EXHIBIT 10.25
STRATEGIC ALLIANCE AGREEMENT
----------------------------
This Agreement, dated September 15, 1999 ("Effective Date") is made between
InforMax, Inc. ("InforMax"), a Delaware corporation doing business at 6010
--------
Executive Xxxxxxxxx, Xxxxx Xxxxxxxx, Xxxxxxxx 00000 and AxCell Biosciences
Corporation ("AxCell"), a Delaware corporation doing business at 600 College
------
Xxxx Xxxx, Xxxxxxxxx, Xxx Xxxxxx 00000, who, intending to be legally bound,
hereby agree as follows:
1. INTRODUCTION
1.1. InforMax has rights in software called Software Solutions for
BioMedicine and related end user documentation ("SSBM") and distributes certain
----
third party public and private genome data therewith ("Genome Database").
---------------
1.2. AxCell has rights in its proprietary protein interaction data (the
"Protein Database").
-----------------
1.3. The parties desire to work together to (i) integrate the Protein
Database with SSBM to permit use with other databases including the Genome
Database, (ii) develop certain Tools for SSBM to enable the users of SSBM to
access the Protein Database and (iii) market and sell subscriptions for the
Protein Database to existing and potential SSBM customers as well as related
professional, research, and development services all in accordance with the
terms of this Agreement.
2. DEFINITIONS
2.1. "Confidential Information" means Protein Database, Genome Database,
------------------------
SSBM, any business or technical information of a party, including but not
limited to any information relating to a party's product plans, designs, costs,
finances, marketing plans, business opportunities, personnel, research,
development or know-how, and the terms and conditions of this Agreement.
Confidential Information shall not include information that: (i) is in or enters
the public domain without breach of this Agreement through no fault of the
receiving party; (ii) the receiving party was demonstrably in possession of
prior to first receiving it from the disclosing party; (iii) the receiving party
can demonstrate it was developed by the receiving party independently and
without use of or reference to the disclosing party's Confidential Information;
or (iv) the receiving party receives from a third party without restriction on
disclosure and without breach of a nondisclosure obligation.
2.2. "Database Launch Date" means the date the Protein Database is mutually
--------------------
accepted and first made commercially available by InforMax and/or AxCell.
2.3. "Distributor" means a direct or indirect customer of InforMax who is
-----------
authorized by a distributor agreement as specified in Section 4.3 to distribute
-----------
the Protein Database to End Users or other Distributors.
2.4. "End User" means a customer who is authorized by an end user
--------
subscription agreement as specified in Section 4.2 to use the Protein Database.
-----------
2.5. "Genome Database" has the meaning set forth in Section 1.1.
--------------- -----------
2.6. "Intellectual Property Rights" means patent rights, copyright rights
----------------------------
(including, but not limited to, rights in audiovisual works and moral rights),
trade secret rights, and any other intellectual property or proprietary rights
recognized by the law of each applicable jurisdiction.
2.7. "Marks" means trademarks, service marks, trade names, logos or
-----
designations.
2.8. "Net Revenues" means [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
------------
2.9. "Protein Database" has the meaning set forth in Section1.3.
---------------- ----------
2.10. "SSBM" has the meaning set forth in Section1.1.
---- ----------
2.11. "Tools" has the meaning set forth in Section3.1.1.
----- ------------
3. COLLABORATION
3.1. Integration Project.
-------------------
3.1.1. General. The parties shall collaborate with each other in a
project ("Integration Project") to develop the Protein Database and to develop
-------------------
new visual and analytical software tools and/or algorithms and related
documentation for the purpose of making the Protein Database accessible via SSBM
and creating specific enhancements related thereto ("Tools"). The parties agree
-----
that AxCell will have primary responsibility for developing the Protein Database
in a format agreed to between the parties that will be compatible with SSBM, and
InforMax will have primary responsibility for developing the Tools.
