Material Transfer Agreement

THIS MATERIAL TRANSFER AGREEMENT (the “Agreement”) is made as of _________(date) by and among Verumcare, LLC (Distributor), a corporation having offices at 2800 Post Oak Boulevard, Suite 4100, Houston, TX 77056, United States and incorporated and existing under the laws of the state of Texas, hereinafter “Distributor” and __________________________________ (Customer) a corporation formed and existing under the laws of  the state of ___________________ having offices at  ___________________________________________, hereinafter  “Customer”, for Dynacord LLC’s Human Umbilical Cord Stem Cell Derived Exosomes, hereinafter “Material”,  hereafter  Distributor  and Customer may be referred to individually as a “Party” and collectively as the “Parties”.

WHEREAS, Distributor has the right to distribute certain material developed by Dynacord LLC (as defined below) and Distributor intends for Customer to be able to use and evaluate the Material solely for research purposes, subject to the terms and conditions set forth in this Agreement. 

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and other good and valuable consideration, the Parties agree as follows:

1. Definitions.  Capitalized Terms in this Agreement that are otherwise not defined herein shall have the meanings given to them in the NDA (defined below in Paragraph 2.1). 

1. “Material” shall mean the Dynacord developed Human Umbilical Cord Stem Cell Derived Exosomes in accordance with the Certificate of Analysis issued by Dynacord.

1. Confidential Information.  Reference is made to that certain Mutual Non-Disclosure Agreement, by and between Distributor and Customer (the “NDA”).  The Parties agree that the terms and conditions of such NDA are incorporated herein by this reference and are hereby made applicable to the Parties’ conduct hereunder.  The Parties agree that the Material, any Summary, or Feedback provided by customer to the Distributor if any Feedback (each as defined herein) are Confidential Information under the NDA.  In no event will Customer disclose any specific formulations from Distributor hereunder or under the NDA, and Distributor assumes no obligation, either expressed or implied, with respect to any specific information disclosed by Customer.
2. Material Transfer and Grant of Rights to Use.

1. Distributor intends to deliver to Customer Material as specified herein in the quantities and by the dates agreed to from time to time by the Parties on a non-exclusive basis that is consistent with what would be reasonably necessary to conduct the research which Customer intends to conduct with the Material.  Distributor hereby grants to Customer the right to use the Material solely for lawful research purposes in the U.S. in accordance with all regulations issued by the US FDA regarding the conduct of the proposed research and for no other use.  No other rights regarding the Material are granted to Customer and Customer shall use the Material solely for research purposes in accordance with all regulations issued by the FDA regarding such research. Customer shall not permit any third party use of the Material unless such 3rd party use is specifically approved by Distributor as being limited to research purposes and is conducted in accordance with all applicable regulations governing such research.  Under no circumstances shall Customer attempt to change the material or reverse engineer its derivation.  
2. The Parties agree that all transfers of Material from Distributor to Customer will be governed by this Agreement.
3. Distributor will provide Customer with the certificate of analysis of the Material supplied by Dynacord. Nothing herein shall grant Customer any rights to use of Dynacord’s intellectual property rights. Customer acknowledges that neither Dynacord nor Distributor have made any representations regarding the Material or its use for any therapeutic or other uses and that none of the representations made to Customer violate any applicable FDA laws or regulations.  Customer further acknowledges that the sole representations regarding the Material made to it is the information that is in the certificate of analysis provided by Dynacord. Under no circumstances is customer in any way authorized to make any claims or representations regarding the Material to any third parties other than in connection with a filing made to the FDA which is based solely on Customer’s research results. 
4. Dynacord has a DMF filed with the FDA for its Material and Distributor, under its authority given by Dynacord to grant right of reference to Customers, grants Customer a right of reference to Dynacord’s DMF provided Customer represents and warrants to that it has at all times complied with the terms of this Material transfer Agreement and all other laws and regulations that the Material and uses of the Material may be subject to. 
5. Customer agrees to cause all of its employees or agents to whom it provides access to the Material to comply with this Agreement.  Notwithstanding anything to the contrary in this Agreement, Customer covenants and agrees to limit the disclosure of the existence of this Agreement, the Material and information provided hereunder by Dynacord to those limited number of employees who have a need to know such Confidential Information in connection with Customer’s performance of this Agreement.
6. Customer agrees not to transfer the Material, or derivatives of the Material (including Modified Material) or disclose to any third party absent prior written permission from Dynacord.   

