Common use of FAILURE TO REACH AN AGREEMENT Clause in Contracts

FAILURE TO REACH AN AGREEMENT. In the event Rosetta does not provide such executed letter of intent within such thirty (30) day period, or in the event that the Parties cannot within the thirty (30) day period following Agilent's receipt of such executed letter of intent reach agreement on the final terms and conditions of such exclusive arrangement after negotiations taking into account in good faith each Party's collaborative interests (including, without limitation, factors such as development, marketing and sales responsibilities, market size, margins, costs of manufacture and price comparables), Agilent shall have the right, subject to Section 2.3 hereof, to continue the design, development, manufacture and commercialization or use of such Agilent New Product internally, or to enter into an arrangement with a Third Party in respect of such Agilent New Product on terms which, taken as a whole, are better to Agilent than the terms specified in any letter of intent delivered to Agilent by Rosetta in connection with such Agilent New Product Proposal. Any such arrangement with a Third Party shall be subject to the terms of this Agreement relating to the licensing of Rosetta Technology, if any, contained therein or used in the design, development, manufacture or commercialization thereof. Upon the execution of any agreement relating to such arrangement with a Third Party, the Agilent New Product shall be deemed a "Non-Collaboration Product," provided, however, in no event will Non-Collaboration Product include any product or service which was not included in an Agilent New Product Proposal, provided, further, in no event may any such Non-Collaboration Product be bundled with a Collaboration Product without the prior written consent of Rosetta (which consent will not be unreasonably withheld).

FAILURE TO REACH AN AGREEMENT. In the event Rosetta Agilent does not provide such executed letter of intent within such thirty (30) day period, or in the event that the Parties cannot within the thirty (30) day period following AgilentRosetta's receipt of such executed letter of intent reach agreement on the final terms and conditions of such exclusive arrangement after negotiations taking into account in good faith each Party's collaborative interests (including, without limitation, factors such as development, marketing and sales responsibilities, market sizesizes, margins, costs cost of manufacture and price comparables), Agilent Rosetta shall have the right, subject to Section 2.3 hereof, to continue the design, development, manufacture and commercialization or use of such Agilent Rosetta New Product internally, or to enter into an arrangement with a Third Party in respect of such Agilent Rosetta New Product on terms which, taken as a whole, are better to Agilent Rosetta than the terms specified in any letter of intent delivered to Rosetta by Agilent by Rosetta in connection with such Agilent Rosetta New Product Proposal. Any such arrangement with a Third Party shall be subject to the terms of this Agreement relating to the licensing of Rosetta Agilent Technology, if any, contained therein or used in the design, development, manufacture or commercialization thereof. Upon the execution of any agreement relating to such arrangement with a Third Party, the Agilent Rosetta New Product shall be deemed a "Non-Collaboration Product," provided, however, in no event will Non-Collaboration Product include any product or service which was not included in an Agilent a Rosetta New Product Proposal, provided, further, in no event may any such Non-Collaboration Product be bundled with a Collaboration Product without the prior written consent of Rosetta (which consent will not be unreasonably withheld).