Exhbit 4.10 Collaboration Agreement, dated March 31, 2001, between
Gemini Genomics (UK) Limited and CuraGen Corporation
Confidential Treatment Requested and the Redacted Material
has been separately filed with the Commission
DATED 23 MARCH 2001
GEMINI GENOMICS (UK) LIMITED
- AND -
CURAGEN CORPORATION
-----------------------------
COLLABORATION
AGREEMENT
-----------------------------
XXXXXX & XXXXXX
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00 XXX XXXXX XXXXXX
XXXXXX XX0X 0XX
T+00(0) 000 0000 0000
F+00(0) 000 0000 0000
THIS AGREEMENT is made the 23d day of March 2001
BETWEEN:
(1) GEMINI GENOMICS (UK) LIMITED whose principal place of business is at 000
Xxxxxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxxx, X000 0XX ("Gemini"); and
(2) CURAGEN CORPORATION whose principal place of business is at 000 Xxxx
Xxxxx Xxxxx, Xxx Xxxxx, XX XXX ("CuraGen").
WHEREAS:
(A) Gemini and CuraGen wish to collaborate in a research programme with the
aim of genotyping certain DNA Samples (as defined herein).
(B) In connection with such collaborative research programme it is
contemplated that Gemini shall provide the DNA Samples. It is further
contemplated that CuraGen shall fund the work to be conducted by Gemini
under the research programme.
(C) CuraGen shall have the responsibility for commercialising the results of
the research programme (which results shall be owned by Gemini and
licensed to CuraGen on the terms set out herein.)
DEFINITIONS
1.1 In this Agreement the following definitions shall apply unless the
context requires otherwise:
1.1.1 "AFFILIATE" - any company, partnership or other business entity
which Controls, is Controlled by or is under common Control with
either Party;
1.1.2 "AGREEMENT" - this document including any and all schedules,
appendices and other addenda to it as may be added and/or
amended from time to time in accordance with the provisions of
this Agreement;
1.1.3 "BUSINESS DAY" - a day other than a Saturday, Sunday, bank or
other public holiday in England and Wales or the USA;
1.1.4 "CLINICAL DATA" - the phenotypic data in Gemini's possession and
control relating to the LTLSAM Samples and provided to CuraGen
pursuant to Clause 2. 1, including, without limitation, the data
described on Schedule 3 attached hereto.
1.1.5 "COMMENCEMENT DATE" - the date of execution of this Agreement by
the Parties;
1.1.6 "COMPETENT AUTHORITY" - any national or local agency, authority,
department, inspectorate, minister, ministry official,
parliament or public or statutory person (whether autonomous or
not) of any government of any country having jurisdiction over
either any of the activities contemplated by this Agreement or
over the Parties, including the European Commission, The Court
of First Instance and the European Court of Justice.
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1.1.7 "COMPLETED GENOTYPES" - a [***] genotype for a unique marker
individual combination, except in the case of [***] genotypes in
male subjects where there is [***].
1.1.8 "CONFIDENTIAL INFORMATION" - in the case of obligations of
Gemini in relation to Confidential Information shall mean
CuraGen Technology and, in the case of obligations on CuraGen in
relation to Confidential Information, shall mean Gemini
Technology and, in the case of both Gemini and CuraGen, shall
mean all data generated by either or both Parties hereunder and
trade secrets and/or confidential information relating to
technology and/or relating to the business affairs not limited
to commercial forecasts, plans, programs, customers, assets,
financial projections, costs and customer lists and/or finances
of a Disclosing Party supplied or otherwise made available to
the Recipient Party or coming into the Recipient Party's
possession in relation to the performance of this Agreement;
1.1.9 "CONTROL" - means the ownership either directly or indirectly of
more than 50% of the issued share capital or any other
comparable equity or ownership interest with respect to a
business entity or the legal power to direct or cause the
direction of the general management and policies of the Party in
question;
1.1.10 "CURAGEN KNOW-HOW" - all Know-How necessary and directly
applicable to the conduct of the Research Programme and which is
owned by or licensed (with a right to sub-license) to CuraGen as
at the Commencement Date or during the term of the Research
Programme and provided by CuraGen for use in the conduct of the
Research Programme;
1.1.11 "CURAGEN PATENT RIGHTS" - the Patent Rights which claim CuraGen
Know How and which are owned by or licensed (with rights to
sub-license) to CuraGen at the Commencement Date or during the
term of this Agreement and which would, but for the grant of a
licence hereunder, be infringed by the conduct of the Research
Programme;
1.1.12 "CURAGEN TECHNOLOGY" - CuraGen Know How and CuraGen Patent
Rights;
1.1.13 "DISCLOSING PARTY" - the Party which discloses Confidential
Information to the other Party;
1.1.14 "DNA SAMPLES" - those clinical samples of human DNA in Gemini's
possession and control.
