Exhibit 10.1
*** CONFIDENTIAL ***
Accelr8
Technology
Corporation
**** Information redacted pursuant to a confidential treatment request. An
unredacted version of this exhibit has been filed separately with the
Commission.
FEASIBILITY TESTING AGREEMENT
October 5, 2005
This Feasibility Testing Agreement ("Agreement") effective as of the date first
set forth above ("Effective Date") is made by and between Promega, Corp., a
Wisconsin corporation with its principal place of business at 0000 Xxxxx Xxxxxx
Xxxx, Xxxxxxx, XX 00000 ("Promega") and Accelr8 Technology Corp., a Colorado
corporation with its principal place of business at 0000 Xxxxx Xxxxxxxx, Xxxxx
0-000, Xxxxxx, XX 00000 ("Accelr8") (each, a "Party" and, collectively, the
"Parties"). Capitalized terms used in this Agreement are as defined herein.
Whereas, Promega's primary business and scientific expertise is in the
development, sales and distribution of life sciences kits and reagents;
Whereas, Accelr8's primary business is to expand the modularity and versatility
of Accelr8's OptiChem(R) surface chemistry technology to enable or improve an
industrial customer's products;
Whereas, pursuant to the Mutual Non-Disclosure Agreement executed by the Parties
as of January 30, 2003, Promega has been investigating Accelr8's OptiChem(R)
surface chemistry and application methods ("Accelr8 Technology") for use in
association with Promega's [****] technologies ("Promega Field of Use");
Whereas, the Parties contemplate the potential licensing of the Accelr8
Technology by Promega in the Promega Field of Use;
Whereas, the Parties wish to collaborate in accordance with the terms and
conditions of this Agreement;
Whereas, the Parties have agreed to a License Agreement in the forms attached as
Exhibit D and will execute the License Agreement upon successful completion of
this Feasibility Agreement,
Now Therefore, in consideration of the mutual promises contained herein and
other good and valuable consideration, receipt of which is hereby acknowledged,
the Parties hereby agree as follows:
1. Scope of Agreement
This Agreement will focus on the development by Accelr8 of a customized
[****] coating ("Customized Coating") for glass slides for use by Promega
in the Promega Field of Use and a potential subsequent short
term supply of such glass slides should the development phases be
successful and should Promega choose to have Accelr8 manufacture and supply
slides for sale to third parties. If both Phases of the Feasibility
Agreement have been successfully completed, the materials developed meet
Promega's product performance parameters, and Promega wishes to sell slides
with this Customized Coating, the Parties will enter into the License
Agreement attached hereto as Exhibit D within ten (10) business days of
completion of Phase 2.
2. Development Obligations and Funding.
2.1 Development Obligations. The Feasibility Project is divided into two
Phases, described in detail in Exhibit A, which constitutes an integral
part of this agreement. Xxxxxx Xxxxx 0, Xxxxxx0 will perform development
iterations of prototype [****] OptiChem(R) coated glass slide products,
will develop quality control procedures and documentation, and will deliver
prototypes for testing at Promega. Xxxxxx Xxxxx 0, Xxxxxx0 will develop and
deliver to Promega [****] Optichem(R) slide product performance parameters,
production processes, and written descriptions. Phase 2 of the glass slide
development will be completed by February 28, 2006. From the Effective Date
through February 28, 2006 ("Slide Development Term"), Accelr8 will devote
all reasonably necessary scientific and laboratory resources to the
development of the [****] OptiChem(R) prototypes, procedures, and process
descriptions according to Exhibit A.
2.2 Delivery of Phase 2 [****] Products. Accelr8 will deliver to Promega
two iterative sets of [****] slide products. Each delivery will
include [****] slides. The timing of these deliveries will be established
by mutual agreement of Promega and Accelr8 at the start of the Phase 2
project.
2.3 Payment. Within ten (10) business days of the Effective Date, Promega
will pay Accelr8 the sum of forty-nine thousand US dollars (US$49,000)
in return for Accelr8's performance of the obligations specified under
Phases 1 and 2 of this Agreement. If Promega determines that Phase 1
has not been successfully completed, Promega will notify Accelr8 in
writing and Accelr8 will within five (5) business days return to
Promega the sum of twenty-two thousand US dollars (US$22,000), which
represents the amount of the payment allocable to Phase 2 of this
Agreement. Accelr8 will then have no obligation to perform any work on
Phase 2 and the License Agreement will not be executed. Each Party will
provide the necessary resources reasonably required for satisfying its
obligations under this Agreement. With the exception of the payments
due by Promega as specified above in this Section 2.3, each Party
agrees that it will be entirely responsible for funding its own
activities pursuant to this Agreement, unless otherwise mutually agreed
by the Parties in writing.
