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HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT 10.11
TERMINATION, TRANSITION AND
TECHNOLOGY ACCESS PROGRAM AGREEMENT
THIS TERMINATION, TRANSITION, AND TECHNOLOGY ACCESS PROGRAM AGREEMENT
("Agreement") dated as of November 24, 1998 (the "Effective Date") is entered
into by and between CALIPER TECHNOLOGIES CORP., a Delaware corporation
("Caliper"), having a place of business located at 0000 Xxxxxxxxxx Xxxxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000 and XXXXXXXX-XX XXXXX INC., a New Jersey corporation
("Roche"), having a place of business located at 000 Xxxxxxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx 00000-0000.
RECITALS:
WHEREAS, Caliper and Roche entered into a Collaborative Development
Agreement dated October 11, 1996 (the "Collaborative Development Agreement")
wherein Roche provided substantial development funding to Caliper to develop an
ultra high through-put screening system and as a result of such funding Roche
was granted exclusive rights to such ultra high through-put screening system;
and
WHEREAS, the parties wish to terminate the Collaborative Development
Agreement as provided for hereinbelow under Article 2; and
WHEREAS, the parties wish to enter into a Technology Access Program (as
defined hereinbelow) which involves reduced funding by Roche and non-exclusive
rights to a broader range of high throughput screening technologies under terms
provided for in this Agreement; and
WHEREAS, the parties wish to provide for a transition period between
termination of the Collaborative Development Agreement and Roche's entry into
the Technology Access Program as provided for hereinbelow under Article 2;
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NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained in this Agreement, the parties agree as follows:
1. DEFINITIONS
The following terms shall have the following meanings in this Agreement:
1.1 "AFFILIATES" shall mean any company or entity controlled by,
controlling, or under common control with a party hereto, and shall include
without limitation, any company fifty percent (50%) or more of whose voting
stock, participating profit, or other interest is owned or controlled, directly
or indirectly, by a party, and any company which owns or controls, directly or
indirectly, fifty percent (50%) or more of the voting stock or otherwise of a
party.
For the purposes of this Agreement, Genentech, Inc. ("Genentech"), a
Delaware corporation, shall not be considered an Affiliate of Roche, unless
Roche, in its sole discretion, notifies Caliper that Genentech shall be so
considered an Affiliate, and Genentech agrees to be bound by the terms and
obligations of this Agreement.
1.2 "DATA HANDLING SOFTWARE" means software supplied by Caliper which
permits the retrieval of raw data collected by the Hardware Unit Software for
differential analysis such that results for the potential pharmaceutical agents
can be determined and presented, including at a minimum the ability to correlate
results to a particular well on any multi-well plate.
1.3 "HARDWARE UNIT SOFTWARE" means software supplied by Caliper which
controls the Hardware Unit such that the Hardware Unit can perform at least the
following tasks: process a multi-well plate containing potential pharmaceutical
agents through the dilutor; align the multi-well plate to the LabChip
support/manipulator; activate the LabChip to start evaluation of the compounds
from the multi-well plate; detect reaction of the compounds on the LabChip
through the detection system; and collect and store raw data from the detector
system for further analysis.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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1.4 "HARDWARE UNIT" shall mean a unit supplied by Caliper which
comprises at least a compound plate handling system capable of manipulating a
test plate both prior to and after evaluation of potential pharmaceutical agents
from the plates, a dilutor capable of diluting xxxxx on a multi-well plate, a
LabChip support/manipulator which physically positions the LabChip to accept
potential pharmaceutical agents from the plate, a system to detect reactions on
a LabChip, and electronic means for controlling the movement and operation of
each of the foregoing steps, said means being under the control of Hardware Unit
Software.
1.5 "HIGH THROUGHPUT SCREENING" or "HTS" shall mean screening potential
pharmaceutical agents against a pharmaceutically-relevant target (e.g., an
enzyme, receptor or cell type) to determine each agent's potential utility as a
human pharmaceutical at a minimum of [ * ] assays per machine day and the
results of each assay are determined and reported as discreet data points. As
used herein, a machine day shall be from [ * ] hours ("Machine Day").
