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EXHIBIT 10.4
DATED: 10TH DECEMBER 1998
PROTEUS INTERNATIONAL PLC
acting through its wholly owned subsidiary company
PROTEUS MOLECULAR DESIGN LIMITED
and
CHEMBRIDGE CORPORATION
ALLIANCE AGREEMENT
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THIS AGREEMENT is made the 10th day of December 1998
BETWEEN:
(1) PROTEUS INTERNATIONAL PLC (Company No. 2459087) acting through its
wholly owned subsidiary company PROTEUS MOLECULAR DESIGN LIMITED
(company number 1939643) both companies incorporated under the law of
England, and whose registered offices are situated at Beechfield House,
Lyme Green Business Park, Macclesfield, Cheshire SK11 0JL, England
("Proteus"); and
(2) CHEMBRIDGE CORPORATION a company incorporated under the Law of the
State of Illinois whose principal place of business is at 00000 Xxx
Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of America
("ChemBridge").
WHEREAS:
A. ChemBridge has special strengths in laboratory chemistry including but
not limited to facilities, expertise and know-how to design various
compound libraries and to synthesize compound libraries and individual
compounds that are suitable for screening for biological activity and
also has expertise know-how and facilities to market, sell and
distribute any libraries and compounds worldwide.
B. Proteus has special strengths in computational chemistry including but
not limited to a proprietary computer software programme known as
"Prometheus" and other expertise, resources and know-how of assistance
in the design and selection of compounds suitable for synthesis and
screening for biological activity.
C. Both parties have expertise in the medicinal chemistry of receptor
agonists/antagonists and enzyme inhibitors.
D. ChemBridge and Proteus have agreed to collaborate in obtaining research
contracts from third party customers for the design and synthesis of
compound libraries and compounds directed at biological targets
specified by such customers jointly by ChemBridge and Proteus in
collaboration under the terms of this Agreement.
NOW IT IS HEREBY AGREED as follows:
1. DEFINITIONS
"Alliance" shall mean the collaboration in seeking
customers and subsequently the Project
or Projects to be carried out by the
parties for and on behalf of such
customers in collaboration under the
terms of this Agreement with ChemBridge
contributing its facilities, expertise
and know-how to design compound
libraries and synthesise compound
libraries and compounds and Proteus
contributing its resources expertise and
know-how in the design or selection of
compounds;
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"Alliance Confidential
Information" shall mean all confidential information
relating to the Alliance IP or otherwise
any confidential information of any
third party obtained by either party in
the conduct of the Alliance or otherwise
arising out of this Agreement; "Alliance
Database" shall mean the database of
compounds (both chemical and virtual)
selected by Proteus from the ChemBridge
Databases which are expressly approved
in writing by the Steering Committee for
inclusion into the Alliance Database and
all "de novo" designed compounds
(whether chemical or virtual) which are
expressly approved in writing by the
Steering Committee for inclusion into
the Alliance Database;
"Alliance IP" shall mean all Intellectual Property
directly relating to compounds in the
Alliance Database;
"ChemBridge Background IP" shall mean any Intellectual Property
of ChemBridge existing at the Effective
Date or thereafter which may be used in
the Alliance free of any restriction
from any third party together with all
Intellectual Property created by
ChemBridge in the Alliance excluding
only Alliance IP. ChemBridge Background
IP shall include without limitation the
ChemBridge Databases;
"ChemBridge Confidential
Information" shall mean all confidential information
of ChemBridge relating to the ChemBridge
Background IP or otherwise relating to
its business affairs, finances, products
or services disclosed to or obtained by
Proteus in hard copy, electronic,
computer accessible media, orally or any
other form in connection with the
Alliance or otherwise the terms of this
Agreement;
"ChemBridge Databases" shall mean all the databases (both
chemical and virtual) of compounds
generated and held by ChemBridge at the
Effective Data or thereafter, excepting
only those compounds from such databases
expressly approved in writing by the
Steering Committee for inclusion in the
Alliance Database;
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"de novo design" shall mean any compound design (whether
chemical or virtual) proposed by Proteus
