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EXHIBIT 10.9
CONFIDENTIAL TREATMENT
GENOMETRIX INCORPORATED HAS REQUESTED THAT
THE MARKED PORTIONS OF THIS DOCUMENT BE
ACCORDED CONFIDENTIAL TREATMENT PURSUANT TO
RULE 406 UNDER THE SECURITIES ACT OF 1933,
AS AMENDED.
GENOMETRIX INCORPORATED
GENOMIC SERVICES AGREEMENT
THIS AGREEMENT, dated as of March 3, 2000, (the "Effective Date") is
entered into by GENOMETRIX INCORPORATED, a DELAWARE corporation with its
principal place of business at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxx Xxxxxxxxx, XX,
00000 ("Genometrix") and PROCTER & XXXXXX PHARMACEUTICALS, INC., an Ohio
corporation with its principal place of business at 0000 Xxxxx-Xxxxxxxxxx Xxxx,
Xxxxx, XX 00000 ("Customer").
1. DEFINITIONS.
1.1 "CUSTOMER AFFILIATE" means any individual or entity directly or
indirectly under the control of Customer. For purposes of this Section 1.21,
"control" means (i) the direct or indirect ownership of fifty percent (50%) or
more of the outstanding voting securities of an entity, or (ii) the right to
receive fifty percent (50%) or more of the profits or earnings of an entity, or
(iii) such other relationship as in fact results in actual control over the
management, business and affairs of an entity, shall be deemed to constitute
control.
1.2 "CUSTOMER ARRAY FABRICATION REAGENTS" shall mean any synthetic
polynucleotide DNA reagents that are provided by Customer to Genometrix for use
in the preparation of a Custom VistaArray(TM) for either expression or
polymorphism analysis in a manner that is consistent with specifications
determined by Genometrix.
1.3 "CUSTOMER EXPRESSION REAGENTS" shall mean any reagents that are
provided by Customer to Genometrix for use in the preparation of VistaArray(TM)
Targets by Genometrix. Customer Expression Reagents include tissue samples,
total RNA, and mRNA.
1.4 "CUSTOMER GENOTYPING REAGENTS" shall mean any reagents that are
provided by Customer to Genometrix for the preparation of VistaArray(TM) Targets
by Genometrix. Customer Genotyping Reagents include tissue samples, blood
samples, and DNA.
1.5 "CUSTOM VISTAARRAY(TM)" means a VistaArray(TM) fabricated using
genes and reagents specified by Customer and provided by Customer, or both
Customer and Genometrix.
1.6 "EXPRESSARRAY(TM)" means a VistaArray(TM) designed to enable
analysis of gene expression from a sample of either mRNA or DNA that has been
labeled appropriately.
1.7 "GENOMETRIX ARRAY FABRICATION REAGENTS" shall mean any synthetic
polynucleotide DNA reagents of Genometrix that are used in the preparation of
VistaArrays(TM).
1.8 "GENOVISTA(TM) SOFTWARE" means the Genometrix software programs
useful for (a) managing the fabrication of VistaArrays(TM), (b) using the
VistaArrays(TM), and (c) analyzing image data and/or electronically storing,
manipulating, visualizing or analyzing VistaArray(TM) Expression Data and/or
VistaArray(TM) Genotype Data.
1.9 "MORPHARRAY(TM)" means a VistaArray(TM) designed to enable
analysis of polymorphisms or other variations from a sample of DNA that has been
labeled appropriately.
1.10 "STANDARD VISTAARRAY(TM)" means a VistaArray(TM) fabricated using
genes and reagents specified and provided solely by Genometrix.
1.11 "TARGET PREPARATION SERVICES" means preparation by Genometrix of
VistaArray(TM)
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Targets using Genometrix specified procedures and/or VistaArray(TM) Technology.
1.12 "THIRD PARTY" means any entity that is not a party to this
Agreement and is not an Affiliate of a party to this Agreement.
1.13 "VISTAARRAY(TM)" means a microarray having a plurality of
site-specific elements placed on a proprietary substrate in a specified format.
VistaArray(TM) shall include both Custom VistaArrays(TM) and Standard
VistaArrays(TM).
1.14 "VISTAARRAY(TM) FABRICATION SERVICES" means fabrication by
Genometrix of Custom VistaArrays(TM).
1.15 "VISTAARRAY(TM) ELEMENT" means a single sample of synthetic
nucleic acid DNA placed at a designated location on a VistaArray(TM).