1. Consideration.  In consideration of the promises and covenants by Customer contained herein, the receipt and sufficiency of which the Parties hereby acknowledge sufficient for purpose of carrying out the research work contemplated by the Customer. 
2. Term and Termination.

5.1 The term of this Agreement shall be for one year from the Effective Date unless terminated pursuant to Section 5.2. 

5.2 Either Party may terminate this Agreement for convenience upon thirty (30) days’ prior written notice to the other Party.

     5.3           The parties specifically understand and agree that the provisions of this agreement are made not only for the benefit of the parties but for the benefit of Dynacord who shall be a third party beneficiary of the terms and conditions which apply to use of the materials , access to Dynacord’s right of access to its DMF and the breach of any of the obligations created under this agreement covering unauthorized claims made by the Customer  for the Material or failure to limit its use of the Material transferred for purposes other than research  use which comply in all material respects to research use of the Materials as prescribed by the FDA.

5.4 Upon termination or expiration of this Agreement, Customer  shall (i) stop all work using the Material and/or Modified Material and return to Distributor or destroy, any remaining Material and Modified Material (and certify in writing to Distributor that it has done so), and, (ii) within thirty (30) days deliver to Distributor all documents, samples and other tangible items containing or representing Confidential Information, and all copies thereof, (iv) erase or destroy all Confidential Information contained in computer memory or data storage apparatus, and (v) certify in writing that it has complied with the terms of this Section 5.3; provided, however, that the receiving Party may retain in confidence a single copy of the Confidential Information (excluding the Material and Modified Material).

5.4 Sections 1, 2, 3, 7, 8, 9, 12 and 13 and Sections 5.3 and 5.4 shall survive termination or expiration of this Agreement with the obligations set forth in Section 2 surviving the termination or expiration of this Agreement for the period specified therein.  Termination or expiration of this Agreement shall be without prejudice to any rights that have accrued to a Party prior to such termination or expiration.

1. Notices. Routine communications relating to experimentation on or with the Material shall be directed to  Richard Valentine , if to Distributor, and to ________________, if to Customer.  All other notices will be given in writing and delivered by mail or facsimile to the Parties as follows, or as either Party may designate in a notice to the other Party given pursuant to this Section 6.

