*TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4)
200.83 an 230.406
TECHNOLOGY LICENSE AGREEMENT
BETWEEN
ELITRA PHARMACEUTICALS INC.
AND
INCYTE GENOMICS, INC.
TECHNOLOGY LICENSE AGREEMENT
THIS AGREEMENT is entered into as of this 30th day of June, 2000 (the
"EFFECTIVE DATE") by and between ELITRA PHARMACEUTICALS INC. ("ELITRA"), a
Delaware corporation, having its principal place of business at 0000 Xxxxxxx
Xxxxxx, Xxx Xxxxx, XX 00000, and INCYTE GENOMICS, INC. ("INCYTE"), a Delaware
corporation, having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxx
Xxxx, XX 00000.
WHEREAS, Incyte has developed and owns certain computer software
providing analysis and data-management tools for handling complex information
from multiple sources; and
WHEREAS, ELITRA desires to implement such software at ELITRA; and
WHEREAS, this Technology License Agreement shall not be considered
valid or binding without execution by both Incyte and ELITRA of the Microbial
Information Agreement of even date herewith; and
NOW, THEREFORE, Incyte and ELITRA, intending to be legally bound,
hereby agree as follows:
1. DEFINITIONS.
When used in this Agreement, the following definitions shall apply:
"COMMON CODE" shall mean the common source code described in EXHIBIT B
hereto.
"DOCUMENTATION" shall mean the user's manuals provided to ELITRA along
with the LifeTools-TM- Product.
"ELITRA AFFILIATE(S)" shall mean any company or entity controlled by,
controlling, or under common control with ELITRA shall include any company one
hundred percent (100%) of whose voting stock or participating profit interest is
owned or controlled, directly or indirectly, by ELITRA, and any company which
owns or controls, directly or indirectly, one hundred percent (100%) of the
voting stock of ELITRA.
"INCYTE TECHNOLOGY" shall mean Intellectual Property Rights claiming or
covering the use of the LifeTools-TM- Product, the Linux Farm Technology, the
Common Code and the Patent Search Module to the extent owned or controlled by
Incyte and which Incyte has an unrestricted right to license without obligation
of payment to a third party.
"INSTALLATION SITE(S)" shall mean the research facilities of ELITRA
and/or any ELITRA Affiliate which will have access to the LifeTools-TM- Product,
the Linux Farm Technology, the Common Code and the Patent Search Module subject
to this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" shall mean all copyrights, trademarks,
service marks, trade secrets, patents, patent applications, moral rights,
contract rights and other proprietary rights.
1.
"LIFETOOLS-TM- PRODUCT" shall mean version 3.1 of Incyte's set of
proprietary software modules providing analysis and data-management tools for
handling complex information from multiple sources, together with related
software and documentation, as described generally in EXHIBIT A.
"LIFETOOLS-TM- PRODUCT SOURCE CODE" shall mean the source code written
for the LifeTools-TM- Product.
"LINUX FARM TECHNOLOGY" shall mean a software system that provides
customized scheduling functions which distribute tasks over a large number of
computer systems based on Intel microprocessors and the Linux operating system.
"PARTY" shall mean ELITRA or Incyte and, when used in the plural, shall
mean ELITRA and Incyte.
"PATENT SEARCH MODULE" shall mean [...***...] and (b) any updates or
improvements to, or products substantially constituting replacements of, the
foregoing.
"RESEARCH FIELD OF USE" shall mean internal use of the LifeTools-TM-
Product, at ELITRA's or an ELITRA Affiliate's facilities (a) by personnel of
ELITRA or an ELITRA Affiliate or (b) by ELITRA or an ELITRA Affiliate on behalf
of strategic or collaborative partners of ELITRA or otherwise in connection with
ELITRA's drug discovery collaborations, in each case, for research and
development applications in compliance with this Agreement. The Research Field
of Use does not include (i) the right to sell the LifeTools-TM- Product, (ii)
the sale or license of data analysis services (except as set forth in clause (b)
above), or (iii) the use of LifeTools-TM- Product to develop commercial database
products or services.
"SOFTWARE" as generally used herein shall mean 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.