1.16 "VISTAARRAY(TM) EXPRESSION DATA" means data generated that
indicates the expression of the genes represented by the VistaArray(TM) Elements
on an ExpressArray Array.
1.17 "VISTAARRAY(TM) EXPRESSION SERVICES" means the processing of
samples, and application of processed samples to VistaArrays(TM), and the
analysis of the VistaArrays(TM) for the purposes of assessing the expression
levels of genes represented on the VistaArrays(TM).
1.18 "VISTAARRAY(TM) GENOTYPE DATA" means data generated that indicates
the DNA makeup of a particular site or sites on genes represented by the
VistaArray(TM) Elements on a MorphArray(TM) Array.
1.19 "VISTAARRAY(TM) GENOTYPING SERVICES" means the processing of
samples, and application of processed samples to VistaArrays(TM), and analysis
of the VistaArrays(TM) for the purposes of assessing specific nucleotide
information at specific locations within genes represented on the
VistaArrays(TM).
1.20 "VISTAARRAY(TM) PLATE" means a plate or surface containing a
plurality of VistaArrays(TM). The plate has a proprietary surface in a format
specified by Genometrix. Multiple identical or different VistaArrays(TM) may be
contained within a single plate.
1.21 "VISTAARRAY(TM) SERVICES" means one or more of the following:
VistaArray(TM) Fabrication Services, VistaArray(TM) Expression Services,
VistaArray(TM) Genotyping Services and/or related services for sample
preparation, processing, imaging, and analysis.
1.22 "VISTAARRAY(TM) TARGETS" means appropriately labeled DNA or cDNA
materials for hybridization with a VistaArray(TM). VistaArray(TM) Targets may be
made by Customer or by Genometrix using specified procedures.
1.23 "VISTAARRAY(TM) TECHNOLOGY" means all technology, including but
not limited to, all inventions, processes, procedures, protocols, know-how,
algorithms, biological materials, chemical materials, software, hardware, and
information that is owned or controlled by Genometrix and which is: (a) utilized
to perform the VistaArray(TM) Services, or (b) utilized to develop, make, have
made, use, sell or import VistaArrays(TM), or (c) utilized to develop, make,
have made, use, sell or import the GenoVista Software and/or is incorporated in
or is a component of the GenoVista Software. VistaArray(TM) Technology includes,
without limitation, the Genometrix Array Fabrication Reagents, VistaArrays(TM)
and the GenoVista Software.
1.24 VISTAARRAY DATA" means collectively VistaArray Expression Data and
VistaArray Genotype Data.
2. PROJECT INITIATION AND PAYMENT.
2.1 The Pricing and Deliverables Form attached as Exhibit A details
the specific VistaArray(TM) Services and GenoVista(TM) Software that Customer
may obtain, purchase or license, as the case may be, under this Agreement.
2.2 Customer may order the VistaArray(TM) Services included in Exhibit
A by submitting to Genometrix a VistaArray fabrication request and completing a
wire transfer for the appropriate amount to an account specified by Genometrix.
Any purchase order submitted to Genometrix shall be governed exclusively by the
terms and conditions of this Agreement.
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CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
3. PERFORMANCE OF VISTAARRAY(TM) SERVICES.
3.1 Customer shall prepare, at Customer's expense, the relevant
Customer Array Fabrication Reagents, Customer Expression Reagents, Customer
Genotyping Reagents, or VistaArray(TM) Targets using specified protocols and
quality control procedures provided by Genometrix. Customer shall provide such
reagents to Genometrix according to a mutually determined schedule as set forth
on Exhibit A, to allow Genometrix sufficient time to perform the VistaArray(TM)
Services identified on Exhibit A and to be provided under this Agreement. Any
such protocols or quality control procedures provided to Customer by Genometrix
pursuant to this Agreement shall be the Confidential Information of Genometrix,
and shall be treated in accordance with the provisions of Section 8.
3.2 Genometrix shall provide training for Customer's personnel to
enable efficient utilization of VistaArray(TM) Expression Data or VistaArray(TM)
Genotype Data, for the number of days set forth on Exhibit A.
3.3 Upon the reasonable request of Customer, Genometrix will provide
Customer with periodic written reports of the status of the performance of the
VistaArray(TM) Services to be provided by Genometrix under this Agreement.
Customer and Genometrix researchers will jointly determine the format of the
report.
3.4 Genometrix will provide a technical liaison to work directly with
the main contact designated by Customer.
