This Consulting Services Agreement involves
Title: AMENDED AND RESTATED SHARED SERVICES AGREEMENT
Governing Law: Delaware Date: 8/15/2016
Industry: Biotechnology and Drugs Sector: Healthcare
AMENDED AND RESTATED SHARED SERVICES AGREEMENT
This AMENDED AND RESTATED SHARED SERVICES AGREEMENT (this “ Agreement ”), dated as of June 28, 2016 but effective as of August 1, 2015 (the “ Effective Date ”), is by and between NantWorks, LLC, a Delaware limited liability company (“ NantWorks ”), and NantKwest, Inc., a Delaware corporation (the “ Company ”). Each of NantWorks and the Company is sometimes referred to as a “ Party ” and collectively are sometimes referred to as the “ Parties .” In consideration of the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
In addition to terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
“ Affiliate ” means, with respect to any person, any other person, directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with such Person. The term “control,” as used in the immediately preceding sentence means, with respect to any person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of the controlled person.
“ Intellectual Property ” means all patents, patent applications, trademarks, trademark applications, service marks, service mark applications, trade names, copyrights, trade secrets, domain names, mask works, information and proprietary rights and processes, similar or other intellectual property rights, subject matter of any of the foregoing, tangible embodiments of any of the foregoing, licenses in to and under any of the foregoing.
Agreement To Provide and Accept Services
Section 2.01. Provision of Services .
(a)On the terms and subject to the conditions contained in this Agreement, each of NantWorks or the Company shall provide, or shall cause its Affiliates or third parties designated by it (such designated Affiliates and third parties (other than the Company in the case of NantWorks or its subsidiaries), together with NantWorks or the Company, as the case may be, referred to singly as a “ Service Provider ” and collectively as the “ Service Providers ”) to provide, to the other Party (and/or one or more of its Affiliates or subsidiaries, as applicable, referred to singly as a “ Receiving Party ” and collectively, together with NantWorks or the Company, as the case may be, as the “ Receiving Parties ”) the services listed on Schedule A attached hereto (each, a “ Service ” and, collectively, the “ Services ”).
(b)Each of NantWorks and the Company shall make in its sole discretion any decisions as to which of the Service Providers (including the decisions to use reasonably qualified third parties who are not their respective Affiliates) shall provide the Services. Each of NantWorks and the Company shall be responsible for the acts and omissions of each of their Service Providers. Each Service shall be provided and accepted in accordance with the terms, limitations and conditions set forth in this Agreement.
Section 2.02. Access; Books and Records . Each of NantWorks and the Company shall, and shall direct its Affiliates or subsidiaries to, (a) make available on a timely basis to the Service Providers all information and materials reasonably requested by such Service Providers to enable such Service Providers to provide the applicable Services to such Receiving Party; (b) provide to the Service Providers reasonable access to the premises of the Receiving Parties and any of their Affiliates to the extent necessary for such Service Providers to provide the applicable Services to the Receiving Parties; and (c) create and maintain accurate books and records in connection with the provision of the Services performed or caused to be performed by it and, upon reasonable notice from (and at the sole expense of) the other Party, shall make available for inspection by such other Party such books and records, all in order that Receiving Party may substantiate the Service Costs as set forth on Schedule A attached hereto and to otherwise fulfill its documentation requirements ( e.g. , external audit requests, corporate tax preparation, Sarbanes-Oxley compliance, etc.). Without limiting the generality of the foregoing, the Parties will in good faith discuss and implement a process/methodology to track and otherwise document the Service Costs as set forth on Schedule A. Any inspection pursuant to this Section 2.02 shall (i) be conducted during reasonable business hours, (ii) occur no more than one (1) time per calendar year and (iii) be conducted by the Receiving Party in a manner that will not unreasonably interfere with the normal business operations of the Service Provider.