3.1.2. Project Plan. Prior to commencement of the Integration Project,
the parties will, by mutual agreement, develop a project plan (the "Project
-------
Plan") to govern the Integration Project, and the Project Plan will contain the
----
specification of the work to be performed (including the identification and
specification of any Tools), each party's responsibilities, a project schedule,
milestones, schedule of deliverables, and a completion date. [CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED]
3.1.3. Change Control. Both parties acknowledge that the scope of
the Integration Project may require modification from time to time to meet
changing requirements or to take advantage of new technologies or processes. The
parties agree to discuss in advance any proposed change to determine its
desirability and its impact on the cost and schedule, and to refrain from making
any such change until it has been discussed and mutually approved by both
parties. For any approved change, the Project Plan will be modified accordingly.
3.1.4. Acceptance. Upon completion of the Protein Database and any
Tools, both parties will participate in acceptance testing to ensure that the
Protein Database and any Tools conform to the specifications, and will notify
the other [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED] from delivery thereof of
any defects it has found. Each party will be responsible for correcting any
deficiency so noted in its portion of the deliverables and resubmitting any such
deliverables for retesting, until the parties mutually agree that the Protein
Database and Tools conform with the specifications set forth in the Project
Plan. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
-2-
3.1.5. Database Launch Date. [CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED]
3.1.6. SSBM License. Subject to the terms and conditions of this
Agreement, InforMax will provide to AxCell a non-transferable, non-exclusive,
license to use SSBM during the term of this Agreement solely for its internal
business purposes in accordance with InforMax's standard terms and conditions,
as modified for this arrangement, such software to be installed on an AxCell-
owned server.
3.2. Marketing. In the interest of promoting the Database, the parties
---------
agree to:
3.2.1. Actively work together to develop a joint marketing plan in
accordance with this Agreement covering mutually agreed upon marketing and
promotional activities and related budgets to promote the Protein Database, and
other products or services to which the plan will apply, including related
professional, research and development services ("Joint Marketing Plan"),
--------------------
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED];
3.2.2. Each use their commercially reasonable efforts to vigorously
advertise, market, promote the Protein Database and other products or services
to which the Joint Marketing Plan applies in accordance with the Joint Marketing
Plan and this Agreement, provided that neither party will use advertisements or
marketing material that contain the other party's Marks that have not been
approved in writing by the other party;
3.2.3. Coordinate and assist each other in joint presentations and
sales efforts as reasonably requested by the other party in accordance with the
agreed upon Joint Marketing Plan, and coordinate prospective customer calls as
necessary in cases where such joint presentations or similar cooperative
marketing or technical support efforts are anticipated.
3.2.4. Furnish each other with all reasonable scientific and
technical information and assistance for marketing support and planning
purposes.
3.2.5. Assist each other to develop appropriate educational and
promotional materials, and provide each other with copies of appropriate
promotional documentation, that each party's sales force may use for purposes of
this Agreement. All such material, however, to the extent it concerns the other
party's products and/or services, shall be subject to prior approval by such
other party in each case;
3.2.6. Periodically inform the other concerning any market
information that comes to the attention of that party respecting the other
party, its products and services, or the continued competitiveness of the other
party's products and services in the marketplace;
3.2.7. Provide appropriate technical support to the other for
demonstrations and mutually agreed upon general sales promotion as well as for
selected exhibitions and promotional seminars on a case-by-case basis; and
3.2.8. Perform its obligations under the Joint Marketing Plan.
3.3. Management. Each party shall appoint two senior managers to act as
----------
the primary representatives responsible for facilitating communication between
the parties and for coordinating the activities associated with the Integration
Project and each party's marketing efforts. Each party shall
-3-
manage its own activities. The Parties' representatives shall confer, as needed,
to assess the status of the Integration Project, each party's marketing efforts,
and to coordinate on upcoming activities as necessary.
3.4. Staff. Each party shall train and maintain a sufficient number of
-----
capable technical and sales personnel having the knowledge and training
necessary to (i) inform customers properly concerning the features and
capabilities of the Protein Database; (ii) service and support the Protein
Database in accordance with its obligations under this Agreement; and (iii)
otherwise carry out its obligations and responsibilities under this Agreement.