2. LICENSE GRANT; SOFTWARE USE RESTRICTIONS AND SECURITY REQUIREMENTS.
2.1 LICENSE GRANT. Incyte hereby grants to ELITRA:
(a) a non-exclusive, fee-bearing (as set forth
in Section 4.3.2 of the Microbial Information Agreement), perpetual and
irrevocable (unless terminated under Section 5.2) license under Incyte
Technology to use the LifeTools-TM- Product, the Linux Farm Technology, the
Common Code and the Patent Search Module in the Research Field of Use in secure
work facilities at the Installation Sites in accordance with the terms and
conditions of this Agreement; and
*Confidential Treatment Requested
2.
(b) the right to make up to three (3) copies of
the LifeTools-TM- Product, the Common Code and the Patent Search Module solely
for backup or archival purposes.
Except as specifically contemplated by the definition of "Research
Field of Use," the foregoing licenses shall not include any right of ELITRA to
market, license, sublicense, manufacture, sell or distribute the LifeTools-TM-
Product, the Linux Farm Technology, the Common Code or the Patent Search Module
for the benefit of a third party.
2.2 OWNERSHIP. ELITRA hereby acknowledges that (a) Incyte has
expended significant resources and efforts to develop the LifeTools-TM- Product,
the Linux Farm Technology, the Common Code and the Patent Search Module; (b) the
LifeTools-TM- Product, the Linux Farm Technology, the Common Code and the Patent
Search Module represent highly valuable and confidential assets of Incyte; (c)
Incyte is willing to grant ELITRA access to the LifeTools-TM- Product, the Linux
Farm Technology, the Common Code and the Patent Search Module in reliance that
ELITRA shall protect such Software from unauthorized disclosure and use; and (d)
the LifeTools-TM- Product, the Linux Farm Technology, the Common Code and the
Patent Search Module at all times during the term of this Agreement shall remain
the sole and exclusive property of Incyte.
2.3 RESERVATION OF RIGHTS. Subject to the grant of license rights
ELITRA hereunder, the LifeTools-TM- Product, the Linux Farm Technology, the
Common Code, the Patent Search Module and all proprietary rights, title, and
other intellectual property rights, including, without limitation, patent,
copyright, trademark, service xxxx, trade secret and trade name rights, in and
to such LifeTools-TM- Product, the Linux Farm Technology, the Common Code and
the Patent Search Module 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 LifeTools-TM- Product, the Linux Farm
Technology, the Common Code and the Patent Search Module and/or any product(s)
incorporating such LifeTools-TM- Product, the Linux Farm Technology, the Common
Code or the Patent Search Module.
2.4 RESTRICTIONS ON USE AND DISCLOSURE OF SOFTWARE.
2.4.1 DESIGNATED CPU'S. The LifeTools-TM- Product, the
Linux Farm Technology, the Common Code and the Patent Search Module shall only
be installed at each Installation Site 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 the LifeTools-TM- Product, the Linux Farm Technology, the
Common Code and the Patent Search Module installed, other than ephemerally, on
the workstation hard disk. A back-up computer or file server may be designated
such that a copy of the LifeTools-TM- Product, the Linux Farm Technology, the
Common Code and the Patent Search Module may be installed on this computer in
the event that the primary computer fails. Under no circumstances will the
LifeTools-TM- Product, the Linux Farm Technology, the Common Code or the Patent
Search Module be installed on any designated CPU(s) which would allow
unauthorized network access (E.G., third party access via the Internet other
than as specifically contemplated by the definition of Research Field of Use).
Except as specifically contemplated by the definition of Research Field of Use
or otherwise expressly set forth herein, all access to the LifeTools-TM-
Product, the Linux Farm Technology, the Common Code and the Patent Search
3.
Module, including access by facilities of ELITRA and ELITRA Affiliates other
than those designated as Installation Sites, is prohibited.
2.4.2 NON-DISCLOSURE. Except as expressly provided herein,
ELITRA shall not disclose the LifeTools-TM- Product, the LifeTools-TM- Product
Source Code, the Linux Farm Technology, the Patent Search Module or Confidential
Information of Incyte or transfer the LifeTools-TM- Product, or any portion
thereof, or any modifications thereto, to any third party.
