Exhibit 10.30
LICENSE AGREEMENT
Affymetrix, Inc.
and
Molecular Dynamics, Inc.
[THE SYMBOL "**" IS USED THROUGHOUT THIS EXHIBIT TO INDICATE THAT A PORTION OF
THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
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CONTENTS
DEFINITIONS 3
RECITALS 6
TECHNICAL INFORMATION 6
GRANTS 8
RECORDS, ACCOUNTS AND PAYMENTS 16
DURATION OF AGREEMENT 17
MISCELLANEOUS 18
EXHIBIT 1 21
EXHIBIT 2 23
EXHIBIT 3 24
EXHIBIT 4 25
EXHIBIT 5 28
EXHIBIT 6 29
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THIS AGREEMENT is effective as of November 28, 1997 ("Effective Date")
between Affymetrix, Inc., a California corporation, hereinafter referred to
as "Affymetrix" and Molecular Dynamics, Inc., a Delaware corporation,
hereinafter referred to as "MD".
1 DEFINITIONS
Whenever used in this Agreement, the following terms shall have the
meanings set forth below:
1.1 "Affiliates" as applied to Affymetrix shall mean Affymetrix, Inc., a
California U.S.A. corporation, and all present and future companies (other
than Affymetrix) whose outstanding stock carrying the right to vote for or
appoint directors thereof is fifty percent (50%) or more owned or
controlled, directly or indirectly, by Affymetrix. "Affiliates" as applied
to MD shall mean Molecular Dynamics, Inc., a Delaware corporation, and all
present and future companies (other than MD) whose outstanding stock
carrying the right to vote for or appoint directors thereof is eighty
percent (80%) or more owned or controlled, directly or indirectly, by MD,
but only for so long as such ownership or control exists. In the case of
non-corporate entities, "Affiliates" shall refer to those entities where
the power to control and direct management of the entity is eighty percent
(80%) or more owned or controlled, directly or indirectly, by the
referenced entity.
1.2 "Array Maker" shall mean a device designed to fabricate Nucleic Acid Arrays
by Mechanical Fabrication Methods and specifically configured to fabricate
only Nucleic Acid Arrays only by Mechanical Fabrication Methods, and
otherwise subject to the restrictions herein.
1.3 "Category 1 Patent" shall refer to a United States Patent issuing on U.S.
Ser. No. [**] reciting, inter alia, [**], or a United States patent
claiming substantively the subject matter of such application.
1.4 "Category 2 Patent" shall refer to a) a United States Patent issuing on
U.S. Ser. No. [**] reciting, inter alia, [**], or a United States patent
claiming substantively the subject matter of such application; or b) a
United States Patent issuing on U.S. Ser. No. [**] reciting, inter alia,
[**]; or c) a United States Patent issuing on U.S. Ser. No. [**] reciting,
inter alia, [**], or a United States patent claiming substantively the
subject matter of such application; or d) a United States Patent issuing on
U.S. Ser. No. [**] reciting, inter alia, [**], or a United States patent
claiming substantively the subject matter of such application.
1.5 "Expression Analysis" means the measurement of the presence, absence, or
level of an expressed messenger RNA in cells.
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1.6 "GATC Compliant" shall refer to Nucleic Acid Arrays, software, or Systems
meeting the standards set forth in the GATC Agreement executed on a
substantially even date herewith, provided that Nucleic Acid Arrays or
Systems need not meet such standards when delivered before [**]. In the
event that one or both Parties cease to be a party to such GATC Agreement,
the Parties will negotiate in good faith to provide substitute
specifications for interoperability of their respective Systems, Nucleic
Acid Arrays, and associated software. In the event that the GATC Agreement
is not executed by the Parties on a substantially even date, the Parties
will agree upon specifications for interoperability substantially based on
the draft of the GATC Agreement in place on the Effective Date, such
agreement to be reached in good faith by the Parties by [**].
1.7 "Gene" shall refer to a nucleic acid sequence encoding a distinct messenger
RNA and protein as well as polymorphic variants of such sequence, provided
that such polymorphic variants must have at least 99.9% homology with the
underlying gene.
1.8 "Initial Period" shall mean, with respect to a particular Array Maker, the
time period beginning upon the contractual commitment of MD to transfer
such Array Maker to a third party (provided that such time must begin
before [**]), and a) ending [**] from the date of such commitment, when
such commitment is made between [**] and [**], or b) ending [**] for those
Array Makers for which contractual commitments of MD are made before [**].
For those Array Makers for which MD contractually commits on or after [**],
there shall be no Initial Period.
1.9 "Mechanical Fabrication Methods" shall mean any method for the fabrication
of Nucleic Acid Arrays on a solid support by placement of fully synthesized
nucleic acids (clonal polynucleotides or other presynthesized
polynucleotides) having more than [**] bases each, solely through
mechanically isolated deposition of such fully synthesized nucleic acids at
specific locations on the array. Without limiting the above, it is
understood that the synthesis of an array in which regions of an array are
activated or prepared for placement of materials by means of controlled
direction of electromagnetic energy at a portion of a support is not a
Mechanical Fabrication Method.
1.10 "Metered Period" shall mean any period other than the Initial Period.
1.11 "Nucleic Acid Array" shall mean an array of diverse nucleic acids, each
having at least [**], at defined locations on a solid support and
fabricated by Mechanical Fabrication Methods, provided that in no part of
such solid support may such diverse nucleic acids be arranged at a density
of more than [**] locations per square centimeter, and all of the nucleic
acids in any one Nucleic Acid Array may represent no more than [**] Genes.
1.12 "Party(ies)" shall refer to Affymetrix and/or MD.