Section 2.03. Reliance . The Service Providers shall be entitled to rely upon the genuineness, validity or truthfulness of any document, instrument or other writing presented by the Receiving Parties in connection with this Agreement. No Service Provider shall be liable for any impairment of any Service caused by its not receiving information, either timely or at all, or by its receiving inaccurate or incomplete information from the Receiving Parties that is required or reasonably requested regarding that Service.
Section 2.04. Cooperation . The Parties and their respective Affiliates or subsidiaries shall cooperate with each other in all reasonable respects in matters relating to the provision and receipt of the Services.
TERMS AND CONDITIONS; Payment; Independent Contractors
Section 3.01. Terms and Conditions of Services .
(a)The Service Providers shall be required to perform the Services using substantially the same quality and standard of care as (in a manner consistent with) NantWorks’ or the Company’s provision of such Services, as the case may be, for its own business and its subsidiaries (but in no event less than reasonable care). Each Service Provider shall act under this Agreement solely as an independent contractor and not as an agent or employee of any other Party or any of such Party’s Affiliates, provided any Service Provider (other than NantWorks or the Company) shall perform the applicable Services on behalf of the applicable Party.
(a)Except as otherwise expressly provided in this Agreement, each of the Company and NantWorks or its respective Affiliates, as the case may be, shall retain all right, title and interest in and to their respective Intellectual Property and any and all improvements, modifications and derivative works thereof. Without limiting the foregoing, any data or other materials of a Service Provider furnished to the Receiving Party in connection with the performance of the Services shall remain the sole property of such Service Provider.
(b)Each of NantWorks and the Company, for itself and on behalf of its Affiliates, hereby grants to the relevant Receiving Party an irrevocable, perpetual, non-exclusive, royalty-free, freely transferable, worldwide right and license to all work product and deliverables generated in the course of performing the Services on behalf of the relevant Receiving Party (the “ Work Product ”). Notwithstanding the foregoing, Work Product shall not include any creations (including, without limitation, any technology, inventions, discoveries, works of authorship or other prior creations) that were conceived, created or reduced to practice by or for a Service Provider (alone or with others) prior to the Effective Date or results, data or Intellectual Property relating to the Parties’ respective diagnostic or therapeutic product candidates (collectively, “ Background Technology ”). It is the intent of the Parties that the Services to be provided pursuant to this Agreement will be primarily in the areas of administrative, operational and logistical support functions. To the extent any Background Technology is incorporated into or otherwise included in, or is necessary or desirable for the use or exploitation of, any Work Product, each of NantWorks and the Company, for itself and on behalf of its Affiliates, hereby grants to the relevant Receiving Party a limited, irrevocable, perpetual, non-exclusive, royalty-free, freely transferable, worldwide right and license to any Background Technology of the relevant Service Provider that is incorporated into, or otherwise included in, or is necessary or desirable for the use or exploitation of, the Work Product, but solely to the extent necessary to enable the Receiving Party to utilize the Work Product. Notwithstanding anything herein to the contrary, and for the avoidance of doubt, (a) the Services provided hereunder shall not include non-clinical or clinical research services or any other activities intended to generate results, data or Intellectual Property relating to the Parties’ respective diagnostic or therapeutic product candidates and (b) to the extent such non-clinical, clinical research or other services or activities, if any, are contemplated to be performed by the Parties, then the terms and conditions of such services or activities will be outlined in a separate written agreement between the Parties (it being understood and agreed that neither Party shall be obligated to enter into any such agreement).
(c)Except as otherwise expressly provided in this Agreement, no Party (or its Affiliates) shall have any rights or licenses with respect to any Intellectual Property of the other Party. All rights and licenses not expressly granted in this Agreement are expressly reserved by the relevant Party. Each Party shall from time to time execute any documents and take any other actions reasonably requested by the other Party to effectuate the intent of this Section 3.02.
Section 3.03. Compensation .
