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EXHIBIT 10.27
LIFEARRAY(TM) SOFTWARE LICENSE AGREEMENT
Between
diaDexus
and
INCYTE PHARMACEUTICALS, INC.
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This agreement ("Agreement") is entered into as of this ____ day of
________, 1999 (the "Effective Date") by and between diaDexus, a Delaware
Limited Liability Company, having its principle place of business at ▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("CUSTOMER") and Incyte Pharmaceuticals
Inc., a Delaware corporation having its principal place of business at ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Incyte").
WHEREAS, Incyte has developed and owns certain computer software for use
in the processing and analysis of microarray expression data either generated
from Incyte microarrays or from other sources (third party expression data); and
WHEREAS, CUSTOMER desires to implement selected Incyte database and
software products within a bioinformatics environment at CUSTOMER and CUSTOMER
desires to have Incyte assist with such implementation described herein.
NOW, THEREFORE, Incyte and CUSTOMER hereby agree as follows:
1.0 DEFINITIONS.
When used in this Agreement, the following definitions shall apply:
1.1 "Access Term": means the period commencing on the Acceptance Date and
extending up until twelve (12) months (unless terminated earlier as
provided for in Article 7 (Term; Termination), during which CUSTOMER and
CUSTOMER Affiliates shall have access to the LifeArray(TM) Product(s)
pursuant to the terms and conditions of this Agreement. The Access Term may
be extended for an one (1) additional twelve (12) month period upon written
request made by CUSTOMER to Incyte to extend the Access Term. Such request
must be made prior to the expiration of the first twelve (12) month period
of the Access Term and will be under financial terms as found in Section
5.1.1 (Access Term Fees).
1.2 "Acceptance Date": means the date on which diaDexus provides written
confirmation of acceptance of installation of the LifeArray(TM) Product.
1.3 "CUSTOMER Affiliate(s)": means any corporation, firm, partnership, or
other legal entity, which directly or indirectly, is owned or under common
ownership by CUSTOMER to the extent of which the common stock or other
equity ownership thereof is One Hundred percent (100%) owned by CUSTOMER;
provided, however, that where local laws require a minimum percentage of
local ownership, the status of CUSTOMER Affiliate will be established if
CUSTOMER directly or indirectly owns or controls the maximum ownership
percentage that may, under such local laws, be owned or controlled by
foreign interests.
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1.4 "Incyte Technology": means proprietary know-how and patent rights with
respect to the LifeArray(TM) Product(s) which is owned or controlled by Incyte
and which Incyte has an unrestricted right to license without obligation of
payment to a third party.
1.5 "Installation Site(s)": means the research facilities of CUSTOMER located
at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, that will have access to the
LifeArray(TM) Product(s) and any alternate or additional sites requested by
CUSTOMER in writing to Incyte during the Access Term in accordance with Section
1.2 (CUSTOMER Affiliate) above and 4.1 (License Grant) below, subject to
appropriate provisions of this Agreement, including Articles 4.0 (Intellectual
Property and License Grants), 5 (Schedule of Payments) and 7.0 (Term;
Termination).
1.6 "Integration Program" means the Integration Project(s) (defined below) and
the Integration Specification (defined below) related thereto, that shall be
undertaken in accordance with this Agreement.
1.7 "Integration Project" means the scope of the Integration Specification for
each individual project(s), as reasonably agreed to and undertaken by CUSTOMER
and Incyte, with respect to the implementation and integration of the LifeArray
Product(s), including such modifications as may be mutually agreed in writing
between the parties, all of which shall be deemed incorporated into this
Agreement as if set forth herein. The Integration Specifications for such
Integration Project(s) shall include:
(a) mutually agreed written statements of work with specific requirements,
project report provisions, timetables for development and implementation
and acceptance criteria; and
(b) mutually agreed project cost and payment schedules in accordance with
the provisions of Section 5.3 (Consulting Services);
(c) mutually agreed maintenance and support services; and
(d) mutually agreed to exclusivity provisions with regard to items that
are truly unique and specific to CUSTOMER and not generic in nature.
1.8 "Integration Specifications" means the systems integration specifications
developed by Incyte in cooperation with CUSTOMER, and as the same may be
hereafter supplemented or modified in writing by the parties, on which Incyte
will rely in modifying, adapting or otherwise altering the LifeArray(TM)
Product(s) for installation and implementation at the Installation Site(s).
1.9 "LifeArray(TM) Product(s)": means Incyte's set of proprietary software
modules providing analysis and data-management tools for handling complex array
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information from multiple sources, together with related software and
documentation including all additions, enhancements and modifications by
Incyte, all of which are made available by Incyte in object code format on a
non-exclusive basis to CUSTOMER and CUSTOMER Affiliates.
1.10 "Party": means CUSTOMER or Incyte and, when used in the plural, shall mean
CUSTOMER and Incyte.
1.11 "Research Field of Use": means all research and development applications
of the LifeArray(TM) Product(s) that are internal to CUSTOMER and CUSTOMER
Affiliates in compliance with Section 3.3.5 (Modifications) and/or Article 7.0
(Term; Termination). The Research Field of Use does not include the right to
sell the LifeArray(TM) Product(s), including Modifications, or the sale or
license of data analysis services, or the use of LifeArray(TM) Product(s) or
Modifications to develop commercial database products or services.
1.12 "Software": as generally used herein, means software in various stages of
development or any product thereof and includes without limitation the literal
elements of a program (source code, object code, manuals, instructions or
otherwise), its audiovisual components (menus, screens, structure and
organization), any human or machine readable form of the program, and any
writing or medium in which the program or information therein is stored,
written or described, including without limitation, diagrams, flow charts,
designs, drawings, specifications, models, data, development tools and
routines, bug reports and customer information.