1.13 "Patent Rights" shall mean claims, or the equivalent of claims of
"Affymetrix' Patent Rights" or "MD's Patent Rights," as appropriate,
directed to and/or primarily useful in
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connection with Nucleic Acid Arrays. "Affymetrix' Patent Rights" shall
be those arising from, and only those arising from, the patents and
applications listed in Exhibit 1, as well as the inventions disclosed
and claimed therein, and all continuations, continuations-in-part,
divisions, reexaminations, and reissues thereof, and any corresponding
foreign patent applications that may be filed in the future claiming
priority thereto and any patents, patents of addition, or other
equivalent foreign patent rights issuing, granted or registered thereon
that are based on one or more of the patents or applications in
Exhibit 1, including the patent rights of third parties for which
Affymetrix obtains the right to grant sublicenses pursuant to
sublicensing rights in connection with and obtained as part of a license
grant of the Affymetrix Patent Rights to such third party pursuant to
terms equivalent to Section 4. "MD's Patent Rights" shall be those
arising from, and only those arising from, the patents and applications
listed in Exhibit 2, as well as and the inventions disclosed and claimed
therein, and all continuations, continuations-in-part, divisions, and
reissues thereof, and any corresponding foreign patent applications that
may be filed in the future claiming priority thereto and any patents,
patents of addition, or other equivalent foreign patent rights issuing,
granted or registered thereon. The term "Patent Rights" as defined
above includes only said claims under which the herein-designated
company has the right at any time during the life of this Agreement to
make the herein-contained grants, in each instance to the extent, and
subject to the terms and conditions, including the obligation to account
to or make payments to others, under which the herein-designated company
shall have such right.
1.14 "Research Market Array Maker" shall mean an Array Maker designed,
manufactured, or sold to (and only to) not-for-profit research
institutions, specifically including university and government research
institutions, (without right of subsequent transfer) for lower-throughput
and lower density research purposes than Array Makers otherwise licensed
hereunder. Research Market Array Makers shall not be available for sale or
transfer to third parties before [**]. Research Market Array Makers shall
be subject to the terms and conditions herein relating to Array Makers
except that a) such Research Market Array Makers shall be adapted to make
Nucleic Acid Arrays not be configured to fabricate Nucleic Acid Arrays
having more than [**] genes per array and not more than [**] array elements
per square centimeter, and b) shall be subject to the lower royalty
provisions of Section 5.9 herein.
1.15 "System" shall mean one or more readers, hybridization devices, computer
work stations, and/or single copies of software associated therewith
specifically configured (but not necessarily exclusively configured) for
use with Nucleic Acid Arrays and to be used for extraction and processing
of data from such Nucleic Acid Arrays (and not including, for example,
Array Makers).
1.16 "Technical Information" shall mean: (a) the software identified in Exhibit
3 in object code form; (b) associated documentation related to such
software directed to and/or primarily useful in connection with Nucleic
Acid Arrays; and (c) reasonable enhancements thereto heretofore or
hereafter acquired by the designated party prior to
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[**] after the Effective Date of the Agreement, as well as the copyright
and trade secret rights therein. Notwithstanding the above, "Technical
Information" includes only such software, associated documentation, and
enhancements as the herein-designated party has the right at any time
during the life of this Agreement to disclose, and in each instance only
to the extent that and subject to the terms and conditions, including
the obligation to account to or make payments to others, under which the
herein-designated party shall have the right to disclose such
information to others.
2 RECITALS
2.1 MD has requested that Affymetrix grant MD a license under Affymetrix's
Patent Rights and Technical Information to make, use, import, lease,
distribute, and sell Nucleic Acid Arrays, as well as associated Systems
and Array Makers. Affymetrix is willing to grant such a license to MD on
the provisions herein set forth.
3 TECHNICAL INFORMATION
3.1 Affymetrix has developed Affymetrix' Technical Information which includes a
software suite for data extraction and image processing. Affymetrix shall,
promptly following execution of this Agreement and in accordance herewith,
permit MD to utilize Affymetrix' Technical Information for the purpose of
the commercial development of Nucleic Acid Arrays and associated Systems.
Affymetrix shall thereafter, from time to time and upon MD's request, make
available to MD any additional Technical Information developed by or on
behalf of Affymetrix. Affymetrix will deliver object code versions of
the software associated with the Technical Information to MD. MD will
license software only in object code form.
3.2 Affymetrix and MD agree: (a) to use reasonable efforts to protect the
confidential nature of the other Party's Technical Information; (b) not
to disclose the same to others, except to the extent reasonably
necessary to carry out operations licensed hereunder; and (c) to use the
same only pursuant to the terms of this Agreement. However, the
foregoing commitments shall not extend to any portion of Technical
Information (i) which was in the possession of the receiving Party prior
to receipt of same without an obligation of confidentiality; (ii) which
is now, or hereafter becomes through no act or failure to act on the
part of the receiving Party, generally known to the nucleic acid array
industry on a non-confidential basis; or (iii) which is hereafter
disclosed to the disclosing Party by others if said others have imposed
no restriction on disclosure by the disclosing Party; or (iv) is
independently developed by the Party; or (v) is required to be disclosed
pursuant to court or agency order.
3.3 From time to time during the life of this Agreement, at Affymetrix'
request, MD shall make MD's Technical Information available to Affymetrix.
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3.4 Affymetrix and MD will advise the other with reasonable promptness and
detail of Technical Information developed after the Effective Date.
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4 GRANTS
4.1 Subject to the terms and conditions of this Agreement, Affymetrix grants to
MD a nontransferable, nonexclusive, worldwide, royalty bearing license
under Affymetrix' Patent Rights and Technical Information to make, (but not
have made), use for internal array development programs and pharmaceutical
or diagnostic research (such use rights not including the right to license
or distribute expression databases, or perform therapeutic or
pharmaceutical development on a service or similar basis), import, lease,
distribute, offer for sale, and sell (in the case of products other than
software) a) GATC Compliant Nucleic Acid Arrays, and b) GATC Compliant
Systems for use with and only for use with GATC Compliant Nucleic Acid
Arrays licensed hereunder, all to the extent that such Nucleic Acid Arrays
or Systems are covered by Affymetrix' Patent Rights and/or Affymetrix's
Technical Information. Such license shall not include the right to
sublicense, except that MD shall have the right to sublicense single copies
of Affymetrix' Technical Information (without the right to further
sublicense) for use with GATC Compliant Systems leased, sold, or
transferred by MD pursuant to this Agreement. It is understood that the
rights conveyed herein do not include the right for MD to use, have used,
or license or otherwise permit any third party to use the Nucleic Acid
Arrays (including those made by Array Makers) for database development for
external distribution, service based target or drug discovery, or product
development of other nucleic acid analysis technologies. It is further
understood that while the sale of Systems or licensing of Technical
Information to third parties is permitted even though such Systems are or
may be useful to read, prepare, or process data from nucleic acid arrays
having a density greater than the density of Nucleic Acid Arrays licensed
herein or in applications other than the Nucleic Acid Arrays licensed
herein (such as those made by Affymetrix), no express or implied license to
make, have made, use, import, lease, distribute, offer for sale, sell or
transfer such higher density nucleic acid arrays or nucleic acid arrays for
other applications is granted or is to be inferred or implied hereunder
except as to those nucleic acid arrays made by Affymetrix or licensed by
Affymetrix. Notwithstanding anything to the contrary in this Section 4.1,
Nucleic Acid Arrays are licensed hereunder only to the extent that such
Nucleic Acid Arrays are a) used, leased, distributed, or sold only for
research use only; and b) designed and marketed only for use and used in
Expression Analysis studies; and c) are for single use only, and d) are
sold, leased, or otherwise transferred with contractual and label
restrictions on use consistent with this agreement, which provisions may be
reasonably reviewed by Affymetrix. It is understood that MD may have
subassemblies made under this license that would not, but for this license,
infringe the intellectual property rights granted herein. The Parties will
agree to appropriate royalty and support terms for additional copies of the
Technical Information to be used in the Systems.