3.5. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
4. PROTEIN DATABASE LICENSE GRANT
4.1. Protein Database License. Subject to the following sentence, AxCell
------------------------
grants InforMax an exclusive, worldwide license to (i) market, promote,
reproduce for distribution, distribute and sublicense the Protein Database to
Distributors and End Users solely for their own internal business purposes
during the term of this Agreement and (ii) use a reasonable number of copies of
the Protein Database for the sole purpose of performing its obligations under
Section 3, demonstrating the Protein Database, and providing training to
---------
Distributors and End Users. Notwithstanding anything to the contrary, AxCell
may market, promote, reproduce for distribution, distribute and sublicense the
Protein Database directly to End Users solely for their internal business
purposes but may not appoint another distributor to do so.
4.2. End User Agreement. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
------------------
4.3. Distributor Agreement. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
---------------------
4.4. License Restrictions. InforMax will not modify the Protein Database
--------------------
in any manner, except as it may be expressly directed by AxCell in writing.
4.5. Pricing. The parties understand and agree that the Protein Database
-------
and SSBM may be priced and licensed separately.
5. ADDITIONAL OBLIGATIONS AND COVENANTS
5.1. AxCell's Obligations. In addition to AxCell's other obligations set
--------------------
forth in this Agreement, AxCell shall:
5.1.1. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED];
5.1.2. Promptly inform InforMax in writing of any analytic or
visualization tools or other software enhancements AxCell determines are
reasonably necessary or desirable to include as Tools, and of any SSBM or Tools
defects, intellectual property infringement claims, or customer complaints;
5.1.3. Introduce InforMax's staff to AxCell's established contacts
and other appropriate personnel in the pharmaceutical industry who may be
interested in SSBM and/or the Protein Database and promptly inform InforMax of
any potential customers for the Protein Database or SSBM;
5.1.4. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED];
-4-
5.1.5. Perform its obligations under any research and development
contracts that involve use of the Protein Database and/or SSBM to define targets
and validate leads;
5.1.6. Make available to End Users at rates no higher than AxCell's
published rates and if ordered, perform, appropriate and desirable Protein
Database related training and professional services;
5.1.7. Provide primary technical and scientific support to End Users
regarding the Protein Database, which shall include, without limitation,
diagnosing problems and using its reasonable efforts to provide solutions and
the other support obligations; and
5.1.8. Perform AxCell's obligations set forth in Section 3.
---------
5.2. InforMax's Obligations. In addition to InforMax's other obligations
----------------------
set forth in this Agreement, InforMax shall:
5.2.1. Assist in the use of SSBM to find targets and validate leads
for customers;
5.2.2. Make available to End Users at rates no higher than InforMax's
published rates and if ordered, perform appropriate and desirable Protein
Database related professional services support for the Protein Database;
5.2.3. Provide primary technical support to End Users regarding the
use of SSBM in accordance with InforMax's standard polices relating thereto;
5.2.4. Provide reasonable amounts of SSBM related training to
AxCell's technical and sales staff free of charge to enable such staff to inform
customers properly concerning the features and capabilities of SSBM; and
5.2.5. Perform InforMax's obligations set forth in Section 3,
---------
including without limitation, developing the Tools in accordance with the
Project Plan as set forth in Section 3.
---------
5.3. Covenants. Each party covenants to the other that it will (i) conduct
---------
business in a manner that reflects favorably at all times on the other party's
products and services, and the good name, good will and reputation of the other
party, (ii) avoid deceptive, misleading or unethical practices that are or might
be detrimental to the other party, its products and services, or the public;
(iii) make no false or misleading representations with regard to the other party
or its products and services; (iv) not publish or employ, or cooperate in the
publication or employment of, any misleading or deceptive advertising material
with regard to the other party or its products and services; and (v) make no
representations, warranties or guarantees to customers or to the trade with
respect to the specifications, features or capabilities of the other party's
products and services that are inconsistent with the literature distributed by
the other party.
5.4. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
5.5. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
5.5.1. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
-5-
5.5.2. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
6. PAYMENTS
6.1. Compensation. Each party will pay royalties and fees to the other
------------
based upon the timing of End User payment as set forth in Exhibit A.