1.6 "INSTRUMENT" shall mean a combination of a Hardware Unit, Hardware
Unit Software, and Data Handling Software offered by Caliper to TAP participants
to perform High Throughput Screening or Ultra High Through-put Screening using
LabChips.
1.7 "LABCHIP" shall mean a chip which is sold or supplied by Caliper to
Roche, other TAP participants, or otherwise made commercially available by
Caliper for use on an Instrument. A LabChip typically consists of a glass or
polymer base with microchannels, bonded to a cover with reservoirs, together
with an attached pipettor capillary, but may include other components.
1.8 "LABCHIP HTS ASSAY" or "LABCHIP UHTS ASSAY" shall mean a particular
combination of a LabChip, a set of reagents and Hardware Unit Software, all
designed for assessing the interaction of a potential pharmaceutical agent
against a pharmaceutically relevant target on one or more types of Instruments
for a particular pharmaceutically-relevant target.
1.9 "LABCHIP IMPROVEMENT INVENTIONS" shall mean all inventions for which
patent applications are filed that are conceived or first reduced to practice by
an employee or contractor of Roche in the course of developing or using
Screening Technology [ * ] improvements to the Screening Technology or to
LabChip-based microfluidic systems, including but not limited to the
world-to-LabChip interface or LabChip-to-world interface, LabChip construction,
composition or design, assay strategies or reagent conditions which are
specifically related to a LabChip, electrical or other means of controlling
fluids or molecules on a LabChip, detection of results produced by a LabChip, or
software techniques for extracting raw data from a LabChip. LabChip Improvement
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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Inventions shall not include screening data, potential pharmaceutical compounds
identified through the use of the Screening Technology, [ * ].
1.10 "SCREENING TECHNOLOGY" shall mean Instruments, Hardware Units,
Hardware Unit Software, Data Handling Software, LabChip HTS Assays, LabChip UHTS
Assays, and LabChips for HTS or UHTS that Caliper offers for commercial sale to
TAP participants.
1.11 "TECHNOLOGY ACCESS PROGRAM" or "TAP" shall mean Caliper's program
for developing HTS Instruments, UHTS Instruments, LabChip HTS Assays, and
LabChip UHTS Assays and providing these systems to customers who are engaged in
the screening of potential pharmaceutical agents against a pharmaceutically
relevant target to determine each agent's potential utility as a human
pharmaceutical.
1.12 "UHTS" or "ULTRA HIGH THROUGH-PUT SCREENING" shall mean the process
of screening potential pharmaceutical agents against a pharmaceutically-relevant
target (e.g., an enzyme, receptor or cell type) to determine each agent's
potential utility as a human pharmaceutical, at a minimum of [ * ] assays per
Machine Day, on an Instrument. The results of each assay shall be determined and
reported as discreet data points.
2. TERMINATION OF COLLABORATIVE DEVELOPMENT AGREEMENT; TRANSITION AGREEMENT
2.1 TERMINATION OF COLLABORATIVE DEVELOPMENT AGREEMENT. Caliper and
Roche hereby agree to terminate the Collaborative Development Agreement as of
the Effective Date of this Agreement. Notwithstanding the foregoing, the parties
agree that Roche's obligation to fund development work under Section 4.1 of the
Collaborative Development Agreement shall be deemed terminated effective as of
July 1, 1998.
2.2 PURPOSE OF TRANSITION AGREEMENT. Because of the relationship which
existed between the parties pursuant to the Collaborative Development Agreement,
the parties agree to a transition period between the termination of the
Collaborative Development Agreement and
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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Roche's entry into the TAP. The parties agree that during this transition
period, Caliper will deliver an Instrument to Roche, and Roche will make certain
payments, including the purchase price for said Instrument.
2.3 TERM OF TRANSITION PERIOD. The transition period will begin as of
the Effective Date as first written above and end on the date that Roche pays
the second transition payment as provided in Section 2.5 or the invoice for the
Instrument as provided for in Section 2.3, whichever is later.