4.2 Subject to the terms and conditions of this Agreement, Affymetrix grants to
MD a nontransferable, nonexclusive, worldwide, royalty-free license under
Affymetrix' Patent Rights to make (but not have made), and use Array Makers
for internal array
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development and manufacturing development programs. It is understood that
MD may have subassemblies made under this license that would not, but for
this license, infringe the intellectual property rights granted herein.
4.3 During the term and subject to the terms and conditions of this Agreement
and during the Initial Period or the Metered Period as applicable (if any),
Affymetrix grants to MD a nontransferable, nonexclusive, worldwide, royalty
bearing license under Affymetrix' Patent Rights and Technical Information
to make, (but not have made), use for internal array development programs
and pharmaceutical or diagnostic research (such use rights not including
the right to license or distribute expression databases, or perform
therapeutic or pharmaceutical development on a service or similar basis),
import, lease, distribute, offer for sale, and sell (in the case of
licensed products other than software) Array Makers for the manufacture of
GATC Compliant Nucleic Acid Arrays to the extent that such Array Makers or
the use of such Arrays Makers or Nucleic Acid Arrays made therewith (or use
thereof) are covered by Affymetrix' Patent Rights and/or Affymetrix'
Technical Information. Such license shall not include the right to
sublicense. Such license shall be considered to include a license for the
Array Makers sold prior to the date of this Agreement only to the entities
in Exhibit 5. It is understood that the rights conveyed herein do not
include the right for MD or those acquiring Array Makers pursuant to this
Agreement to use, have used, or license or otherwise permit any third party
to use the Nucleic Acid Arrays made with such Array Makers for database
development for external distribution, for service based target or drug
discovery, or manufacture Nucleic Acid Arrays for resale or other transfer
to third parties. Nucleic Acid Arrays made with the Array Makers licensed
hereunder will be licensed only to the extent that such Nucleic Acid Arrays
are a) used, leased, distributed, or sold for research use only; and
b) designed, marketed and used only in Expression Analysis studies; and
c) are for single use only, and d) are sold or otherwise transferred with
contractual and label restrictions on use consistent with this agreement,
which provisions may be reasonably reviewed by Affymetrix. In no event may
MD transfer more than [**] Array Makers pursuant to the license hereunder
to a single third party or its Affiliates, except as to [**], to which MD
will not transfer more than [**] Array Makers pursuant to the license
hereunder when such Array Makers are to be licensed in an Initial Period.
During the Metered Period, MD may provide additional Array Makers to its
customers. It is understood that a particular customer of MD may wish to
order more than the above recited [**] or [**] Array Makers, and when MD is
contractually obligated to provide such Array Makers they may be provided
by MD, provided that any such Array Makers in excess of the above limits
will be considered as being in the Metered Period upon their delivery to
the customer of MD. In the event that MD is committed to deliver more than
the above numbers of Array Makers before the Effective Date to the
customers in Exhibit 5, MD and Affymetrix will negotiate for appropriate
metering rates for such Array Makers pursuant to Section 5, upon which such
Array Makers will be licensed hereunder. It is understood that MD may have
subassemblies made under this license that would not, but for this license,
infringe the intellectual property rights granted herein.
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4.4 Research Market Array Makers will be subject to the provisions of this
Agreement related to Arrays Makers. In addition, Research Market Array
Makers may be used and are licensed only to the extent they are used in the
generation of scientific information for general publication, and without
pursuit of intellectual property rights thereon. Any further uses,
including the patenting of information or discoveries created with the
Research Market Array Maker, the creation of arrays for sale to third
parties, the performance of services or tests on a paid basis for third
parties, and the creation of database or informatics products for sale to
third parties will not be licensed hereunder except to the extent that any
such purchaser agrees to abide by the terms of Affymetrix' then current
Academic User Center (or then equivalent) agreement providing for
Affymetrix rights to either a) have access to such intellectual property,
or b) share in royalties generated by such intellectual property. Each
Research Market Array Maker sold, leased, or otherwise transferred by MD
will be sold with written consent to and conditioned upon such terms.
4.5 It is understood that MD may wish to perform a service business using
Nucleic Acid Arrays during the Term of this Agreement. Affymetrix will
negotiate in good faith to license such service business at rates otherwise
consistent with its then current pricing models.
4.6 MD may grant sublicenses (without the right to further sublicense) to the
Technical Information in association with the bona fide sale, lease, or
transfer of Systems or Nucleic Acid Arrays, provided that any such license
of the Technical Information: a) will allow any sublicensee access only to
object code versions of any software included within such grant; and b) any
such grant includes provisions the same as or substantially identical to
those in Exhibit 4. MD will maintain all trademark and copyright notices
of Affymetrix in such Technical Information sublicensed to a third party.
4.7 Affymetrix shall provide support for the Technical Information commensurate
with standard industry practices (under standard terms and conditions) to
MD, its Affiliates, and their customers who have received Technical
Information in connection with the bona fide sale, lease, or transfer of
Systems or Nucleic Acid Arrays by MD or its Affiliates pursuant to the
licenses granted hereunder. In addition, upon MD's request, Affymetrix
shall escrow a source code version of the Technical information with an
escrow agent mutually agreeable to the parties, which escrowed source code
shall be accessible to MD in the event that Affymetrix shall default on or
be unable to perform its support obligations, or as a result of insolvency,
bankruptcy, or if Affymetrix otherwise ceases in the relevant business.