3.5 VISTAARRAY(TM) FABRICATION SERVICES.
3.5.1 Customer shall provide a sufficient quantity of Customer Array
Fabrication Reagents to fabricate the desired number of Custom VistaArrays(TM).
With respect to Genometrix Array Fabrication Reagents, Genometrix will provide
sufficient quantities of Genometrix Array Fabrication Reagents for fabrication
of the desired Custom VistaArrays(TM).
3.5.2 Customer Array Fabrication Reagents shall be provided in 96-well
plates. ******* ************, ** *********, ** ******** ** **** ** ***********
*********** ******** and will be performed by Genometrix.
3.5.3 For each Custom VistaArray(TM) fabricated by Genometrix for
Customer pursuant to this Agreement, Genometrix may, at its discretion and at
Genometrix's sole expense, add VistaArray(TM) Elements made using the Genometrix
Array Fabrication Reagents that may serve as quality control, comparative
analysis, and sensitivity calibration standards.
3.5.4 The number of Custom VistaArrays(TM) ordered in any single batch
shall be no less than ***.
3.5.5 In order to ensure appropriate yield, Genometrix may, at its own
expense, fabricate more Custom VistaArrays(TM) than the amount ordered by
Customer. However, except as provided in section 3.5.4, Customer shall only be
billed for the number of VistaArrays(TM) actually ordered by Customer. ***
****** ************* ***** ** ********* ** ********** ******* *** **** *****
********** *** ********* *** ********** ************ *********** *********
********* ** ********.
3.5.6 Customer Array Fabrication Reagents will be stored in secure
Genometrix facilities until Genometrix performs the VistaArray(TM) Fabrication
Services. All VistaArray(TM) Fabrication Services will be performed at
Genometrix laboratories. All Customer Array Fabrication Reagents in Genometrix's
possession will be returned to Customer at Customer's request and expense within
30 days of Customer's written request.
3.5.7 Customer shall provide Genometrix with a quarterly forecast of
Customer's demand for Custom VistaArrays(TM) and all VistaArray(TM) Services for
the immediately following calendar quarter. Such forecasts will represent a
reasonable estimate of Customer's requirements for Custom VistaArrays(TM), and
shall be provided to Genometrix at least thirty (30) days in advance of the
quarter in which the VistaArray(TM) Fabrication Services will be provided.
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CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
3.5.8 The standard time required for the fabrication of a standard
order of Custom VistaArrays(TM) (defined to be between *** and ****** arrays) is
********** **** business days following receipt of Customer Array Fabrication
Reagents in sufficient amounts and meeting Genometrix quality standards. It is
expected that provision of the VistaArray(TM) Fabrication Services, will, in
most instances be completed within the above-noted standard time periods.
However, if Genometrix reasonably determines that Customer's forecast
requirements cannot be handled on such standard schedule, Genometrix shall,
within one (1) month of receipt of the Customer's forecast, provide Customer
with notice of any non-standard delivery schedule; provided, however, that any
non-standard delivery schedule is subject to the mutual agreement of Customer
and Genometrix.
3.5.9 In the case of the provision of VistaArray(TM) Fabrication
Services for greater than ****** Custom VistaArrays(TM), Customer shall notify
Genometrix at least ten (10) business days in advance of the standard request
schedule set forth in Section 3.5.8 above. Where such advance notification has
not been provided, or where the quarterly forecast has not been provided, or
where Customer's demand exceeds Customer's quarterly forecast by ***** *******
***** ** ****, Genometrix will make reasonable efforts to provide the
VistaArray(TM) Fabrication Services in a timely manner.
3.6 VISTAARRAY(TM) TARGET PREPARATION SERVICES.
3.6.1 Customer must provide, at its own expense, a sufficient quantity
of Customer Expression Reagents or Customer Genotyping Reagents to react with
the number of VistaArrays(TM) that have been ordered by Customer. Genometrix
shall provide Target Preparation Services to make sufficient VistaArray(TM)
Targets from Customer Expression Reagents or Customer Genotyping Reagents.