2.4 Assistance. The Parties will cooperate with each other in good faith in
order to achieve the goals of this Agreement. The Parties will share
all relevant experimental samples, data and research results in the
form of oral communications, presentations, documents, emails and
electronic data generated during the term of this Agreement through
regular and timely verbal exchanges. Information shared in accordance
with this section will be treated as confidential by the Party to which
it is disclosed and, subject to the confidentiality provisions
specified in this Agreement. In addition, Accelr8 will provide
reasonable amounts of technical support to Promega, at no cost to
Promega, in respect of Promega's use and analysis of the Prototype
Samples during the term of this Agreement; provided however, that if
Accelr8 reasonably believes that the provision of such technical
support becomes overly burdensome, the Parties will in good faith
determine how to resolve such issue.
2.5 Negation of Warranty. While Accelr8 shall make every effort to deliver
optimized Prototypes, Accelr8 does not warrant any specific results of
the efforts performed hereunder, or the performance of the Prototype
Samples.
3. Ownership of Inventions.
3.1 Inventions and Patent Prosecution. For the purposes of this Agreement,
"Invention" means without limitation, all discoveries, processes, works
of authorship, know-how, techniques, designs, compositions, art and
techniques (whether or not patentable or copyrightable) that are: (a)
conceived and reduced to practice during the term of this Agreement in
furtherance of this Agreement; or (b) in the case of
copyright-protectable works are fixed in a tangible medium during the
term of this Agreement in furtherance of this Agreement. Regardless of
who is considered an inventor under United States law, any Invention
that constitutes an improvement of Promega's Background Technology
shall be owned by Promega ("Promega's Improvement Invention"). Any
Invention that constitutes an improvement of Accerl8's Background
Technology shall be owned by Accerl8 ("Accerl8's Improvement
Invention") and shall be included within the rights granted under the
License Agreement attached to this Agreement at no additional cost to
Promega. Any other inventions shall be Joint Inventions owned by both
Parties without obligation of accounting to each other. If there is a
Joint Invention in respect of which a patent application is filed, then
Promega and Accelr8 agree to select mutually acceptable patent counsel
to prepare and file such patent application and the Parties agree to
cooperate in the enforcement and defense of such patents and patent
applications. If the Invention is an Improvement Invention owned by
either Party in accordance with this provision, the other Party shall
cooperate as necessary in the preparation and filing of any patents or
patent applications for which their employees are inventors. Ownership
of any Invention will be determined in accordance with United States
law.
3.2 Patent Costs. Each Party will be solely responsible for all patent
prosecution costs and expenses ("Patent Costs") related to such Party's
Improvement Inventions. The Parties will equally share reasonable,
actually incurred and documented Patent Costs in respect of patent
prosecution of Joint Inventions.
3.3 Identifying Inventions. Each Party will be diligent in identifying
Joint Inventions made pursuant to this Agreement and will notify the
other Party in writing thereof. Promega is not obligated to disclose
Sole Inventions made pursuant to this Agreement; Accerl8 shall promptly
disclose its Improvement Inventions and include them in the License
Agreement if it is executed.