1.13 "Other Definitions": The following terms shall have the meanings assigned
in the corresponding sections or subsections below:
"Confidential Information" 6.1
"Escrow Agent" 7.6
"Escrow Agreement" 7.6
"Escrowed Source Code" 7.6
"Integration Team" 2.2.1
"Modifications" 3.3.5
"Notice" 10.8
1.14 "Year 2000 Compliant": means:
(a) the product performs in a consistent manner and functions without
interruptions regardless of the date in time on which the product is
delivered, used and/or further distributed, whether before, on or after
January 1, 2000 and whether or not the dates are affected by leap years;
(b) the product, if computerized, accepts, calculates, compares, sorts,
extracts, sequences and otherwise processes date inputs and date values,
and returns and
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displays date values and performs, in a consistent manner regardless of the
dates used, whether before, on or after January 1, 2000;
(c) the product, if computerized, accepts and responds to two-digit
year-date input in a manner that resolves any ambiguities as to the
century in a defined, predetermined and appropriate manner;
(d) the product, if computerized, stores and displays data information in
ways that are unambiguous as to the determination of the century;
(e) the product will be delivered and the services will be scheduled and
performed in a timely manner without interruptions caused by the date in
time on which the product is ordered or is actually delivered or the
services are scheduled or actually performed under normal procedures in
the ordinary course, whether before, on or after January 1, 2000;
(f) Incyte is now planning and taking action to implement, and will
continue to implement, in a commercially reasonable manner, any and all
measures to continue to perform this Agreement according to its terms and
otherwise to meet the needs of its relationship with CUSTOMER, with
respect to Year 2000 Compliance of the LifeArray(TM) Product(s), including
without limitation those required for due performance and continued
performance without impairment due to interruption and/or disruption of
estimates, performance schedules, orders, confirmations, manufacture and
delivery of conforming products and/or services in a timely and efficient
manner to fulfill CUSTOMER's requirements and to enable CUSTOMER to deal
with its own business and its clients' needs and contract requirements, as
well as to invoice CUSTOMER and credit its payments in a timely and
accurate manner;
(g) Incyte will promptly provide to CUSTOMER, in response to CUSTOMER's
periodic requests for updates, information concerning Incyte's Year 2000
compliance program to the extent it affects performance of this Agreement
itself according to the terms hereof or affects the performance of the
product and/or services that are the subject matter of this Agreement and
might impair its supplier-customer relationship with CUSTOMER.
(h) CUSTOMER may cancel, refuse to order and/or take delivery, reject
and/or return non-complying goods and/or services and receive a full
refund or credit against invoices, as applicable.
(i) Incyte agrees to hold CUSTOMER harmless against any liability,
judgment, damages, loss or expense, including without limitation
reasonable counsel fees, resulting from Incyte's failure to meet the
requirements of any of the foregoing provisions.
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(j) In no event shall delays and failures caused by failures of Incyte,
its products or services to be fully Year 2000 Compliant constitute a force
majeure event or excuse Incyte from timely performance of its obligations.
2.0 INSTALLATION; SYSTEMS INTEGRATION
2.1 Installation. At a date and time mutually acceptable to the Parties, Incyte
agrees to provide CUSTOMER with on-site access to LifeArray[TM] Product(s)
at the Installation Site.
2.2 Integration Program. As required or desired, Incyte and CUSTOMER shall
reasonably agree upon the scope of the Integration Program to be undertaken
by Incyte with respect to the implementation and integration of the
LifeArray[TM] Product(s).
2.2.1 Integration Team. CUSTOMER and Incyte shall each designate
respective employees to work on the development of the Integration
Specifications and the Integration Project(s) (the "Integration Team").
Furthermore:
(a) CUSTOMER and Incyte shall cause their respective Integration
Teams to (i) consult with one another regularly by telephone,
electronic mail and any other reasonable remote means, and (ii)
make themselves available at mutually convenient times for in
person consultation, as reasonably required by the needs of the
project. In conjunction with the Integration Project(s), Incyte
and CUSTOMER may utilize those employees, contractors,
consultants and affiliates as deemed reasonably appropriate,
provided that each is made aware of and subject to the terms and
conditions of this Agreement. Except as agreed in Section 5.3
(Consulting Services), Incyte and CUSTOMER shall each be
responsible for its own out-of-pocket expenses incurred by it or
its respective personnel in connection with the Integration
Project(s).
(b) The parties acknowledge that the success of this
collaboration depends upon, among other things, full, ▇▇▇▇▇ and
timely disclosures and communications between the parties
regarding their respective efforts. Incyte and CUSTOMER will each
respectively use reasonable efforts to provide the other in a
prompt, clear and concise manner, all information that each Party
generates or develops pursuant to its obligations hereunder.
(c) In the event the joint Integration Team is unable to reach
agreement upon any decision within its area of responsibility,
Incyte and CUSTOMER agree that such decision shall be presented
to the president (or chief operating officer
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(COO) if there is no president) of each company for consideration
and resolution. If an issue remains unresolved after
consideration by the president (or COO if no president) of each
company, such issue shall be resolved in the manner described in
Section 7.5 (Dispute Resolution Procedures).
2.2.2 Management of Changes.
(a) CUSTOMER acknowledges that Incyte's performance is dependent
in part on CUSTOMER's actions. Accordingly, CUSTOMER will use
reasonable efforts to provide Incyte with such cooperation and
assistance of CUSTOMER as Incyte may reasonably request to
facilitate implementation of the Integration Project(s).
(b) If a Party proposes a change to previously agreed
Integration Specifications with respect to a given Integration
Project, the other Party will reasonably consider the proposed
change. However, any change authorization must be in writing and
must be signed by both parties to authorize implementation of any
such changes. In addition, if any such change would substantially
affect the economics of Incyte's performance, then: i) any dates
or time periods relevant to performance by Incyte hereunder,
shall be appropriately and equitably extended to account for any
delays resulting from such changes, and ii) the parties will
negotiate in good faith with respect to appropriate compensation
to Incyte in accordance with a reasonable proposal from Incyte
with respect to such changes.
2.2.3 Acceptance. After the Integration Project(s) have been received,
examined and/or tested by CUSTOMER and demonstrated to perform in
accordance with mutually agreed acceptance criteria, then CUSTOMER will
provide prompt written confirmation of acceptance of the Integration
Project(s) to Incyte and forwards to Incyte any payments due in accordance
with Article 5.0 (Schedule of Payments).
2.3 Support Services. During the term of the Access Term and subject to the
payment terms of Section 5.1 (License Payment) and 5.2 (License Fees), Incyte
agrees to provide support services to CUSTOMER and CUSTOMER Affiliates with
respect to LifeArray(TM) Product(s) as described below at no additional cost,
Incyte agrees to provide CUSTOMER with a full set of documentation for the
LifeArray(TM) Product(s), including a complete description of LifeArray(TM)
Product(s) logic and program schematics;
(a) at no additional cost, with respect to support of the LifeArray(TM)
Product(s) as installed, Incyte agrees to furnish reasonable
assistance to CUSTOMER and CUSTOMER Affiliates in the installation and
achievement of routine operation of the LifeArray(TM) Product(s) (and
updates and modifications thereof) at the Installation Site(s),
including reasonable, support, problem determination and
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resolution service by telephone and electronic mail during each
business day of the calendar year;
(b) at not additional cost, Incyte will reasonably maintain and support
the LifeArray(TM) Product(s) with respect to current releases of
applicable operating systems, database management systems, and any
applicable third party current vendor supported software programs,
including without limitation the software programs referenced in
Section 4.3 (Third Party Intellectual Property) below.
(c) at no additional cost, Incyte shall also furnish updates and current
releases of the LifeArray(TM) Product(s), and maintenance and support
as contemplated herein with respect to such updates and new releases.