3.6.2 VistaArray(TM) Targets and/or Customer Expression Reagents and/or
Customer Genotyping Reagents will be stored in Genometrix facilities until
Genometrix performs the VistaArray(TM) Services. All such VistaArray(TM) Targets
or Customer Expression Reagents or Customer Genotyping Reagents in Genometrix's
possession **** ****** ** *** ********* ****** *** **** ***** ********** ***
********* *** ************ ******** * ** **** ******** ** ******** ** **********
******* *** ******* ****** ****** **** **** ** *********** ******* *******.
3.7 All consumed VistaArrays(TM) in Genometrix's ********** **** **
********* ****** *** **** ***** ********** *** ********* *** ************
********.
4. REPORTING AND OWNERSHIP OF VISTAARRAY(TM) DATA.
4.1 If Genometrix is performing VistaArray(TM) Expression Services or
VistaArray(TM) Genotyping Services, the standard time required for Genometrix to
report VistaArray(TM) Expression Data or VistaArray(TM) Genotype Data to
Customer, as the case may be, is ******* **** business days following receipt
from Customer or manufacture by Genometrix of sufficient VistaArray(TM) Targets
meeting Genometrix's quality standards.
4.2 If Genometrix is performing VistaArray(TM) Fabrication Services
as well as VistaArray(TM) Expression Services or VistaArray(TM) Genotyping
Services, the standard time required for Genometrix to report VistaArray(TM)
Expression Data or VistaArray(TM) Genotyping Data is ******* **** business days
after the later of: (a) the end of the ****** fabrication period referred to in
Section 3.5.8, or (b) the receipt from Customer or manufacture by Genometrix of
sufficient VistaArray(TM) Elements meeting Genometrix quality standards.
4.3 Genometrix will provide Customer with VistaArray(TM) Expression
Data or VistaArray(TM) Genotype Data through an Internet-based virtual private
network or other mutually agreeable format as detailed in Exhibit A.
4.4 Customer shall own all VistaArray(TM) Expression Data generated
by Genometrix on its behalf pursuant to this Agreement; provided, that, Customer
and its Affiliates shall use
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CONFIDENTIAL MATERIAL OMITTED AND
FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION. ASTERISKS
DENOTE SUCH OMISSIONS.
the VistaArray(TM) Data solely for their respective internal research and
development purposes.
4.5 *********** ***** *** *** *** ************ **** ***** ** ********
*** *** ******* ***** **** *** *********** ** *** *********** ***** ****
********** * *** ***** *** ********* ** ******** ********** ************ **** **
*** ***** ***** ****** ************ ********** ** ** ** ** ********. The
foregoing notwithstanding, in no event shall Genometrix be prevented from
providing any VistaArray(TM) Services, or making, selling and/or providing any
VistaArrays(TM), or any other services or products provided, incorporating or
based on the use of the VistaArray(TM) Technology or the GenoVista Software.
5. LICENSE AND DELIVERY OF GENOVISTA(TM) SOFTWARE
Access to the GenoVista Software, or any components thereof, is hereby
granted according to the following terms:
5.1 The GenoVista Software and display screens are protected by
copyright, patent, trade secret and other intellectual property laws. Genometrix
hereby grants to Customer and its Affiliates a non-exclusive, non-transferable
license to use the GenoVista Software solely for the following permitted
purposes at the facilities of Customer or its Affiliates: (a) to send requests
for VistaArray(TM) Services (and related information) to Genometrix; (b) to
receive VistaArray(TM) Expression Data and/or VistaArray(TM) Genotype Data, as
applicable and in accordance with this Agreement; and (c) to facilitate
Customer's analysis of the VistaArray(TM) Expression Data and/or VistaArray(TM)
Genotype Data. Customer shall not copy such software or display screens, nor
shall Customer reverse engineer, decompile or disassemble the GenoVista Software
or display screens or any component thereof. The GenoVista Software embodies
trade secrets of Genometrix that are considered the Confidential Information of
Genometrix and are subject to the confidentiality provisions of Section 8
hereof.
5.2 Any access to or use of the GenoVista Software for purposes in
addition to the purposes set forth in this Agreement, or any access to databases
or other software of Genometrix in addition to the GenoVista Software, whether
during the Term of this Agreement or thereafter, shall be provided only pursuant
to a separate written agreement between Genometrix and Customer.
5.3 Genometrix reserves the right to provide periodic updates and
patches to the GenoVista Software directly or through an internet connection.
