Allgemeine Geschäftsbedingungnen der Capsulution Pharma AG

The following terms and conditions ("Capsulution T&Cs") shall apply to research and development services including feasibility studies carried out by Capsulution Pharma AG ("Capsulution") for customer ("Customer"; Capsulution and Customer jointly the "Parties"):

1. Preamble
   1. Capsulution is the owner of a proprietary technology regarding the encapsulation, complexation and formulation of compounds, and related patents, patent applications and proprietary know how ("LBL-Technology").
   2. Capsulution is capable of performing research and development services regarding the formulation of compounds using the LBL-Technology ("Development Services"), the details of which are specified in Capsulution's offer.
   3. Customer engages Capsulution to perform the Development Services in order to evaluate certain formulation technologies for its products ("Purpose").
2. Application of the Capsulution T&Cs
   1. The Capsulution T&Cs shall form an integral part of every offer made by Capsulution with respect to the Development Services. With its order, Customer accepts the Capsulution T&Cs as being exclusively binding.
   2. Should Customer use contradictory, deviating or supplementary terms, their application in relation to Capsulution shall be excluded, unless explicitly agreed otherwise in writing and signed by Capsulution.
3. Conclusion of Contract
   1. Offers by Capsulution and orders by Customer shall only be binding if they are in writing and signed by the respective Party.
   2. A contract shall only be concluded if Capsulution accepts the order of Customer by way of written confirmation.
4. Rights in the LBL-Technology
   Customer acknowledges that Capsulution shall retain all title and interest in the LBL-Technology. Nothing in the Capsulution T&Cs, in Capsulution's offer and/or order confirmation shall be construed as to granting to Customer any right to use the LBL-Technology. Any future license of Customer to use the LBL-Technology, if any, will be subject to a separate agreement between the Parties.
5. Rights in Results
   1. Customer acknowledges that Capsulution shall become the owner of all inventions, improvements, know how and information, whether or not patentable, that are created, developed or otherwise conceived by Capsulution in the course of and/or as a result of the Development Services ("Results").
   2. Capsulution grants to Customer a non-exclusive, non-transferable and non-sublicensable right to use the Results internally for the Purpose and for a period of up to six months after completion of the Development Services only. Any future license of Customer to use the Results, if any, will be subject to a separate agreement between the Parties.
   3. All patentable inventions created jointly by Capsulution and Customer in the course of the Development Services shall be the joint property of Capsulution and Customer each of whom shall have a one-half pro indiviso share ("Joint Patent Rights").  The Parties will decide on a case-by-case basis which Party will have the responsibility for handling the prosecution and maintenance of any Joint Patent Rights. Joint Patent Rights shall be filed in the name of both Parties and each Party shall procure that its respective inventors assign all of their rights and interests to such Joint Patent Rights to both Parties. Unless agreed otherwise, the Parties will equally bear the costs of the Joint Patent Rights.
6. Materials Transfer
   1. Capsulution shall retain all title and interest in and to any compounds, information and documentation ("Materials") which Capsulution may furnish to Customer in the context of the Development Services.
   2. Customer obtains no rights under Capsulution's intellectual property rights and know how regarding the Material, except for the right to perform limited research for the Purpose. Customer undertakes to keep the Materials secure and safe from loss, damage, theft, misuse and unauthorized access. Customer shall use the Materials in compliance with all applicable laws and regulations.
   3. Customer shall inform Capsulution in writing of the studies performed and of all results achieved in using the Material. If the use of Materials by Customer results in an invention or discovery including without limitation new use, improvement or enhancement of the Materials, whether patentable or not, Customer shall promptly disclose such invention to Capsulution and Capsulution shall have sole ownership and title to any such invention.
   4. Upon written request of Capsulution, however, no later than upon completion of the Purpose, Customer shall immediately return to Capsulution all Materials or, at Capsulution's option, destroy all such Materials.
7. Confidentiality
   1. "Capsulution Confidential Information" shall mean and include (i) all know how, data and information, not in the public domain, relating to the LBL-Technology, (ii) the Results, (iii) the Materials and all information relating thereto (iv) all data generated as a result of the use of the Materials, and (v) the business, affairs, research and development activities, results of clinical trials, finances, plans, contractual relationships and operations of Capsulution.
   2. Customer shall maintain all Capsulution Confidential Information in trust and confidence and shall not publish, disseminate or otherwise disclose any Capsulution Confidential Information to any third party without the prior, written consent of Capsulution. Customer may only disclose and disseminate Capsulution Confidential Information to those employees, subcontractors or agents of Customers with a need to know, and only after such employees, subcontractors or agents have been advised of the confidential nature of such information and are bound by an obligation of confidentiality under terms that are no less restrictive than those set forth by the terms of the Capsulution T&Cs.