(d) at CUSTOMER'S written request, maintenance and support of the
LifeArray(TM) Product(s) as modified under the Integration Program,
may be provided to CUSTOMER subject to additional terms, conditions
and fees as reasonably negotiated between the parties and based on
the modifications, adaptations or other altering of the LifeArray(TM)
Product(s) consistent with the Integration Programs;
2.4 Training.
(a) With respect to operation of the LifeArray(TM) Product(s), after the
Effective Date and at a time mutually agreeable to Incyte and CUSTOMER,
Incyte agrees to provide CUSTOMER with two (2) days of training at Incyte's
Palo Alto, California location.
(b) CUSTOMER may designate no more than eight (8) employees, or such
other number as mutually agreed, from each Installation Site to attend
training at Incyte with regard to 2.4(a) above.
(c) Each Party shall bear the out-of-pocket expenses of its employees.
(d) Additional training by Incyte for CUSTOMER may be mutually agreed to
by the parties. Any additional training shall be at times mutually
agreeable to the parties and at an additional cost to CUSTOMER (the cost
to be mutually agreed to between the Parties prior to such training).
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3.0 ACCESS RIGHTS, SOFTWARE USE RESTRICTIONS
AND SECURITY REQUIREMENTS
3.1 Access Rights.
(a) Incyte hereby grants to CUSTOMER and CUSTOMER Affiliates
non-exclusive access and the right to use the Life Array(TM)
Product(s) in the Research Field of Use solely for CUSTOMER's and
CUSTOMER Affiliate's own internal use, by authorized personnel of
CUSTOMER and CUSTOMER Affiliates, in secure work facilities at the
Installation Site(s) at CUSTOMERS and CUSTOMER Affiliate(s) locations
and in accordance with the terms and conditions of this Agreement.
CUSTOMER and CUSTOMER Affiliates shall have no access to or right to
use the LifeArray(TM) Product(s) except at an Installation Site under
the terms and conditions of this Agreement.
During the Access Term, CUSTOMER shall have the right, at its
discretion to: (i) designate one or more additional Installation
Site(s) for the LifeArray(TM) Product(s) subject to the payment terms
set forth in Sections 5.1 (License Payments) and 5.2 (License Fees);
and/or (ii) relocate the Installation Site(s) from time to time
without additional fees or costs (except as set forth in Section 5.3
(Consulting Services); provided that any such sites are in compliance
with appropriate provisions of this Agreement, including Articles 3.0
(Software Use Restrictions and Security Requirements) and 6.0
(Confidentiality). Any additional implementation or support services
provided by Incyte with respect to the LifeArray(TM) Product(s) at
such site(s) shall be in manner consistent with and under terms
consistent with those of comparable users of the LifeArray(TM)
Product(s).
3.2 Ownership. CUSTOMER hereby acknowledges that (i) Incyte has expended and
will expend significant resources and efforts to develop the LifeArray(TM)
Product(s); (ii) the LifeArray(TM) Product(s) represent highly valuable
and confidential assets of Incyte; (iii) Incyte is willing to grant
CUSTOMER and CUSTOMER Affiliates access to the LifeArray(TM) Product(s) in
reliance that CUSTOMER and CUSTOMER Affiliates shall protect the Software
from unauthorized disclosure and use; and (iv) except as otherwise
expressly provided under this Agreement, the LifeArray(TM) Product(s) at
all times during the term of this Agreement shall remain the sole and
exclusive property of Incyte.
3.3. Restrictions on Use of Software.
3.3.1 Designated CPUs. The LifeArray(TM) Product(s) shall only be installed
at the Installation Site(s) on a single hard disk(s) or the hard disk(s)
of a designated file server whereby multiple workstation(s) do not contain
copy(s) of LifeArray(TM) Product(s) installed, other than ephemerally, on
the workstation hard disk. A back-up
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computer or file server may be designated such that a copy of the LifeArray(TM)
Product(s) may be installed on this computer in the event that the primary
computer fails. Under no circumstances will the LifeArray(TM) Product(s) be
installed on any designated CPU(s) which would allow unauthorized network
access (e.g. third party access via the Internet). All other access to
LifeArray(TM) Product(s), including access by facilities of CUSTOMER or
CUSTOMER Affiliates other than those designated as Installation Sites is
prohibited.
3.3.2 Disclosure. Except as permitted under subsection 3.3.5. (Modifications),
CUSTOMER and CUSTOMER Affiliates shall not disclose Software, related source
code or Confidential Information of Incyte or transfer the LifeArray(TM)
Product(s), or any portion thereof, to any third party.
3.3.3 No Transfer. Except as provided under Section 3.3.5 (Modifications) or as
otherwise agreed by Incyte in writing, CUSTOMER and CUSTOMER Affiliates shall
not sublicense, sell, assign, convey, transfer, publish, display, copy,
duplicate, adapt, merge, embed, disassemble, decompile, translate, reverse
engineer or otherwise modify any portion of the LifeArray(TM) Product(s) (by any
means whatsoever whether now known or hereafter invented) of the LifeArray(TM)
Product(s). Furthermore, CUSTOMER and CUSTOMER Affiliates shall not remove any
product identification, trademark or other notices.
3.3.4 Loss or Theft. CUSTOMER promptly shall notify Incyte of any loss, theft
or unauthorized disclosure or use of LifeArray(TM) Product(s) which comes to
CUSTOMER's attention.
3.3.5 Modifications. Solely for purposes of system integration and/or to
facilitate data analysis and relational analysis, CUSTOMER, CUSTOMER Affiliates,
or consultants may, as set forth below, adapt, reproduce, and modify such
LifeArray(TM) Product(s) and prepare derivative works based on the LifeArray(TM)
Product(s) and may incorporate information that is proprietary to CUSTOMER and
CUSTOMER Affiliates (all the foregoing collectively, "Modifications"). All
Modifications shall only be used solely for CUSTOMER's and CUSTOMER Affiliates'
own internal use by authorized personnel of CUSTOMER and CUSTOMER Affiliates, at
the Installation Site(s) in secure work facilities of CUSTOMER and CUSTOMER
Affiliates pursuant to the terms and conditions of this Agreement. All
Modifications shall be kept in confidence in the same manner as, and shall be
subject to, the same terms and conditions that apply to the LifeArray(TM)
Product(S) licensed to CUSTOMER and CUSTOMER Affiliates herein. Except as
otherwise agreed in writing, Incyte shall have no obligation to support any such
Modifications, nor any ownership interest therein. CUSTOMER and CUSTOMER
Affiliates shall not acquire by reason of this Section 3.3.5 any ownership of
LifeArray(TM) Product(s), any portions thereof or any title or rights therein.