5.4 Any inventions, discoveries, ideas, conceptions, technical data,
programs, algorithms, whether patentable or not, relating to the GenoVista
Software, an improvement thereof or the use thereof, created, discovered,
identified or reduced to practice, in whole or in part, by Customer or its
Affiliates during the Term (as defined in Section 10.1) (hereinafter "Software
Technology"), shall be promptly disclosed to Genometrix, and Customer shall
promptly assign to Genometrix its entire right, title and interest in and to
such Software Technology. At any time during or after the Term of this
Agreement, Customer agrees that it will fully cooperate with Genometrix, its
attorneys and agents, in the preparation and filing of all papers and other
documents as may be required to perfect Genometrix's rights in and to any of
such Software Technology, including, but not limited to, joining in any
proceeding to obtain letters patent, copyrights, trademarks or other legal
rights of the United States and of any and all other countries on such Software
Technology; provided, that, Genometrix will bear the expense of such
proceedings.
6. PAYMENTS.
6.1 Customer will pay Genometrix according to the terms set forth in
Exhibit A. The initial payment shall be due upon completion by Genometrix of the
array design and validation activities identified in Exhibit A.
6.2 All other amounts payable under this Agreement will be invoiced to
Customer and will be due within thirty (30) days after the date of Customers
receipt of the invoice.
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6.3 Custom VistaArrays(TM) will be invoiced to Customer once they are
fabricated, pass Genometrix quality control procedures, and are stored in
Genometrix facilities prior to performing the applicable VistaArray(TM) Service
6.4 Standard VistaArrays(TM) will be invoiced to Customer once they are
stored in Genometrix facilities at Customer's request prior to performing
VistaArray(TM) Services.
6.5 All transportation and insurance costs shall be paid by Customer
and will be set forth separately on the invoice submitted to Customer.
6.6 All fees payable under this Section 6 shall exclude any applicable
sales, use or other taxes, import or export fees, and other charges imposed on
the delivery, license or use of the VistaArray(TM) Genotype Data, the
VistaArray(TM) Expression Data or the GenoVista Software or any other
VistaArray(TM) TechnolOgy by Customer. All such amounts (and any related
interest or penalties) will be paid by Customer to the appropriate governmental
authority or, if Genometrix is required under law to collect and pay any such
taxes or fees, such amounts will be invoiced to Customer. Customer will provide
to Genometrix a sales tax exemption certificate and Customer agrees that it is
responsible for paying any sales taxes assessed by the State of Ohio on all
services provided by Genometrix. Customer will self assess these taxes and pay
the State of Ohio directly and will not be billed for these taxes by Genometrix.
7. INTELLECTUAL PROPERTY RIGHTS.
7.1 Except as expressly provided in Section 4.4, Section 5, and Section
9 of this Agreement, nothing in this Agreement shall be construed as conferring
on Customer any rights to the VistaArray(TM) Technology, the GenoVista Software,
the VistaArray(TM) Expression Data or the VistaArray(TM) Genotype Data, or
conferring on either party a license or option to license any information,
discoveries, inventions, or intellectual property rights owned or controlled by
the other party.
7.2 Except as provided in Sections 5.4 and 7.3, nothing herein shall be
construed as conferring on Genometrix any license or other rights to any
Customer Array Fabrication Reagents, Customer Genotyping Reagents, Customer
Expression Reagents or under any of Customer's patent applications or patents
relating thereto, all of which shall remain the sole property of Customer.
7.3 Except as provided in Section 5 with respect to the GenoVista
Software, and except as otherwise provided in Section 7.4 below, any invention,
development or discovery, whether or not patentable, made during Term of this
Agreement or through use of the VistaArray(TM) Technology (hereinafter "New
Technology") shall be owned according to inventorship of the relevant patents or
patent applications, and inventorship shall be determined under the patent laws
of the United States. New Technology invented solely by employees or others
acting on behalf of Customer shall be owned by Customer. New Technology invented
solely by employees or others acting on behalf of Genometrix shall be owned by
Genometrix, and inventions invented solely by employees or others acting on
behalf of Customer together with employees or others acting on behalf of
Genometrix shall be owned jointly by Genometrix and Customer. Except as provided
in Section 7.4 below, Genometrix shall have, and Customer hereby grants to
Genometrix, a non-exclusive, world-wide, sublicensable, fully-paid irrevocable
license under its interest in any New Technology which is an improvement to the
VistaArray(TM) Technology.
7.4 The provisions of Section 7.3 notwithstanding, the parties
acknowledge and agree that Genometrix's performance of VistaArray(TM) Services
for Customer hereunder shall not be construed as constituting inventorship with
respect to any inventions or discoveries made by or on behalf of Customer
through the use of the VistaArray(TM) Expression Data or the VistaArray(TM)
Genotype Data developed by Genometrix through the use of Customer Expression
Reagents or Customer Array Fabrication Reagents.