2.4 TRANSITION PAYMENTS. Roche shall make a first transition payment to
Caliper in the amount of [ * ] within thirty (30) days after the Effective Date
and receipt of an invoice for that amount. Roche shall make a second transition
payment to Caliper in the amount of [ * ] within thirty (30) days after delivery
of the Instrument specified in Art. 2.5 below and receipt of an invoice for that
amount.
2.5 DELIVERY OF AN INSTRUMENT; PURCHASE PRICE. Caliper will deliver to
Roche's Nutley, New Jersey facility an Instrument that is based on the
instrument and software developed under the Collaborative Development Agreement.
The purchase price for this first Instrument shall be [ * ]; subsequent
Instruments may be priced differently. Caliper will invoice Roche for this
amount upon delivery of the Instrument to Roche; payment will be due within
thirty (30) days of delivery of the Instrument. Upon payment of the invoice,
Roche shall take ownership of the Instrument. Caliper will provide reasonable
technical support for the Instrument, Hardware Unit Software, and Data Handling
Software pursuant to Section 3.2. Such technical support will include, but not
be limited to, [ * ].
3. TECHNOLOGY ACCESS PROGRAM AGREEMENT
3.1 SUBSCRIPTION. Roche shall become a TAP participant under the terms
and conditions as found in Articles 1, 3, 4, 5, 6, and 7. As part of Roche
becoming a TAP participant,
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Caliper hereby grants to Roche the non-exclusive right to purchase all Screening
Technology that Caliper offers for commercial sale to other TAP participants as
part of the TAP during the term set forth in Art. 3.4(a) below. Caliper will
notify Roche when Caliper is prepared to offer each Instrument or LabChip HTS
Assay or LabChip UHTS Assay to TAP participants, together with commercial terms.
3.2 ASSAY DEVELOPMENT AND SYSTEM CUSTOMIZATION. Roche may call upon
Caliper to develop customized versions of the Screening Technology for its
operations, or to develop LabChip HTS Assays or LabChip UHTS Assays for
pharmaceutical targets nominated by Roche, or to provide training, service or
support for Screening Technology, subject in each case to Caliper's reasonable
approval regarding technical feasibility. For LabChip HTS Assay or LabChip UHTS
Assay development, Caliper will develop the LabChip and software to carry out
the assay, and the parties will collaborate on appropriate reagents. Roche shall
reimburse Caliper for its participation in such custom development activities or
LabChip HTS Assay or LabChip UHTS Assay development activities at [ * ]. From
time to time, Caliper and Roche may mutually establish development plans and
budgets to coordinate such activities. Caliper will not be required to provide
more than [ * ] full-time equivalents at any time for Roche development
activities under this Agreement, unless the parties mutually agree otherwise.
Should Caliper develop for Roche customized versions of Screening Technology or
develop LabChip HTS Assays or LabChip UHTS Assays for pharmaceutical compounds
selected by Roche, any screening data generated, or potential pharmaceutical
compounds identified, as a result of a program under this Article shall be owned
by Roche and shall not fall within the definition of LabChip Improvement
Inventions or within Article 4.2.
3.3 RESTRICTIONS ON USE OF SCREENING TECHNOLOGY. Roche agrees that it
will use all Screening Technology only for the purpose of screening in its and
its Affiliate's in-house drug discovery programs. Specifically, Roche shall not
(i) transfer any Screening Technology to any third party except that Roche can
transfer the Screening Technology to any of its Affiliates, (ii) provide
screening services on behalf of any third party using any Screening Technology
except that Roche can provide screening services for its Affiliates or where
such screening services are part of a collaboration between Roche and/or its
Affiliates and a third party to develop products
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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for sale by Roche and/or its Affiliates, or (iii) allow a third party to use any
Screening Technology except that Roche can allow its Affiliates to use the
Screening Technology.