4.8 MD and Affymetrix will reasonably meet and confer to determine if it is
reasonably feasible to retrofit Systems that are not GATC Compliant, but
which are licensed hereunder, to permit such Systems to utilize probe
arrays of low and/or high density made by Affymetrix.
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4.9 In the event that a third party brings a lawsuit or is otherwise involved
in administrative or other similar disputes with a Party regarding
intellectual property rights, the Party that is subject to such action may
provide written notification of such action, along with notification that
it wishes to discontinue sales, if any, of products that would otherwise
have been licensed hereunder to such third party, and terminating the
licenses herein with respect to such third party. The Party receiving such
notice will, subject to prior contractual commitments, use reasonable
efforts to discontinue sales of products licensed hereunder to such third
party or, if no such sales have occurred, to prevent such sales in the
future. MD acknowledges that Affymetrix has provided notice of two such
third parties, and MD understands that any products transferred to such
third parties are not licensed hereunder.
4.10 Subject to the terms and conditions of this Agreement, MD grants to
Affymetrix, which grant is extendible by Affymetrix to its Affiliates
without accounting therefor to MD, a worldwide, nonexclusive license under
MD's Patent Rights to make, have made, use, import, lease, distribute,
offer for sale, and sell high density arrays of nucleic acids and systems
for use therewith to the extent used to analyze such high density arrays of
nucleic acids.
4.11 It is recognized that up to [**] may be sold by MD to [**] pursuant to an
existing contract between MD and [**] and in accordance with the rights and
obligations of this Agreement. The Parties recognize, however, that [**]
may not agree to be bound by all of the the terms of this license relating
to database distribution in Section 4.3. To the extent that [**] does not
comply with the database distribution restrictions in Section 4.3 and to
the extent that such [**] are otherwise sold by MD in accordance with this
Agreement, Affymetrix, on behalf of itself, and its Affiliates, heirs,
executors, assigns, agents and representatives hereby fully and forever
releases MD and its heirs, executors, assigns, agents, and representatives
from any claim or cause of action, under any theory of liability, known or
unknown, fixed or contingent, that any of them may have arising from or
relating to Affymetrix Patent Rights and/or Technical Information from the
beginning of time up to the Effective Date on account of [**] lack of
non-compliance, performance, or lack of agreement to comply with such
database distribution restrictions with respect to such three instruments.
Such release shall in no manner be construed to extend to [**] whether by
implication, license, or otherwise and, further, shall not extend to
future acts of MD beyond the supply of such [**] to [**].
4.12 MD, on behalf of itself, and its Affiliates, heirs, executors, assigns,
agents and representatives hereby fully and forever releases Affymetrix and
its heirs, executors, assigns, agents and representatives from any claim or
cause of action, under any theory of liability, known or unknown, fixed or
contingent, that any of them may have arising from or relating to MD Patent
Rights from the beginning of time up to the Effective Date on account of
the manufacture, use, or sale of high density nucleic acid arrays and
systems to analyze such high density nucleic acid arrays.
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4.13 Subject to the terms and conditions of this Agreement, MD grants to
Affymetrix the royalty-free right to grant nonexclusive licenses under MD's
Patent Rights to others licensed by Affymetrix under Affymetrix' Patent
Rights for use with Nucleic Acid Arrays and Systems; provided, however,
that Affymetrix may grant such licenses under MD's Patent Rights only to
others whose Patent Rights are included within the Affymetrix Patent
Rights.
4.14 Nothing in this Agreement shall be construed to obligate either party to
xxx alleged infringers under such party's Patent Rights and Technical
Information. Any determination to take any action against such alleged
infringers shall be in such party's sole discretion.
4.15 MD shall include with all Nucleic Acid Arrays (including Nucleic Acid
Arrays made with Array Makers) and Systems leased, distributed, sold, or
otherwise transferred hereunder reasonable package markings, product
markings, contractual restrictions, and/or user manual instructions
indicating that such products are licensed: (a) for research purposes
only; (b) only for Expression Analysis studies or studies otherwise
licensed by Affymetrix (it being understood that the Parties may chooses
upon mutual written consent to modify this limitation); and (c) for single
use only, and (d) with restrictions on the distribution of databases or
services based on the use of arrays herein, and (e) only consistent with
the licenses herein. MD shall diligently police and enforce such
restrictions.
4.16 MD shall attach a label on each Nucleic Acid Array, System and/or
associated documentation sold, leased, or otherwise transferred hereunder
reasonably reflecting patent numbers of a) issued US device patents
covering such product, and b) other appropriate intellectual property
rights notices, and will reasonably modify such label periodically at the
direction of Affymetrix. Affymetrix shall attach a label on each Nucleic
Acid Array, System and/or associated documentation reasonably reflecting
patent numbers of a) issued US device patents covering such product, and
b) other appropriate intellectual property rights notices, and will
reasonably modify such label periodically at the direction of MD.
4.17 The licenses granted herein are granted on the understanding that MD will
use commercially reasonable efforts to develop, manufacture, and market
Nucleic Acid Arrays and Systems, and MD agrees to use such commercially
reasonable efforts to develop, manufacture, and market Nucleic Acid Arrays,
and Systems. If during the term of this Agreement Affymetrix reasonably
believes that MD has discontinued commercially reasonable efforts to
develop, manufacture, and market Nucleic Acid Arrays and/or Systems,
Affymetrix may provide written notice to MD of such reasonable belief,
along with notification that it intends to terminate the licenses herein
In the event that MD disagrees with such assertions by Affymetrix, MD may
provide reasonable evidence of its continued reasonable commercial efforts
under suitable terms of
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confidentiality. In the absence of such reasonable evidence, Affymetrix
may, thereafter, on 6 months written notice, terminate this Agreement.
4.18 MD may extend the licenses granted herein to its Affiliates provided such
Affiliates agree in writing to be bound by the terms and conditions of this
Agreement, and further provided that MD agrees to be liable and indemnify
Affymetrix for the activities of such Affiliates.
5 FEES
5.1 At the time and in the manner hereinafter provided, MD shall pay to
Affymetrix for each Nucleic Acid Array a) leased, sold, or otherwise
transferred pursuant to the license granted under Section 4 hereof, or
b) used for internal pharmaceutical research and development purposes
(but not used solely for development of Arrays Makers, Systems or Nucleic
Acid Arrays), a royalty pursuant to Table 1. The royalty shall be payable
based on [**] prices in Table 1 are the number of dollars to be paid to
Affymetrix [**].