for inclusion in the Alliance Database
based on Proteus IP and client's
structural information only;
"Effective Date" shall mean the date set out above;
"Force Majeure" shall mean in relation to either party
any circumstances beyond the reasonable
control of that party including without
limitation any strike, lock-out, or
other form of industrial action, act of
God, war, riot, accident, fire, flood,
explosion or government action;
"Intellectual Property" shall mean all Patents, trademarks,
service marks, registered designs,
applications for any of the foregoing,
copyright, design right, inventions,
confidential information (including
without limitation Know-how) and any
similar rights existing in any country
in the world;
"Know-how" shall mean all information not in the
public domain of whatsoever nature
including ideas, trade secrets,
inventions, data, formula,
specifications, procedures for
experiments and tests and results of
experiments and tests and confidential
analyses and confidential
interpretations of information which is
in the public domain;
"Patent" shall mean all patents or letters
patent, claims in any patent and
applications for the same including,
without limitation, all reissues,
extensions, substitutions,
confirmations, registrations,
revalidations, additions, continuations
in part and divisions thereof and any
supplementary protection certificates;
"Project" shall mean each individual Project
identified, agreed and conducted by the
parties under the terms of the Alliance
in accordance with Clause 5 for the
design, synthesis and development of
Compounds to meet a target specified by
a Customer;
"Project Agreement" shall mean an agreement entered into by
ChemBridge or Proteus (or jointly) with
a third party customer in connection
with any Project to be conducted by the
parties under the Alliance such
agreement to contain provisions for the
performance of the Project the design,
synthesis and development
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of compounds for and on behalf of such
customer and for payments by the
customer to the parties in consideration
of the performance of the Project and
the delivery of such compounds;
"Proteus Background IP" shall mean any Intellectual Property of
Proteus existing as at the Effective
Date or thereafter and which may be used
in the Alliance free of any restriction
from any third party together with all
Intellectual Property created by Proteus
in the Alliance excluding only Alliance
IP;
"Proteus Confidential
Information" shall mean all confidential information
of Proteus relating to the Proteus
Background IP or otherwise relating to
its business affairs, finances, products
or services disclosed to or obtained by
ChemBridge in hard copy, electronic,
computer accessible media, orally or
other form in connection with the
Alliance or otherwise the terms of this
Agreement;
"Steering Committee" shall mean the joint steering committee
established and operation under the
provisions of Clause 2;
"Territory" shall mean all parts of the world.
2. STEERING COMMITTEE
2.1 Promptly upon execution of this Agreement, the parties shall form a
Steering Committee which shall be primarily responsible for managing all
Alliance and shall in particular:
2.1.1 coordinate the identification of potential customers and
consider each proposed Project and whether or not the parties wish to agree to
proceed with such Project;
2.1.2 coordinate and monitor the conduct of each Project;
2.1.3 coordinate and monitor the funding and resources required for
each Project and the receipt and allocation of payments under Clause 9;
2.1.4 monitor generally the conduct of the Alliance and the
contribution of each of the parties in the Alliance; and
2.1.5 establish Alliance IP by creating and maintaining the
Alliance Database. It is agreed that two members of the Steering Committee (one
from Proteus and one from ChemBridge) shall create and maintain records of each
and all Alliance Database additions which shall contain the approval signatures
of all members of the Steering Committee; and
2.1.6 consider and recommend provisions for the acquisition and
maintenance of registered protection in respect of any Alliance IP under Clause
7.3.
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2.2 The Steering Committee shall comprise four individuals, two
individuals to be appointed in writing by each party. Each party shall be
entitled by notice in writing to the other at any time to remove and appoint a
new representative to sit on the Steering Committee.
2.3 All decisions of the Steering Committee shall be by unanimous vote.
There shall be no Chairman appointed and no casting vote in the event of a
deadlock.