4. Access to Other Party's Background Technology.
Except as explicitly provided in this Agreement or otherwise agreed by
the Parties in writing during the term hereof, neither Party may use
the other Party's Background Technology or Confidential Information for
any purpose (including without limitation any commercial purpose) other
than for the purposes of carrying out their obligations pursuant to
this Agreement and no implied licenses or rights under any Background
Technology or Confidential Information are granted by either Party
under this Agreement and no rights or title in same are transferred by
virtue of this Agreement, unless and until Promega and Accelr8 enter
into a License Agreement in the form attached hereto. Nothing in this
Agreement is intended to prevent either Party from using any
information that is placed in the public domain by the other Party,
provided that such information: (a) is not subject to any
confidentiality obligations between the disclosing Party and any other
person; and (b) does not constitute the Intellectual Property of the
disclosing Party. Accelr8 and Promega agree that they will not
distribute to any third party any of the other Party's Background
Technology (including without limitation any proprietary materials,
data, information and technology containing or constituting such
Background Technology) provided to them by the other Party under this
Agreement. "Background Technology" for the purposes of this Agreement
means Intellectual Property that: (i) was owned, controlled or acquired
by or granted to such Party prior to the Effective Date; or (ii) after
the Effective Date is created, invented, conceived or reduced to
practice by a Party solely by employees or agents of the Party or other
than in furtherance of this Agreement. "Intellectual Property" for the
purposes of this Agreement means inventions, discoveries, software
(including object code, source code and documentation), works of
authorship, know-how and techniques, in each case whether or not
patentable, copyrightable, protectable by trade secret or subject to
other forms of proprietary protection. Accelr8 Background Technology
includes, but is not limited to, those patents and patent applications
listed in Exhibit B. Promega's Background Technology includes, but is
not limited to, those patents and patent applications listed in Exhibit
C.
5. Supply of Glass Slides.
5.1 Supply and Price. Upon successful completion of the two phases of
development set forth in Section 2 above, Promega may elect to have
Accelr8 supply [****] Opti-Chem(R) coated glass slides developed
by Accelr8 ("Product") for a period of time through September 30, 2006,
up to a maximum of [****] slides. Promega may purchase the Product
through regular purchase orders under usual and customary terms and
delivery shall take place no later than 60 days from placement of the
order. The price shall be [****] per slide. Should Accelr8 experience
increases in material and/or labor costs, Accelr8 may, with thirty (30)
days' written notice, increase the price per slide by no more than [****].
5.2 Labeling. Promega shall provide Accelr8 with labels for the Product,
which Accelr8 shall affix to each Product at no additional cost.
5.3 Delay in shipment. If at any time it reasonably appears to Accelr8 that
it may not meet a delivery schedule, Accelr8 must promptly notify
Promega's Purchasing Department of the reasons for delay and estimated
duration of delay at telephone number 000-000-0000 (Xxxx Xxxxx,
Purchasing Manager), facsimile transmission number 000-000-0000 or
electronic mail to xxxxxx@xxxxxxx.xxx, or via another means as Promega
may designate. In the event Accelr8 is unable or unwilling to deliver
the amount of the Product ordered by Promega, Accelr8 must notify
Promega's Purchasing Department within five (5) days of receipt of
Promega's purchase order. If directed by Promega's Purchasing
Department, to the extent not already provided under this Feasibility
Agreement, Accelr8 must provide the manufacturing protocols and other
information necessary for Promega to manufacture the Product itself
within ten (10) days of receipt of Promega's written request for the
protocols. Accelr8 must send the manufacturing protocols and other
information to Promega via facsimile transmission with original hard
copies sent via express mail to the Promega employee designated by
Promega. Accelr8 must also provide technical assistance and Promega
must pay the fees and reimbursements as set forth in Section 6 below.
5.4 Warranty. Accelr8 hereby warrants that all Product will meet or exceed
the specifications set forth on the Quality Control Specifications that
will be developed and delivered as part of Phase 2 of development.
Accelr8 shall repair or replace any Product failing to meet such
specification. If repair or replacement is not feasible, Accelr8 will
reimburse Promega for any payment for such Product. Accelr8 understands
and agrees that Promega will be reselling the Product and the warranty
provided hereunder shall not be voided due to use of the Products by
Promega's customers; provided, however, that Promega and its customers
use and store the Product in accordance with Accelr8's recommendation.
Each Product shipment must include Accelr8's Certificate of Analysis
setting forth protocols and test or other evaluation information
warranting compliance with the Quality Control Specifications.
6. Technology Transfer.
In the event Promega chooses not to have Accelr8 supply glass slides, or
Acceler8 is unable or unwilling to deliver product as set forth in Section
5.3 above, and in no event later than April 30, 2006, Accelr8 shall provide
to Promega or a third party designated by Promega technical assistance to
enable complete, timely and effective transfer of all know-how associated
with manufacture and quality control of the slides. Technology transfer
will be considered complete when Promega has received complete
manufacturing and QC testing procedures, Accelr8 has provided raw material
vendors and specifications, and has identified the relevant processing
equipment and has provided onsite technical support to begin manufacturing.
