to as the “Materials” and, together with the EVQLV Data and Pilot Sequences, the “Deliverables”, in each case as may be further described in the Pilot Plan.

AGREEMENT

In consideration of the foregoing premises and the mutual covenants set forth below, and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as follows:

1. Pilot Scope; Workflow; Payment Terms.

(a) Promptly after the date of this Agreement, Partner will transfer to EVQLV any PARTNER Data if so indicated on the Pilot Plan. Upon receipt of the other Party’s Data, each Party will utilize its expertise and facilities to undertake the steps set forth in the Pilot Plan; provided, that PARTNER acknowledges and agrees that EVQLV will not be obligated to perform any portion of the Pilot until EVQLV receives (i) the upfront payment set forth on the Pilot Plan and (ii) if applicable, any PARTNER Data required as indicated on the Pilot Plan. PARTNER will be permitted to conduct its portion of the Pilot under the Research License (as defined in Section 3) until the earlier to occur of (a) the expiration of the Evaluation Period (including any extensions as set forth in the Pilot Plan), and (b) PARTNER’s exercise of the Commercial Option (as defined below).

(b) During the period(s) of time set forth on the Pilot Plan (the “Evaluation Period”) and subject to any of the conditions set forth under the section titled “Exclusivity Terms” in the Pilot Plan, EVQLV hereby grants PARTNER the option (the “Commercial Option”) to obtain rights to selected Deliverables (each, an “Optioned Antibody Sequence”, and the corresponding Pilot Antibody, together with any derivatives thereof or program-benefited antibody generated from such Pilot Antibody, the “Optioned Antibody”), exercisable, in PARTNER’s sole discretion, on or before the expiry of the Evaluation Term. Such Commercial Option shall be exercisable during the Evaluation Term by written notice to EVQLV for such Optioned Antibody Sequence and corresponding Optioned Antibody.  

(c) Immediately after execution of this Agreement, EVQLV will electronically invoice PARTNER for the amounts set forth on the Pilot Plan. PARTNER will pay the invoice within 15 days of receiving such invoice by wire transfer of immediately available funds. Upon receipt of such payment, EVQLV will commence its work under the Pilot Plan. If the EVQLV deliverable requires conversion of the EVQLV Data (i.e. that DNA or recombinant antibodies are the EVQLV deliverable), then EVQLV will obtain a lab quote from a vendor of its choosing and invoice PARTNER accordingly. PARTNER shall pay such costs within 15 days of receiving such invoice, it being acknowledged and agreed that EVQLV will not place any order with a vendor until receipt of such payment. All payments due hereunder shall be made in USD. PARTNER will be responsible for any use tax, sales tax, excise tax, custom duty, inspection or testing fee, or any other taxes, fees, duties or charges imposed by any governmental authority, relating to or measured by the transaction, in addition to the prices quoted or invoiced in the Pilot Plan, except for any taxes owed for EVQLV income which is solely EVQLV’s obligation. If EVQLV is required to pay any such taxes (except for any taxes owed for EVQLV income), custom duties, fees or charges, PARTNER shall reimburse EVQLV thereof or provide EVQLV an exemption certificate or other document acceptable to the authority imposing the taxes, duties, fees, or charges at the time the order is placed.  Payments referred to herein shall not be refundable under any circumstances, including but not limited to the termination of this Agreement for whatever reason.

