EXHIBIT 10.41
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
CONFIDENTIAL
SERVICES AGREEMENT
This SERVICES AGREEMENT ("Agreement") is made and entered into as of
[*] 2003 ("Effective Date"), by and between E.I. du Pont de Nemours and Company,
having a principal business address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ("DuPont") and LYNX THERAPEUTICS, INC. having a principal business address
at ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ("Lynx"). DuPont and
Lynx may be referred to herein collectively as the "Parties" or individually as
a "Party."
WHEREAS, Lynx has expertise and intellectual property involving the use
of certain molecular biological methods for cloning and identifying the sequence
of nucleic acids, and using such technologies for discovery and characterization
of genes;
WHEREAS, DuPont and its agricultural Affiliates, including Pioneer
Hi-Bred International, Inc. of Des Moines, Iowa ("Pioneer"), have expertise and
interest in discovering, developing, distributing and marketing agricultural
products and processes;
WHEREAS, DuPont and Lynx have previously entered into a Research
Collaboration Agreement dated [*] 1998 and subsequently amended from time to
time by the Parties ("1998 Collaboration Agreement") under which Lynx technology
has been applied to[*] analysis of certain crop plants for the benefit of
DuPont's agricultural research and development programs;
WHEREAS, the Collaboration Agreement is due to expire on [*] 2003; and
WHEREAS, the Parties desire to continue their interaction with one
another under new terms and conditions.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. Definitions:
a. "Affiliate" shall mean any corporation, firm, limited liability
company, partnership, or other entity that directly or indirectly
controls, or is controlled by, or is under common control with a Party
to this Agreement. For the purpose of this definition, control means
ownership, directly or through one or more Affiliates, of fifty percent
(50%) (or such lesser percentage which is the maximum allowed to be
owned by a foreign entity in a particular jurisdiction) or more of the
shares of stock entitled to vote for the election of directors in the
case of a corporation, or fifty percent (50%) (or such lesser
percentage which is the maximum allowed to be owned by a foreign entity
in a particular jurisdiction) or more of the equity interests in the
case of any other type of legal entity, or status as a general partner
in any partnership, or any other arrangement whereby a Party controls
or has the right to control the board of directors or equivalent
governing body of a corporation or other entity. For purposes of this
Agreement, Affiliates shall also include Affiliates of Pioneer.
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CONFIDENTIAL
b. "Results" shall mean all information and materials provided to DuPont
and its Affiliates by Lynx, or developed by Lynx, under this Agreement,
including but not limited to all information and materials, including
datasets, related to the signature tags generated through the use of
Lynx Technology on Samples, as further described in the Work Plan.
c. "Exclusive Plants" shall mean [*].
d. "Analysis" shall mean the application of Lynx Technology to a single
Sample, as further described in the Work Plan.
e. "Intellectual Property" shall mean any right that protects any
invention, improvement or discovery, that is created or discovered
prior to, during, or as a result of the Services hereunder, whether or
not patentable, and shall include, but is not limited to, patent
rights, plant variety protection certificates, patent applications,
copyrights, trademarks, and trade secrets.
f. "Lynx Technology" shall mean any and all technologies owned or
controlled by Lynx, including but not limited to solid phase cloning of
nucleic acids on beads and its applications such as Megaclone and
Massively Parallel Signature Sequencing, ("MPSS").
g. "MPSS [*]" shall mean a form of MPSS whereby each resulting sequence
tag is at least [*] and [*] high quality sequence tags are generated
from a Sample. This and all forms of MPSS that may be used under this
Agreement, including "[*]", "[*]", and the like, are further described
in the Work Plan.
h. "Non-exclusive Plants" shall mean all plant species other than
Exclusive Plants, except for [*].
i. "Sample" shall mean the biological material and information provided by
DuPont under this Agreement for use in an Analysis.
j. "Services" shall mean the application by Lynx of Lynx Technology to
Analyses involving DuPont's Samples, to generate and deliver Results to
DuPont and its Affiliates.
k. "Work Plan" shall mean the detailed description of the Analyses and
Services to be conducted under this Agreement, including specifications
regarding Samples and Results, timing of the Analyses and technical
milestones for the Services and Results, attached as Schedule A herein.
l. "Year" shall mean a single calendar year (January 1 through December
31) during the Term of this Agreement.