   3. Notwithstanding the above, disclosure of Capsulution Confidential Information shall not be prohibited if such disclosure: (i) is in response to a valid order of a court or other governmental body; provided, however, that Customer shall first have given written notice to Capsulution and shall have made a reasonable effort to obtain a protective order requiring that the Capsulution Confidential Information so disclosed be used only for the purposes for which the order was issued; or (ii) is otherwise required by law.
   4. Customer's obligations under Sections 7.2 and 7.3 hereof shall not apply to the extent, but only to the extent, that Customer can prove by written evidence that any of the Capsulution Confidential Information:
      1. has passed into the public domain, or becomes generally available to the public through no fault of Customer;
      2. was known to Customer prior to disclosure hereunder by Capsulution; or
      3. was disclosed, revealed or otherwise made available to Customer by a third party that is under no obligation of non-disclosure and/or non-use to Capsulution.
   5. The confidentiality obligation shall run for a period of ten (10) years from the commencement of the Development Services.
   6. If and to the extent Customer furnishes to Capsulution know how, data and information not in the public domain, the confidentiality obligations set forth in Sections 7.2 to 7.6 shall apply respectively for Capsulution.
8. Intellectual Property Rights
   1. Customer shall not file any patent application or other intellectual property right containing any claim the subject matter of which is based upon, or is derived from LBL-Technology, the Results, the Materials, or the Capsulution Confidential Information.
   2. Subject only to any preexisting intellectual property rights of Customer and the confidentiality obligations between the Parties, Capsulution is exclusively entitled to make use of and commercialize the Results and to file for patent application and/or other intellectual property rights. Customer will use its best efforts to support Capsulution in obtaining and maintaining the patents and/or other intellectual property rights.
9. Warranty
   Capsulution makes no representation or warranty and specifically disclaims any guarantee that the Development Services will be successful, in whole or in part, and/or that the Results and/or the Materials will be suitable for Customer's purposes.
10. Liability, Indemnification
    1. The statutory liability of Capsulution is limited as follows: (i) For damages caused by a slightly negligent breach of a material contractual obligation Capsulution shall only be liable up to the amount of the typically foreseeable damage at the time of entering into the contract; (ii) Capsulution shall not be liable for damages caused by a slightly negligent breach of a non-material contractual obligation.
    2. The aforementioned limitation of liability does not apply in the event of a mandatory statutory liability, in particular under the Product Liability Act, for the assumption of a guarantee and for culpably caused personal injuries.
11. Prices, Terms of Payment
    1. The prices to be paid by Customer for the performance of the Development Services by Capsulution are set forth in Capsulution's offer or in Capsulution's order confirmation. All such prices are exclusive statutory VAT.
    2. Unless otherwise agreed, Capsulution's invoices are payable within thirty (30) days of the date of invoice without any deductions.
    3. Customer is only entitled to a set-off of claims if its counterclaim is undisputed or finally adjudicated. Customer is only entitled to a right of retention to the extent its counterclaim is based on the same contract and is undisputed or has been finally adjudicated.
12. General Provisions
    1. If any provision of the Capsulution T&Cs is determined by any court or administrative tribunal of competent jurisdiction to be invalid or unenforceable, the Parties shall negotiate in good faith a replacement provision that is commercially equivalent, to the maximum extent permitted by applicable law, to such invalid or unenforceable provision. The invalidity or unenforceability of any provision of the Capsulution T&Cs shall not affect the validity or enforceability of the remaining other provisions.
    2. Amendments of and supplements to the Capsulution T&Cs and any side agreements must be in writing. The same shall apply to the amendment of this written form requirement.
    3. Events of force majeure, such as Acts of God, war, natural disasters, strikes, actions requested by governmental authorities or lack of transportation facilities, shall release Capsulution for the duration of such event from its obligation to timely perform the Development Services.
    4. The Capsulution T&Cs shall be in all respects personal to each of the Parties hereto and may not be assigned or transferred by either of the Parties in any manner whatsoever without the prior written consent of the other Party.
    5. The Capsulution T&Cs shall be governed by, and interpreted in accordance with the laws of Germany, without reference to conflicts of laws principles.
    6. Exclusive venue for all disputes arising under the contractual relationship shall be Berlin, Germany. Capsulution is entitled, however, to sue Customer at any other court having statutory jurisdiction.