2. Data Use Guidelines. Except as set forth in Sections 3(e) and 4, each Party shall use the other Party’s Data solely for conducting the Pilot and for no other purpose, including without limitation any commercial purpose or research other than as contemplated by the Pilot. Neither Party shall attempt to reverse engineer, deconstruct or in any way determine the structure or composition or computational underpinnings of the other Party’s Data unless expressly provided for on the Pilot Plan. Neither Party shall sell, transfer, disclose or otherwise provide access to the other Party’s Data, any method or process relating thereto, or any material that could not have been made but for the foregoing to any person or entity without the prior written consent of the other Party, except that the Parties may allow access to the Data to their respective employees, officers, consultants, and affiliates who require such access in order to conduct the Pilot and solely for purposes consistent with this Agreement. When the Pilot is completed or terminated for any reason, each Party will return any remaining Data to the other Party, or otherwise dispose of the Data as mutually agreed by the Parties. Notwithstanding anything to the contrary contained in this Agreement, EVQLV acknowledges and agrees that (a) PARTNER may cease and terminate the Pilot at any time and for any reason, and (b) PARTNER has no obligation to complete the Pilot by any date or in accordance with any requirements or standards. Each Party understands and agrees that the other Party’s Data (a) may have unpredictable and unknown biological and/or chemical properties, (b) is experimental in nature, (c) is to be used with caution, and (d) is not to be used for testing in or treatment of humans. Each Party will use the other Party’s Data in compliance with all applicable laws and regulations, including, but not limited to, any laws or regulations relating to the research, testing, production, storage, transportation, export, packaging, labeling or other authorized use of such Data.

3. Intellectual Property Ownership; Commercial Option.

(a) Except as provided herein, neither Party obtains any ownership rights in the other Party’s Data by virtue of this Agreement. The EVQLV Data and Materials and all proprietary rights thereto (including modifications and derivatives thereof), including but not limited to patent rights, are and shall remain the sole and exclusive property of EVQLV. The PARTNER Data and all proprietary rights thereto, including but not limited to patent rights, are and shall remain the sole and exclusive property of PARTNER.

(b) All patents, trade secrets, information, know-how, inventions, technology data and other intellectual property rights owned by either Party prior to the Effective Date (hereafter, “Background Technology”) shall remain the sole property of the respective Party. Each Party shall own any improvements to their respective Background Technology made or conceived during the course of the Pilot (each, an “Improvement”).   

(c) During the Evaluation Period and subject to PARTNER’s economic obligations set forth in the Pilot Plan, (i) EVQLV grants to PARTNER a non-exclusive (except as set forth in the Pilot Plan), non-sublicensable, non-transferable, royalty-free license under the EVQLV Background Technology to the EVQLV Data to perform any preclinical research on and evaluation of the Deliverables (“Research License”), and (ii) PARTNER grants to EVQLV a non-exclusive, non-sublicensable, non-transferable, royalty-free, fully-paid, worldwide research license under the PARTNER Background Technology to the PARTNER Data, in each case solely for purposes of conducting the Pilot.

(d) Subject to the license grant set forth in Section 3(c)(i), all rights and title to any intellectual property made or conceived in the performance of the Pilot by PARTNER (or any collaborator or third Party thereof) (an “Invention”) shall belong to EVQLV until PARTNER exercises the Commercial Option. For the avoidance of doubt, EVQLV shall own all Inventions constituting new intellectual property related to computational biologic design, computational biologic discovery, computational biologic evolution, computational biologic engineering, or computational biologic optimization.

(e) Effective on PARTNER’s exercise of the Commercial Option and EVQLV’s receipt of the corresponding fee set forth in the Pilot Plan, EVQLV will assign ownership of the Optioned Antibody Sequence(s) and Optioned Antibody(ies) to PARTNER, subject in each case to EVQLV’s rights in the Platform, its Background Technology, and any Improvements on the foregoing; provided, however, that PARTNER grants back to EVQLV a non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, worldwide license to such Optioned Antibody Sequences and Optioned Antibodies for internal purposes and such other purposes as set out in Sections 4 and 9. For the avoidance of doubt, following the date on which PARTNER exercises the Commercial Option, EVQLV will not include the Optioned Antibody Sequence(s) in any deliverable to a third-party commercial entity. Upon exercise of the Commercial Option and if not already provided by such time, EVQLV will provide PARTNER the amino acid sequence information corresponding to the Optioned Antibodies.