8. CONFIDENTIALITY.
8.1 It is contemplated that each party will disclose certain of its
confidential and proprietary information to the other party pursuant to the
conduct of activities under this Agreement. As used in this Agreement, the term
"Confidential Information" means any technical, scientific or business
information furnished by one party (the "Disclosing Party") to the other party
(the "Receiving Party") in connection with this Agreement, regardless of whether
such information is specifically designated as confidential and regardless of
whether
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such information is in written, oral, electronic, or other form. Such
Confidential Information may include, without limitation, trade secrets,
know-how, inventions, technical data, operational protocols, sample processing
protocols, data analysis algorithms, research results or specifications, testing
methods, clinical trial data, information regarding proprietary compounds or
agents, business or financial information, research and development activities,
product and marketing plans, and customer and supplier information.
8.2 During the Term of this Agreement and thereafter, Genometrix will
hold in strict confidence and shall not disclose or use for any purpose not
permitted by this Agreement any Confidential Information received from Customer
or any Custom VistaArray(TM) or VistaArray(TM) Expression Data or VistaArray(TM)
Genotype Data generated by Genometrix on behalf of Customer pursuant to this
Agreement.
8.3 During the term of this Agreement and thereafter, Customer will
hold in strict confidence and shall not disclose or use for any purpose not
permitted by this Agreement any Confidential Information received from
Genometrix pursuant to this Agreement (hereinafter "Genometrix Confidential
Information"). Genometrix Confidential Information includes, without limitation
the VistaArray(TM) Technology and the GenoVista Software and any information
related thereto, and any protocols, procedures, specifications or quality
standards provided by Genometrix to Customer.
8.4 The obligations of confidentiality and non-use set forth in
Sections 8.2 and 8.3 above shall not apply to information which the Receiving
Party can demonstrate by written records: (a) was in the public domain at the
time of its receipt by the Receiving Party; (b) entered the public domain after
receipt thereof by the Receiving Party other than through a breach of this
Agreement by the Receiving Party, (c) was known to the Receiving Party at the
time of receipt from the Disclosing Party; or (d) is subsequently developed by
the Receiving Party independently and without breach of any obligation of
confidentiality or non-use under this Agreement; or (e) is disclosed to the
Receiving Party on a non-confidential basis by a third party having the right to
make such disclosure without breach of any confidentiality obligation; or (f) is
legally required to be disclosed by the Receiving Party; provided, that, (i)
prior written notice is given to the Disclosing Party in sufficient time to
enable it to seek a protective order with respect to such information; and (ii)
the Receiving Party shall only disclose that information that it is advised by
its legal counsel it is legally obligated to disclose, regardless of whether the
Disclosing Party seeks a protective order.
8.5 The provisions of this Section 8 shall survive the expiration or
termination of this Agreement.
9. PUBLICATIONS AND DISCLOSURES. Customer retains all publication rights
to VistaArray(TM) Data provided to or generated by Customer pursuant to this
Agreement; provided, that, Customer shall not publish or otherwise disclose the
confidential or proprietary information of Genometrix or the VistaArray(TM)
Technology without obtaining the prior written consent of Genometrix. Customer
shall acknowledge the contribution of Genometrix in any such publication or
other disclosure. Customer shall provide Genometrix with a copy of any such
disclosure at least thirty (30) days prior to such disclosure by Customer.
During such thirty (30) day period, Genometrix shall have the right to review
the publication to confirm that it does not contain any Confidential Information
of Genometrix, and if Genometrix notifies Customer within such thirty (30) day
period that the proposed disclosure does contain the Confidential Information of
Genometrix, then Customer shall not publish or otherwise disclose the disclosure
until such Confidential Information of Genometrix has been removed therefrom.
Genometrix shall have the right to disclose publicly that it is performing
VistaArray(TM) Services for Customer. Genometrix will provide a copy of the
public announcement prior to release for review by Customer.
10. TERM; TERMINATION.
10.1 The term of this Agreement shall commence upon the Effective Date
and expire at the end of the Access Term as defined in Exhibit A, unless earlier
terminated according to the provisions of this Section 10 (hereinafter the
"Term").
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10.2 Customer may terminate this Agreement for material breach by
Genometrix (excluding force majeure events), if Genometrix fails to cure such
breach within 45 days after Genometrix's receipt of written notice thereof from
Customer.
