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EXHIBIT 10.26
AMENDMENT TO THE GEM(TM) SERVICES AGREEMENT
BETWEEN
DIADEXUS, LLC
AND
INCYTE PHARMACEUTICALS, INC.
This amendment ("Amendment") to the GEM(TM) Services Agreement
("Agreement") is made this 27th day of September, 1999 (the "Effective Date"),
by and between diaDexus, LLC, ("diaDexus") a Delaware limited liability company
having its principal place of business at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX
00000 and Incyte Pharmaceuticals Inc., ("Incyte"), a Delaware corporation
having its principal place of business at 0000 Xxxxxx Xxxxx, Xxxx Xxxx, XX
00000.
BACKGROUND
A. diaDexus and Incyte entered into a GEM(TM) Services Agreement
having an effective date of November 1, 1998.
B. Now both diaDexus and Incyte wish to modify that Agreement with
regard to the pricing of GEM(TM)s and indemnification section as
follows for the benefit of both parties.
NOW, THEREFORE, upon execution of this Amendment by both
parties, it is agreed to amend the Agreement as follows:
1. In Article 2 (Business Terms) Section 2.5 is deleted in its entirety and
replaced with the following:
2.5 Standard GEM(TM) Arrays will be invoiced to Customer at seventy percent
(70%) of the costs listed in Exhibit A once they are ready at Customer's
request for performance of GEM(TM) Expression Services. The remaining
thirty percent (30%) of the amount listed in Exhibit A, will be due and
payable by diaDexus within thirty (30) days after delivery of GEM(TM)
Expression Data as provided for in Article 4 (Reporting of GEM(TM)
Expression Data). Upon Customer's delivery to Incyte of a purchase order
for Standard GEM Arrays pursuant to this Agreement, the order for the
number of Standard GEM Arrays identified in the purchase order shall be
noncancellable and binding on Customer, which shall be obligated to
purchase the Standard GEM Arrays identified in the purchase order.
2. In Section 10 (Warranty, Disclaimer, Limitation of Liability),
Section 10.2, line 11, insert "and 10.5" after the occurrence of -- 10.4",
new section 10.5 is added as follows:
10.5 Incyte shall defend, indemnify, and hold harmless Customer from any
and all damages, costs and expenses at its own expense any action against
customer brought by a Third Party to the extent that the action is based
upon a claim that the performance of GEM(TM) Services infringes any U.S.
patent or misappropriates any trade secret recognized under U.S. law, and
Incyte shall pay those expenses, costs and damages finally awarded against
Customer in any such action, or agreed to in a monetary settlement of such
action, that are specifically attributable to such claim. The foregoing
obligations are conditioned on Customer notifying Incyte promptly in
writing of such action, Customer giving Incyte sole control of the defense
thereof and any related settlement negotiations, and Customer cooperating
and, at Incyte's request and expense, assisting in the defense thereof. If
the performance of GEM(TM) Services becomes, or in Incyte's opinion is
likely to become, the subject of an infringement or misappropriation claim,
Incyte may, at its opinion and expense, either (a) procure the right to
continue performing or having GEM(TM) Services performed for Customer, (b)
modify the GEM(TM) Services so that they become non-infringing and remain
functionally equivalent in terms of speed, cost, quality
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and result. Notwithstanding the foregoing, Incyte will have no obligation
with respect to any infringement or misappropriation claim based upon acts
performed by Customer outside the control of Incyte. THE FOREGOING STATES
INCYTE'S ENTIRE LIABILITY FOR US PATENT INFRINGEMENT AND MISAPPROPRIATION
CLAIMS AND ACTIONS RELATING TO GEM SERVICES.
3. In Exhibit A (GEM(TM) Services Summary) of the Agreement, Section 3
(GEM(TM) Preparation and Expression Services), the Maximum Number of
GEM(TM) Arrays is deleted.
4. In Exhibit A (GEM(TM) Services Summary) of the Agreement, Section 4
(Standard GEM(TM) Array Pricing), the prices for each of the GEM(TM)s
mentioned in that Section 4 are all deleted (six instances) and replaced
with the pricing of Three Thousand Dollars ($3,000) each.
5. In Exhibit C (Purchase Order) of the Agreement, Section 1 (Standard
GEM(TM) Array), the prices for each of the GEM(TM)s mentioned in that
Section 1 are all deleted (six instances) and replaced with the pricing of
Three Thousand Dollars ($3,000) each.
6. All other provisions of the Agreement(s) between diaDexus and Incyte shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment by
their respective duly authorized officers on the date written below.
INCYTE PHARMACEUTICALS, INC. DIADEXUS, LLC
By: /s/ XXX XXXXXXXXX By:
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(signature) (signature)
Name: Xxx Xxxxxxxxx Name:
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(please print)
Title: CFO Title:
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Date: 9/30/99 Date:
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and result. Notwithstanding the foregoing, Incyte will have no obligation
with respect to any infringement or misappropriation claim based upon acts
performed by Customer outside the control of Incyte. THE FOREGOING STATES
INCYTE'S ENTIRE LIABILITY FOR US PATENT INFRINGEMENT AND MISAPPROPRIATION
CLAIMS AND ACTIONS RELATING TO GEM SERVICES.
3. In Exhibit A (GEM(TM) Services Summary) of the Agreement, Section 3
(GEM(TM) Preparation and Expression Services), the Maximum Number of
GEM(TM) Arrays is deleted.
4. In Exhibit A (GEM(TM) Services Summary) of the Agreement, Section 4
(Standard GEM(TM) Array Pricing), the prices for each of the GEM(TM)s
mentioned in that Section 4 are all deleted (six instances) and replaced
with the pricing of Three Thousand Dollars ($3,000) each.
5. In Exhibit C (Purchase Order) of the Agreement, Section 1 (Standard
GEM(TM) Array), the prices for each of the GEM(TM)s mentioned in that
Section 1 are all deleted (six instances) and replaced with the pricing of
Three Thousand Dollars ($3,000) each.
6. All other provisions of the Agreement(s) between diaDexus and Incyte shall
remain in full force and effect.
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IN WITNESS WHEREOF, the parties have executed this Amendment by
their respective duly authorized officers on the date written below.
INCYTE PHARMACEUTICALS, INC. DIADEXUS, LLC
By: By: /s/ X. XXXXXXX
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(signature) (signature)
Name: Xxx X. Xxxxxxxxx Name: T.P.B. PLEWMAN
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(please print)
Title: CEO Title: COO
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Date: Date: 9/30/99
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