2.4 The Steering Committee shall meet on a regular basis at such times
and at such locations as the parties shall agree in writing. In addition, the
Steering Committee shall liaise regularly by fax, post, telephone and e-mail as
may be necessary to ensure the proper performance of its obligations under
Clause 2.1.
2.5 In the event that the Steering Committee cannot reach unanimous
agreement upon any matter such matter may (at the request of either party) be
referred to the Chief Executive Officers ("CEO's") (or such other senior officer
of each party as shall be nominated by the CEO to act in such respect) of each
of Proteus and ChemBridge and the CEOs shall promptly use all reasonable
endeavours to resolve any such matter referred to them.
3. ESTABLISHMENT OF THE ALLIANCE
3.1 As soon as reasonably practicable after the Effective Date and upon
the recommendation of the Steering Committee, the parties will establish such
technical arrangements between each other (including without limitation database
formats, communication channels and other matters) as may reasonably be required
in order to manage the Alliance.
3.2 As part of the arrangements under Clause 3.1, the parties will
collaborate and liaise such that:
3.2.1 Proteus shall use in the Alliance the Proteus Background IP
and shall provide ChemBridge with information and data relating to the Proteus
Background IP insofar as reasonably required in connection with the performance
by ChemBridge of its obligations under the Alliance only; and
3.2.2 ChemBridge shall use in the Alliance the ChemBridge
Background IP and shall allow Proteus to evaluate and select compounds from some
ChemBridge Databases, chosen and assembled by ChemBridge in its sole discretion
expressly for the purpose of the Alliance insofar as reasonably required in
connection with the performance by Proteus of its obligations under the Alliance
only. It is acknowledged that such selected compounds may be proposed to the
Steering Committee for incorporation into the Alliance Database under Clause
2.1.5.
4. MARKETING
The Steering Committee shall implement a coordinated marketing strategy
in order to publicise and market the Alliance to potential customers of
the Alliance. Such marketing strategy shall include without limitation:
4.1 attending trade shows, conferences and conventions jointly in order
to promote the Alliance; and
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4.2 preparing and issuing such press announcements and promotional
materials as may be agreed and approved by Steering Committee both in hard copy
and electronic form including if appropriate establishing an Alliance website;
and
4.3 each party publicising and promoting the Alliance to its existing
and target customers that may be potential customers of the Alliance and each
party attending such meetings with potential customers as may reasonably be
required by the other party and/or the Steering Committee from time to time; and
4.4 in connection with such marketing and promotional activity, the
limited license by each party of its trademarks, trade names and logos for use
in connection with the promotion and marketing of the Alliance only.
Provided Always that neither party shall be required to incur costs or expenses
in connection with any such marketing and promotion other than in accordance
with costs, expenses and budgets therefor agreed and approved by the Steering
Committee from time to time.
5. PROJECTS
5.1 It is the intention that the parties shall through the Alliance
identify potential customers for the Alliance and potential Projects to be
conducted for and on behalf of specified customers in the Alliance.
5.2 Each party shall report to the Steering Committee potential
customers for the Alliance. Such report shall include an outline of the proposed
Project including the biological target specified by the customer and the
outline manner in which compounds directed at such biological targets may be
designed and synthesized by the parties in the Alliance under the terms of the
specified Project.
5.3 The Steering Committee will consider in detail any proposed Project
and if such Project is approved by the Steering Committee the Steering Committee
will:
5.3.1 determine the manner in which a Project Agreement shall be
entered into with the customer for the conduct of the Project;
5.3.2 determine the budget allocation of resources and the work
required to be conducted by each party in the conduct of such Project;
5.3.3 determine and agree a detailed Project Plan for the conduct
of the Project and assign a Project Manager (who may be an employee of either
ChemBridge or Proteus) to manage such Project.