It is further agreed that to the extent CUSTOMER and CUSTOMER Affiliates utilize
consultants for systems integration or data analysis services: i) each such
consultant
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shall have executed a written agreement which includes customary provisions
regarding non-use and non-disclosure of confidential information,
including, in specific, Incyte Confidential Information (such agreement or
a substantially comparable example thereof having been previously approved
by Incyte in writing), and ii) such third party shall have no ownership
interest in, nor, except any right to use, sublicense, sell, assign,
convey, transfer, disclose, publish, display, copy, duplicate, adapt,
merge, embed, disassemble, decompile, translate, reverse engineer or
otherwise modify any portion of the LifeArray(TM) Product(s) or
Modifications, to or for any other than CUSTOMER or CUSTOMER Affiliates.
4.0 INTELLECTUAL PROPERTY AND LICENSE GRANTS.
4.1 License Grant. Incyte hereby grants to CUSTOMER and CUSTOMER Affiliates a
worldwide, non-exclusive license under Incyte Technology to access and use
the LifeArray(TM) Product(s) in the Research Field of Use. Except as
provided below, such license shall be without any right of CUSTOMER and
CUSTOMER Affiliates to grant sublicenses thereunder to market, license,
sublicense, manufacture, sell or distribute any LifeArray(TM) Product(s)
or Modifications thereof, or data analysis services, for the benefit of a
third party.
4.2 Ownership of LifeArray(TM) Product(s). Subject to the grant of license
rights to CUSTOMER and CUSTOMER Affiliates hereunder, the LifeArray(TM)
Product(s), including fully-documented source code and object code
resulting from the Integration Project(s), created in the course of this
Agreement, and all proprietary rights, title, and other intellectual
property rights, including, without limitation, patent, copyright,
trademark, service ▇▇▇▇, trade secret and trade name rights, in and to
such LifeArray(TM) Product(s) are hereby owned by Incyte. Except as
expressly provided herein, Incyte shall have the sole right to use, copy,
modify, adapt, create derivative works from, distribute and have
distributed, sell, sublicense, license or otherwise dispose of such
LifeArray(TM) Product(s) and/or any product(s) incorporating such
LifeArray(TM) Product(s).
4.3 Third Party Intellectual Property. Subject to the warranties made in
Article 8.0 (Representations and Warranties), the parties acknowledge
that, in order to access or utilize LifeArray(TM) Product(s), they may
require licenses under third party patent rights or such other third party
intellectual property rights, (including by way of example a Silicon
Graphics of Oracle license), and it is hereby agreed that it shall be each
Party's responsibility to satisfy itself as to the need for such licenses
and, if necessary, to obtain such licenses, at such Party's expense.
Incyte has delivered a true and complete list of third party software
programs which are required for CUSTOMER to access and utilize the
LifeArray(TM) Product(s).
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4.4 CUSTOMER Proprietary Data. Any proprietary data of CUSTOMER added to
LifeArray(R) Products (i.e. non-Incyte data) by CUSTOMER, CUSTOMER
Affiliate or consultant(s) (as provided for in Section 3.3.5
(Modifications), above) shall remain the sole property of CUSTOMER and
Incyte shall have no ownership rights to data.
5.0 SCHEDULE OF PAYMENTS.
5.1 License Fees: During the Access Term and for each additional Installation
Site, yearly license fees with respect to the LifeArray(TM) Product(s)
shall be payable by CUSTOMER on the following schedule:
5.1.1 Access Term Fees. During the Access Term, CUSTOMER shall pay to
Incyte yearly license fees of seventy-five thousand dollars (US$75,000) per
year. The first payment of seventy five thousand dollars (US$75,000) shall
be due and payable within thirty (30) days of the Effective Date. In the
event CUSTOMER has extended the Access Term, the second payment of seventy
five thousand dollars (US$75,000) shall be due and payable on or before the
first anniversary of the Effective Date.
5.1.2 Additional Installation Site. With respect to the designation of an
additional Installation Site, after payment for that additional
Installation Site of the License Payment specified in Section 5.1 (License
Payment), the corresponding yearly Access Term Fees for such additional
Installation Site shall be prorated for the remainder of such year of the
Access Term.
5.2 Consulting Services. At CUSTOMER'S written request, the following
consulting services may be provided to CUSTOMER by Incyte at the additional
fees provided for below:
(a) With respect to consulting services in excess of the time
necessary for installation of LifeArray(TM) Product(s) or the
Integration Project(s) as set forth in Sections 2.1 (Installation) and
2.2 (Integration Program), CUSTOMER shall pay Incyte on a time and
materials basis at a rate of $2,000 per-person-day plus expenses.
(b) Payments shall be due in arrears within thirty (30) days receipt
of invoice from Incyte in reasonably detailed form. All other expenses
incurred by CUSTOMER or Incyte or their respective personnel in
connection with Integration Project shall be the responsibility of
each respective Party.
(c) Incyte agrees to keep records of its costs associated with the
consulting services performed by Incyte in sufficient detail to permit
CUSTOMER to confirm the accuracy of Incyte's time and materials
calculations. At the request and the expense of CUSTOMER (but no more
than once a year), upon at least five (5) business days prior written
notice to Incyte, Incyte shall permit a
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nationally recognized, independent, certified public accountant
appointed by CUSTOMER and reasonably acceptable to Incyte, to examine
such records solely to the extent necessary to verify the amount of
payments due to Incyte hereunder, provided that such accountant has
entered into a confidentiality agreement with Incyte substantially
similar to the confidentiality provisions of this agreement, limiting
the use and disclosure of such information to purposes germane hereto.
Such accountant shall solely disclose to CUSTOMER whether or not an
accounting discrepancy was found and the extent of such discrepancy,
however, the results of any such examination shall be made available to
both parties. If the examination reveals an overpayment by CUSTOMER to
Incyte of project costs, then the amount of such overpayment will be
refunded to CUSTOMER by Incyte. If the examination reveals an
underpayment by CUSTOMER to Incyte of project costs, then the amount of
such underpayment shall be paid by CUSTOMER to Incyte. Any refund or
payment under this Section 5.3(c), shall be made to the appropriate
Party within thirty (30) days of the date CUSTOMER delivers to Incyte
such accountant's written report.
5.3 Payments and Taxes.
(a) Unless otherwise provided for in this Agreement, CUSTOMER agrees to
submit payments for services and materials provided by Incyte within
thirty (30) days from receipt of an invoice from Incyte. All payments
shall be made by check or bank wire transfer in immediately available
funds to such account as Incyte shall designate before such payment is
due, free and clear of any taxes, duties, levies, fees or charges.
CUSTOMER shall pay and indemnify Incyte against any sales, use, value
added/ad valorum, surtax and personal property taxes, customs, duties,
registration fees and the like, including penalties and interest, levied
by any governmental authority, (other than taxes based upon Incyte's net
income) arising out of this Agreement and the transactions contemplated
herein, including the costs and responsibility of any withholding taxes
as below.