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1.1.15 "DOCUMENTS" - reports, research notes, charts, graphs, comments,
computations, analyses, recordings, photographs, paper,
notebooks, books, files, ledgers, records, tapes, discs,
diskettes, CD-ROM, computer programs and documents thereof,
computer information storage means, samples of material, other
graphic or written data and any other media on which Know How
can be permanently stored;
1.1.16 "FDA" - the United States Food and Drug Administration or any
successor agency thereto or the equivalent Competent Authority
or Regulatory Authority in any other country;
1.1.17 "FORCE MAJEURE" - in relation to either Party, any event or
circumstance which is beyond the reasonable control of that
Party which event or circumstance that Party could not
reasonably be expected to have taken into account at the date of
this Agreement and which results in or causes the failure of
that Party to perform any or all of its obligations under this
Agreement including acts of God, lightning, fire, storm, flood,
earthquake, accumulation of snow or ice, lack of water arising
from weather or environmental problems, strike, lockout or other
industrial or student disturbance, act of the public enemy, war
declared or undeclared, threat of war, terrorist act, blockade,
revolution, riot, insurrection, civil commotion, public
demonstration, sabotage, act of vandalism, prevention from or
hindrance in obtaining in any way materials, energy or other
supplies, explosion, fault or failure of plant or machinery
(which could not have been prevented by good industry practice),
or Legal Requirement governing either Party, provided that lack
of funds shall not be interpreted as a cause beyond the
reasonable control of that Party;
1.1.18 "GERNINI KNOW HOW" - all Know How necessary and directly
applicable to the conduct of the Research Programme and which is
owned by or licensed (with rights to sub-license) to Gemini as
at the Commencement Date or during the term of the Research
Programme.
1.1.19 "GENIINI PATENT RIGHTS" - all Patent Rights which claim Gemini
Know How and which are owned by or licensed (with rights to
sub-license) to Gemini as at the Commencement Date or during the
term of the Research Programme and which would, but for the
grant of a licence hereunder, be infringed by the conduct of the
Research Programme.
1.1.20 "GENDNI TECHNOLOGY" - Gemini Know How and Gemini Patent Rights.
1.1.21 "GENOTYPING" - the creation of Completed Genotypes.
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1.1.22 "INSOLVENCY EVENT" - in relation to either Party, means any one
of the following:
(a) a notice shall have been issued to convene a meeting for
the purpose of passing a resolution to wind up that
Party, or such a resolution shall have been passed other
than a resolution for the solvent reconstruction or
reorganisation of that Party or for the purpose of
inclusion of any part of the share capital of that Party
in the Official List of the London Stock Exchange or in
the list of the American Stock Exchange or quotation of
the same on the National Association of Securities
Dealers Automated Quotation System; or
(b) a resolution shall have been passed by that Party's
directors to seek a winding up, or an administration
order or a petition for a winding up or administration
order shall have been presented against that Party or
such an order shall have been made; or
(c) a receiver, administrative receiver, receiver and
manager, interim receiver, custodian, sequestrator or
similar officer is appointed in respect of that Party or
over a substantial part of its assets or any third party
takes steps to appoint such an officer in respect of that
Party or an encumbrancer takes steps to enforce or
enforces its security; or
(d) a proposal for a voluntary arrangement shall have been
made in relation to that Party under Part I Insolvency
Xxx 0000; or
(e) a step or event shall have been taken or arisen outside
the United Kingdom which is similar or analogous to any
of the steps or events listed at (a) to (d) above; or
(f) that Party takes any step outside the ordinary course of
business (including starting negotiations) with a view to
readjustment, rescheduling or deferral of any part of
that Party's indebtedness, or proposes or makes any
general assignment, composition or arrangement with or
for the benefit of all or some of that Party's creditors
or makes or suspends or threatens to suspend making
payments to all or some of that Party's creditors or the
Party submits to any type of voluntary arrangement; or
(g) where that Party is resident in the United Kingdom it is
deemed to be unable to pay its debts within the meaning
of Xxxxxxx 000 Xxxxxxxxxx Xxx 0000;
1.1.23 "KNOW HOW" - unpatented technical and other information which is