2. Scope and Description of Services. Lynx shall conduct the Services for
DuPont, including its Affiliates, for the Exclusive Plants and
Non-exclusive Plants using DuPont's Samples and
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CONFIDENTIAL
according to specifications in the attached Work Plan, or such other
written schedules, work plans or descriptions that the Parties may agree
upon from time to time and shall make part of this Agreement.
Lynx hereby agrees (a) to use Samples solely to perform the Services for
DuPont and meet its obligations under this Agreement, and (b) to send all
residual Samples to DuPont (or another site designated by DuPont) within
[*] calendar days after the date of completion of Services for such
Samples, or at the end of the Term, or at Termination of this Agreement.
In the event that DuPont provides written direction to Lynx to destroy all
residual Samples, Lynx shall do so promptly.
Lynx shall not distribute, release, sell, disclose, or otherwise transfer
the Samples to, or use Samples with or on behalf of, any third party,
except to such affiliates of Lynx as may be necessary for the performance
of the Services. In such event, Lynx shall notify DuPont of such transfer
or disclosure, and such Lynx affiliates shall be bound by the same terms
as contained herein regarding use and treatment of DuPont Samples. DuPont
agrees to pay directly, or to reimburse Lynx for, any shipping, handling
or other like expenses that may be incurred in providing Samples to Lynx
hereunder.
As consistent with the [*] Analyses forecast and planning provisions
described in the Work Plan, Pioneer shall provide its Samples to Lynx
within [*] as necessary for Lynx to conduct the Services in that [*]. Lynx
shall provide, at its own expense, all equipment, materials, information,
know-how, and related services as are necessary to perform the Services
and satisfy its obligations under this Agreement. Lynx shall promptly
deliver all Results to DuPont upon completion of the corresponding
Analyses.
3. Exclusive Period. Lynx shall not perform services utilizing Lynx Technology
to any third party in, or using, the Exclusive Plants ("Exclusive Period")
(a) during the Term of this Agreement; or (b) if this Agreement is
terminated as provided in Section 5 herein, for a period of [*] from the
date of Termination. Lynx may perform services during the Exclusive Period
to third parties in, or using, the Non-exclusive Plants. DuPont shall be
granted non-exclusive access to Services with [*], and any other plant
that may be under exclusive obligations by Lynx to a third party, as soon
as such access becomes available. Nothing in this Section 3 shall restrict
Lynx in any way from being able to perform its obligations under any
agreement in effect prior to the effective date of the 1998 Collaboration
Agreement for the Exclusive Plants, and prior to the Effective Date of
this Services Agreement for the Non-exclusive Plants, whether or not such
performance would otherwise be in violation of this Section 3.
4. Fees and Payments. As further described in the Work Plan, each Year's
Services, including the type(s), number and unit-cost of Analyses for that
Year will be discussed and agreed by the Parties in the [*] of the
previous Year; however, for [*] (Year 1), the Parties hereby agree that
Lynx shall perform [*] MPSS [*] Analyses for DuPont at a cost of [*] per
MPSS Signature Analysis. The unit-cost for MPSS [*] Analyses in Years
subsequent to [*] shall be no more than [*], and shall be no greater than
[*].
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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CONFIDENTIAL
As full consideration for the Services to be conducted and the
Results to be delivered to DuPont hereunder, DuPont shall pay
Lynx the amounts defined in the Payment Schedule below. Beginning
[*], all payments shall be made by DuPont [*] for the design and
performance of the Services for the Analyses forecasted by the
Parties and the work to be conducted [*]. DuPont shall [*] to
make all payments under this Agreement.
