Common use of Preferential Right Clause in Contracts

Preferential Right. (i) Prior to granting to a third party exclusive rights to develop or distribute Kits for the detection or quantification of one or more analytes for use within a field within the human clinical diagnostics industry (such analytes and field of use are referred to collectively herein as the "Subject Field"), LUMINEX shall provide BIO-RAD with a right of first offer with respect to such Subject Field, as follows: prior to entering into an agreement granting a third party exclusive rights to develop and/or distribute Kits within a Subject Field, LUMINEX shall provide written notification to BIO-RAD, together with a summary of the Subject Field. Upon request by BIO-RAD within [**] days after receipt of such a notice, LUMINEX and BIO-RAD shall negotiate in good faith an agreement with respect to such Subject Field. If BIO-RAD is not interested in obtaining rights with respect to such Subject Field, BIO-RAD shall so notify LUMINEX as early as possible during the foregoing [**] day period. If (i) BIO-RAD does not so request within such [**] day period to commence negotiations, or notifies LUMINEX that it is not interested in obtaining rights with respect to such Subject Field, or (ii) the parties do not enter into a definitive agreement with respect to such Subject Field within [**] days after BIO-RAD's receipt of LUMINEX's notice under this Section 3.3(b) (in each of (i) and (ii), the "Negotiation Period"), LUMINEX may proceed to grant rights or licenses to third parties with respect to all or any part of the Subject Field, with no further obligation under this Section 3.3. Notwithstanding the foregoing, BIO-RAD's rights and obligations under this Section 3.3 shall not apply to a Subject Field for which BIO-RAD does not Control sufficient rights to commercialize Kits within such Subject Field, where "Control" means ownership or a license under all applicable intellectual property rights to make, have made, use, import, sell, offer for sale, and otherwise distribute each Kit within the Subject Field on a worldwide basis. BIO-RAD's rights and obligations under this Section 3.3(b) shall terminate [**] years after the Effective Date. For the avoidance of doubt, it is understood and agreed that LUMINEX shall have no obligation to disclose to BIO-RAD any information concerning the terms of LUMINEX's offers to third parties with respect to Subject Fields. It is further understood and agreed that nothing in this Section 3.3(b) shall restrict LUMINEX from granting nonexclusive rights to third parties with respect to any analyte or field of use without any obligation under this Section 3.3(b). ------------------- [**] Indicates that material has been omitted and confidential treatment requested therefor. All such material has been filed seperately with the Commission pursuant to Rule 406.