not in the public domain, including information comprising or
relating to concepts, discoveries, data, designs, formulae,
ideas, inventions, methods, models, assays, research plans,
procedures, designs for experiments and tests and results of
experimentation and testing (including results of research or
development), processes (including manufacturing processes,
specifications and techniques), laboratory records, chemical,
pharmacological, toxicological, clinical, analytical and quality
control data, trial data, case report forms, data analyses,
reports,
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manufacturing data or summaries and information contained in
submissions to and information from ethical committees and
regulatory authorities. Know How includes Documents containing
Know How, including but not limited to any rights including
trade secrets, copyright, database or design rights protecting
such Know How. The fact that an item is known to the public
shall not be taken to preclude the possibility that a
compilation including the item, and/or a development relating
to the item, is not known to the public;
1.1.24 "LEGAL REQUIREMENT" - any present or future law, regulation,
directive, instruction, direction or rule of any Competent
Authority or Regulatory Authority inluding any amendment,
extension or replacement thereof which is from time to time in
force;
1.1.25 "MARKETING AUTHORISATION" - any and all approvals required from
a Regulatory Authority to market and sell Product in any country
any product commercialized by CuraGen pursuant to Section 5;
1.1.26 "MATERIAL" - any chemical or biological substance including any:
(a) organic or inorganic element;
(b) nucleotide or nucleotide sequence including DNA and RNA
sequences;
(c) gene;
(d) vector or construct including plasmids, phages or
viruses;
(e) host organism including bacteria, fungi, algae, protozoa
and hybridomas;
(f) eukaryotic or prokaryotic cell line or expression system
or any development strain or product of that cell line or
expression system;
(g) protein including any peptide or amino acid sequence,
enzyme, antibody or protein conferring targeting
properties and any fragment of a protein or a peptide
enzyme or antibody;
(h) drug or pro-drug;
(i) assay or reagent;
(j) any other genetic or biological material or
micro-organism;
(k) data for the derivation of molecular structures including
NMR spectra, X Ray diffraction patterns and other primary
experimental information, assignments and other
calculations required for determination of the structure
and coordinates of the derived molecular structure;
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(l) computer programs or algorithms; and
(m) transgenic animals;
1.1.27 "PARTY" - Gemini and CuraGen and "PARTIES" shall mean both of
them;
1.1.28 "PATENT RIGHTS" - patent applications and patents, utility
certificates, improvement patents and models and certificates of
addition and all foreign counterparts of them in all countries,
including any divisional applications and patents, refilling,
renewals, continuations, continuations-in-part, patents of
addition, extensions, (including patent term extensions,)
reissues, substitutions, confirmations, registrations,
revalidations, pipeline and administrative protections and
additions, and any equivalents of the foregoing in any and all
countries of or to any of them, as well as any supplementary
protection certificates and equivalent protection rights in
respect of any of them;
1.1.29 "QUARTER" - each period of three months ending on 31 March, 30
June, 30 September or 31 December and "QUARTERLY" shall be
construed accordingly;
1.1.30 "RECIPIENT PARTY" - the Party which receives Confidential
Information from the other Party;
1.1.31 "REGULATORY AUTHORITY" - shall mean any national, supranational
(e.g., the European Commission, the Council of the European
Union, the European Agency for the Evaluation of Medicinal
Products), regional, state or local regulatory agency,
department, bureau, commission, council or other governmental
entity, including the FDA, in each country involved in the
granting of Marketing Authorisation for any product
commercialized by CuraGen pursuant to Section 5;
1.1.32 "RESEARCH PROGRAMME" - the programme of work set out in Schedule
I to be conducted by Gemini and CuraGen which may be amended
from time to time by agreement of the Parties;
1.1.33 "RESEARCH PROGRAMME RESULTS" - any and all Patent Rights, Know
How and Materials arising pursuant to the Research Programme;
1.1.34 "ULSAM SAMPLES" - the [***] of each of the DNA Samples derived
from [***] subjects which have participated in the ULSAM
longitudinal study; and
1.1.35 "YEAR" - twelve (12) months commencing on I January and ending
on 31 December.