(f) Each Party will, upon the request of the other Party and at the other Party’s expense, sign and deliver to the requesting Party any documents and take reasonable actions, and cause its contractors to sign and deliver to the requesting Party any documents and take reasonable actions that are needed or desirable in order to confirm rights and title in Inventions pursuant to this Section. Each Party hereby assigns (and agrees to assign) to the other all of the assigning Party’s rights, title and interest in any such Inventions to be solely owned by the other Party in accordance with this Section, and agrees to execute all patent applications, assignments and other documents, and to take all other steps necessary, to vest in the other Party the entire right, title and interest in and to that newly created Invention including in and to any patents obtainable therefor in the United States of America and in foreign countries. Notwithstanding anything to the contrary herein, all results drawn from the Pilot generated by PARTNER (or any collaborator or third Party) as a result of performing the Pilot, including underlying data and PARTNER’s conclusions drawn from the Pilot (“Results”), will be owned by PARTNER. PARTNER hereby grants to EVQLV a perpetual, worldwide, non-exclusive, royalty-free, fully-paid, non-transferable, and non-sublicensable license to the Results for the purposes set forth herein.

(g) Except as set forth in Section 9, each Party represents that it shall not use, in any capacity, the service marks, trademarks, trade names, logos or other commercial designations, or any component thereof, of the other Party or their respective affiliates, without first receiving approval, specifically in writing, from the other Party. Further, any displaying of, showing of or reference to the other Party or such Party’s name, trademark, logo, symbol, or other image or mark by a Party shall not be construed as a “license” therein to the Party performing such act. Each Party reserves the right to add or withdraw trademarks and trade names at any time from those authorized for display, showing or referenced by the other Party.  

4. Study Reports; Publication and Press Releases; Patents.

(a) In accordance with industry standard practices, PARTNER shall keep complete and accurate records of the Results and all Inventions and will promptly and fully disclose to EVQLV such Inventions. Within 30 days following completion of the Pilot, if requested by EVQLV, PARTNER shall discuss with EVQLV, in person or otherwise, a summary of the Results, which summary shall be deemed PARTNER Confidential Information under this Agreement. EVQLV may use such Confidential Information obtained in such discussion solely for its internal research purposes (including discussion with prospective investors) and the matters set forth in Section 9, and in no event shall Company disclose such Confidential Information, or any summary or excerpts thereof, to any third Party without prior written permission from PARTNER.   

(b) The Parties reserve the right to publish or otherwise make public the data resulting from the Pilot. In order to avoid loss of patent rights as a result of premature public disclosure of patentable information, the Party so wishing to publish or make public shall submit any manuscript or release to the other Party for comment 60 days prior to the planned publication or release date. Subject to the other Party’s written approval of the language, not to be unreasonably withheld or delayed, each Party may publish a press release disclosing the existence (but not the financial terms or other terms) of the Pilot. Other than repeating information in such press release (or any subsequent mutually agreed press release), neither Party will generate or allow any further publicity regarding this Agreement or the transaction or research contemplated hereunder in which the other Party is identified, without giving the other Party the opportunity to approve such press release.  

(c) PARTNER will (i) will have the sole right to file and prosecute all patents related to the Results, and (ii) be solely responsible for all costs of any such patent filings. Notwithstanding the foregoing, EVQLV will have the right to review and comment on prosecution of any patents related to the Pilot, including drafts of patent applications prior to filing such applications with the applicable patent offices, solely for purposes of (A) determining which EVQLV employees, if any, are inventors with respect to the claimed subject matter, (B) ensuring that such patents correctly describe activities undertaken by EVQLV, and (C) ensuring that such patents do not disclose EVQLV Background Technology or Improvements. PARTNER will provide EVQLV with copies of material correspondence with patent offices relating thereto (including patent applications, office actions and the like) promptly after receipt and drafts of all filings and correspondence with such offices reasonably in advance of PARTNER’s proposed responses or other filings to allow EVQLV to review and comment, under this section (and no less than twenty (20) business days in advance of any filing).  