3.4 TERM AND TERMINATION OF THE TECHNOLOGY ACCESS PROGRAM.
(a) The term of the TAP shall commence upon the expiration of the
transition period as provided for in Art. 2.3 hereinabove and, unless terminated
earlier pursuant to this Article 3, shall expire one (1) year from date that the
Instrument is delivered to Roche as provided for under Article 2.5. The term may
be renewed by mutual agreement of the parties. Should the term of the TAP be
extended, Roche shall pay no initiation or subscription fees or payments for
access to Screening Technology offered under the TAP prior to the expiration or
termination of this Agreement.
(b) Either party may terminate this Agreement upon any material
breach of this Agreement by the other party if the other party has not cured
such breach within thirty (30) days after written notice thereof by the
non-breaching party. All other rights and obligations under this Agreement shall
terminate except as otherwise provided herein.
(c) Roche shall have the right to terminate its participation in
the TAP, after the transition period has expired pursuant to Art. 2.3, upon
[ * ] written notice to Caliper for any reason.
(d) Caliper shall notify Roche in writing of its intention to
file a voluntary petition in bankruptcy or of another's intention, of which
Caliper is aware, to file an involuntary petition in bankruptcy, said written
notice to be received by Roche at least thirty (30) days prior to filing such
petition. Upon such notice, Roche can terminate this Agreement within thirty
(30) days. Any filing without conforming to this requirement shall be deemed a
material, pre-petition incurable breach and shall have the effect of
automatically terminating this Agreement prior to the filing of such petition
without the need for written notice.
This Agreement shall terminate automatically (a) in the event
that Caliper attempts to or enters into any scheme with its creditors or makes
an unauthorized assignment for the
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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benefit of its creditors; (b) in the event that the assets of Caliper are seized
or attached in conjunction with any action against it by any third party; or (c)
in the event that Caliper is dissolved other than in connection with a change in
control permitted under Art. 7.4.
(e) No expiration or termination of this Agreement shall relieve
either party of any obligation accruing prior to such expiration or termination.
The provisions of Sections 2.1, 3.3, 3.4 and 3.5, and Articles 4, 5, 6, and 7
shall survive the expiration or termination of this Agreement.
3.5 POST-TERMINATION ACCESS. Following expiration of this Agreement,
Roche may continue to purchase Instruments and LabChip HTS Assays and LabChip
UHTS Assays that it purchased prior to the expiration of its TAP subscription
for so long as Caliper continues to offer such items for commercial sale to TAP
participants. Otherwise, rights to purchase Caliper Screening Technology shall
expire with the expiration of this Agreement.
3.6 TAP PARTICIPANT MEETINGS. Caliper agrees to conduct [ * ] meetings
for all TAP participants for the purpose of informing the TAP participants of
new Screening Technology developments. Each TAP participant will receive an
invitation to each [ * ] meeting as long as that TAP participant has not
breached its TAP agreement. Participation in such [ * ] meetings will be
strictly voluntary on the part of the TAP participants. At each meeting, each of
the TAP participants may elect, but will be under no obligation, to discuss
their experiences and findings using the Screening Technology.
3.7 MOST FAVORED LICENSEE. If Caliper enters into a future TAP agreement
with a third party and such third party TAP agreement contains terms or
conditions which in the aggregate are more favorable to the third party than the
terms and conditions of this Agreement are to Roche excluding consideration of
Art. 2, Caliper agrees to notify Roche of such terms and conditions. Roche and
Caliper agree to [ * ]. Should Roche extend its participation in the TAP
pursuant to Art. 3.4(a), the parties agree that this Art. 3.7 will be subject to
review at the time the TAP is extended.
4. PROPERTY RIGHTS.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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4.1 PATENTS. Except as provided in Section 4.2, below, each party shall
own inventions conceived or reduced to practice solely by its employees and/or
consultants during the course of the Technology Access Program. Caliper and
Roche shall jointly own inventions conceived or reduced to practice jointly by
employees and/or consultants of both parties during the course of the Technology
Access Program. Each party shall execute all documents and take all actions
reasonably necessary to perfect such ownership rights in the other and to file
patent applications under the Paris Convention. Inventorship shall be determined
under U.S. patent laws.