---------
6.2. Payment Terms. Within thirty (30) days from the close of the
-------------
preceding calendar quarter, each party will pay the other for any royalties or
fees due under this Agreement (based on Section 6.1 above) for payments received
-----------
from End Users during such quarter and within twenty (20) days from the close of
such quarter. Interest shall accrue on any past due payments at the lesser of
one and one-half percent (1-1/2%) per month or the maximum rate permitted by
applicable law.
6.3. Taxes. Each Party shall be responsible for paying any and all taxes
-----
resulting from any of its sales of Protein Database subscriptions, or of any
associated products and services, such taxes including but not limited to any
national, federal, state or local sales, income, use, value-added or other
taxes, customs duties, or similar tariffs and fees, but excluding any tax or
levy on the income of the non-selling party.
7. REPORTS, RECORDS AND AUDITS
7.1. Reports. Within [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED] after the
--------
close of each calendar quarter each party will deliver to the other party a
report which will provide all information reasonably necessary for computation
and/or confirmation of the payments, if any, due or credited to the other party
for such period. Such report will include quarter gross revenues, deductions by
category, and net revenues received by customer and in total. In addition, an
accounts receivable report by customer and in total will be included to
reconcile the royalty and fees payment, net revenues and cash receipts.
7.2. Records and Audits. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
------------------
8. TERM AND TERMINATION
8.1. Term. The term of this Agreement will begin on the Effective Date and
----
will continue for three (3) years from the Database Launch Date unless it is
terminated earlier in accordance with the provisions hereof.
8.2. Events of Termination. Either party will have the right to terminate
---------------------
this Agreement if: (i) the other party breaches any material term or condition
of this Agreement and fails to cure such breach within [CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED] after written notice (including without limitation if
InforMax fails to materially perform its marketing obligations hereunder); or
(ii) the other party becomes the subject of an involuntary petition in
bankruptcy or any involuntary proceeding relating to insolvency, receivership,
liquidation, or composition for the benefit of creditors, if such involuntary
petition or proceeding is not dismissed within sixty (60) days of filing, or
becomes the subject of a voluntary petition in bankruptcy or any voluntary
proceeding relating to insolvency, receivership, liquidation, or composition for
the benefit of creditors. In addition, AxCell may terminate this Agreement in
accordance with the provisions of Section 5.4.
-6-
8.3. Effect of Termination.
---------------------
8.3.1. Upon termination or expiration of this Agreement: (i) all
license rights granted to each party hereunder will automatically terminate, and
InforMax will immediately cease soliciting orders for the Protein Database; (ii)
each party will immediately cease use of the other party's Marks and cease all
marketing activities with respect to the other party's products and services;
and (iii) each party will immediately return to the other party or (at the other
party's request) destroy all copies of the Protein Database and other
Confidential Information in its possession or control, and an officer of such
party will certify to the other party in writing that it has done so.
Notwithstanding the foregoing, the license grant in Section 10.1 shall survive
------------
termination or expiration of this Agreement and all end user agreements for
Protein Database subscriptions will remain in full force and effect. Upon such
termination or expiration, AxCell will maintain, update and transport updates to
such End Users, and support such End User's use of the Database for the term of
their Protein Database subscription.
8.3.2. Each party shall remain obligated to pay and shall continue to
pay any royalties due the other arising out of any sales of any Protein Database
subscriptions prior to the date of termination, but the obligation to pay
royalties shall cease upon the expiration or termination of such Protein
Database subscriptions as well as all on-going royalties due for End User
discoveries made using the Protein Database during the life of such End User's
subscription.
8.3.3. The rights and obligations of the parties contained in
Sections 8.3, 9, 10, 12, 13, and 15 will survive the termination or expiration
of this Agreement.
8.4. Nonexclusive Remedy. The exercise by either party of any remedy under
-------------------
this Agreement will be without prejudice to its other remedies under this
Agreement or otherwise.