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Royalty [**]
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[**] [**]
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5.2 The royalties and operating fees, and the licenses herein, cover arrays
made with up to [**]. In the event that MD reasonably believes at a
future date that [**] are reasonably required to competitively market
Nucleic Acid Arrays or Array Makers, MD and
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Affymetrix will reasonably confer and agree upon appropriate royalty
levels for such Nucleic Acid Arrays and/or Array Makers using the
royalty and operating fee structures set forth herein as guiding
factors, provided that in no event will the licenses granted herein
cover Nucleic Acid Arrays representing more than [**] unless agreed to
in writing by Affymetrix. In addition, if MD is required to license
probe array based intellectual property from third parties that make the
above royalty rates unsupportable, MD and Affymetrix will negotiate in
good faith with each other to modify the above royalty structure and/or
the third party royalty rates that should be paid.
5.3 In the event that a) MD reasonably believes that it cannot support the
above royalty rates and operating fees under a reasonable business model
for the sale, lease, or transfer of Nucleic Acid Arrays sold pursuant to
this Agreement after commercial efforts to implement such business model
as a result of such royalty rates, and b) Affymetrix is not taking
reasonable efforts to mitigate infringement of its intellectual property
rights, MD will provide written notification to Affymetrix, along with
reasonable documentation of the basis of such assertion. MD and
Affymetrix will reasonably confer and identify alternative license fees
and or structures to support a reasonable business model for the sale of
Nucleic Acid Arrays licensed pursuant to this Agreement.
5.4 If in any calendar year following the [**] anniversary of this Agreement
the royalties and operating fees generated by MD's licensed operations
hereunder are less than [**], then Affymetrix shall have the right,
exercisable within the period of ninety (90) days following the end of
the said year, to terminate this Agreement on sixty (60) days' written
notice to MD; provided, however, that MD shall have the right but not
the obligation, before the expiration of the said sixty (60) days
following the date of said notice of termination, to pay any differences
between the royalties and operating fees so accruing and the foregoing
amount and maintain this Agreement and the license granted to MD in full
force and effect, subject to Affymetrix' rights to terminate this
Agreement pursuant to any of Sections 7.3 through 7.5 hereunder.
5.5 In partial consideration of the rights and waivers herein MD shall pay
to Affymetrix [**] upon MD's execution of this Agreement. Such payment
shall be subject to refund as follows: a) if a Category 1 patent has not
issued by [**] shall be refunded, and b) if a Category 2 patent has not
issued by [**] shall be refunded.
5.6 During the Initial Period, and as to Array Makers (excluding Research
Array Makers) transferred to third parties under contracts in which MD
has committed to transfer such Array Makers pursuant to agreements
effective before [**] MD will pay to Affymetrix an operating license fee
for the usage of the Array Makers during the period beginning when the
Category 1 and/or 2 Patents, as applicable, are issued: a) [**] per
calendar year for each calendar year in which a Category 1 Patent is
issued, pro-rated for the number of months in such calendar year in
which such Category 1 Patent is issued, and provided that this payment
shall not be payable with respect to Array Makers specifically
configured to make Nucleic Acid Arrays at a density of less than [**],
and b) [**] per
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calendar year for each calendar year in which a Category 2 Patent is
issued, pro-rated for the number of months in such calendar year in
which such Category 2 Patent is issued. The foregoing operating license
fees are a proxy for usage fees for the Array Makers. The fees recited
in this Section may be made in equal quarterly installments during the
applicable calendar year in which such payments are due.
5.7 MD will reasonably gather data regarding the Array Makers (excluding
Research Array Makers) sold pursuant to this Agreement to determine the
approximate use rate and type of use (density of arrays, etc.) by users
of such Array Makers. Before [**] the Parties will meet and confer
regarding an appropriate and reasonable metering system (such as, for
example, monitoring of reagent usage, software usage monitoring, etc.)
that may be used to apply reasonable royalties and operating fees to the
use of such Array Makers reflective of the rates recited herein for
Array Makers and Nucleic Acid Arrays. During the Metering Period, the
royalties and operating fees payable on any such Array Makers will be
based upon such agreed metering mechanism.
5.8 Until such time as Affymetrix provides MD written notification of the
issuance of a Category 1 Patent, MD may discount the royalties and
operating fees payable on Nucleic Acid Arrays pursuant to Sections 5.1
and 5.6 herein by [**]. Until such time as Affymetrix provides MD
written notification of the issuance of a Category 2 Patent, MD may
discount the royalties and operating fees payable on Nucleic Acid Arrays
pursuant to Sections 5.1 and 5.6 herein by [**]. It is understood
during such time as neither a Category 1 Patent or a Category 2 Patent
is issued, MD may discount the royalties and operating fees payable on
Nucleic Acid Arrays pursuant to Sections 5.1 and 5.6 herein by [**].
5.9 Molecular Dynamics shall pay to Affymetrix a one-time royalty on each
Research Market Array Maker and reagents sold therefor equal to [**] of
the net sales revenue (F.O.B. Sunnyvale) of such Research Market Array
Makers and reagents sold therefor.
5.10 MD may discount the royalties/operating fees payable pursuant to Section
5.1 herein on the sale of Nucleic Acid Arrays by [**] in those cases
where the Genes represented on the Nucleic Acid Arrays are from an
organism listed in Exhibit 6.
5.11 If, under similar conditions and on substantially the same terms as
this Agreement, other than royalty terms, Affymetrix shall hereafter
enter into another agreement making available to any person, firm or
company (other than any national government or branches or agencies of
any national government, or any Affiliate(s) of Affymetrix) a license or
immunity from suit for any country or countries, otherwise of the same
scope as the licenses and immunities granted MD under this Agreement,
wherein the terms taken as a whole are more favorable than those granted
in this Agreement, then MD shall, at MD's election to be exercised
within ninety (90) days from the date of Affymetrix' notification, be
entitled to the benefit of such more favorable terms in such country or
countries as of and subsequent to the effective date of the grant by
Affymetrix of such
15
more favorable terms, so long as such more favorable terms shall be
available to such other licensee, provided that in any such event MD
shall at the same time accept any and all other terms, conditions and
limitations imposed on such other licensee, whether or not they are
directly related to such more favorable terms. Affymetrix shall
reasonably notify MD of any agreement which provides Affymetrix of the
benefits of this paragraph.