2.4.3 NO TRANSFER OR MODIFICATION. Except as expressly
provided herein, ELITRA 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 LifeTools-TM-
Product, the Linux Farm Technology, the Common Code or the Patent Search Module
(by any means whatsoever whether now known or hereafter invented).
Notwithstanding the foregoing, ELITRA shall have the right to modify the
LifeTools-TM- Product, the Common Code and the Patent Search Module for its
internal use.
2.4.4 LOSS OR THEFT. ELITRA promptly shall notify Incyte of
any loss, theft or unauthorized disclosure or use of LifeTools-TM- Product, the
Linux Farm Technology, or the Patent Search Module which comes to ELITRA's
attention.
3. INTELLECTUAL PROPERTY.
3.1 THIRD PARTY INTELLECTUAL PROPERTY. Subject to the
warranties made hereunder as to each Party's knowledge of any third party
rights that may be infringed by the uses of the LifeTools-TM- Product, the
Linux Farm Technology, the Common Code and the Patent Search Module as
contemplated herein, ELITRA acknowledges that, [...***...], ELITRA [...***...]
, and it is hereby agreed that it shall be [...***...], if necessary,
[...***...]. SCHEDULE 3.1 attached hereto is a true and complete list of
third party software programs which are required for ELITRA to access and
utilize the LifeTools-TM- Product and the Patent Search Module.
3.2 DELIVERY. Incyte shall deliver the LifeTools-TM- Product, the
Documentation, the Linux Farm Technology, the Patent Search Module (including
the source code thereof) and the Common Code to ELITRA upon execution of this
Agreement. The LifeTools-TM- Product, the Linux Farm Technology, the Common Code
and the Patent Search Module shall be delivered on a CD-ROM and/or on such other
media as the Parties shall have mutually agreed depending upon the nature and
format of the information being transferred.
4. PAYMENTS.
4.1 FEES; PAYMENT TERMS. Payments for access and perpetual license
to the LifeTools-TM- Product, the Linux Farm Technology, the Common Code and the
Patent Search Module and other related payment are included under Article 4 of
the Microbial Information Agreement.
*Confidential Treatment Requested
4.
5. TERM; TERMINATION.
5.1 TERM. This Agreement shall commence as of the Effective Date
and shall continue in full force and effect unless terminated as provided
herein.
5.2 TERMINATION FOR BREACH. Material failure by either Party to
comply with any of its obligations under 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 cure such default. If such default is not cured
within sixty (60) days after the receipt of such notice, the notifying Party
shall be entitled, without prejudice to any of its other rights conferred on it
by this Agreement, in addition to any other remedies available to it by law or
in equity, immediately to terminate this Agreement by giving 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.
5.3 EFFECT OF TERMINATION. In the event of termination of the
Agreement by Incyte for breach by ELITRA, then it shall be ELITRA's obligation,
at its expense, to discontinue use of the LifeTools-TM- Product, the Linux Farm
Technology, the Common Code and the Patent Search Module, and remove the
LifeTools-TM- Product, the Linux Farm Technology, the Common Code and the Patent
Search Module from each designated CPU, and promptly return any copies thereof
to Incyte, or upon Incyte's written instruction, destroy all portions and copies
of the LifeTools-TM- Product, the Linux Farm Technology, the Common Code and the
Patent Search Module, and thereafter relinquish its rights to the LifeTools-TM-
Product, the Linux Farm Technology, the Common Code and the Patent Search
Module, including any rights to use, copy, modify, adapt, create derivative
works with respect to same.
5.4 DISPUTE RESOLUTION PROCEDURES. If the Parties cannot resolve a
dispute arising out of or in connection with this Agreement, then any Party may,
by written notice to the other, have such dispute referred to their respective
officers designated below or their respective successors, for attempted
resolution by good faith negotiations within 30 days after such notice is
received:
For Incyte: President
For ELITRA: President
Any such dispute which is not so resolved between the Parties or the
designated officers of the Parties within such 30 day period shall, upon written
notice from a Party to the other, be resolved by final and binding arbitration
under then current Licensing Agreement Arbitration Rules of the American
Arbitration Association ("AAA"). If the claim is filed by a Party, the venue for
arbitration shall be proximate to that of the other Party. The arbitration shall
be conducted by a panel of three arbitrators who are knowledgeable in the
subject matter which is at issue in the dispute (the "PANEL"). Each Party shall
have the right to appoint one member of the Panel, with the third member to be
mutually agreed by the two Panel members appointed by the Parties, or, failing
such agreement, shall be selected according to the AAA rules. In conducting the
arbitration, the Panel shall determine what discovery will be permitted,
consistent with the goal of limiting the cost and time which the Parties must
expend for discovery (and provided that
5.