1. Governing Law; Disputes.  This Agreement shall be governed in all respects by the substantive laws of the State of Louisiana, without regard to the conflict of law’s provisions thereof.  All disputes arising out of this Agreement will be subject to the exclusive jurisdiction and venue of the state courts located in East Baton Rouge Parish, Louisiana and the federal courts located in the respective district of Louisiana, and each Party hereby consents to the personal jurisdiction thereof.
2. Legal and Equitable Remedies.  Customer hereby acknowledges and agrees that in the event of any breach of this Agreement by Customer, including, without limitation, the actual or threatened transfer of Material or Modified Material or the disclosure of Confidential Information, including, but not limited to, the Material, the Modified Material, the Data, the Summary or the Feedback, without the prior express written consent of Distributor, or theft of trade secrets, Distributor will suffer an irreparable injury, such that no remedy at law will afford it adequate protection against, or appropriate compensation for, such injury.  Accordingly, Customer hereby agrees that Distributor shall be entitled to seek specific performance of Customer’s obligations under this Agreement, as well as such further relief as may be granted.
3. No Waiver.  The waiver by either Party of a breach of any provision hereon shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.  
4. Severability.  If any provision of this Agreement should be held invalid or unenforceable, the remaining provisions shall be unaffected and shall remain in full force and effect, to the extent consistent with the intent of the Parties as evidenced by this Agreement as a whole.  
5. Assignment.  Customer shall not assign its rights or duties under this Agreement without Distributor’s prior written consent.  This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their successors and permitted assigns.
6. Disclaimer; Limitation of Liability.  Customer understands and acknowledges that the Material delivered hereunder is experimental in nature and is only for research as governed by FDA regulations for the Material.  The Material has not been approved for diagnostic or therapeutic use or testing in humans or animals or for consumption or contact with food or feed.  Customer agrees to comply, and cause its employees to comply, with any accompanying documentation that will be shipped with the Material, which may include a technical data sheet and/or safety data sheet, and all laws and regulations applicable to the use, testing, storage, handling, transfer, or disposal of the Material.  ALL MATERIAL, INFORMATION RELATED TO MATERIAL, DOCUMENTATION AND CONFIDENTIAL INFORMATION IS PROVIDED “AS IS” AND DYNACORD AND DISTRIBUTOR MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OR NON-INFRINGEMENT. TO THE EXTENT PERMITTED BY LAW, DYNACORD AND DISTRIBUTOR SHALL NOT BE LIABLE TO THE RECEIVING PARTY OR ITS AGENTS FOR ANY LOSS, CLAIM OR DEMAND ARISING IN CONNECTION WITH THE USE, TESTING, STORAGE, HANDLING OR DISPOSAL OF THE MATERIAL OR MODIFIED MATERIAL.  Customer is responsible for handling the Material consistent with the foregoing information and in a manner consistent with all pertinent legal requirements applicable to the geographical region in which the Material is received and/or evaluated or used.  Customer will obtain and maintain in effect all permits, licenses and other documentation required now or hereafter in order to comply with such laws.  Customer will inform Distributor prior to shipment of the Material of any additional information that is needed by Customer to adequately carry out these responsibilities.  The receiving Party accepts all risks which may be inherent in or arise from its use, testing, storage, handling or disposal of the Material and Modified Material and shall hold harmless and indemnify each of the disclosing Party and its affiliates, officers, directors, shareholders, employees and agents from and against any and all claims, damages, losses or other liabilities arising from the receiving Party’s or its transferee’s use, testing, storage, handling, transfer or disposal of the Material or Modified Material.  Distributor’s maximum liability under this Agreement and related to any provision of Material hereunder, as well as to Customer or a Customer affiliate under any future purchase order or otherwise, shall be limited to direct damages not to exceed the amount received by Distributor from Customer or its affiliate for purchases of Material in the month prior to the date of loss.
7. Damages.  Neither Party shall be liable to the other Party or its customers or end users for consequential, indirect, punitive, exemplary, special, or other extraordinary damages for breach of this Agreement or arising out of or relating to the use of Materials or documentation or for any error or defect in the same.  
8. Public Disclosure.  Neither Party will use the other Party’s name for any promotional purposes or public disclosure without prior written approval from that Party.  
9. Export Restrictions.  Any technical information disclosed under this Agreement may be subject to restrictions and controls imposed by the Export Administration Act, Export Administration Regulations and other laws and regulations of the United States and any other applicable government or jurisdiction, as enacted from time to time (the “Acts”).  The Parties shall comply with all restrictions and controls imposed by the Acts.
10. Force Majeure.  Neither Party shall be responsible to the other Party for failure to perform any of the obligations imposed on it by this Agreement, provided that such failure to perform shall be occasioned by fire, flood, explosion, earthquake, failure or destruction, in whole or in part, of machinery or equipment or failure of supply of materials, discontinuity in the supply of power, governmental interference, civil commotion, strikes, transportation difficulties or any other cause beyond the reasonable control of such Party.
11. No Obligation.  Nothing in this Agreement shall obligate either Party to proceed with any transaction between them, and each Party reserves the right, in its sole discretion, to terminate the discussions contemplated by this Agreement.  Nothing in this Agreement shall be construed to restrict either Party’s use or disclosure of its own Confidential Information.
12. Agreement.  This Agreement, constitute the entire agreement of the Parties regarding the subject matter hereof.  In the event that there is a conflict between the terms of this Agreement and an NDA, the terms of this Agreement shall be controlling. This Agreement may not be changed, modified, amended, or supplemented except by a written instrument signed by both Parties.
13. Counterparts; Electronic Signature; Headings.  This Agreement may be executed in counterparts, each and every one of which shall be deemed an original, notwithstanding variations in format or file designation that may result from the electronic transmission, storage and printing of copies of this Agreement from separate computers or printers and taken together will constitute one instrument. This Agreement may be executed via electronic signature and/or delivered by electronic transmission, and electronic copies of executed signature pages shall be binding as originals. The headings of this Agreement are of no binding effect and shall not be used to construe or interpret this Agreement.