Accerl8 also agrees to to provide a reasonable level of continued support
in the event that problems arise during actual production. In consideration
for this technical assistance, Promega shall pay Accelr8 a fee of [****],
as well as reasonable travel and other out-of-pocket expenses incurred in
providing the assistance. The fee and expense reimbursement will be paid
within ten (10) business days after successful completion of the transfer.
7. Confidentiality.
7.1 Confidentiality Obligation. During the term of this Agreement and for 5
years thereafter notwithstanding the termination or expiration hereof,
each Party will maintain in confidence all information that is
disclosed to it by the other Party in connection with this Agreement,
which is identified in writing or if disclosed orally or visually, is
within thirty (30) calendar days of the date of disclosure, confirmed
in writing as confidential by the disclosing Party, or which
information should reasonably be considered confidential by the
receiving Party taking into account the nature of the information and
the circumstances of its disclosure ("Confidential Information").
Confidential Information will include without limitation, all
information relating to both Parties' business, activities and each
Party's Background Technology.
7.2 Exceptions. Confidential Information does not include information that:
(i) is or later becomes available to the public through no breach of
this Agreement or any other agreement to which the disclosing Party is
a party; (ii) is obtained from a third party who had the legal right to
disclose the information; (iii) as of the date of disclosure, is
already in the possession of the Party to whom disclosure is made
through no breach of any obligation owed by any person or entity to the
disclosing Party; or (iv) is independently developed by the receiving
Party without the use of the disclosing Party's Confidential
Information, as reasonably demonstrated by the receiving Party's
records.
7.3 Disclosures Required by Law. If the receiving Party is required by a
valid order of a court or other governmental body or is otherwise
required by law to disclose Confidential Information, it will give the
disclosing Party timely written notice of such requirement before
disclosing any such Confidential Information and will cooperate with
the disclosing Party to seek a protective order, confidential treatment
or other appropriate measures requiring, amongst other things, that the
Confidential Information so disclosed be used only for the purposes for
which the order was issued and the Confidential Information so
disclosed be redacted to limit the extent of disclosure to the minimum
extent required to comply with the relevant court or government body
order.
8. Term.
8.1 Term and Termination. This Agreement will enter into effect on the
Effective Date and will expire on September 30, 2006, subject to
extension by mutual agreement of the Parties in writing. A Party may
terminate this Agreement with immediate effect upon written notice to
the other Party, if the other Party has failed to remedy a material
breach of this Agreement within thirty (30) calendar days of the date
of dispatch from the non-breaching Party to the breaching Party, of
written notification identifying such material breach and requiring the
cessation or remedy thereof.
8.2 Effect of Termination. Upon termination of this Agreement by reason of
Accerl8's breach, Promega Background Technology and Promega
Confidential Information received by Accelr8 pursuant to this Agreement
will, at Promega' option either be returned to Promega or properly
destroyed, and Promega will be entitled to receive all work performed
by Accerl8 on its behalf up to the date of termination. Upon
termination of this Agreement by reason of Promega's breach, Accelr8
Background Technology and Accelr8 Confidential Information received by
Promega pursuant to this Agreement will, at Accelr8's option either be
returned to Accelr8 or properly destroyed. Notwithstanding the previous
sentence, each Party's attorneys may retain one copy of any
Confidential Information or Background Technology received from the
other Party pursuant to this Agreement for the sole purpose of
determining each Party's compliance with the terms of this Agreement.
Except as permitted by this Agreement or the attached License
Agreement, neither Party may use the other Party's Background
Technology or Confidential Information for any purpose whatsoever,
after the expiration or termination of this Agreement. The terms of
Sections 3, 4, 5.4, 6, 7, 8, 9, 10, 11and 12 will survive any
expiration or termination of this Agreement.
9. Representations and Warranties.
9.1 Representations and Warranties. Each Party represents and warrants
that: (a) there are no outstanding agreements, assignments or
encumbrances in conflict with the provisions of this Agreement; (b) it
has the requisite power and authority to enter into this Agreement and
perform the obligations and grant the rights set forth herein; (c) it
will comply with all applicable laws, regulations and orders of any
governmental authority of competent jurisdiction in its performance of
this Agreement; (d) all persons participating in this Agreement on
behalf of such Party have effectively and validly assigned to such
Party all right, title and interest in all Inventions such person
creates in the course of performing this Agreement; and (e) such Party
has not transferred any right, title or interest to any third party in
conflict with any right, title or interest transferred or to be
transferred herein.