the Panel shall permit such discovery deemed necessary to permit an equitable
resolution of the dispute). The decision of the Panel shall be in writing and
shall set forth the basis therefor. The Parties shall abide by all awards
rendered in arbitration proceedings, and such awards may be enforced and
executed upon in any court having jurisdiction over the Party against whom
enforcement of such award is sought. The Panel shall also determine the
steps, if any, that a Party should take to correct any failure or breach by
such Party pertaining to any such dispute. The Parties shall share equally
the Panel's fees and expenses. The decision of the Panel shall be final and
may be enforced by the Party in whose favor it runs in any court of competent
jurisdiction at the option of such Party. Nothing in this Agreement shall be
deemed to prevent either Party from seeking injunctive relief (or any other
provisional remedy) from any court having jurisdiction over the Parties and
the subject matter of the dispute as necessary to protect either Party's
intellectual property rights.
5.5 ACCRUED RIGHTS; SURVIVING OBLIGATIONS. Termination of this
Agreement for any reason shall be without prejudice to any rights which shall
have accrued to the benefit of either Party prior to such termination. Upon any
termination of this Agreement, the following provisions will not terminate, but
will continue in full force and effect: Article 2 (License Grant; Software Use
Restrictions and Security Requirements), except that Section 2.1 shall not
survive if Incyte has terminated this Agreement for breach by ELITRA; Section
3.1 (Third Party Intellectual Property); Article 5 (Term; Termination); Section
6.4 (Disclaimers); Article 7 (Indemnity); Article 8 (Miscellaneous Provisions);
and any payment obligations pursuant to ELITRA's rights which have become due
and payable under the appropriate sections of this Agreement prior to the
termination or expiration of this Agreement.
6. REPRESENTATIONS AND WARRANTIES; COVENANTS.
6.1 REPRESENTATIONS AND WARRANTIES OF INCYTE. Incyte represents
and warrants to ELITRA 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 has been duly executed
and delivered by Incyte and constitutes a valid and binding obligation of
Incyte, enforceable against it in accordance with its terms.
(b) Neither the execution, delivery nor
performance of this Agreement by Incyte will conflict with or result in the
breach of any agreement to which Incyte is a party or any instrument, document,
law, regulation, judgment, order or decree by which it 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
which would materially interfere with Incyte's performance of its obligations
under this Agreement. Further, Incyte shall disclose to ELITRA any material
adverse proceedings, claims or action that arise and come to the knowledge of
Incyte without
6.
undertaking a special investigation, relating to Incyte Technology, which
would materially interfere with Incyte's performance of its obligations under
this Agreement.
(d) Incyte is the [...***...], and [...***...].
Incyte is [...***...]. Except as set forth on Schedule 3.1, Incyte is
[...***...].
(e) Incyte requires [...***...], and
requiring [...***...] made within the [...***...], and only [...***...]
pursuant to [...***...].
(f) For a period of [...***...] after
[...***...] is provided to [...***...]. This warranty does not apply to
[...***...].
(g) For a period of [...***...], when
[...***...]. Incyte does not warrant that [...***...]. Incyte will,
[...***...]. Any such [...***...] provided to [...***...].
(h) The term [...***...] means any [...***...]
to (a) [...***...] or (b) [...***...]. Incyte represents and warrants that
the [...***...]
*Confidential Treatment Requested
7.
[...***...]. Without limiting this warranty, [...***...] will use a
[...***...]. ELITRA acknowledges that [...***...]. Incyte's sole obligation
if [...***...], will be to [...***...], as applicable, on [...***...].
