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PATCH DEVICE PARTNER DEVELOPMENT AGREEMENT
THIS PARTNER DEVELOPMENT AGREEMENT (the "Agreement”) is entered into the date shown below ("Effective Date”) between CGX LLC ("CGX”) and the party shown as "Partner” on the Device Use form ("Device Use Form”) attached to this Agreement ("Partner”).
WHEREAS, CGX is designing and developing the Patch system, consisting of a reduced-montage wearable multi-sensor EEG device and associated software ("Equipment”) that CGX wishes to commercialize.
WHEREAS, Partner has specific need for a reduced-montage device, and could use the Equipment to generate data helpful in the commercialization of the Equipment;
AND WHEREAS, Partner and CGX wish to cooperate together to learn more about potential markets and uses of the Equipment and to set forth the terms and conditions under which they will cooperate;
NOW THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, both parties bind themselves and agree as follows:
1. Equipment CGX hereby agrees to provide to Partner the Equipment listed on the Device Use Form upon the terms and conditions shown on the Device Use Form.
2. Ownership The Equipment shall remain the exclusive property of CGX.
3. Expectations This relationship is not exclusive, and either party shall be free to pursue similar relationships and agreements with other parties.
4. Warranty Disclaimer and Liability Limitations THE EQUIPMENT AND ALL RELATED MATERIALS, SOFTWARE, AND SERVICES ARE PROVIDED BY CGX "AS-IS” AND WITH ALL FAULTS ACCEPTED. CGX MAKES NO WARRANTY WHATSOEVER, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. EXCEPT FOR A PARTY'S GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT, BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, AND INFRINGEMENT UPON THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, OR EXEMPLARY DAMAGES OR LOST PROFITS. IN ADDITION, EXCEPT FOR A PARTY'S GROSS NEGLIGENCE AND INTENTIONAL MISCONDUCT, BREACH OF A PARTY'S CONFIDENTIALITY OBLIGATIONS, AND INFRINGEMENT UPON THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR MORE THAN THREE TIMES THE AMOUNTS PAID OR DUE TO BE PAID BY PARTNER TO CGX. THIS PROVISION SHALL BE EFFECTIVE, EVEN IF A PARTY IS AWARE OF THE POSSIBILITY OF THE EXISTENCE OF THE DAMAGES LIMITED BY THIS PARAGRAPH.
5. Intellectual Property Provisions Partner acknowledges that the Equipment and all related software, materials, and services, as well as any and all intellectual property rights related thereto, belong exclusively to CGX. CGX grants no rights in or to any of its intellectual property rights to Partner.
6. Equipment Feedback As partial consideration for the use of the Equipment, Partner agrees to provide feedback on usability, effectiveness, fit, and comfort of the Equipment listed in the Device Use Form (“Partner Data”).
7. Confidentiality The parties agree to the following terms with respect to Confidential Information.
a. "Confidential Information” means (a) any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including, without limitation, methods, budgets, techniques, algorithms, business plans, customer data, customer lists, customer names, designs documents, drawings, engineering information, financial statements, financial analysis, forecasts, formulas, hardware configuration information, knowhow, ideas, inventions, market information, marketing plans, processes, products, product plans, research, specifications, software, source code, trade secrets or any other information, whether or not designated as "confidential,” “proprietary” or other similar designation (collectively, the "Disclosed Materials”) and (b) any information otherwise obtained, directly or indirectly, by a receiving party through inspection, review or analysis of the Disclosed Materials. Confidential Information may also include information of a third party that is in the possession of one of the parties and is disclosed to the other party under this Agreement. Confidential Information shall not, however, include any information that the receiving party can demonstrate by competent evidence: (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party's files and records immediately prior to the time of disclosure; (iv) is obtained by the receiving party from a third party lawfully in possession of such information and without a breach of such third party's obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information, as shown by documents and other evidence in the receiving party's possession.