9.2 Disclaimer. EXCEPT AS OTHERWISE SPECIFIED IN THIS AGREEMENT, ALL
BACKGROUND TECHNOLOGY AND CONFIDENTIAL INFORMATION IS PROVIDED "AS-IS"
AND THE PARTY FURNISHING BACKGROUND TECHNOLOGY AND CONFIDENTIAL
INFORMATION HEREUNDER HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND
WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT
LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, ACCURACY, RESULT, EFFORT, TITLE AND
NON-INFRINGEMENT.
10. Indemnification.
Each Party is responsible for its own acts and omissions relating to this
Agreement and any materials provided in connection with this Agreement. Each
Party agrees to indemnify, defend and hold the other Party harmless, along with
such Party's employees, trustees, officers, agents and directors, from and
against any and all losses, claims, damages and/or liabilities (including but
not limited to reasonable and documented attorneys' fees and other related
costs) arising out of personal injury or death of such Party's employees,
trustees, officers, agents and directors, or loss of or damage to its tangible
personal property, in connection with the performance of this Agreement, except
to the extent that such injury, death, loss or damage is determined, after final
judgment from which no appeal can be taken, to have resulted from an act or
omission amounting to gross negligence or willful misconduct of the Party
seeking indemnification or an employee, trustee, officer, agent or director
thereof.
11. Limitation of Liability.
EXCEPT FOR BREACHES OF SECTIONS 4, 5, 6, 7 AND 9 ABOVE AND TO THE EXTENT OF
EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10 ABOVE, NEITHER PARTY
WILL BE LIABLE TO THE OTHER PARTY FOR: (A) THE PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, OR SERVICES; OR (B) INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR
CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION WHETHER IN
CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), STRICT LIABILITY, OR
OTHER LEGAL OR EQUITABLE THEORY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
12. Miscellaneous.
12.1.Compliance with Law. Neither Party will use or otherwise disclose any
Background Technology or Confidential Information provided by the other
Party pursuant to this Agreement in contravention of any laws or
regulations of the United States, or any other applicable jurisdiction,
including, but not limited to, xxxxxxx xxxxxxx laws and export laws.
12.2 Entire Agreement. This Agreement and attachments together with the
Mutual Non-Disclosure Agreement executed by the Parties as of May 2,
2003, sets forth the entire agreement and understanding of the Parties
with respect to the subject matter herein and supersedes all proposals,
oral or written, all negotiations, conversations or discussions between
the Parties and all past dealing or industry custom, relating to the
subject matter of this Agreement.
12.3 Independent Parties. Each of the Parties is an independent contractor
and may not act as or be construed as an agent, joint venturer or
employee of the other Party. Each Party understands that it is not
authorized to incur any expenses on behalf of the other Party.
12.4 Severability. If any term or provision of this Agreement is found by a
court of competent jurisdiction to be invalid, illegal or otherwise
unenforceable, the same will not affect the other terms or provisions
hereof or the whole of this Agreement, but such term or provision will
be deemed modified to the extent necessary in the court's opinion to
render such term or provision enforceable, and the rights and
obligations of the Parties will be construed and enforced accordingly,
preserving to the fullest permissible extent the original intent and
agreement of the Parties.
12.5 Equitable Relief. Each Party understands that any unpermitted
disclosure or improper use of any Confidential Information or
Background Technology provided to it or owned by the other Party will
result in irreparable harm for which there is no adequate remedy that
can be compensated by an award of monetary damages and the providing or
owning Party will be entitled to temporary and permanent injunctions,
in addition to all other available remedies.
12.6 Assignment. Neither Party may assign this Agreement without the prior
written consent of the other Party. Any purported assignment in
violation of this section is void and will constitute a breach of this
Agreement. The preceding sentence notwithstanding, Promega may assign
this Agreement in conjunction with the sale or transfer of
substantially all of the assets associated with this Agreement or in
the event of Promega' amalgamation or merger with a third party.
Subject to the foregoing, this Agreement is binding upon each Party's
successors and/or permitted assigns.