Payment Schedule. Subject to Section 5, DuPont shall pay Lynx the
following total amounts for the Services to be performed in the
respective Year under this Agreement:
Year 1 ("Year 1"; [*]): [*] Dollars (USD $[*]), payable by DuPont
as:
(a) [*] Dollars (USD $[*]) due upon [*], for the
Services to be performed by Lynx in Year 1; and
(b) [*] payments of [*] Dollars (USD $[*]) [*]
due on or before the [*]) day of [*] and [*],
respectively, for the Services to be performed by
Lynx in Year 1.
Year 2 ("Year 2"; [*]): [*] Dollars (USD $[*]), payable as [*]
payments of [*] Dollars (USD $[*]) [*] due on or before
the [*] day of [*] and [*], for the Services to be
performed by Lynx in Year 2.
Year 3 ("Year 3"; [*]): [*] Dollars (USD $[*]), payable as [*]
payments of [*] Dollars (USD $[*]) [*] due on or before
the [*] day of [*] and [*], for the Services to be
performed by Lynx in Year 3.
Year 4 ("Year 4"; [*]): [*] Dollars (USD $[*]), payable as [*]
payments of [*] Dollars (USD $[*]) [*]due on or before the
[*] day of [*] and [*], for the Services to be performed
by Lynx in Year 4.
Year 5 ("Year 5"; [*]): [*] Dollars (USD $[*]), payable as [*]
payments of [*] Dollars (USD $[*]) [*] due on or before
the [*] day of [*] and [*], for the Services to be
performed by Lynx in Year 5.
All amounts paid hereunder shall be made to Lynx in US Dollars by bank
wire transfer to:
[*]
5. Additional Technologies. The Parties agree that in any Year, Lynx Technology
other than MPSS [*] shall be made available to DuPont for use under this
Agreement. The Parties shall mutually determine the use and costs of any
such technologies within that Year; however, such costs [*] DuPont for
that Year.
6. Term and Termination. It is intended that the Services shall be provided, and
this Agreement shall extend, for a period of five (5) years from the
Effective Date, from [*], through [*] ("Term"),
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CONFIDENTIAL
unless extended by mutual written consent of the Parties or earlier
terminated ("Termination") through any of the following:
a. By mutual agreement of the Parties in writing at any time;
b. By DuPont after [*] from the Effective Date, upon [*] written notice to
Lynx;
c. By either Party upon [*] written notice, in the event the other Party
commits a material breach of this Agreement, with such breach not
corrected by the breaching Party within the [*] period;
d. By DuPont upon [*] notice in the event that Lynx is unable to perform
its obligations for the Services, to the reasonable satisfaction of
DuPont, according to the milestones and specifications in the Work
Plan; or
e. By either Party at a moment's notice in the event the other Party (i)
becomes insolvent or unable to pay its debts as they mature; (ii) makes
an assignment for the benefit of creditors; (iii) permits or procures
the appointment of a receiver for its assets; (iv) becomes the subject
of any bankruptcy, insolvency, or similar proceeding; or (v) is
acquired by or merged with another Party.
In the event of Termination prior to completion of the Services for
Analyses requested and paid by DuPont in advance of Termination, Lynx
agrees that it will complete all such Services that have been paid for by
DuPont, and deliver to DuPont all Results for Services that have been paid
for, and return or destroy, at DuPont's discretion, all Samples remaining
at Lynx at Termination.
7. Effects of Termination. All payment for completed Services rendered up to and
including the last day of the Term, prior to expiration or Termination,
shall remain due and payable to Lynx, and payment for partially completed
Services at the time of Termination as described in Section 5 herein,
shall be determined in good faith. Notwithstanding anything to the
contrary in this Agreement, DuPont shall have no obligation to pay for any
[*] of a [*] in which either Party terminates this Agreement, beyond the
[*] containing the date of notice of Termination.