(b) CUSTOMER shall make any withholding payments due on behalf of Incyte
and shall promptly provide Incyte with written documentation of any such
payment made on behalf of Incyte. Such written documentation shall be
sufficiently detailed so as to satisfy any requirements of the United
States Internal Revenue Service, or foreign government, as applicable,
related to an application by Incyte for a foreign tax credit or refund
for such payment to the extent applicable. However, in the case where
Incyte can apply for and actually receives a credit or refund against
its tax liability for the withholding payments due on behalf of Incyte
and made by CUSTOMER, then such credited or refunded withholding payment
will be reimbursed by Incyte to CUSTOMER. The parties agree to take
reasonable and lawful steps to minimize the amount of tax to which
payments to Incyte are subject.
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(c) All payments due Incyte under this Agreement may be
creditable against any balance of the Five Million Dollars
(US$5,000,000) due Incyte for sequencing and other services.
5.4 Late Payments. Any amounts payable hereunder that are not paid when due,
shall bear interest to the extent permitted by applicable law, at two
percentage points over the prime rate of interest as reported by Bank
of America NT&SA in San Francisco, California, from time to time,
calculated on the number of days such payment is delinquent.
5.5 Shipping. CUSTOMER shall pay, for its own account, any shipping,
freight, mailing expenses and the like payable to third parties not
affiliated with Incyte and arising out of obtaining tangible materials
under this Agreement and the transactions contemplated herein.
5.6 Miscellaneous Payments. Unless otherwise provided in this Agreement,
neither Party shall provide services or information to the other on a
chargeable basis without the prior written agreement of the other
Party, with regard to such services or information as well as to the
charges and payment schedules therefor.
6.0 CONFIDENTIALITY
6.1 Confidentiality. The Parties acknowledge that during the course of this
Agreement they will each receive from the other information which is
proprietary, confidential and of commercial value to the disclosing
Party. For purposes of this Agreement, "Confidential Information" shall
mean scientific, technical or business information belonging to the
disclosing Party, which the disclosing Party marks "Confidential" if
disclosed in writing, or which the disclosing Party identifies as
confidential at the time of any visual or oral disclosure and promptly
confirms in writing to have been confidential. Except to the extent
expressly authorized by this Agreement, the Parties agree that, for the
Access Term and for five (5) years thereafter, the receiving Party shall
keep confidential and shall not publish or otherwise disclose and shall
not use for any purpose (except those expressly permitted under this
Agreement) any Confidential Information furnished to it by the other
Party pursuant to this Agreement, and regardless of the medium on which
it is provided, including know-how, except to the extent that it can be
established by the receiving Party by competent proof that such
information:
(a) was already known to the receiving Party, other than under
an obligation of confidentiality, at the time of disclosure by
the other Party;
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(b) was generally known to the public or otherwise part of the public
domain at the time of its disclosure to the receiving Party;
(c) became generally available to the public or otherwise part of the
public domain after its disclosure other than through any act or
omission of the receiving Party in breach of this Agreement;
(d) was subsequently lawfully disclosed to the receiving Party by a
third party having no confidentiality obligations to the disclosing
Party with respect thereto;
(e) was independently discovered or developed by the receiving Party
without the use of the other Party's Confidential Information, and
such independent discovery or development can be documented by the
receiving Party's tangible records created at the time of such
independent development.
6.2 Circumstances for Limited Disclosure. Each Party may disclose the other's
information to the extent such disclosure is reasonably necessary in (i)
filing, prosecuting patent applications and maintaining patents, or (ii)
prosecuting or defending litigation or (iii) complying with applicable
governmental regulations, including laws and regulations governing the
testing, approval, manufacture and marketing of foods, drugs, biologicals
and medical devices; provided, however, that if a Party is required to
make any disclosure of the other Party's secret or confidential
information it will give reasonable advance Notice to the other Party of
such disclosure requirement and will use its reasonable efforts to secure
confidential treatment of such information required to be disclosed.
6.3 Other Disclosures. Notwithstanding anything to the contrary set forth
herein, this Article 6.0 (Confidentiality) shall not be construed to allow
CUSTOMER, CUSTOMER Affiliates, sublicensees, collaborators or consultants
to publish or disclose the LifeArray(TM) Product(s), including
Modifications, or substantial portions thereof, or any Incyte software or
hardware configurations, at any time without the express written consent
of Incyte.
7.0 TERM; TERMINATION.
7.1 Term.
7.1.1 Termination. This Agreement shall commence as of the Effective Date
and shall terminate as provided herein.
7.1.2 Term. Unless sooner terminated pursuant to the terms hereof, the
terms of this Agreement shall be the term of the Access Term.
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7.2 Expiration of the Access Term. Upon expiration of the Access Term,
CUSTOMER, at its election:
(a) shall have the option of extending the term of its license to
the LifeArray(TM) Product(s) and the maintenance and support
services under Section 2.3 (Support Services), under terms
demonstrably consistent with and comparable to those secured by
comparable users of the LifeArray(TM) Product(s) at the time of
extension; or
(b) shall discontinue use of LifeArray(TM) Products(s), and
remove such LifeArray(TM) Products(s), including Modifications,
from each Installation Site(s) and promptly return to Incyte, or
upon Incyte's written instruction destroy, all portions and copies
of such LifeArray(TM) Products(s), including Modifications.
Thereafter, CUSTOMER shall have no right to the LifeArray(TM)
Products(s) or Modifications, including any right to use, copy,
modify, adapt, create derivative works with respect to same.
7.3 Breach.
(a) Failure by either Party to comply with any of the material
obligations contained in this Agreement shall entitle the other
Party to give to the Party in default written notice specifying the
nature of the default and requiring it to make good such default.
If such default is not cured within ninety (90) days after the
receipt of such written notice, the notifying Party shall be
entitled, without prejudice to any of its other rights conferred on
it by this Agreement and in addition to any other remedies
available to it by law or in equity, to immediately terminate this
Agreement by giving written notice to the other Party. The right of
a Party to terminate this Agreement, as hereinafter provided, shall
not be affected in any way by its waiver or failure to take action
with respect to any previous default.
(b) Upon the happening of any of the following events there shall
be deemed to be a breach of the terms of this Agreement and the
non-breaching Party, at its option, shall have the right to cease
performance hereunder until such breach is remedied, or to
terminate this Agreement as provided for above in this Section 7.4
(Breach):
(i) a Party fails to make any payment when due as required by
this Agreement; provided, however, that the first occurrence
of late payment shall not constitute breach unless not cured
within thirty (30) days of notice of such failure by the
other Party;
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(ii) the other Party violates or fails to perform any of the other
material representations, warranties, covenants or agreements
contained in this Agreement for a period of sixty (60) days
following its receipt from the other Party of written notice
specifying such material violation or material failure and
demanding that it be cured; or
(iii) the other Party ceases doing business as a going concern; makes
an assignment for the benefit of creditors; admits in writing
its inability to pay its debts as they become due; or becomes
the subject of any other voluntary or involuntary bankruptcy or
insolvency proceedings.