6 RECORDS, ACCOUNTS AND PAYMENTS
6.1 The royalties and operating fees payable by MD to Affymetrix as provided
in Article 5 shall be paid on or before the last day of February, May,
August and November in each calendar year for MD's operations hereunder
during the respective immediately preceding calendar quarter. MD will
at the same time deliver to Affymetrix a certified statement of one of
MD's officers, on forms which may be provided or prescribed therefor by
Affymetrix, accounting for royalties and operating fees payable
hereunder, or showing that no royalty is payable.
6.2 In keeping with established bookkeeping and accounting practices, MD
shall maintain, for a period of two (2) years following the end of the
calendar year in which any royalties and operating fees are payable,
appropriate books and records fully adequate to show the full amount of
royalty payable under this Agreement, including, but not limited to,
books and records showing each sale, lease, or other transfer of Nucleic
Acid Arrays or Systems, the net invoice price for said sale, lease,
other transfer, and sublicense, the name and address of the purchaser,
lessee, transferee and/or sublicensee, as appropriate. Affymetrix shall
have the right, at any time during regular business hours and upon 10
days notice, to make such examination as Affymetrix deems necessary to
verify said records and books of account. In the event that such
examination reveals a discrepancy between the royalties and operating
fees payable hereunder and the royalties and operating fees actually
paid, all such additional royalties and operating fees, together with
interest from the date when such additional royalties and operating fees
would have been due, shall be paid to Affymetrix within thirty (30) days
of written notice from Affymetrix of such discrepancy. Such notice
shall be deemed to be notice of default under Section 7.5 hereunder.
Any such audit shall be at Affymetrix sole expense and performed by a
nationally recognized accounting firm under reasonable obligations of
confidentiality. In the event that a deficiency of more than [**] is
discovered, the audit shall be at MD expense.
6.3 All payments provided for in this Agreement refer to lawful money of the
United States of America. All payments shall be made by MD to
Affymetrix at the office of Affymetrix designated in Section 8 and shall
be made in the full amounts as herein specified; provided, however, that
deduction may be made from such payments by MD for amounts lawfully
required to be withheld and paid by MD in respect of any income tax
levied or assessed upon such payments by, and in accordance with the
laws of, any foreign government but only in respect to sales and leases
by MD in the foreign country imposing such income tax. Affymetrix shall
have the right at any time or from time-to-
16
time to contest by appropriate proceedings the validity or amount of any
such income tax withheld. If so requested by Affymetrix, MD will make
such payments under protest, and, on behalf and at the expense of
Affymetrix, take such other action and render all reasonable assistance
that may be required by Affymetrix in the prosecution of any such
proceedings. MD will obtain and forward to Affymetrix tax credit
receipts or vouchers for all income taxes thus withheld and paid by MD.
As used herein, "income tax" shall mean a tax on income imposed by a
country other than the United States of America or by any possession or
territory of the United States of America, for which a foreign tax
credit is allowed by the Government of the United States of America.
All late payments shall bear interest at the rate of 1.5% per month,
unless the maximum amount allowed by law is lower, in which case all
late payments shall bear interest at the maximum permitted rate.
6.4 If one or more of the payments required to be made herein is not made by
its due date, and if such payment or payments, plus interest, is not
made prior to forty five (45) days after notice from Affymetrix of such
delinquency, then Affymetrix may, at its sole option, terminate this
Agreement on the fifteenth day after written notice is given to MD that
it intends to terminate this Agreement.
6.5 All payments herein shall be made in United States of America dollars in
the form of a check drawn on a United States bank.
7 DURATION OF AGREEMENT
7.1 Unless earlier terminated as provided below, this Agreement shall remain
in full force and effect until January 1, 2008.
7.2 At any time after one (1) year following the Effective Date of this
Agreement, MD may terminate this Agreement upon sixty (60) days' prior
written notice to Affymetrix.
7.3 In the event that MD intends to file any petition, answer, or other
proceeding in bankruptcy, MD will use reasonable efforts to give
Affymetrix reasonable advance written notice prior to filing such
petition and provide Affymetrix reasonable adequate opportunity to
review and oversee any reorganization or disposal of MD's relevant
assets (to the extent applicable to the intellectual property rights
herein granted) to ensure strict compliance with this Agreement.
Failure to comply with this Section shall be considered a material
breach which may not be remedied.
7.4 In the event that MD files, or intends to file any petition, answer, or
other proceeding in bankruptcy, Affymetrix will have the right, but not
the obligation, to terminate this Agreement by providing written notice.
7.5 If either party should fail to perform any obligations under this
Agreement, the other party may give written notice to the defaulting
party calling attention to the default. In the
17
event of a material breach or default, unless said breach or default is
corrected within thirty (30) days after such notice, said other party
shall thereafter have the right to terminate this Agreement upon thirty
(30) days' prior written notice to said defaulting party. Said right to
terminate for default shall be in addition to, and without prejudice to
the exercise of, any other remedies available in law or equity.
7.6 No termination of this Agreement shall in any way affect MD's
obligations pursuant to Articles 5 and 6 to pay royalties and operating
fees, deliver statements, and maintain books and records under this
Agreement accrued prior to such termination, or MD's or Affymetrix's
obligations pursuant to Section 3.2. Furthermore, no termination of
this Agreement shall in any way affect Affymetrix's rights under
Sections 4 above.
8 MISCELLANEOUS
8.1 MD and Affymetrix will appropriately xxxx all licensed products
hereunder with applicable intellectual property rights notices as may be
reasonably be provided from time to time by the other Party. In
addition, all product manuals and instruments to be sold as or in
conjunction with Nucleic Acid Arrays, Systems, or Array Makers shall
include the following notice, such notice to be reasonably modified upon
notice from Affymetrix provided that any such modification is consistent
with the terms and conditions of this Agreement:
LIMITED LICENSE: NUCLEIC ACID ARRAYS, ARRAY MAKERS, SYSTEMS
(INSTRUMENTS, SOFTWARE, AND REAGENTS) ARE LICENSED FOR RESEARCH USE
ONLY. NO IMPLIED RIGHT TO MAKE, USE, HAVE MADE, OFFER TO SELL,
LEASE, DISTRIBUTE, SELL, OR IMPORT NUCLEIC ACID PROBE ARRAYS OR
ANY OTHER PRODUCT IN WHICH AFFYMETRIX OR MOLECULAR DYNAMICS HAS
PATENT RIGHTS IS CONVEYED BY THE SALE OF PROBE ARRAYS,
INSTRUMENTS, SOFTWARE, OR REAGENTS HEREUNDER. THIS LIMITED LICENSE
PERMITS ONLY THE USE OF THE PARTICULAR PRODUCT(S) THAT THE USER HAS
PURCHASED FROM AFFYMETRIX OR LICENSED AND SOLD BY MOLECULAR
DYNAMICS, OR PERMITTED LICENSEES, AND MAY NOT BE USED IN DATABASE
GENERATION FOR EXTERNAL LICENSE OR SALE, OR FOR SERVICE BASED
PHARMACEUTICAL RESEARCH.