Expiration or Termination of this Agreement shall not relieve Lynx of any
obligation with respect to DuPont Confidential Information or Samples
disclosed or Results developed prior to such expiration or Termination and
shall not modify DuPont's ownership or use rights in DuPont Confidential
Information, Samples or Results.
In the event of [*], DuPont and its Affiliates have the right, at their
sole option, to [*], the terms and conditions of such to be negotiated in
good faith by the Parties at the date of exercise of such right.
8. Relationship of Parties. Both Parties agree that in the performance of this
Agreement, Lynx is an independent contractor and neither Lynx nor any of
its employees or agents will be an agent or employee of DuPont or its
Affiliates or be covered by DuPont's or its Affiliates' Worker's
Compensation Insurance or Unemployment Insurance. Further, neither Lynx
nor any of its
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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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CONFIDENTIAL
employees or agents will be eligible to participate in DuPont's or its
Affiliates' retirement programs or be entitled to any other benefits from
DuPont or its Affiliates.
9. Property and Use Rights.
a. Copyright. DuPont and Lynx agree that any copyrightable work(s)
developed in the performance of Services under this Agreement
constitute work(s) made for hire under the United States Copyright Laws
and that all right, title, and interests therein, including copyright,
shall vest in DuPont. In the event that any such work does not qualify
as a work made for hire under the United States Copyright laws, or for
any other reason does not constitute a work made for hire, Lynx by this
Agreement hereby assigns all right, title, and interest, including
copyright, in said work(s) to DuPont, in perpetuity.
b. Existing technology. Lynx represents and warrants that it either owns
or has the right to use any technology or Intellectual Property used to
carry out the Services under this Agreement, and further represents and
warrants that neither Lynx Intellectual Property nor any existing or
future Lynx contractual obligation outside this Agreement shall prevent
DuPont from using the Results.
c. Results. DuPont, including its Affiliates, shall be the exclusive owner
of all right, title and interest in and to the Samples and Results
resulting from provision of Services under this Agreement. DuPont shall
have exclusive ownership and use rights to all discoveries, inventions
and property, that are not directly related to Lynx Technology, arising
from Results ("Developments"). Lynx shall irrevocably and perpetually
assign, transfer and convey to DuPont all of Lynx's right, title and
interest, if any, in and to all Results produced hereunder and to all
Developments. Further, Lynx shall not disclose, transfer, sell, or use
Results to, or use Results with or on behalf of, any third party.
DuPont shall assume all responsibility for all costs associated with
the application, prosecution, maintenance, defense and enforcement of
patent applications and patents claiming all or a portion of the
Samples and Results.
d. Notwithstanding any other provision of this Agreement, and for the
avoidance of doubt, DuPont and its Affiliates shall have the right to
use and disclose Results, without exception, for any purpose
whatsoever, without further consideration to Lynx.
e. Lynx or its successors of interest shall not assert against DuPont and
its Affiliates, business partners, agents or customers of each, any
patent owned or controlled by Lynx that would prevent DuPont and its
Affiliates, business partners, agents or customers from making, having
made, using and selling products that were developed from Results.
f. No right or license, either expressed or implied, is granted to Lynx
under any material, information, patent, patent application, or
trademark existing now or in the future.
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CONFIDENTIAL
10. Project Champions (PC's). A Project Champion ("PC") shall be designated by
each of the Parties, which shall be [*] representative from each Party,
each of whom shall be experienced in a relevant aspect of the Services
and/or Samples. These representatives are named in the Schedule. The PC's
shall coordinate and manage the aspects of the Services hereunder,
including conducting [*] meetings at mutually convenient times and
locations, to:
a. encourage and facilitate ongoing cooperation and information
exchange between the Parties as necessary for the performance of
each Party's obligations hereunder;
b. plan and agree upon a timetable for the Samples to be submitted and
the Analyses to be conducted in [*];
c. evaluate data and results of work under Section 1 of this Agreement
and to make recommendations to the Parties for changes in thereto,
if necessary, to further the objectives of, and to [*] under, the
Agreement;
The PC's shall have no power to amend this Agreement and shall have only
such powers as are specifically delegated to it hereunder.