6.2 REPRESENTATIONS AND WARRANTIES OF ELITRA. ELITRA represents
and warrants to Incyte as follows:
(a) ELITRA 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 ELITRA. This Agreement has been duly executed
and delivered by ELITRA and constitutes a valid and binding obligation of
ELITRA, enforceable against it in accordance with its terms.
(b) Neither the execution, delivery nor
performance of this Agreement by ELITRA will conflict with or result in the
breach of any agreement to which ELITRA is a party or any instrument, document,
law, regulation, judgment, order or decree by which it or its assets are bound.
6.3 COMPLIANCE WITH LAW. 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 commercial products. Further, ELITRA and
Incyte shall each comply with the regulations of the United States and any other
relevant jurisdiction concerning any export or other transfer of technology,
services, or products.
6.4 DISCLAIMERS.
(a) EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, INCYTE DOES NOT MAKE ANY AND EXPRESSLY DISCLAIMS ALL WARRANTIES WITH
RESPECT TO THE LIFETOOLS-TM- PRODUCT, THE LINUX FARM TechnTECHNOLOGY, THE COMMON
CODE OR THE PATENT SEARCH MODULE, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED,
OR ARISING BY USAGE OF TRADE OR COURSE OF DEALING INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
*Confidential Treatment Requested
8.
(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.
7. INDEMNITY.
7.1 INDEMNIFICATION BY INCYTE. Incyte shall indemnify and hold
ELITRA 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) [...***...], or (ii) [...***...]; except to the extent such loss,
liability, cost or expense (including attorney's fees and costs) is
attributable to: (a) a violation of law, regulation or court order by ELITRA,
(b) a violation of any contractual or fiduciary duty (including
misappropriation of trade secrets) owed by ELITRA to a third party, (c)
recklessness or intentional misconduct of ELITRA, (d) any breach of this
Agreement or misrepresentation contained herein by ELITRA, or (e)
infringement by ELITRA (other than by use of the LifeTools-TM-Product, the
Linux Farm Technology, or the Patent Search Module or any portion thereof) of
any third party's patent rights, copyrights or other intellectual property
rights.
7.2 INDEMNIFICATION BY ELITRA. ELITRA 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 [...***...]; except to the extent such loss liability, cost or expense
(including attorney's fees and costs) is attributable to: (i) a violation of
law, regulation or court order by Incyte, (ii) a violation of any contractual
or fiduciary duty (including misappropriation of trade secrets) owed by
Incyte to a third party, (iii) recklessness or intentional misconduct of
Incyte, (iv) any breach of this Agreement or misrepresentation contained
herein by Incyte, or (v) infringement by Incyte of any third party's patent
rights, copyrights or other intellectual property rights.
7.3 INDEMNIFICATION PROCEDURES. If any claim is made against
either Party under Sections 7.1 or 7.2 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;
*Confidential Treatment Requested
9.
(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 7.3 if any such infringement claim is based upon or
arises out of:
(a) 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 be infringing;
(b) the use of the any Software or product in
violation of the license granted in this Agreement; or
(c) 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
(d) use of old Software after receipt or
replacement of modified Software under (iii) or (iv) above.
If the indemnifying Party elects (i) 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, at the indemnifying Party's expense, in such defense and settlement. If
the indemnifying Party elects (iii) 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.
This Section 7.3 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.
8. MISCELLANEOUS PROVISIONS.
8.1 NO PARTNERSHIP. Nothing in this Agreement is intended or shall
be deemed to constitute a partnership, agency, distributorship,
employer-employee or joint venture relationship between the Parties. No Party
shall incur any debts or make any commitments for the other, except to the
extent, if at all, specifically provided herein.
8.2 ASSIGNMENTS. Neither Party shall assign any of its rights
or obligations hereunder except: (i) [...***...]; (ii) in the case of
[...***...], to any of [...***...], and in either case, provided that the
[...***...], as applicable; (iii) with respect to either Party [...***...]
*Confidential Treatment Requested
10.
[...***...], provided that the [...***...]; (iv) [...***...]. This Agreement
shall be binding, upon the successors and permitted assigns of the Parties.