b. Nonuse and Nondisclosure. Each party agrees not to use any Confidential Information of the other party for any purpose other than the purposes set forth in this Agreement. Each party agrees not to disclose any Confidential Information of the other party, except that, a receiving party may disclose the other party's Confidential Information to those employees of the receiving party who are required to have the information in order to evaluate or engage in discussions concerning the Opportunity and who have been advised of the receiving party's obligations under this Agreement. The failure of any of the receiving party's representatives to comply with the terms and conditions of this Agreement shall be considered a breach of this Agreement by the receiving party. If a receiving party is required by law to make any disclosure that is prohibited or otherwise constrained by this Agreement, the receiving party will provide the disclosing party with prompt written notice of such requirement so that the disclosing party may seek a protective order or other appropriate relief. Subject to the foregoing sentence, such receiving party may furnish that portion (and only that portion) of the Confidential Information that the receiving party is legally compelled or is otherwise legally required to disclose; provided, however, that the receiving party provides such assistance as the disclosing party may reasonably request in obtaining such order or other relief. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects that embody the other party's Confidential Information and that are provided to the party under this Agreement.
c. Maintenance of Confidentiality. Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own confidential information of a similar nature, but in no case less than reasonable care (including, without limitation, all precautions the receiving party employs with respect to its confidential materials). Each party shall ensure that its employees who have access to the other party's Confidential Information have signed a nonuse and nondisclosure agreement in content similar to the provisions of this Agreement or are otherwise legally obligated not to disclose such Confidential Information, prior to any disclosure of Confidential Information to such employees. No party shall make any copies of the other party"s Confidential Information except upon the other party's prior written approval. Any reproduction, whether or not authorized, by the receiving party of any Confidential Information of the disclosing party shall be and remain the property of the disclosing party. Each party shall reproduce the other party"s proprietary rights notices on any such authorized copies, in the same manner in which such notices were set forth in or on the original. A party receiving Confidential Information shall promptly notify the party disclosing such Confidential Information of any use or disclosure of such Confidential Information in violation of this Agreement of which the receiving party becomes aware.
d. Return of Materials. All documents and other tangible objects containing or representing Confidential Information that have been disclosed by either party to the other party, and all copies or extracts thereof that are in the possession of the other party, shall be and remain the property of the disclosing party and shall be promptly returned to the disclosing party upon the disclosing party's written request. Notwithstanding the foregoing, a receiving party may retain in the offices of its legal advisor a single archival copy of any written or photographic Confidential Information provided by the other party under this Agreement, which copy shall only be used by the receiving party and its legal advisors in connection with the review of its obligations under this Agreement.
e. Term. The obligations of each receiving party under this Agreement shall survive until such time as all Confidential Information of the other party disclosed hereunder becomes publicly known through no action or inaction of the receiving party, but in no event more than 5 years after the last disclosure of Confidential Information under this Agreement. It is the disclosing party's policy to protect and maintain the secrecy of its trade secrets. Therefore, notwithstanding the termination of the obligations under this Agreement, the receiving party's obligations hereunder shall survive and continue in effect after termination hereof with respect to any Confidential Information that is a trade secret under applicable law and the disclosing party retains all rights and remedies it may have under applicable trade secrets law arising as a result of the use or disclosure of its trade secrets in violation of this Agreement.
8. Indemnity The parties each agree to defend, indemnify, and hold harmless the other from and against any lawsuit, judgment, settlement, loss, penalty, governmental order, or other damage or liability, including without limitation attorney fees and court costs, arising out of (1) a claim by a third party that the indemnifying party's conduct has breached the intellectual property rights of such third party and (2) a claim by any party that the indemnifying party's conduct is not in compliance with any Applicable Law.
9. Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, and any dispute arising out of or related to this Agreement shall be brought exclusively in the state or federal courts located within the State of California. The parties do hereby submit to the exclusive jurisdiction of such courts.
10. Notice Any notice required or otherwise given pursuant to this Agreement shall be in writing and mailed certified return receipt requested, postage prepaid, or delivered by overnight delivery service to the respective Party addresses stated herein unless otherwise specified in writing by either party.
11. Waiver The failure of either party to enforce any provisions of this Agreement shall not be deemed a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this Agreement. The acceptance of payment by CGX does not waive CGX"s right to enforce any provisions of this Agreement.
12. Entire Agreement This Agreement constitutes the entire agreement between the parties and supersedes any prior understanding or representation of any kind preceding the date of this Agreement. This Agreement may be modified only in writing and must be signed by both CGX and Partner. To the extent the provisions of the Device Use Form conflict with the provisions of this Agreement, the conflicting terms of the Device Use Form will prevail. IN WITNESS THEREOF the parties hereto have caused this Agreement to be duly executed on their behalf by a duly authorized representative as of the date first set forth above.
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