5. Confidential Information.  During the term of this Agreement and for a five (5) year period thereafter, each Party agrees to maintain in strict confidence and not to disclose to any third Party any and all knowledge, know-how, practices, processes, inventions, ideas and other information (the “Confidential Information”) disclosed or submitted to it by or on behalf of the other Party (the “Disclosing Party”), whether in written, oral, graphic or electronic form. The Party receiving the Confidential Information from the Disclosing Party (the “Receiving Party”) shall use the Confidential Information only for the purpose of carrying out the Pilot or as otherwise permitted under this Agreement, and for no other purpose. The Receiving Party may disclose Confidential Information to its employees, officers, consultants, prospective investors, and affiliates requiring access thereto for the purposes of this Agreement; provided that each such employee, officer, consultant, prospective investor, or affiliate agrees to maintain the Confidential Information in confidence and to use such information solely to perform the Pilot or as otherwise permitted under this Agreement. The Receiving Party will take all steps necessary to ensure that its employees, officers, consultants, and affiliates will comply with the terms and conditions of this Agreement.

6. Confidential Information Exceptions. The obligations of Section 5 shall not pertain to any information that the Receiving Party can establish by competent written proof:

(a) at the time of disclosure to the Receiving Party is in the public domain;

(b) after disclosure, becomes part of the public domain by publication or otherwise, except by breach of this Agreement by the Receiving Party or its employees, officers, or affiliates who received Confidential Information under Section 5;

(c) was in the Receiving Party’s possession at the time of disclosure by the Disclosing Party; or

(d) is received by the Receiving Party from a third Party with the lawful right to disclose such information and who has not obtained the information either directly or indirectly from the Disclosing Party.  

7. Permitted Disclosures.  Notwithstanding Section 5, the Receiving Party may disclose Confidential Information of the Disclosing Party, without violating the obligations of this Agreement, to the extent the disclosure is required by applicable law or a valid order of a court or other governmental body having jurisdiction, provided that the Receiving Party gives reasonable prior written notice to the Disclosing Party of such required disclosure and makes a reasonable effort to obtain, or to assist the Disclosing Party in obtaining, a protective order preventing or limiting the disclosure and/or requiring that the Confidential Information so disclosed be used only for the purposes for which the law or regulation requires, or for which the order was issued.  

8. No Implied License. Nothing in this Agreement shall be construed as conferring on a Party any express or implied license or option to license the other Party’s Data, Confidential Information, or any patent, patent application or other intellectual property owned or controlled by such other Party.

9. EVQLV’s Permitted Use of Logos; Results. As consideration for the economics set forth on the Pilot Plan, PARTNER acknowledges that part of the valuable consideration flowing to EVQLV in connection with the Pilot is the ability to use PARTNER’s logos and the Results for various internal and marketing purposes. Accordingly, the Parties hereby agree as follows:

(a) PARTNER hereby consents to EVQLV’s use of all logos of PARTNER in connection with this Agreement so long as such logos (i) are used solely in a manner that is not intended to or likely to harm or disparage PARTNER or the reputation or goodwill of PARTNER and (ii) are used solely in connection with a description of PARTNER or its business and products.

(b) EVQLV may use the Results to further validate, optimize, and otherwise improve as well as promote the EVQLV Platform, provided that the Results be (a) solely used for promotional purposes, and (b) unless otherwise approved in writing by PARTNER, anonymized and does not include any PARTNER Confidential Information.

10. Miscellaneous.

(a) Authority. Each Party represents and warrants that it (i) has the authority to execute this Agreement and to undertake the obligations herein, (ii) it has all rights necessary to transfer the Data to the other Party and to authorize such Party’s use of the Data in accordance with this Agreement, (iii) it is not aware of any biological or chemical property that could make the use, storage or handling of the Data dangerous to humans or property, and (iv) it is not aware of any special storage or handling requirements with respect to the Data to ensure the safety of humans and property. 

(b) Disclaimer. EXCEPT AS SET FORTH IN PARAGRAPH (a), ABOVE: EACH PARTY (i) SUPPLIES ITS RESPECTIVE DATA TO THE OTHER PARTY WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ABSENCE FROM THE RIGHTFUL CLAIM OF ANY THIRD PARTY, BY WAY OF INFRINGEMENT OR THE LIKE; (ii) MAKES NO REPRESENTATIONS THAT THE USE OF ITS DATA WILL NOT INFRINGE ANY PATENT OR PROPRIETARY RIGHTS OF ANY THIRD PARTIES.  