Any assignment not in accordance with the above shall be void. To the extent
that any assignment by ELITRA hereunder would directly result in an increase
in any withholding taxes for which Incyte is responsible under this
Agreement, ELITRA shall be responsible for such additional taxes.
8.3 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 "Incyte" or "ELITRA", or any other trade name or trademark of Incyte or
ELITRA or their affiliates in connection with the performance of this Agreement.
8.4 PUBLIC ANNOUNCEMENTS. Any and all public announcements
concerning this Agreement or the subject matter hereof shall be governed by the
provisions of Section 8.4 of the Microbial Information Agreement.
8.5 ENTIRE AGREEMENT OF THE PARTIES; AMENDMENTS. This Agreement
and the other agreements between the Parties of even date herewith constitute
and contain the entire understanding and agreement of the Parties and cancel and
supersede any and all prior negotiations, correspondence, representations,
understandings and agreements, whether verbal or written, between the Parties
respecting the subject matter hereof, including, without limitation, the Prior
Agreement and all financial obligations of ELITRA to Incyte thereunder (whether
or not accrued as of the Effective Date hereof); PROVIDED, HOWEVER, that the
Confidential Disclosure Agreement between the Parties dated March 31, 2000 shall
remain in full force and effect in accordance with its terms. 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.
8.6 APPLICABLE LAW. This Agreement shall be governed by and
interpreted in accordance with the laws of the State of California, without
reference to the conflicts of law principles thereof. The parties expressly
exclude application of the United Nations Convention for the International Sale
of Goods.
8.7 NOTICES AND DELIVERIES. 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.
*Confidential Treatment Requested
11.
If to Incyte, addressed to:
Incyte Genomics, Inc.
0000 Xxxxxx Xxxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxx Xxxxxxxxx, Chief Executive Officer
If to ELITRA, addressed to:
ELITRA Pharmaceuticals Inc.
0000 Xxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxx Xxxxxx, Ph.D., Chief Executive Officer and
Chairman
8.8 AFFILIATE PERFORMANCE. To the extent that any ELITRA Affiliate
has access to the LifeTools-TM- Product or the Patent Search Module, has the
right to receive any other rights or benefits under this Agreement or otherwise
is obligated to perform any obligations under this Agreement, ELITRA shall cause
such ELITRA Affiliate to perform in full, when due, all applicable obligations
under this Agreement to the same extent as if such ELITRA Affiliate were a party
to this Agreement; provided, however, that nothing in this Section 8.8 shall
expand the rights or benefits of ELITRA or ELITRA Affiliates, or the obligations
of Incyte, beyond those otherwise expressly set forth in this Agreement. ELITRA
shall guaranty timely performance in full by such ELITRA Affiliate of all such
obligations. A breach by such ELITRA Affiliate of any such obligation shall
constitute a breach by ELITRA of this Agreement.
8.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
12.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their respective duly authorized officers as of the Effective Date.
INCYTE GENOMICS, INC.
By: /s/ Xxxxx Xxxxx
-------------------------------------
Name: Xxxxx Xxxxx
-----------------------------------
Title: President
----------------------------------
Date: 6/30/00
-----------------------------------
ELITRA PHARMACEUTICALS INC.
By: /s/ Xxxxx X. Xxxxxx, Xx.
-------------------------------------
Name: Xxxxx X. Xxxxxx, Xx.
-----------------------------------
Title: Chief Executive Officer
----------------------------------
Date: 6/30/00
-----------------------------------
SIGNATURE PAGE TO TECHNOLOGY LICENSE AGREEMENT
13.
EXHIBIT A
LIFETOOLS-TM- PRODUCT OVERVIEW
LIFETOOLS DESCRIPTION
[...***...]
*Confidential Treatment Requested
A-1.
[...***...]
*Confidential Treatment Requested
A-2.
[...***...]
*Confidential Treatment Requested
A-3.
EXHIBIT B
COMMON CODE
[... *** ...]
B-1 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-2 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-3 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-4 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-5 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-6 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-7 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-8 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-9 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-10 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-11 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-12 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-13 *CONFIDENTIAL TREATMENT REQUESTED
[... *** ...]
B-14 *CONFIDENTIAL TREATMENT REQUESTED