12.7 Amendment; Waivers. This Agreement may not be modified or amended
except by the mutual written agreement of the Parties. No waiver of any
provision of this Agreement will be effective unless it is in writing
and signed by the Party against which it is sought to be enforced. The
delay or failure by either Party to exercise or enforce any of its
rights under this Agreement will not constitute or be deemed a waiver
of that Party's right thereafter to enforce those rights, nor will any
single or partial exercise of such right preclude any other further
exercise thereof or the exercise of any other right.
12.8 Governing Law and Jurisdiction. This Agreement, including all matters
of construction, validity and performance will be governed by and
construed and enforced in accordance with the laws of the State of
Colorado, as applied to contracts made, executed and to be fully
performed in Colorado by citizens of Colorado, without regard to its
conflict of laws rules and notwithstanding the actual residence of the
Parties. Notwithstanding the foregoing, the Parties may apply to any
court of competent jurisdiction for temporary injunctive relief.
12.9 Disputes. In the event of litigation between the Parties arising from
this Agreement, the prevailing Party will be entitled to recover court
costs and reasonable, documented fees of attorneys and experts incurred
by such Party in connection with the action.
12.10 Force Majeure. Neither Party will lose any rights hereunder or be
liable to the other Party for damages or losses (except for payment
obligations) on account of failure of performance by the defaulting
Party if the failure is occasioned by war, strike, fire, Act of God,
earthquake, flood, lockout, embargo, governmental acts or orders or
restrictions, failure of suppliers, or any other reason where failure
to perform is beyond the reasonable control and not caused by the
negligence or intentional conduct or misconduct of the non-performing
Party and such Party has exerted all reasonable efforts to avoid or
remedy such force majeure; provided however, that in no event will a
Party be required to settle any labor dispute or disturbance. If an
event of force majeure continues in force for a period of more than
ninety (90) calendar days, the non-affected Party may terminate this
Agreement with immediate effect by providing written notice to the
other Party.
12.11 Other Remedies Cumulative. Except where otherwise specified, the rights
and remedies granted to a Party under this Agreement are cumulative and
in addition to, and not in lieu of, any other rights or remedies that
the Party may possess at law or in equity, including, without
limitation, rights or remedies under applicable patent, copyright,
trade secret or proprietary rights, laws, rules or regulations.
12.12 Notice. Any notice or other communication given pursuant to this
Agreement will be in writing and will be effective upon its personal
delivery to the Party for whom it is intended, or upon its delivery
(with confirmation) by an overnight delivery service, or five (5)
business days following its deposit into the United States mail
(certified mail, return receipt requested), addressed to such Party at
the address set forth below; provided however that notices may not be
sent by email. Neither Party may send notices under this Agreement by
electronic mail. Either Party may designate a different address by
providing written notice to the other Party in accordance with this
section.
12.13 Address for Notices to Promega: Promega Corporation, General Counse
0000 Xxxxx Xxxxxx Xxxx, Xxxxxxx, XX 00000
12.14 Address for Notices to Accelr8: 0000 X. Xxxxxxxx, Xxxxx 0-000, Xxxxxx,
XX 00000; Attn: Xxxxxx X. Xxxxxx, Chairman and CEO.
12.15 Use of Name. Neither Party will use the name(s) of the other Party or
any abbreviation or variant thereof, in any press release or commercial
advertisement or similar material that is used to promote or sell
products or services, unless such Party obtains in advance the written
consent of the named Party to such use.
12.16 Publicity. The Parties will not make any public announcement of, or
otherwise disclose to a third party, the existence or terms and
conditions set forth in this Agreement, except as mutually agreed in
writing or as required by disclosure obligations arising under law
pursuant to the confidentiality provisions of this Agreement; provided
however, that Promega may disclose terms of this Agreement to its
affiliates under obligations of non-disclosure.
12.17 Counterparts. This Agreement may be executed in counterparts each of
which will be deemed an original, but all of which together will
constitute one and the same original.
IN WITNESS WHEREOF, duly authorized officers or representatives of Promega and
Accelr8 have executed this Agreement as of the Effective Date:
Promega Corp. Accelr8 Technology Corp.
/s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx X. Xxxxxx
----------------------- ----------------------
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxx
Chairman and CEO Chairman and CEO