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2. THE RESEARCH PROGRAMME
2.1 Gemini's responsibilities under the Research Programme shall be to
conduct Genotyping on the ULSAM Samples as set out in more detail in
Schedule 1. Gemini shall also provide CuraGen with the Clinical Data
associated with the ULSAM Samples within [***] of the Commencement Date.
2.2 Gemini shall carry out work under the Research Programme with all
reasonable skill and care and in accordance with all applicable laws,
governmental regulations and guidelines.
2.3 Gemini shall keep or cause to be kept detailed written laboratory
notebooks and other records and reports of the progress of its part of
the Research Programme in sufficient detail and in good scientific
manner for all purposes including patent purposes, especially in
accordance with practice within the USA. Such notebooks and other
records must properly reflect all work done on the Research Programme
and the results achieved thereunder. Upon request by CuraGen and at
CuraGen's expense, Gemini shall provide CuraGen with copies of all such
materials.
2.4 Gemini shall provide CuraGen with a quarterly written report on the
progress of the Research Programme.
2.5 Gemini shall conduct the Research Programme at the Gemini Genomics AB
site in Sweden, or, upon written notice to CuraGen, at such other site
as Gemini may elect.
2.6 Not less than quarterly and at any time upon CuraGen's written request,
Gemini shall provide to CuraGen copies of any and all Research Programme
Results.
2.7 Gemini's performance of the Research Programme shall be on a
non-exclusive basis and Gemini shall be free to conduct work the same as
or similar to its work under the Research Programme in relation to any
DNA Samples (including the ULSAM Samples) for any third party(ies).
2.8 Gemini may from time to time sub-contract the performance of some or all
of its responsibilities under the Research Programme to Affiliates or
third parties provided always that Gemini shall remain responsible for
ensuring that its obligations hereunder are complied with in accordance
with the terms of this Agreement; and, provided, further, that Gemini
first notifies CuraGen of each such third party subcontract.
2.9 Gemini shall not be required to conduct more than [***] Completed
Genotypes per Quarter as part of the Research Programme.
3. INTELLECTUAL PROPERTY
3.1 The CuraGen Technology is and shall remain vested in CuraGen.
3.2 The Gemini Technology is and shall remain vested in Gemini.
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3.3 CuraGen shall not use any Gemini Technology for any purpose other than
the performance of the Research Programme.
3.4 Gemini shall not use any CuraGen Technology for any purpose other than
the performance of the Research Programme.
3.5 The Research Programme Results shall vest in and be owned by Gemini and
CuraGen shall at the request of Gemini execute all documents and do all
other acts and things as may be reasonably required in order to vest
fully and effectively all Research Programme Results in Gemini.
4. INTELLECTUAL PROPERTY - RIGHTS AND LICENCES; PATENT PROSECUTION
4.1 During the term of this Agreement, CuraGen hereby grants to Gemini a
nonexclusive, worldwide licence under the CuraGen Technology to use the
same as maybe necessary solely in connection with Gemini's conduct of
the Research Programme. Gemini may sublicense the license granted to it
in this Section 4.1 to any third party to whom it subcontracts its
responsibilities under Section 2.8.
4.2 Gemini hereby grants to CuraGen a non-exclusive, worldwide, royalty-free
licence under the Gemini Technology to use the same as may be necessary
solely in connection with CuraGen's conduct of the Research Programme.
4.3 Gemini hereby grants to CuraGen an exclusive, world-wide,
royalty-bearing licence under the Research Programme Results to use the
same for any and all research and commercial purposes.