7.4 Events Upon Termination or Expiration. Upon termination or expiration of
this Agreement:
(a) Incyte will be entitled to payment, under the payment terms of
Article 5.0 (Schedule of Payments), for all authorized services
rendered to CUSTOMER under Article 2.0 (Installation; Systems
Integration) that are performed in accordance with the specifications
therefor prior to the effective date of termination; and
(b) CUSTOMER will be entitled to a return of any payments made in
excess of work actually performed by Incyte under Article 2.0
(Installation; Systems Integration) in accordance with the
applicable statement of work, prior to the effective date of
termination.
(c) In the event of: i) termination of the Agreement by Incyte for
breach by CUSTOMER, or ii) upon expiration, then it shall be
CUSTOMER's obligation at CUSTOMER's expense, to discontinue use of
LifeArray(TM) Product(s) and any Modifications thereof as provided
for in Section 7.2 (Expiration of the Access Term).
7.5 Dispute Resolution Procedures. If the parties cannot resolve a dispute
arising out of or in connection with this Agreement, then either Party
may, by upon written notice to the other, have such dispute referred to
their respective officers designated below or their successors, for
attempted resolution by good faith negotiations within thirty (30) days
after such notice is received:
For Incyte: President
For CUSTOMER: President or Chief Operating Officer
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7.6 Insolvency or Bankruptcy.
(a) Either Party may, in addition to any other remedies available to
it by law or in equity, terminate this Agreement (in whole or in part
as the terminating Party may determine) by written notice to the
other Party in the event the other Party shall have: i) become
insolvent or bankrupt, or ii) shall have made an assignment for the
benefit of its creditors, or iii) there shall have been appointed a
trustee or receiver of the other Party or for all or a substantial
part of its property, or iv) any case or proceeding shall have been
commenced or other action taken by or against the other Party in
bankruptcy or seeking reorganization, liquidation, dissolution,
winding-up, arrangement, composition or readjustment of its debts or
any other relief under any bankruptcy, insolvency, reorganization or
other similar act or law of any jurisdiction now or hereafter in
effect.
(b) Promptly following the Acceptance Date, Incyte shall deposit with
an independent software source code escrow agent selected by Incyte
and acceptable to CUSTOMER (the "Escrow Agent") a complete and
correct copy of the source code for the LifeArray(TM) Product(s)
provided to CUSTOMER hereunder (the "Escrowed Source Code"), and
shall enter into an escrow agreement with CUSTOMER and the Escrow
Agent (the "Escrow Agreement"). The Escrow Agreement shall provide
that the Escrowed Source Code shall be delivered to CUSTOMER only
upon the: i) filing by Incyte of a voluntary bankruptcy petition; ii)
the filing against Incyte of an involuntary bankruptcy petition where
the same is not withdrawn or vacated within ninety (90) days after
the filing thereof; iii) failure of Incyte to provided maintenance
and support services hereunder; or iv) the liquidation or dissolution
of Incyte. From time to time after the initial escrow deposit, if
Incyte makes any material modifications, updates or enhancements to
any of the Escrowed Source Code, Incyte shall deposit with the Escrow
Agent a copy of such modified, updated or enhanced source code.
CUSTOMER shall pay all fees and expenses of the Escrow Agent under
the Escrow Agreement only if any Escrowed Source Code is delivered
to CUSTOMER pursuant to the Escrow Agreement, and such source code
shall be subject to all the confidentiality and use restrictions
contained in this Agreement.
7.7 Accrued Rights Surviving Obligations.
(a) Termination or expiration of this Agreement for any reason shall
be without prejudice to any rights that have accrued to the benefit
of either Party prior to such termination or expiration.
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(b) Upon any termination or expiration of this Agreement, the
following provisions will not terminate, but will continue in full
force and effect:
- Article 3.0 (Access Rights, Software Use Restrictions and
Security Requirements),
- Article 4.0 (Intellectual Property and License Grants)
- Article 6.0 (Confidentiality),
- Article 8.0 (Representations and Warranties),
- Article 9.0 (Indemnity),
- Article 10.0 (Miscellaneous Provisions),
- and any payment obligations pursuant to CUSTOMER's rights
under Articles 5.0 (Schedule of Payments) and 6.0
(Confidentiality), as of the termination or expiration of
this Agreement.
8.0 REPRESENTATIONS AND WARRANTIES.
8.1 From Incyte. Incyte represents and warrants to CUSTOMER as follows:
(a) Incyte has full corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
corporate action on the part of Incyte. This Agreement, when duly
executed and delivered by Incyte, constitutes a valid and binding
obligation of Incyte, enforceable against it in accordance with its
terms.
(b) the execution, delivery or performance of this Agreement by
Incyte will not conflict with or result in the breach of any
agreement to which Incyte is a party, or conflict with or result in
the breach of any instrument, document, law, regulation, judgment,
order or decree by which Incyte or its assets are bound.
(c) there are no material adverse proceedings, claims or actions
pending, or to the best of Incyte's knowledge, threatened, relating
to the Incyte Technology as of the Effective Date of this Agreement
that would materially interfere with Incyte's performance of its
obligations under this Agreement. Furthermore, Incyte shall disclose
to CUSTOMER any material adverse proceedings, claims or action that
arise and come to the knowledge of Incyte (without undertaking a
special investigation) relating to Incyte Technology during the
Access Term, that would materially interfere with Incyte's
performance of its obligations under this Agreement.
(d) Incyte hereby represents and warrants to CUSTOMER that the
LifeArray(TM) Product(s) provided hereunder will be free from
material defects in workmanship
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and materials and will substantially perform in accordance with the
specifications therefor.
(e) the LifeArray(TM) Product(s) will be Year 2000 compliant no later
than December 31, 1999. Year 2000 Compliant LifeArray(TM) Product(s)
will be provided to CUSTOMER under this Agreement in a timely and
efficient manner without interruption and/or disruption and at no
additional fee or charge of any kind (including any installation,
freight, or other costs or fees) to CUSTOMER.
8.2 From CUSTOMER. CUSTOMER represents and warrants to Incyte as follows:
(a) CUSTOMER has full corporate power and authority to enter into this
Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary corporate
action on the part of CUSTOMER. This Agreement, when duly executed and
delivered by CUSTOMER, constitutes a valid and binding obligation of
CUSTOMER, enforceable against it in accordance with its terms.
(b) the execution, delivery or performance of this Agreement by CUSTOMER
will not conflict with or result in the breach of any agreement to which
CUSTOMER is a party, or conflict with or result in the breach of any
instrument, document, law, regulation, judgment, order or decree by
which CUSTOMER or its assets are bound.