9. CONFIDENTIALITY
9.1. Obligations. Each party will maintain the Confidential Information of
-----------
the other party in strict confidence and will exercise due care with respect to
the handling and protection of such Confidential Information, consistent with
its own policies concerning protection of its own Confidential Information of
like importance, which require at least reasonable care. Each party will use the
Confidential Information of the other party only as expressly permitted herein,
and will disclose such Confidential Information only to its employees and
consultants as is reasonably required in connection with the exercise of its
rights and obligations under this Agreement (and only subject to binding use and
disclosure restrictions at least as protective as those set forth herein
executed in writing by such employees and consultants). However, each party may
disclose Confidential Information of the other party pursuant to the order or
requirement of a court, administrative agency, or as required by applicable law,
and the receiving party will give reasonable notice to the other party to
contest such order or requirement. Any such disclosure by the receiving party of
the Confidential Information of the disclosing party, will, in no way, be deemed
to change, affect or diminish the confidential and proprietary status of such
Confidential Information. Each party's obligations under this Section 9 will
---------
survive for a period of five (5) years from the termination or expiration of
this Agreement.
9.2. Injunctive Relief. Each party acknowledges that improper use or
-----------------
disclosure of the Confidential Information of the other party would cause
substantial harm to the other party that could not be remedied by the payment of
damages alone. Accordingly, each party will be entitled to preliminary and
permanent injunctive relief and other equitable relief for any breach of this
Section9.
--------
-7-
10. PROPRIETARY RIGHTS
10.1. AxCell's Ownership. The Protein Database, and all updates thereto
------------------
are and will remain the sole and exclusive property of AxCell, including all
Intellectual Property Rights therein, AxCell reserves all rights in the Protein
Database not expressly granted herein. AxCell will use its reasonable best
efforts to protect and maintain the value of the Protein Database, and to
preserve all of its Intellectual Property Rights therein.
10.2. [CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
10.3. InforMax's Ownership. SSBM and all updates or enhancements to SSBM
--------------------
are and will remain the sole and exclusive property of InforMax and its
suppliers, if any, including all Intellectual Property Rights therein, whether
such items are separate or combined with any other products, and InforMax
reserves all rights in such items not expressly granted herein.
10.4. Proprietary Rights Notices. Neither party will delete or in any
--------------------------
manner alter the Intellectual Property Rights notices of the other party and its
suppliers, if any, appearing on or in connection with the Protein Database, SSBM
or the Tools, and will reproduce and display such notices on each copy it makes
of such items. Each party will also include appropriate trademark notices when
referring to SSBM or the Protein Database in advertising and promotional
materials.
10.5. Third Party Infringement. Each party will use its reasonable efforts
------------------------
to protect the other party's Intellectual Property Rights in the Protein
Database, SSBM, and Tools, as applicable, and will report promptly to the other
party any infringement of such rights of which it becomes aware.
10.6. Trademarks. Subject to the terms and conditions of this Agreement,
----------
each party grants to the other party a non-exclusive, non-transferable license
for the term of this Agreement to use the Marks of such party in connection with
the other party's performance of its marketing and promotional obligations set
forth in Section 3.2. Each party's use of the other party's Marks must be in
-----------
accordance with other party's trademark usage guidelines then in effect, and
such use will inure to the other party's benefit. Nothing in this Agreement
grants to either party ownership or any rights in or to use the Marks of the
other party, except in accordance with this license. The rights granted in this
Section 10.6 will terminate upon any termination or expiration of this
------------
Agreement. Upon such termination or expiration, each party will no longer make
any use of any of the other party's Marks. Each party will have the exclusive
right to own, use, hold, apply for registration for, and register its Marks
during the term of, and after the expiration or termination of, this Agreement
and the other party will neither take nor authorize any activity inconsistent
with such exclusive right.
11. WARRANTIES
AxCell warrants to InforMax that it has sufficient right and authority to
grant to InforMax all licenses and rights that AxCell grants under this
Agreement. InforMax warrants to AxCell that it has sufficient right and
authority to grant to AxCell all licenses and rights that InforMax grants under
this Agreement. THE WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NONINFRINGEMENT.
12. INDEMNITIES
12.1. Mutual Indemnity. Each party agrees to indemnify and hold harmless
----------------
the other party against any third party claims against the indemnified party for
loss, damage, liability, or expense (including but not limited to reasonable
attorneys' fees) ("Losses") arising out of any acts or omissions of indemnifying
party arising from (i) the indemnifying party's willful misconduct, or
(ii) abreach of the indemnifying party's obligations under Section 5.3.