10.3 Genometrix may terminate this Agreement if Genometrix fails to
receive any payment when due from Customer. Such termination shall be effective
thirty (30) business days after notice to Customer by Genometrix that such
payment has not been received, unless Customer has made such payment within such
30-day notice period. Upon any such termination, Genometrix will be entitled to
retain any fees paid by Customer prior to the termination date for services
already performed and for custom products that have already been fabricated.
10.4 Either party may, in addition to any other remedies available to
it in law or in equity, terminate this Agreement with no prior notice if the
other party shall have become insolvent or bankrupt, or shall have made an
assignment for the benefit of creditors, or there shall have been appointed a
trustee or receiver of the other party for all or a substantial part of its
property, or any case or proceeding shall have been commenced or other action
taken by or against the other party in bankruptcy or seeking reorganization,
liquidation, dissolution, winding-up, arrangement, composition or readjustment
of its debts or any other relief under any bankruptcy, insolvency,
reorganization or other similar act or law of any jurisdiction now or hereafter
in effect.
10.5 RETURN OF CONFIDENTIAL INFORMATION, TECHNOLOGY AND SOFTWARE. Upon
the expiration or termination of this Agreement, the Receiving Party shall
return to the Disclosing Party all of its Confidential Information, and, in
particular, any VistaArray(TM) Technology or GenoVista Software in the
possession of Customer shall be returned to Genometrix within 60 days, and
Customer shall have no continued rights of use or access to the GenoVista
Software, the VistaArray(TM) Software, the VistaArray(TM) Technology or any
other Confidential Information of Genometrix.
10.6 SURVIVAL OF CERTAIN PROVISIONS. Any termination of this Agreement
shall be without prejudice to the rights of any party then accruing or otherwise
accruing under this Agreement. The provisions of Sections 5.4,7, 8, 9, 10.5,
10.6, 11 and 12 shall survive the expiration or termination of this Agreement.
11. WARRANTY AND DISCLAIMER; LIMITATION OF LIABILITY.
11.1 WARRANTY AND DISCLAIMER. Except as expressly set forth in this
Agreement, Genometrix makes no other warranties, express or implied, regarding
the VistaArray(TM) Services, the GenoVista Software, the Vista Array Technology
or any data or other products, services or documents provided to Customer under
this Agreement and specifically disclaims all express or implied warranties of
merchantability, fitness for a particular purpose, and non-infringement of
third-party rights. Genometrix makes no warranties of any kind hereunder
regarding the VistaArray(TM) Expression Data or the VistaArray(TM) Genotype
Data. No information or advice concerning the VistaArray(TM) Services or the
VistaArray(TM) Expression Data or the VistaArray(TM) Genotype Data given by
Genometrix's employees or agents, whether oral or written, will be construed as
a warranty or will expand the scope of the limited warranty stated above, and
Customer is not entitled to rely on any such information or advice.
11.2 LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE
FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES,
INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS
AGREEMENT OR THE PROVISION OF ANY DATA OR SERVICES HEREUNDER, OR THE USE OF THE
GENOVISTA SOFTWARE. GENOMETRIX WILL HAVE NO LIABILITY HEREUNDER WITH RESPECT TO
ANY DATA, THIRD-PARTY SOFTWARE, OR EQUIPMENT USED BY CUSTOMER.
8.
9
11.3 Customer shall indemnify, defend and hold harmless Genometrix from
any and all damages, costs or expenses arising out of the use of any products,
services, data or information provided to Customer under this Agreement, except
to the extent caused by the negligence, recklessness or intentional misconduct
of Genometrix.
11.4 Genometrix shall indemnify, defend and hold harmless Customer from
any and all damages, costs or expenses arising out of any third party claim of
patent infringement relating to the VistaArray(TM) Technology used in the
performance of this Agreement or arising from the performance of VistaArray(TM)
Services by Genometrix hereunder, except to the extent caused by the negligence,
recklessness or intentional misconduct of Customer.
12. GENERAL TERMS.
12.1 Customer shall comply with all applicable export and import
control laws and regulations with regard to the GenoVista Software, the
VistaArray(TM) Expression Data and the VistaArray(TM) Genotype Data, and, in
particular, Customer will not export or re-export such software or data without
all required United States and foreign government licenses. Customer agrees to
indemnify and hold Genometrix harmless from and against any violation of such
laws or regulations by Customer or any of its agents, officers, directors, or
employees.
12.2 Customer will permit an agent appointed by Genometrix and
acceptable to Customer to review Customer's relevant records and inspect
Customer's facilities to ensure compliance with this Agreement; provided, that,
such agent has entered into a suitable confidentiality agreement with Customer.