8.2 Affymetrix warrants that the Technical Information does not infringe the
copyrights or trade secret rights of a third party, and will indemnify
MD against any claims based on the infringement of third party
copyrights or trade secret rights. THIS WARRANTY STATES THE ENTIRE
LIABILITY FOR INFRINGEMENT OF THIRD PARTY INTELLECTUAL RIGHTS ARISING
FROM THE SALE OF PRODUCTS UNDER THIS AGREEMENT.
18
8.3 Nothing in this Agreement shall be construed as conferring any right to
use in advertising, publicity, or other promotional activities any
name, trade name, trademark, or other designation of either party hereto
without the express written approval of the other party.
8.4 Each of Affymetrix and MD represents and warrants that it neither owns
or controls any patent or patent application which would be necessary
for the other party to exercise the rights granted herein and which is
not licensed hereunder. MD and Affymetrix warrant that they each have
the full right to enter into this Agreement. Nothing in this Agreement
shall be construed as a warranty or representation by Affymetrix or MD
as to the validity or scope of any of the Patent Rights, a warranty or
representation by either party that any manufacture, sale, use, or other
disposition of the products licensed hereunder will be free from
infringement of patents, utility models, and/or design patents other
than those Patent Rights for which licenses are extended hereunder.
Nothing in this Agreement shall be considered as conferring any warranty
or representation as to the usefulness, marketability, or
merchantability of any products sold within the scope of the licenses
hereunder. Affymetrix and MD agree to hold the other harmless from any
personal injury or products liability claims made as a result of the
sale of products licensed hereunder.
8.5 The Parties will retain the terms of this Agreement in strict
confidence, except as may be required by regulatory agencies or courts,
and will then use all reasonable precautions to maintain the terms of
this Agreement confidential.
8.6 This Agreement is not assignable by MD by operation of law or otherwise
without the prior written consent of Affymetrix including in the event
of acquisition of the assets or stock of MD without the consent of
Affymetrix, which will not be unreasonably withheld, except in the case
of companies directly competitive with Affymetrix. Affymetrix may
assign this Agreement, without the prior written consent of MD, to any
entity acquiring all or substantially all of Affymetrix' Nucleic Acid
Array licensing business. No assignment of this Agreement shall be
valid until all obligations under this Agreement shall have been assumed
in writing by the assignee.
8.7 This Agreement is executed by the parties with the understanding that it
embodies the entire agreement between the parties pertaining to the
subject matter of this Agreement and there are no representations,
warranties or other commitments, written or oral, pertaining to the
subject matter of this Agreement which are not embodied in this
Agreement.
8.8 MD and Affymetrix represents that they are familiar with the Export
Administration Regulations comprising the compilation of official
regulations and policies governing the export licensing of commodities
and technical data promulgated by the United States Department of
Commerce, Bureau of International Commerce, Office of Export
Administration. Notwithstanding any other provisions of this Agreement,
and each
19
assures the other that with respect to all information and licenses
furnished by or under this Agreement, that it will comply with such
official regulations.
8.9 It is understood and agreed between the parties that the Technical
Information made available to each Party shall all be provided "as is"
without any warranties, express or implied. THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY
EXCLUDED FROM THIS WARRANTY AND FROM THE TERMS OF THIS CONTRACT BY
AGREEMENT OF THE PARTIES. In no event will Affymetrix or MD be liable
for lost or prospective profits or indirect or consequential damages
even if Affymetrix or MD has been advised of the possibility of such
damages.
8.10 The addresses of the parties hereto for all purposes of this Agreement
shall be as follows:
Affymetrix:
Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attn: President
MD:
Molecular Dynamics, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: President
All correspondence relating to this Agreement shall be deemed to have
been duly communicated to the addressee upon the confirmed facsimile
transmission or prepaid express mailing to the party entitled thereto at
its above address or at such address as it may from time-to-time
designate in writing to the other party.
8.11 In the event that any provision of this Agreement is held invalid or
unenforceable for any reason, such unenforeceability shall not affect
the enforceability of the remaining provisions of this Agreement, and
all provisions of this Agreement shall be construed so as to preserve
the enforceability hereof.
8.12 The waiver by either Party of a breach or a default of any provision of
this Agreement by the other Party shall not be construed as a waiver of
any succeeding breach of the same or any other provision, nor shall any
delay or omission on the part of either Party to exercise or avail
itself of any right, power or privilege that it has or may have
hereunder operate as a waiver of any right, power or privilege by such
Party.
20
8.13 This Agreement is made and shall be construed in accordance with the
local laws of the State of California, U.S.A. without regard to the
doctrine of conflict of laws.
8.14 This Agreement may be executed in any number of 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 respectively caused this Agreement to be
executed on the dates hereinafter indicated.
Affymetrix, Inc.
By: /s/ Xxxxxxx P.A. Xxxxx
------------------------------
Title: President & CEO
------------------------------
Date: November 28, 1997
------------------------------
Molecular Dynamics, Inc.
By: /s/ Xxx Xxxxxxx
------------------------------
Title: President & CEO
------------------------------
Date: November 26, 1997
------------------------------
21
EXHIBIT 1
AFFYMETRIX PATENT LISTING (BY AFFYMETRIX FILE NO.)
[**]
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EXHIBIT 2
MD PATENT LISTING (BY PATENT NO. OR MD FILE NO.)