-----------
12.2. By InforMax. InforMax agrees to indemnify and hold harmless AxCell
-----------
from and against third party claims against AxCell for Losses arising out of any
claim that the SSBM or the Tools as supplied by InforMax infringe a U.S. patent,
copyright or trade secret of a third party. If a final injunction is obtained in
any such claim, or if in InforMax's opinion such an injunction is likely to be
obtained, InforMax may, at its sole option, either (a) obtain for AxCell's
customers the right to continue using the infringing item, (b) replace or modify
the infringing item or infringing portion thereof so that it becomes
noninfringing, or (c) if neither (a) nor (b) can be reasonably effected by
InforMax, terminate this Agreement. The foregoing indemnity will not apply to
modifications to the Tools or SSBM not performed by InforMax or InforMax's
compliance with AxCell's specifications or requirements for the Tools. The
foregoing states the entire liability of InforMax with respect to infringements
of any intellectual property rights by the Tools or SSBM or their use.
-8-
12.3. By AxCell. AxCell agrees to indemnify and hold harmless InforMax
---------
from and against third party claims against InforMax for Losses arising out of
any claim that Protein Database as supplied by AxCell infringes a U.S. patent,
copyright or trade secret of third party. If a final injunction is obtained in
any such claim, or if in AxCell's opinion such an injunction is likely to be
obtained, AxCell may, at its sole option, either (a) obtain for InforMax's
customers the right to continue using the Protein Database or (b) replace or
modify the or infringing portion thereof so that it becomes noninfringing. The
foregoing indemnity will not apply to modifications to the Protein Database not
performed by AxCell. The foregoing states the entire liability of AxCell with
respect to infringements of any intellectual property rights by the Protein
Database or its use.
12.4. Contingency. The foregoing indemnities shall be contingent upon (i)
-----------
the indemnified party giving prompt written notice to the other party of any
claim, demand or action for which indemnity is sought; (ii) the indemnified
party being given sole control of the defense thereof; and (iii) the indemnified
party fully cooperating in the defense or settlement of any such claim, demand
or action, at the expense of the indemnifying party.
13. LIMITATIONS OF LIABILITY
IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PART FOR ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. INFORMAX'S TOTAL
LIABILITY TO AXCELL UNDER THIS AGREEMENT WILL BE LIMITED TO THE PAYMENTS DUE
FROM INFORMAX UNDER THIS AGREEMENT. The parties have agreed that the limitations
specified in this Section 13 will survive and apply even if any limited remedy
specified in this Agreement is found to have failed of its essential purpose.
14. COMPLIANCE WITH LAW
Each party will comply with all applicable international, national, state,
regional, and local laws and regulations in performing its duties hereunder and
in any of its dealings with respect to the products of the other party.
15. GENERAL
15.1. Assignment. This Agreement will bind and inure to the benefit of
each party's permitted successors and assigns. Any assignment of this Agreement
by AxCell (except to an entity controlling, controlled by or under common
control with AxCell) without the prior written consent of InforMax shall be null
and void.
15.2. Non-Solicitation. The parties agree that, for the duration of the
term of this Agreement and for twelve (12) months thereafter, neither party
shall, directly or indirectly or for or on the behalf of any entity, solicit the
employment or services of the employees of the other party or enter into any
agreement for the purpose of causing such employees to leave the employment of
the other party.
15.3. Press Release. The parties agree to issue joint press releases (i)
announcing the execution of this Agreement within five (5) days of such
execution and (ii) announcing the commercial availability of the Protein
Database within five (5) days of the Database Launch Date.
15.4. Governing Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, excluding that body of law
known as conflicts of laws.
15.5. Severability. If any provision of this Agreement is found invalid or
------------
unenforceable, that provision will be enforced to the maximum extent
permissible, and the other provisions of this Agreement will remain in full
force and effect.
15.6. Force Majeure. Neither party shall be liable to the other party for
-------------
failure or delay in fulfilling its obligations under this Agreement to the
extent that such failure or delay is due to causes beyond its control.
15.7. Notices. All notices under this Agreement will be deemed given when
-------
delivered personally, sent by confirmed facsimile transmission, or sent by
certified or registered U.S. mail or
-9-
nationally-recognized express courier, return receipt requested, to the
respective addresses set forth in this Agreement or as may otherwise be
specified by either party to the other in accordance with this section.