4.4 Gemini, by selecting counsel to whom CuraGen has no reasonable
objection, may, but shall not be obliged to prepare, file and prosecute,
at its sole expense, patent applications claiming all patentable
Research Programme Results. In connection therewith, Gemini agrees to
provide CuraGen with a copy of such patent applications in a timely
manner for CuraGen's review and comment prior to the first filing
thereof and forward to CuraGen in a timely manner, a copy of all
correspondence concerning the prosecution of such patent application(s).
If Gemini elects not to file or thereafter prosecute any patents or
patent applications claiming Research Programme Results in any country,
CuraGen, will have the right to file and prosecute such patent
application and/or maintain such patent in such country, at its sole
expense.
5. FINANCING OF RESEARCH PROGRAMME AND REVENUE SHARING
5.1 In consideration of Gemini carrying out its responsibilities under the
Research Programme, CuraGen shall pay the costs incurred by Gemini
Quarterly in arrears in conducting such work within fourteen (14) days
of receipt of an appropriately detailed invoice from Gemini. For the
avoidance of doubt, such costs shall not exceed [***] per Completed
Genotype.
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5.2 In consideration of the grant of the licence by Gemini to CuraGen
pursuant to Clause 4.3, CuraGen shall pay to Gemini an advance royalty
on net sales of product comprising the Research Programme Results in
the amount of [***]. Such sum shall be payable on or before 31 March
2001. Upon receipt by Gemini of such payment, the licence set out in
Clause 4.3 shall become fully paid up and no further payments shall be
due from CuraGen to Gemini in relation to such licence.
6. WARRANTIES AND LIABILITY
6.1 Each Party represents and warrants to the other Party that:
6.1.1 it has legal power, authority and right to enter into
this Agreement and to perform its respective obligations
in this Agreement; and
6.1.2 it is not at the Commencement Date a party to any
agreement, arrangement or understanding with any third
party which in any significant way prevents it from
fulfilling any of its material obligations under the
terms of this Agreement.
6.2 Gemini hereby represents and warrants to CuraGen:
6.2.1 that the Clinical Data contains the information on Schedule 3
for each patient providing DNA Samples andthat it has obtained,
and will continue to obtain, informed consent from all patients
and human subject volunteers that provide Clinical Data and
materials and/or samples comprising the DNA Samples.
6.2.2 Neither Party shall be liable to the other in contract, tort,
negligence, breach of statutory duty or otherwise for any
economic loss or other loss of turnover, profits, business or
goodwill or any loss, damage, costs or expenses of any nature
whatsoever incurred or suffered by the other or its Affiliates
of an indirect or consequential nature arising out of or in
connection with this Agreement.
7. CONFIDENTIALITY
7.1 Each of the Parties undertakes and agrees to:
7.1.1 keep the Confidential Information confidential and not to
disclose it to any third party without the other Party's prior
written consent;
7.1.2 only use the Confidential Information for the purposes envisaged
under this Agreement and not to use the same for any other
purpose whatsoever;
7.1.3 ensure that only those of its officers, consultants, employees
(including without limitation directors), sub-licensees,
Affiliates and such third parties who are directly concerned
with the carrying out of this Agreement have access to the
Confidential Information on a strictly applied "need to know"
basis and are informed of the secret and confidential nature of
it;
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7.1.4 keep the Confidential Information secret and confidential and
not directly or indirectly to disclose or permit to be
disclosed, make available or permit to be made available the
same to any third party for any reason without the prior written
consent of the Disclosing Party;
7.1.5 keep the Confidential Information separately identifiable at all
times from all other Know How which it may hold; and
7.1.6 clearly identify the Confidential Information as confidential.
7.2 The obligations of confidentiality referred to in Clause 7.1 shall not
extend to any Confidential Information which:
7.2.1 is or becomes generally available to the public otherwise than
by reason of breach by a Recipient Party of the provisions of
that Clause; or
7.2.2 is known to the Recipient Party and is at its free disposal on
the presentation of competent proof (having been or which may be
generated independently by the Recipient Party or a third party
in circumstances where it can be shown that it has not been
derived from access to the Disclosing Party's Confidential
Information); or
7.2.3 is subsequently disclosed to the Recipient Party on the
presentation of competent proof without obligations of
confidentiality by a third party owing no such obligations to
the Disclosing Party in respect of that Confidential
Information; or
7.2.4 is required by law to be disclosed (including as part of any
regulatory submission or approval process) and then only when
prompt written notice of this requirement has been given to the
Disclosing Party so that it may, if so advised, seek appropriate
relief to prevent such disclosure provided always that in such
circumstances such disclosure shall be only to the extent so
required and shall be subject to prior consultation with the
Disclosing Party with a view to agreeing timing and content of
such disclosure.