4.2 LABCHIP IMPROVEMENT INVENTIONS. Roche hereby assigns to Caliper all
right, title and interest in all LabChip Improvement Inventions. In exchange for
this assignment, Caliper grants Roche and its Affiliates a royalty-free,
non-exclusive license to use such LabChip Improvement Inventions in their
in-house therapeutic, diagnostic and other discovery programs; provided that no
rights in any other Caliper patents or know-how (e.g., background patents) are
granted pursuant to this section. Notwithstanding the foregoing, Roche shall not
be under any obligation to provide any screening data or potential
pharmaceutical compounds identified through its or its Affiliate's use of
Screening Technology or where such compounds are identified by Roche and/or its
Affiliate together with a third party collaborator using Screening Technology
or, software techniques for analyzing raw data extracted from a LabChip to
Caliper.
5. CONFIDENTIALITY
5.1 CONFIDENTIAL INFORMATION. During the term of this Agreement, and for
a period of five (5) years following the expiration or termination of this
Agreement, each party shall maintain in confidence any and all information
disclosed to it by the other party (the "Confidential Information"). Each party
further agrees that it shall not use for any purpose not authorized under this
Agreement or disclose the Confidential Information to any third party, except
that either party may disclose Confidential Information under a similar
obligation of confidentiality and non-use and on a need-to-know basis to its
directors, officers, employees, consultants, agents or Affiliates, or as
required by law, order or regulation of a governmental agency. The disclosing
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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party shall provide written notice to the other party of any such disclosure
required by law, order or regulation of a governmental agency.
5.2 RELIEF. Each party shall be relieved of any and all obligations
under Section 5.1 regarding Confidential Information which:
(a) was already known to the receiving party or its Affiliates,
other than under an obligation of confidentiality, at the time of disclosure by
the other party;
(b) was generally available to the public or otherwise part of
the public domain at the time of its disclosure to the receiving party;
(c) became generally available to the public or otherwise part of
the public domain after its disclosure through no fault attributable to the
receiving party;
(d) was disclosed to the receiving party or its Affiliates, other
than under an obligation of confidentiality to a third party, by a third party
who had no obligation to the disclosing party not to disclose such information
to others; or
(e) was independently discovered or developed by the receiving
party or its Affiliates without the use of Confidential Information belong to
the disclosing party.
5.3 PRESS RELEASE/NON-USE. Neither party shall (a) issue a press release
or make any other public statement that references this Agreement or the
contents thereof, or (b) use the other party's or its Affiliates' name or
trademarks for publicity or advertising purposes, except with prior written
consent of the other party or as required by law, order or regulation of a
governmental agency.
6. WARRANTIES AND INDEMNIFICATION.
6.1 DISCLAIMER CONCERNING TECHNOLOGY. CALIPER MAKES NO REPRESENTATION
AND EXTENDS NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT OF THE INTELLECTUAL
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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PROPERTY RIGHTS OF THIRD PARTIES, WITH RESPECT TO ANY CALIPER TECHNOLOGY,
SCREENING TECHNOLOGY OR OTHER PRODUCTS DEVELOPED OR PROVIDED PURSUANT TO THIS
AGREEMENT.
6.2 DISCLAIMER CONCERNING ROCHE COMPOUNDS AND ASSAYS. Caliper
understands that Roche will be supplying compounds and assays (including their
reagents) to Caliper as part of the Technology Access Program. Caliper accepts
these compounds and assays (including their reagents) with the knowledge that
they are experimental biological materials and agrees to comply with all laws
and regulations for the handling and use thereof. BECAUSE THESE COMPOUNDS AND
ASSAYS (INCLUDING THEIR REAGENTS) ARE EXPERIMENTAL IN NATURE, AND ARE FURNISHED
WITHOUT CHARGE, THEY ARE BEING SUPPLIED TO CALIPER WITH NO WARRANTIES, EXPRESS
OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OR WARRANTY OF NONINFRINGEMENT.
6.3 INDEMNIFICATION. Caliper shall indemnify, defend and hold Roche and
its Affiliates (and their respective directors, officers, employees, and agents)
harmless against any and all liabilities, loss, cost or damage, together with
all reasonable costs and expenses related thereto (including legal and
accounting fees and expenses), arising from, relating to, or connected with the
untruth, inaccuracy or breach of any statements, representations, warranties or
covenants of Caliper contained herein, including, but not limited to, all
statements, representations, warranties or covenants concerning environmental
matters.