11. Indemnification. Each Party agrees to defend, indemnify and hold the other
Party (including its officers, employees and agents) harmless from and
against any and all liability, loss, expense, reasonable attorneys' fees,
or claims for injury or damages arising from the performance of this
Agreement, but only in proportion to and to the extent such liability,
loss, expense, reasonable attorneys' fees, or claims for injury or damages
are caused by or result from the negligent or intentional acts or
omissions of the indemnifying Party, its officers, agents or employees.
12. Disclaimer; Waiver
LYNX MAKES NO REPRESENTATION OR EXPRESS OR IMPLIED WARRANTY THAT THE
RESULTS OBTAINED FROM USE OF THE SAMPLES WILL NOT INFRINGE INTELLECTUAL
PROPERTY RIGHTS OF THIRD PARTIES AND HEREBY DISCLAIMS THE SAME. DuPont
WILL ACCEPT THE RESULTS WITH THE KNOWLEDGE THAT THEY ARE EXPERIMENAL IN
NATURE. BECAUSE THE RESULTS ARE EXPERIMENTAL IN NATURE, THEY ARE BEING
SUPPLIED TO DuPont WITH NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
13. Confidential Information. "Confidential Information" shall mean any and all
information, know-how and data, technical or non-technical, disclosed or
provided by one Party (the "Disclosing Party") to the other Party (the
"Receiving Party") for or about the Services hereunder, whether disclosed
or provided in oral, written, graphic, photographic, electronic, or any
other form. Confidential Information of DuPont shall include Samples. Each
party shall use its best efforts, consistent with its established policies
and procedures, to protect the confidentiality of the other Party's
Confidential Information. . This Agreement applies to all confidential
information (including the terms of this Agreement) except to the extent
that the Confidential Information:
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CONFIDENTIAL
a. Was part of the public domain at the time of disclosure;
b. Became part of the public domain by publication or otherwise, except
by breach of this Agreement;
c. Can be established to have been in the possession of Receiving Party
at the time of disclosure and was not acquired directly or
indirectly from the Disclosing Party under a confidentiality
obligation;
d. Was received from a third party without any restrictions; provided
that the information was not obtained by that third party, directly
or indirectly, in breach of a confidentiality obligation; or
e. Can be established to have been developed by Receiving Party
independently of any disclosure by Disclosing Party.
If a Disclosing Party requests protection to protect its Confidential
Information by means not normally employed by the Receiving Party to
protect its own confidential information, Disclosing Party agrees to
reimburse Receiving Party in full for any costs it may incur in order to
do so, which costs shall be pre-approved by the Disclosing Party. Further,
should the Receiving Party be required by judicial or other governmental
authority to disclose the Disclosing Party's Confidential Information, the
Receiving Party shall immediately inform and cooperate with the Disclosing
Party in responding to such requirement in a manner that maintains the
confidentiality of the information to the maximum extent possible.
Without limiting the foregoing, each Party will take at least those
measures to protect the other Party's Confidential Information that it
takes to protect its own confidential information of a similar nature.
Each Party agrees to immediately notify the other Party should it become
aware of any unauthorized use or disclosure of Confidential Information.
The Receiving Party may disclose the Disclosing Party's Confidential
Information only to the Receiving Party's and its Affiliates' employees,
consultants, or licensees who (a) have a need-to-know in order to perform
or satisfy its obligations under this Agreement and (b) are under
obligation not to disclose or use Confidential Information, except as
otherwise provided in this Agreement.