8.3 Exclusive Warranty; Limitation of Liability.
(a) EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, INCYTE DOES NOT MAKE
ANY AND EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE
LIFEARRAY(TM) PRODUCT(S), WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED,
OR ARISING BY USAGE OR TRADE OR COURSE OF DEALING INCLUDING, WITHOUT
LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
(b) EXCEPT AS EXPLICITLY STATED HEREIN, NEITHER PARTY WILL BE LIABLE FOR
ECONOMIC, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR EXEMPLARY
DAMAGES, WHETHER CLAIMED UNDER CONTRACT, TORT OR ANY OTHER LEGAL THEORY
ARISING FROM SUCH PARTY'S ACTIVITIES UNDER THIS AGREEMENT.
8.4 Compliance with Law. Incyte and CUSTOMER shall comply in all material
respects with all applicable laws, regulations and guidelines in connection
with that Party's performance of its obligations and rights pursuant to
this Agreement. Without limiting
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the generality of the foregoing, each Party shall be responsible for
compliance with all applicable product safety, product testing, product
labeling, package marking, and product advertising laws and regulations
with respect to its own activities and products. Furthermore, Incyte and
CUSTOMER shall each comply with the regulations of the United States and
any other relevant nation concerning any export or other transfer of
technology, services, or products.
9.0 INDEMNITY.
9.1 Incyte. Incyte shall indemnify and hold CUSTOMER and its directors,
officers, employees, agents, representatives and affiliates harmless from
and against any loss, liability, cost or expense (including, but not
limited to, reasonable attorneys' fees and costs) arising from: (i) any
claim, action or demand by any third party alleging that the LifeArray(TM)
Product(s) or any portion thereof violates any copyright, patent, trade
secret, intellectual property or other proprietary right of such party, or
(ii) any breach or nonperformance by Incyte of any of its representations,
warranties, covenants or agreements under this Agreement; except to the
extent such loss, liability, cost or expense (including attorney's fees
and costs) is attributable to: (1) a violation of law, regulation or court
order by CUSTOMER, (2) a violation of any contractual or fiduciary duty
(including misappropriation of trade secrets) owed by CUSTOMER to a third
party, (3) recklessness or intentional misconduct of CUSTOMER, (4) any
breach of this Agreement or misrepresentation contained herein by
CUSTOMER, or (5) infringement by CUSTOMER (other than by use of the
LifeArray(TM) Product(s) or any portion thereof) of any third party's
patent rights, copyrights or other intellectual property rights.
Notwithstanding the foregoing, it shall be CUSTOMER's sole responsibility
to procure, at CUSTOMER's expense, license(s) under third party patent
rights or such other rights with respect to hardware or database platform
(e.g. Silicon Graphics or Oracle licenses, as under Section 4.3 (Third
Party Intellectual Property)).
9.2 CUSTOMER. CUSTOMER shall indemnify and hold Incyte and its directors,
officers, employees, agents, representatives and affiliates harmless from
and against any loss, liability, cost or expense (including, but not
limited to, reasonable attorneys' fees and costs) arising from (i) any
claim, action or demand by any third party alleging that the CUSTOMER
Modifications developed and used by CUSTOMER or any portion thereof
violates any copyright, patent, trade secret, intellectual property or
other proprietary right of such party, or (ii) any breach or
nonperformance by CUSTOMER of any of its representations, warranties,
covenants or agreements under this Agreement; except to the extent such
loss liability, cost or expense (including attorney's fees and costs) is
attributable to: (1) a violation of law, regulation or court order by
Incyte, (2) a violation of any contractual or fiduciary duty (including
misappropriation of trade secrets) owed by Incyte to a third party, (3)
recklessness or intentional misconduct of Incyte, (4) any breach of this
Agreement or
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misrepresentation contained herein by Incyte, or (5) infringement by
Incyte of any third party's patent rights, copyrights or other
intellectual property rights.
9.3 Claims. If any claim is made against either Party under Sections
9.1(i) (Incyte) or 9.2(i) (CUSTOMER), above for which indemnification
is available hereunder, the indemnifying Party, at its option, shall:
(a) defend the other Party against such claim;
(b) acquire for the other Party the right to continue using any
Software or product licensed hereunder that is the subject of
such claim;
(c) replace any Software or product licensed hereunder with
other Software or product for which there exists no infringement
claim, which serves materially the same purpose and function as
the claimed infringing Software or product; or
(d) modify the Software or product to make it non-infringing;
provided, however, that no Party shall have any liability or
obligation to the other under this Section 9.3 if any such
infringement claim is based upon or arises out of:
(i) any modification by the indemnified Party of any
portion of any Software or data not authorized by the
indemnifying Party in writing unless without such
modifications the Software would not be infringing;
(ii) the use of any Software or product in violation of the
license granted in this Agreement; or
(iii) a patent, copyright or other intellectual property
right claim in which the indemnified Party or any affiliate
thereof has any direct or indirect interest by license or
otherwise; or
(iv) use of old Software after receipt or replacement of
modified Software under 9.3(c) or (d) above.
If the indemnifying Party elects 9.3(a) above, the indemnifying Party, at
its expense, shall have the right to control the defense and settlement of
any such claim and the indemnified Party shall reasonably cooperate with
the indemnifying Party in such defense and settlement. If the indemnifying
Party elects 9.3(c) above, the indemnified Party shall return to the
indemnifying Party the claimed infringing Software or product, along with
any copies, duplicates and other manifestations thereof in whatever form.
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This Section 9.3 states a Party's entire liability and obligation, and
the other Party's exclusive remedy for infringement with respect to the
first Party's software.
10.0 MISCELLANEOUS PROVISIONS.
10.1 Force Majeure. Force Majeure shall mean an Act of God, flood, fire,
explosion, earthquake, strike, lockout, casualty or accident, war, civil
commotion, act of public enemies, blockage or embargo, or any injunction,
law, order, proclamation, regulation, ordinance, demand or requirement of
any government or any subdivision, authority representative thereof, or
the inability to procure or use materials, labor, equipment,
transportation or energy sufficient to meet manufacturing needs without
the necessity of allocation, or any other cause whatsoever, whether
similar or dissimilar to those enumerated above, which are beyond the
reasonable control of such Party, which the Party affected has used its
reasonable best efforts to avoid, and which prevent, restrict or
interfere with the performance by a Party of its obligations hereunder.
The Party affected by Force Majeure shall give notice to the other Party
promptly in writing and whereupon shall be excused from those obligations
hereunder, to the extent of such prevention, restriction or interference,
provided that the affected Party shall use its commercially reasonable
efforts to avoid or remove such cause(s) of non-performance and shall
continue performance whenever such cause(s) is removed.
10.2 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without regard to any
such laws relating to choice or conflict of laws.
10.3 Entire Agreement. This Agreement and the other agreements executed in
connection herewith constitute the entire agreement between the parties
with respect to the subject matter hereof and supersede or incorporate
all prior or contemporaneous representations, understandings or
agreements, written or oral, between the parties with respect to such
subject matter. No waiver, modification or amendment of any provision of
this Agreement shall be valid or effective unless made in writing and
signed by a duly authorized officer of each of the parties.