15.8. Independent Contractors. The parties to this Agreement are
-----------------------
independent contractors. There is no relationship of partnership, joint venture,
employment, franchise, or agency between the parties. Neither party will have
the power to bind the other or incur obligations on the other's behalf without
the other's prior written consent.
15.9. Waiver. Failure or delay by either party to enforce compliance with
------
any term or condition of this Agreement shall not constitute a waiver of such
term or condition.
15.10. Dispute Resolution and Binding Arbitration.
------- ---------- --- ------- -----------
15.10.1. The parties shall attempt to settle any dispute between them
amicably and agree to exercise their best efforts to resolve the controversy or
dispute prior to seeking a judicial resolution. To invoke the dispute resolution
process, the invoking party shall give to the other party written notice of its
decision to do so, including a description of the issues subject to the
controversy or dispute and a proposed resolution thereof. The InforMax Project
Managers and the AxCell Project Managers shall attempt to resolve the
controversy or dispute within five (5) business days after receipt of such
notice. If they cannot resolve the controversy or dispute, the parties shall
meet at InforMax's office and describe the controversy or dispute and their
respective proposals for resolution to their respective chief operating officers
or another designated person with comparable authority who shall act in good
faith to resolve the controversy or dispute. If the controversy or dispute is
not resolved within ten (10) business days after such meeting, the parties by
mutual Agreement may engage an independent consultant to mediate the controversy
or dispute and the charges of the independent consultant shall be shared equally
by the parties. However, nothing in this clause shall preclude any party from
commencing suit or arbitration if said negotiations do not reach a resolution
within thirty (30) days after written notice that the negotiations have
commenced.
15.10.2. In the event that the parties cannot reach an amicable
settlement through an informal dispute resolution process, the parties agree
that any dispute, controversy, or claim arising out of or relating to this
contract, or the breach, termination or invalidity thereof, shall be finally
settled by binding arbitration. Such binding arbitration shall take place in the
location reasonably selected by the party not initiating the arbitration, and
shall be administered by the American Arbitration Association under its
Commercial Arbitration Rules. The number of arbitrators shall be one (1) and
shall be appointed within thirty (30) days following the commencement of
arbitration. If possible, the arbitrator will be an expert in the field of
bioinformatics and software development. If the parties cannot agree on an
arbitrator within such thirty (30) day period, the number or arbitrators shall
be increased to three (3), and each party will select an arbitrator within
fifteen (15) days, and those arbitrators will promptly select a third
arbitrator.
15.10.3. The arbitrator's award shall be final and binding and
judgment on the award rendered by the arbitrator(s) may be entered in any court
having jurisdiction thereof. The parties expressly agree that prior to the
selection of the arbitrator(s), nothing in this Agreement shall prevent the
parties from applying to a court that would otherwise have jurisdiction for
provisional or interim measures.
-10-
15.10.4. The costs of the arbitration shall be borne by the parties
to the arbitration in equal shares. Each party shall pay its own costs and
expenses, including attorneys' fees. The arbitration shall be conducted in the
English language. All submissions shall be made in English or with an English
translation. Witnesses may provide testimony in a language other than English,
provided that a simultaneous English translation is provided. Each party shall
bear its own translation costs.
15.11. Entire Agreement. This Agreement and its exhibits are the complete
----------------
and exclusive agreement between the parties with respect to the subject matter
hereof, superseding and replacing any and all prior agreements, communications,
and understandings (both written and oral) regarding such subject matter. This
Agreement may only be modified, or any rights under it waived, by a written
document executed by both parties.
[The rest of this page is intentionally left blank.]
-11-
The parties have caused this Agreement to be executed by their duly-
authorized representatives as of the Effective Date.
InforMax: AxCell:
----------------------- ------------------------------
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxx Xxxxxxx
Name: Xxxx Xxxxxxxxx Name: Xxxxx Xxxxxxx
Title: President/CEO Title: Vice President, CIO
-12-
[CONFIDENTIAL TREATMENT HAS BEEN REQUESTED]
-13-