14. Notice. Any notice required or permitted hereunder shall be sent to the
parties via U.S. Mail, postage prepaid, or by personal service, facsimile
or as may otherwise be permitted by law, at the following addresses:
DuPont: LYNX:
E.I. du Pont de Nemours and Co. Lynx Therapeutics, Inc.
Crop Genetics Research ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Rt. 141 at ▇▇▇▇▇ ▇▇▇▇ Rd. USA
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇
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[*] [*]
Either party may change its address by written notice to the other during
the term. All notices relating to this Agreement shall be in writing and
shall be effective upon receipt.
15. Further Actions. The Parties agree to promptly execute, acknowledge and
deliver such further instruments, and to do all such other acts, as the
Parties agree are necessary or appropriate in order to carry out the
purposes and intent of this Agreement.
16. Governing Law. This Agreement shall be construed in accordance with the laws
of the State of California, without regard to its conflicts of laws
principles.
17. Assignment. This Agreement shall not be assignable or otherwise transferable
by either Party without the consent of the other Party, except that DuPont
may, without such consent, assign this Agreement to any purchaser of all
or substantially all of the assets in the line of business to which this
Agreement pertains, or to any successor corporation that results from
reincorporation, merger or consolidation of such Party with or into such
purchaser or such corporation and DuPont may assign this Agreement to
Affiliates. Upon assignment, the rights and obligations under this
Agreement shall be binding upon and inure to the benefit of said purchaser
or successor in interest.
18. Publicity and Use of Names. Lynx and DuPont shall not to use the other's
name or trademarks in any advertising, publicity, or news release related
to this Agreement and its subject matter without the prior written consent
of the other Party.
19. Integrated Agreement, Amendment. This Agreement contains all the terms
agreed upon by both Parties and may not be amended except in writing and
signed by both Parties. The terms of this Agreement shall govern, in the
case of conflict, over terms contained in the Work Plan or any form
document including, but not limited to, quotes, invoices or proposals. The
1998 Collaboration Agreement is terminated as of the Effective Date of
this instant Agreement, and all work, results, inventions, rights, and
obligations arising under or covered by the 1998 Collaboration Agreement
are hereby governed by the terms and conditions of this instant Agreement.
20. Counterparts. This Agreement may be executed in counterparts and by
facsimile signature, which shall together constitute one and the same
agreement.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives, as of the dates set forth
below.
E.I. DU PONT DE NEMOURS AND COMPANY LYNX THERAPEUTICS, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------ ---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: VP Crop Genetics Research & Development Title: President and CEO
Date: [*] 2003 Taxpayer ID # [*]
-------------
Date: [*] 2003
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SCHEDULE A : Work Plan
Summary and Objective: This Work Plan describes the Samples, Analyses and
Results for the DuPont Services in [*]. The corresponding information for
the Services to be conducted in each subsequent Year during the Term of
the Agreement will be discussed by the Parties by [*] of the previous [*],
and each [*] Services description shall be appended to the Agreement.
1. Samples
The Samples will represent [*].
2. The Project Champions (PCs) will be the following representatives:
For DuPont/Pioneer: [*]
For Lynx: [*]
3. Description of Services
In [*], Lynx will perform [*] MPSS [*] Analyses on DuPont/Pioneer's
Samples. For these MPSS [*] Analyses:
a) Lynx will perform the following quality control analysis on the
DuPont/Pioneer Samples:
[*]
b) MPSS Process Overview:
[*]
c) [*]. Lynx may make [*] technology, [*]
d) Dataset-Information (Results) to be provided to DuPont/Pioneer:
For each [*] Sample provided by DuPont/Pioneer and analyzed by MPSS(TM)
[*] process, Lynx will provide DuPont/Pioneer with the following [*]
[*]
3. [*]
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5. [*] Services
For [*], DuPont/Pioneer and Lynx will meet in the [*] of the previous [*]
to discuss and generate a mutual plan for the subject upcoming [*], and to
generate a corresponding description of the upcoming [*] Services[*]:
[*]
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