7.3 All Confidential Information disclosed by the Disclosing Party to the
Recipient Party shall remain the property of the Disclosing Party. In
the event that a court or Competent Authority assumes partial or
complete control over the assets of a Recipient Party based on the
insolvency or bankruptcy of that Party, the Recipient Party shall:
7.3.1 promptly notify such court or Competent Authority that
Confidential Information received from the Disclosing Party
under
(a) this Agreement remains the property of the Disclosing
Party; and
(b) of the confidentiality obligations under this Agreement;
and
7.3.2 to the extent permitted by law, take all steps necessary or
desirable to maintain the confidentiality and security of the
Disclosing Party's Confidential Information and to ensure that
the court or Competent Authority maintains that Confidential
Information in confidence in accordance with this Agreement.
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7.4 The Parties understand that remedies in damages may be
inadequate to protect against any breach of any of the
provisions of this Clause 7 by either Party or their employees,
officers or any other person acting in concert with it or on its
behalf. Accordingly, each Party shall be entitled to seek the
granting of interim and final injunctive relief by a court of
competent jurisdiction in the discretion of that court against
any action that constitutes any breach of this Clause 7.
7.5 The Parties agree that the obligations of confidentiality set
out in this Clause 7 shall continue to apply for ten (10) years
following the expiry or termination of this Agreement under
Clause 8.
8. TERM AND TERMINATION
8.1 The Research Programme shall have a term of 3 years from the
Commencement Date unless extended by agreement of the Parties.
8.2 This Agreement shall commence on the Commencement Date and shall
continue in force until no payments are due hereunder or until
termination under this Clause 8 which ever is the earlier.
8.3 Each of the Parties (the "Terminating Party") shall have the right to
terminate this Agreement for cause upon giving written notice of
termination to the other (the"Defaulting Party") upon the occurrence of
any of the following events at any time during this Agreement.
8.3.1 the Defaulting Party commits a material breach of this Agreement
which in the case of a breach capable of remedy shall not have
been remedied within sixty (60) days of the receipt by it of a
written notice from the other Party identifying the breach and
requiring its remedy;
8.3.2 if an Insolvency Event occurs in relation to the Defaulting
Party; and in any event, when a Party first becomes aware of the
likely occurrence of any Insolvency Event in regard to that
Party, it shall promptly so notify the other Party. in
sufficient time to give the other Party sufficient notice to
protect its interests under this Agreement.
8.4 This Agreement shall terminate immediately (i) if the material breach
under Article 8.3.1 is incapable of remedy; (ii) after the sixty (60)
day period permitted under Clause 8.3.1 if the Defaulting Party has
failed to remedy the material breach which is capable of being remedied;
or (iii) upon the giving of any notice under Clause 8.3.2.
9. CONSEQUENCES OF TERMINATION
9.1 Upon a termination of this Agreement for any reason other than by Gemini
for an uncured breach by CuraGen pursuant to Clause 8.3.1 (which the
Parties agree shall not minate the provisions of this Agreement
expressed to survive its termination) the licence set out in Clause 4.3
shall continue in full force and effect.
10. ASSIGNMENT/SUB-CONTRACTING
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10.1 This Agreement and the licenses herein granted shall be binding upon and
inure to the benefit of the successors in interest of the respective
parties. Neither this Agreement nor any interest hereunder shall be
assignable by either party without the written consent of the other,
such consent not to be unreasonably withheld, provided, however, that
either party may assign this Agreement or any part of its rights and
obligations hereunder to any Affiliate or to any corporation with which
such party may merge or consolidate, or to which it may transfer all or
substantially all of its assets to which this Agreement relates, without
obtaining the consent of the other party.
11. MISCELLANEOUS
11.1 Neither Party shall subcontract the performance of any of its
obligations hereunder except as expressly provided herein.