(a) Cash Compensation . In consideration of the Services to be rendered hereunder, each of the Company or NantWorks shall compensate the other Party in accordance with Schedule A attached hereto. On a quarterly basis, each of the Company or NantWorks shall deliver an invoice to the other Party for Services provided to the Receiving Party during the preceding quarter, and each such invoice shall set forth a reasonable calculation of the amounts charged for such Service (the “ Service Costs ”). For any given quarter, payment for undisputed amounts of the quarterly invoice shall be due within thirty (30) days of the Receiving Party’s receipt of invoice
(b) Equity Awards . Natural persons who are employees or consultants to Service Providers and who provide Services to the Company or Nantworks or their Affiliates pursuant to this Agreement shall be deemed consultants and shall be eligible to receive equity awards under a Receiving Party’s equity incentive plan, subject to approval of the board of directors or compensation committee of such Receiving Party.
Section 3.04. Disclaimer of Warranty . EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES TO BE PURCHASED UNDER THIS AGREEMENT ARE FURNISHED AS IS, WHERE IS, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
Section 3.05. Taxes . Each of NantWorks or the Company acknowledges and agrees that it shall be NantWorks’ or the Company’s obligation to report as income all compensation received by it pursuant to this Agreement and to pay any withholding taxes, self-employment taxes, and social security, unemployment or disability insurance or similar items, including interest and penalties thereon, in connection with any payments made to NantWorks or the Company by the other Party hereunder.
Section 3.06. Use of Services . Each of NantWorks or the Company shall not, and shall cause its subsidiaries not to, resell any Services to any person whatsoever or permit the use of the Services by any person other than in connection with the conduct of the operations of the Receiving Party’s respective business.
No Service Provider shall be liable for any expense, loss or damage whatsoever arising out of any interruption of Service or delay or failure to perform under this Agreement that is due to acts of God, acts of a public enemy, acts of terrorism, acts of a nation or any state, territory, province or other political division thereof, fires, floods, epidemics, riots, theft, quarantine restrictions, freight embargoes or other similar causes beyond the reasonable control of such Service Provider. In any such event, any Service Provider’s obligations under this Agreement shall be postponed for such time as its performance is suspended or delayed on account thereof. Each Service Provider will promptly notify the Receiving Party upon learning of the occurrence of such event of force majeure. Upon the cessation of the force majeure event, such Service Provider will use commercially reasonable efforts to resume, or to cause any other relevant Service Provider to resume, its performance with the least practicable delay.
Section 5.01. Punitive and Other Damages . None of the Company, NantWorks or any other of their respective Service Providers shall be liable to the Receiving Party or any of its Affiliates or their employees, agents, members, managers, officers and directors (collectively, “ Representatives ”), whether in contract, tort (including negligence and strict liability) or otherwise for any punitive damages whatsoever which in any way arise out of, relate to or are a consequence of, the performance or nonperformance by any Service Provider (including Affiliates and third-party Service Providers providing services) hereunder or the provision of, or failure to provide, any Service hereunder. Notwithstanding anything herein to the contrary, none of the Company, NantWorks or any other of their respective Service Providers shall be liable to the Receiving Party or any of its Affiliates or any of its or its Affiliate’s Representatives for an amount in excess of the total Service Costs paid by the Receiving Party hereunder.
Section 5.02. Obligation To Reperform . In the event of any breach of this Agreement by any Service Provider with respect to any error, defect or breach (which breach Service Provider can reasonably be expected to reperform in a commercially reasonable manner) in the provision of any Service, the Service Provider shall promptly correct in all material respects such error, defect or breach or reperform in all material respects such Service at the request of the Receiving Party and at the expense of the Service Provider. To be effective, any such request for performance by the Company or NantWorks must be in writing that specifies in reasonable detail the particular error, defect or breach and be made no more than one month from the date such Service was provided.
Section 5.03. Release and Indemnity . Except as specifically set forth in this Agreement, the Receiving Party hereby releases each Service Provider and each of its Representatives (collectively, the “ Indemnitees ”), and the Receiving Party hereby agrees to indemnify, defend and hold harmless the Indemnitees, from and against any and all claims, demands, complaints, liabilities, losses, damages, costs and expenses (“ Dam