10.4 Headings. The headings and captions used in this Agreement are intended
for convenience only and shall have no force or effect whatsoever in the
interpretation of this Agreement.
10.5 Assignment. Neither Party shall assign any of its rights or obligations
hereunder except: (i) as incident to the merger, consolidation,
reorganization or acquisition of stock or assets or similar transaction
affecting all or substantially all of the assets or voting control of the
assigning Party; (ii) to any directly or indirectly wholly-owned
affiliate if the assigning Party remains liable and responsible for the
performance and observance of all of the subsidiary's duties and
obligations hereunder; (iii) with respect
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to either Party as the assignor, as incident to the acquisition or
transfer of the assets affecting all or substantially all of the assets
of the business of the Party relating to a given field of use, provided
that the acquiring entity or transferee continues to fulfill its
obligations to the other Party hereunder; or (iv) with the consent of the
other Party, which consent shall not be withheld unreasonably. This
Agreement shall be binding, upon the successors and permitted assigns of
the parties and the name of a Party appearing herein shall be deemed to
include the names of such Party's successor's and permitted assigns to
the extent necessary to carry out the intent of this Agreement. Any
assignment not in accordance with the above shall be void. Any assignment
by CUSTOMER hereunder shall be subject to CUSTOMER's obligations under
Section 5.4 (Payments and Taxes).
10.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original for all purposes.
10.7 Severability. If any term, clause or provision of this Agreement shall
be judged invalid for any reason whatsoever by a court of competent
jurisdiction, such invalidity shall not affect the validity or operation
of any other term, clause or provision and such invalid term, clause or
provision shall be deemed to have been deleted from this Agreement.
10.8 Notices. Any notice, requests, delivery, approval or consent required or
permitted to be given under this Agreement shall be in writing and shall
be deemed to have been sufficiently given if delivered in person,
transmitted by commercial overnight courier, or transmitted by telex
telegram or telecopy (facsimile, with confirmed receipt) to the Party to
whom it is directed at its address shown below or such other address as
such Party shall have last given by notice to the other Party (referred
to herein as "Notice"). All Notices shall be effective upon receipt.
If to Incyte, addressed to: If to CUSTOMER, addressed to:
Incyte Pharmaceuticals, Inc. diaDexus, LLC
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇ ▇▇▇▇▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Chief Executive Officer Chief Operating Officer
10.9 Waiver. The failure of either Party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time
performance by the other Party of any of the provisions of this
Agreement, shall in no way be construed to be a present or future waiver
of such provisions, nor in any way affect the validity of either Party to
enforce each and every such provision thereafter. The express waiver by
either Party
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of any provision of this Agreement shall not constitute a waiver of any
future obligation to comply with such provision.
10.10 Remedies. All rights and remedies conferred upon either Party under this
Agreement or by any other instrument or law shall be cumulative and may be
exercised singularly or cumulatively.
10.11 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of parties and their respective successors and permitted assigns.
10.12 Injunctive Relief. The parties acknowledge that because of the
confidential and proprietary nature of the Confidential Information,
neither termination of this Agreement nor an action at law would be an
adequate remedy for a material breach by either Party of its obligations
under Article 6.0 (Confidentiality). Accordingly, each Party agrees and
consents that in the event of such breach, in addition to all other
remedies which the other Party may have, such other Party shall be
entitled to seek appropriate equitable relief in addition to whatever
remedies it might have at law, including injunctive relief, specific
performance or such other relief as such Party may request to enjoin or
otherwise restrain any act prohibited hereby without the necessity of
proof of actual damages, as well as the recovery of all costs and
expenses, including attorney's fees incurred. Nothing in this Agreement
shall be construed to prevent or restrict a Party from seeking relief in a
court of competent jurisdiction to protect, enforce or defend any patent
rights, copyrights, names, marks, or other proprietary or confidential
information owned or possessed by, or licensed by or to, a Party.
10.13 Exhibits. Each reference in this Agreement to an Exhibit shall mean a
Exhibit attached to this Agreement and incorporated into this Agreement by
such reference.
10.14 No Employment Relationship or Partnership. The parties shall at all times
be independent contractors and nothing in this Agreement shall be deemed
to create a partnership or joint venture between the parties. Neither any
Party nor any of its employees shall have any ability to legally bind the
other Party with respect to any third party or to incur any obligation or
liability on behalf of the other Party.
10.15 Public Announcements. Except as may otherwise be required by law or
regulation, neither Party shall make any public announcement concerning
this Agreement or the subject matter hereof without first submitting a
copy of the proposed announcement to the other Party for review. The other
Party shall have seven (7) business days to consent to the publication of
such announcement, such consent not to be unreasonably withheld.
10.16 Further Actions. Each Party agrees to execute, acknowledge and deliver
such further instruments, and to do all such other acts, as may be
necessary or appropriate in order to carry out the purposes and intent of
this Agreement.
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10.17 No Trademark Rights. Except as otherwise provided herein, no right,
express or implied, is granted by this Agreement to use in any manner the
names "diaDexus" or "Incyte", or any other trade name or trademark of
CUSTOMER or Incyte, including, without limitation, "LifeArray(TM)" or
"LifeSeq(R)", in connection with the performance of this Agreement.
10.18 Attorney's Fees. In any litigation relating to or arising out of this
Agreement, the prevailing Party shall be entitled to reasonable
attorneys' fees, including expert witness costs, and all costs of
proceedings incurred in such litigation, in addition to any other relief
that may be awarded.
10.19 Affiliate Performance. To the extent that any CUSTOMER affiliate has
access to any LifeArray(TM) Product(s), has the right to receive any
other rights or benefits under this Agreement or otherwise is obligated
to perform any obligations under this Agreement, CUSTOMER shall cause
such CUSTOMER Affiliate to perform in full, when due, all applicable
obligations under this Agreement to the same extent as if such affiliate
were a party to this Agreement; provided, however, that nothing in this
Section 10.19 shall expand the rights or benefits of CUSTOMER or CUSTOMER
Affiliates, or the obligations of Incyte, beyond those otherwise
expressly set forth in this Agreement. CUSTOMER shall guaranty timely
performance in full by such CUSTOMER Affiliate of all such obligations. A
breach by such CUSTOMER Affiliate of any such obligation shall constitute
a breach by CUSTOMER of this Agreement and shall entitle Incyte to
exercise its rights under Article 7.0 (Term and Termination) above, in
addition to any other rights and remedies to which Incyte may be
entitled.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on
their behalves by their respective duly authorized representatives as of the
Effective Date.
CUSTOMER INCYTE PHARMACEUTICALS, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------- ----------------------------
Title: C.O.O. Title: C.E.O.
------------------------- -------------------------
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27
EXHIBIT A
Attach the LifeArray(TM) Version 2.0 Product Overview
26