Genometrix will give Customer at least forty-five (45) days advance notice of
any such inspection and will conduct the same during normal business hours in a
manner that does not unreasonably interfere with Customer's normal operations.
Genometrix's agent shall only report to Genometrix the results of such
inspection (i.e., whether or not Customer is in compliance with its obligations
under this Agreement), and shall not disclose to Genometrix any of Customer's
confidential or proprietary information provided to it or to which it may have
access during the conduct of the inspection.
12.3 This Agreement may not be assigned by either party without the
prior written consent of the other party, except that each party may assign this
Agreement and its rights, obligations and interests hereunder, in whole or in
part, to any purchaser of all or substantially all of its assets in the line of
business to which this Agreement pertains, or to any successor corporation
resulting from any merger or consolidation of such party with or into such
corporation.
12.4 Any notice required under this Agreement shall be delivered to the
addresses below:
If to Genometrix:
Genometrix Incorporated
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
If to Customer:
Xxxxxxx & Xxxxxx Pharmaceuticals, Inc.
0000 Xxxxx-Xxxxxxxxxx Xxxx
Xxxxx, XX 00000
12.5 The United Nations Convention on Contracts for the International
Sale of Goods does not apply to this Agreement.
12.6 All waivers must be in writing; any waiver or failure to enforce
any provision hereof on one occasion will not be deemed a waiver of any other
provision or of such provision on any other occasion.
12.7 If any provision hereof is unenforceable, the remaining provisions
will nevertheless remain in full force and effect.
12.8 This Agreement supersedes any prior or contemporaneous agreement
or communication between the parties regarding such services and may be amended
or supplemented only by a written document signed by both parties.
9.
10
IN WITNESS WHEREOF, the parties hereby execute this Agreement, which is
deemed effective as of the Effective Date.
GENOMETRIX INCORPORATED CUSTOMER
By: Xxxxxxxx X. Xxxxxx By: X.X. Xxxxxxx, M.D., Ph.D.
------------------ -------------------------
Title: Chief Executive Officer Title: Director, Discovery Projects & Biological Sciences
----------------------- --------------------------------------------------
10.
11
CONFIDENTIAL MATERIAL OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
EXHIBIT A
PRICING AND DELIVERABLES FORM
Genometrix will provide the following products and services:
ACCESS
PRODUCT PARAMETERS/COMMITMENTS TERMS
GENOVISTA(TM) PROGRAM Expression Program
Vista Array(TM) Expression - Design, fabrication and validation of ExpressChip
Array Services arrays for expression analysis of *** genes with ********
VistaArray Fabrication Services.
- Complete processing and analysis of experimental **** ***
samples on custom VistaArray microarray using Target ******
Preparation Services for a minimum of *** samples
- Installation and evaluation of VistaExpress (Beta) ******** **
module upon release. **********
Access Terms: ** ****** from effective date of Genomics Services Agreement.
ARRAY SERVICES USAGE FOR THE GENOVISTA PROGRAM:
- Genometrix will:
- Assign a Client Business Manager at Genometrix to work
directly with Procter & Xxxxxx to facilitate the GenoVista
Program.
- Design, fabricate, and validate custom arrays using standard
VistaArray Fabrication Service procedures. A payment of
******** will be due upon design, fabrication and validation
of initial batch of VistaArray microarrays as determined by
standard Genometrix evaluation procedures. Fees for
fabrication of requested quantities of VistaArray will be due
upon completion of fabrication and standard QC validation.
- Provide to Procter & Xxxxxx data in predefined standard files
and, when available, in the appropriate GenoVista module.
Standard turn around for data from samples shipped according
to specifications is ** ******* *****.
- Procter & Xxxxxx will:
- Procter & Xxxxxx will designate a main contact person for the
pilot program. This individual will be authorized by Procter &
Xxxxxx to provide appropriate forecasts and approve new
projects and services requested from Genometrix under the
terms of the Agreement.
- Provide xxxxxxxx xxxx for VistaArray design. Standard turn
around for microarray design, fabrication, and validation is
** ******** ****.
- Supply experimental samples using Genometrix defined
procedures (to be provided after initiation of the Genomic
Services Agreement).
- Provide an array usage forecast as described in the Genomics
Services Agreement detailing design and quantities of each
VistaArray required. The mutually determined schedule for
delivery of services as identified in Section 3.1 of the
Agreement will be based on the forecast.
11.