11.2 If a Party is unable to perform any of its obligations under this
Agreement due to an event of Force Majeure, such Party shall be excused
such performance (but only such performance) during the period of such
Force Majeure event.
11.3 The validity, construction and interpretation of this Agreement and any
determination of the performance which it requires shall be governed by
English law. All disputes between the Parties arising out of the
circumstances and relationships contemplated by this Agreement including
disputes relating to the validity, construction or interpretation of
this Agreement, and including disputes relating to pre-contractual
representations which result in any action or proceedings, shall be
subject to the exclusive jurisdiction of the English Courts.
11.4 Except as expressly provided in this Agreement nothing herein deprives
either party or constitutes a waiver by either Party of any of its
rights or remedies under common law, statute or otherwise.
11.5 This Agreement constitutes the entire agreement and understanding
between the Parties and supersedes all prior oral or written
understandings, arrangements, representations or agreements between them
relating to the subject matter of this Agreement provided that this does
not remove any right of action by either Party in respect of any
fraudulent misrepresentation, fraudulent concealment or other fraudulent
action.
11.6 All formal notices to be given pursuant to this agreement shall be in
writing and shall be delivered by hand, post or facsimile to the address
of the Parties set out above (or such other address as may be notified
by a Party to the other from time to time in accordance with this
Clause) and in the case of a facsimile with a confirmation copy being
sent by post. Notices shall be deemed to have been received:
11.6.1 if delivered by courier, at the time of delivery;
11.6.2 if sent by post:
(a) where posted in the country of the addressee, on the
second working day following the day of posting; and
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(b) where posted in any other country, on the fifth working
day following the day of posting;
11.6.3 if sent by facsimile, on acknowledgement by the recipient
facsimile receiving equipment on a Business Day if the
acknowledgement occurs before 1700 hours local time on a
Business Day of the recipient and in any other case on the
following Business Day.
11.7 The activities of the Parties contemplated pursuant to this Agreement
shall not constitute a partnership and neither Party is the agent of the
other Party or has the authority to bind the other Party in any way
except as provided in this Agreement.
11.8 Each Party shall bear its own legal costs and other expenses incurred in
the negotiation, preparation, execution and implementation of this
Agreement.
11.9 Any press releases to be made by either Party relating to this Agreement
will require the approval of the other Party.
11.10 This Agreement may be executed in any number of counterparts and by the
Parties by separate counterparts, each of which when so executed shall
be an original and all of which shall constitute one and the same
instrument.
11.11 The operation of the Contract (Rights of Third Parties) Act 1999 is
hereby expressly excluded save that the Parties acknowledge and agree
that Affiliates of either Party may enforce against the Parties (and a
person who is the lawful successor to or a permitted assignee of the
rights of a Party) the rights and benefits under this Agreement in
accordance with that Act.
IN WITNESS WHEREOF the Parties have executed this agreement the day and year
first above written.
SIGNED by
for and on behalf of
GEMINI GENOMICS (UK) LTD
SIGNED by
for and on behalf of
CURAGEN CORPORATION
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SCHEDULE 1
RESEARCH PROGRAMME
CuraGen will provide sequence information sufficient to uniquely identify Single
Nucleotide Polymorphisms in genes of interest and oligonucleotide primers
required for genotyping each Single Nucleotide Polymorphism.
Gemini will complete individual genotyping of the ULSAM samples. Gemini will
provide data to CuraGen in [***] for further analysis.
If CuraGen requests that pooled genotyping be utilized in the Research
Programme, Gemini will use commercially reasonable efforts to do so. For pooled
genotyping, a Completed Genotype will be a completed marker-pool combination. In
no such event will Gemini be required to use more than [***] of each of the
LTLSAM Samples.
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SCHEDULE 2
NOTICES
GEMINI GENOMICS (UK) LIMITED
000 Xxxxxxx Xxxx,
Xxxxxx Xxxx,
Xxxxxxxxx XX00XX
CURAGEN CORPORATION
000 Xxxx xxxxx Xxxxx,
Xxx Xxxxx, XX XXX
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SCHEDULE 3
CLINICAL DATA
The table summarises [***] including codes referring to the master data set. For
[***], short descriptions are included. For some diagnoses, number of cases are
reported.
[***]
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