[**]
[**]
[**]
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EXHIBIT 3
LICENSED SOFTWARE PACKAGES
GeneChip-Registered Trademark- System Software (current version)
GeneChip Expression Analysis Software (Cat No. 900136)
24
EXHIBIT 4
SOFTWARE LICENSE PROVISION
END-USER LICENSE AGREEMENT
IMPORTANT-READ CAREFULLY: This End-User License Agreement ("Agreement") is a
legal agreement between you and Affymetrix, Inc. ("Licensor"), the licensor
of the software products ("Software Products") accompanying the diagnostic or
analytical system ("System") you have acquired from Affymetrix or a
distributor of the System ("Distributor"). The Software Products include
computer programs, associated storage media, associated documentation, and
any other information regarding the software products listed below. If the
Software Products are not accompanied with a System, you may not use, copy or
read the Software Products. By installing, copying, reading, or otherwise
using the Software Products, you agree to be bound by the terms of this
Agreement. If you do not agree to the terms of this Agreement, Licensor is
unwilling to license the Software Products to you. In such event, you may
not use, copy or Distributor for instructions on return of the Software
Products. This Agreement represents the entire agreement concerning the
Software Products between you and Licensor, and it supersedes any prior
proposal, representation, or understanding between the parties.
The Software Products are protected by copyright laws and international
copyright treaties, as well as other intellectual property laws and treaties.
The Software Products are licensed, not sold, to you by Licensor for use only
under the terms of this Agreement, and Licensor reserves any rights not
expressly granted to you.
1. License Grant. This Agreement grants to you, and you accept, a
nonexclusive license to use the Software Products. The computer programs of
the Software Products ("Computer Programs") may only be used on the System.
Further, the Computer Programs may only be used in their machine-readable,
object code form. You agree that you will not assign, sublicense, transfer,
pledge, lease, rent, or share your rights under this Agreement. You agree
that you may not modify or prepare derivative works of the Software Products.
You agree that you may not reverse engineer, decompile, disassemble, or
otherwise translate the Computer Programs. The Software Products are for
RESEARCH USE ONLY. You agree not to use the Software Products in any setting
requiring FDA or other regulatory approval.
The Computer Programs may be loaded on the System in both temporary and
permanent storage, and the associated storage media may be utilized for
backup purposes. In addition, you may make one copy of the Computer Programs
on a backup storage media for the purpose of backup. Except as authorized
under this paragraph, no copies of the Software Products or any portions
thereof may be made by you or any person under your authority or control.
2. Licensor's Rights. You acknowledge and agree that the Software Products
are proprietary products of Licensor protected under copyright and other
intellectual property laws. You further
25
acknowledge and agree that all right, title, and interest in and to the
Software Products, including associated intellectual property rights, are and
shall remain with Licensor. This Agreement does not convey to you an
interest in or to the Software Products, but only a limited right of use
revocable in accordance with the terms of this Agreement. You agree to keep
confidential and use your reasonable efforts to prevent and protect the
Software Products from unauthorized disclosure or use. LIMITED LICENSE: PROBE
ARRAYS, INSTRUMENTS, SOFTWARE, AND REAGENTS ARE LICENSED FOR RESEARCH USE
ONLY. NO IMPLIED RIGHT TO MAKE, HAVE MADE, USE, LEASE, DISTRIBUTE, OFFER TO
SELL, SELL, OR IMPORT OLIGONUCLEOTIDE PROBE ARRAYS OR ANY OTHER PRODUCT IN
WHICH AFFYMETRIX HAS PATENT RIGHTS IS CONVEYED BY THE SOFTWARE. THIS
LIMITED LICENSE PERMITS ONLY THE USE OF THE PARTICULAR PRODUCT(S) THAT THE
USER HAS PURCHASED FROM AFFYMETRIX OR ITS LICENSEES OF PARTICULAR PATENT
RIGHTS.
3. Software Products. The Affymetrix software products covered by this
Agreement include, but are not limited to, the following:
[to be added]
4. Term. This Agreement shall continue until terminated. You may terminate
this Agreement at any time by destroying all copies of the Software Products,
including the associated storage media and documentation, and erasing all
copies of the Software Products in both temporary and permanent storage on
the System. Licensor may terminate this Agreement upon the breach by you of
any term hereof.
5. Limited Warranty. Licensor or its distributor warrants, for your benefit
alone, for a period of ninety (90) days from the date of commencement of this
Agreement ("Warranty Period") that the associated storage media on which the
Computer Programs reside will be free from defects in material and
workmanship. Licensor further warrants, for your benefit alone, that during
the Warranty Period the Computer Programs shall operate substantially in
accordance with the associated documentation. If during the Warranty Period,
a defect in the Computer Programs appears, you may return the Software
Products to Licensor for either replacement or, if so elected by Licensor,
refund of license fees paid by you to Distributor for use of the Software
Products. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AFFYMETRIX AND
ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE WITH REGARD TO THE SOFTWARE PRODUCTS. SOME
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES
SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6. Limitation of Liability. To the maximum extent permitted by applicable
law, Licensor's cumulative liability to you or any other party for any loss
or damages resulting from any claims, demands, or actions arising out of or
relating to this Agreement shall not exceed the license fees
26
paid to Distributor for the use of the Software Products. In no event shall
Licensor be liable for any incidental, consequential, special, or exemplary
damages, or indirect damages for personal injury or lost profits, even if
Licensor has been advised of the possibility of such damages. SOME
JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE ABOVE LIMITATION OR EXCLUSION MAY
NOT APPLY TO YOU.
7. Governing Law. This Agreement shall be governed by and interpreted under
the laws of California, without regard to conflict of law provisions.
8. Severability. Should any term of this Agreement be declared void or
unenforceable by any court of competent jurisdiction, such declaration shall
have no effect on the remaining terms hereof.
9. U.S. Government Restricted Rights. The Software Products and
documentation are provided with RESTRICTED RIGHTS as follows:
a. Department of Defense Licensees. The Government's right to use,
modify, reproduce, release, perform, display, or disclose the Software
Products are restricted by paragraph (b)(3) of the Rights in Noncommercial
Computer Software and Noncommercial Computer Software Documentation clause
contained in the relevant contract between the Government and Affymetrix,
Inc, 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000. Any
reproduction of the Software Products or portions thereof marked with this
legend must also reproduce the markings. Any person, other than the
Government, who has been provided access to the Software Products must
promptly notify Affymetrix.
b. Civilian Government Agency Licensees. Use, reproduction, or
disclosure is subject to restrictions set forth in the relevant contract
between the Government and Affymetrix, Inc, 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx
Xxxxx, Xxxxxxxxxx 00000.
27
EXHIBIT 5
EXCUSED FABRICATION SYSTEMS
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EXHIBIT 6
DISCOUNTED ORGANISMS
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29