7. MISCELLANEOUS
7.1 NOTICES. Any consent, notice or report required or permitted to be
given or made under the Agreement by one party to the other party shall be in
writing, delivered personally or by facsimile, first class mail postage prepaid,
courier nationally-recognized delivery service, and addressed to the other party
at is address indicated below, or to such other address as the addressee shall
have last furnished in writing to the addresser. Except as otherwise provided in
the Agreement, such consent, notice or report shall be effective upon receipt by
the addressee.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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If to Caliper: Caliper Technologies Corp.
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Operating Officer
Facsimile: (000) 000-0000
If to Roche: Xxxxxxxx-Xx Xxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxxxx 00000-0000
Attention: Corporate Secretary
Facsimile: (000) 000-0000
7.2 GOVERNING LAW. The Agreement shall be governed by and construed in
accordance with the laws of [ * ], without regard to the conflicts of law
principles thereof.
7.3 EXTENSION OF BENEFITS AND OBLIGATIONS. Roche shall have the right to
extend the benefits and obligations of this Agreement with respect to countries
outside the United States, to its Affiliate, X. Xxxxxxxx-Xx Xxxxx Ltd, a Swiss
corporation.
7.4 ASSIGNMENT. This Agreement is personal in its character, and neither
party shall assign its rights or obligations under this Agreement, in whole or
in part, without the prior written consent of the other party; provided,
however, that either party may assign this Agreement to any of its Affiliates or
to any successor by merger or sale of substantially all of the business assets
of the party. This Agreement shall be binding on and inure to the benefit of the
successors or permitted assigns of the parties hereto, and all entities
controlled by them.
7.5 WAIVERS AND AMENDMENTS. No change, modification, extension or waiver
of this Agreement, or any of the provisions herein contained, shall be valid
unless made in writing and signed by duly authorized representatives of the
parties hereto.
7.6 ENTIRE AGREEMENT. This Agreement, together with Exhibit A and
Exhibit B, embodies the entire understanding between the parties and supersedes
any prior understanding
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COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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and agreements between and among Caliper and Roche with respect to the subject
matter hereof, including without limitation the Collaborative Development
Agreement. All payments made hereunder shall be non-refundable and
non-creditable against any future payments.
7.7 SEVERABILITY. If a court of competent jurisdiction declares any
provision of this Agreement invalid or unenforceable, or if any government or
other agency having jurisdiction over either party deems any provision to be
contrary to any laws, then that provision shall be severed and the remainder of
the Agreement shall continue in full force and effect. To the extent possible,
the parties shall revise such invalidated provision in a manner that will render
such provision valid without impairing the parties' original intent.
7.8 NO WAIVER. The failure of a party in any one or more instances to
insist upon strict performance of any of the terms and conditions of this
Agreement shall not constitute a waiver or relinquishment, to any extent, of the
right to assert or rely upon any such terms or conditions on any future
occasion.
7.9 DISCLAIMER OF AGENCY. The relationship between Caliper and Roche is
that of independent contractors. Roche and Caliper are not joint venturers,
partners, principal and agent, master and servant, employer or employee, and
have no other relationship other than independent contracting parties. Neither
party shall have the right or authority to assume, create, or incur any third
party liability or obligation of any kind, express or implied, against or in the
name of or on behalf of another except as expressly set forth in this Agreement.
7.10 COUNTERPARTS. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first set forth above.
CALIPER TECHNOLOGIES CORP. XXXXXXXX-XX XXXXX INC.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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By: /s/ Xxxxxx Xxxx By: /s/ Xxx X. Xxxxxx
------------------------------- -------------------------------
Name: Xxxxxx X. X. Xxxx Name: Xxx X. Xxxxxx
--------------------------- ----------------------------
Title: Chief Operating Officer Title: Vice President, Preclinical R&D
------------------------------- -------------------------------
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
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