(c) Indemnification. Except in the case of EVQLV’s fraud or willful misconduct, in no event shall EVQLV be liable for any use by PARTNER of the EVQLV Data. Except in the case of the other Party’s fraud or willful misconduct, each Party hereby agrees to indemnify, defend and hold the other Party and its officers, directors, employees and agents harmless from all damages, costs and expenses for any loss, claim, injury or liability of any kind that may arise from the use, handling, transfer or storage of the other Party’s Data by such Party or any officer, employee or affiliate thereof.  

(d) Term; Termination; Survival. The term of this Agreement (“Term”) will commence on the Effective Date and will expire once the Pilot is complete, unless earlier terminated as set forth herein. Either Party shall have the right to terminate this Agreement for any reason on thirty (30) days written notice. Sections 2, 3, 4(b), 4(c), 5-9, 10(b), 10(c), 10(d), 10(g), and 10(j), will survive the termination or expiration of this Agreement. In any event, this Agreement will terminate upon completion of the Pilot. Promptly upon any termination, each Party will deliver to the other Party any remaining Data, and any replications or derivatives thereof, and all Confidential Information in such Party’s possession.

(e) Relationship of the Parties. The Parties shall perform their obligations under this Agreement as independent contractors and nothing contained in this Agreement shall be construed to be inconsistent with such relationship or status. This Agreement shall not constitute, create or in any way be interpreted as a joint venture or a partnership of any kind nor shall it be deemed to create any obligation on the part of either Party to initiate or to continue any discussion, relationship or arrangement with the other Party.

(f) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be delivered as follows with notice deemed given as indicated: (i) by personal delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; (iii) by telecopy or facsimile transmission upon acknowledgment of receipt of electronic transmission; or (iv) by certified or registered mail, return receipt requested, upon verification of receipt. Notice shall be sent to the addresses set forth below or such other address as either Party may specify in writing.

(g) Governing Law; Venue. This Agreement will be governed by and construed according to the laws of the State of Delaware, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Any dispute arising under or related to this Agreement shall be resolved in the state and federal courts in the State of New York.

(h) Injunctive Relief. Each Party hereby acknowledges and agrees that in the event of any breach of this Agreement by such Party, including, without limitation, the actual or threatened disclosure or unauthorized use of the other’s Confidential Information without the prior express written consent of the other Party, the other Party may suffer an irreparable injury such that no remedy at law would adequately protect or appropriately compensate the other Party for such injury. Accordingly, each Party agrees that the other Party shall have the right to seek enforcement of this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the other Party may have for a breach of this Agreement.

(i) Entire Agreement; Amendment; Waiver; Construction. This Agreement (including any exhibits hereto) contains the final, complete and exclusive agreement of the Parties relative to the subject matter hereof and supersedes all prior and contemporaneous understandings and agreements relating to said subject matter. This Agreement may not be changed, modified, amended or supplemented except by a written instrument signed by both Parties. If any provision of this Agreement shall be declared invalid, illegal or unenforceable, such provision shall be severed and all remaining provisions shall continue in full force and effect. The Parties hereto confirm their agreement that this Agreement, as well as any amendment hereto and all other documents related hereto, including legal notices, shall be in the English language only. The waiver from time to time by either Party of any of its rights or such Party’s failure to exercise any remedy shall not operate or be construed as a continuing waiver of same or of any other of such Party’s rights or remedies provided in this Agreement. This Agreement may be executed in any number of counterparts, each of which, when executed, shall be deemed to be an original and all of which together shall constitute one and the same document.

(j) Successors and Assigns. The Parties’ rights and obligations under this Agreement will bind and inure to the benefit of their respective successors, heirs, executors and administrators and permitted assigns. Neither Party assign or delegate its obligations under this Agreement either in whole or in part without the prior written consent of the other Party.

(k) Export Restrictions. Each Party agrees not to export, directly or indirectly, any U.S. source technical data acquired from the other Party or any products utilizing such data to countries outside the United States, which export may be in violation of the United States export laws or regulations.