5.4 Upon agreement by the Steering Committee of a Project and the
agreement of the Project Plan and after execution by the customer of a Project
Agreement, each Party shall thereafter use all reasonable endeavours to procure
the conduct of the Project in accordance with the Project Plan. Without
prejudice to the generality of the foregoing, it is intended that in connection
with each Project:
5.4.1 Proteus will be primarily responsible for selecting and
designing molecules for synthesis based on client's target information and
ChemBridge Databases
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(provided to Proteus under Clause 3.2.2) or for "de novo" design of molecules
for synthesis based on client's target information only; and
5.4.2 ChemBridge will be primarily responsible for providing
certain ChemBridge Databases and for the synthesis of selected or designed
compounds and delivery of compounds to the customer.
6. INTELLECTUAL PROPERTY
6.1 Each party shall use in the conduct of each Project and otherwise
in the conduct of the Alliance such of its Background IP as may reasonably be
required (in the sole discretion of such party) for the proper performance of
its obligations hereunder.
6.2 Each party acknowledges and undertakes that save only as expressly
provided in this Agreement, it shall not acquire any right, title or interest
whatsoever in any Background IP of the other party during the term of this
Agreement or thereafter (however termination may be caused or arise) and it
shall have no right whatsoever to use all or any part of the Background IP of
the other party in any manner.
6.3 It is anticipated that Alliance IP will be created only in a
Project and under the terms of a Project Agreement. It is further anticipated
that each Project Agreement will contain provisions relating to the ownership of
Alliance IP as between the parties and the relevant customer. Save as provided
in any Project Agreement all Alliance IP and all Intellectual Property derived
therefrom shall be jointly owned by the parties.
6.4 The Alliance IP shall be used and exploited by the parties jointly
in connection with the Alliance and any specified Project under the terms of
this Agreement and each party undertakes that (save only as provided in any
Project Agreement) notwithstanding the joint ownership of such Alliance IP, it
shall not during the term of this Agreement, without the prior consent in
writing of the other party (such consent not to be unreasonably withheld but to
be given on such terms concerning the sharing of the proceeds of any use or
exploitation as may be equitable and reasonable between the parties):
6.4.1 use or exploit any Alliance IP in any manner whatsoever
otherwise than under the terms of this Agreement;
6.4.2 grant to any third party any right, title or interests in all
or any xxx of the Alliance IP in any manner whatsoever; or
6.4.3 unilaterally assign, license, transfer or otherwise deal (or
purport to deal) with its interest in any Alliance IP.
6.5 Save as provided in any Project Agreement, it is confirmed and
acknowledged that after termination of the Alliance (however caused or arising),
all Alliance IP shall continue in the joint ownership of the parties and the
restrictions contained in Clause 6.4 shall continue for the life of all rights
therein provided always that each party undertakes that in the event of the
receipt of any request from the other party (after termination of the Alliance)
for consent to use and exploit any specified part of the Alliance IP such
consent shall:
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6.5.1 not be unreasonably refused subject to agreement of the
parties relating to the sharing of the proceeds on any such use and exploitation
in such manner as may be equitable and reasonable between the parties taking
account of their respective contributions to the Alliance IP and the costs
incurred by the exploiting party in such use and exploitation; and
6.5.2 include (if reasonably required) the assignment by the
consenting party to the exploiting party of all its right, title and interest in
such specified Alliance IP.
7. PROTECTION OF INTELLECTUAL PROPERTY
7.1 Each party shall be solely responsible for the prosecution,
maintenance, enforcement and/or defense of its Background IP.
7.2 If at any time during the term of this Agreement either party
becomes aware of any infringement by any third party of the other party's
Background IP or receives any notice, claim or proceedings from any third party
alleging infringement of any Intellectual Property of such third party by reason
of the use of exploitation of such party's Background IP under the terms of this
Agreement, it shall forthwith notify the other party and shall thereafter (at
the expense of the party owning the relevant Background IP) provide all such
assistance as may reasonably be required by such party in maintaining, enforcing
or defending its Background IP.
7.3 Upon identification of Alliance IP, the Parties shall jointly
prepare, file and prosecute any patent application(s) that disclose or claim
Alliance IP. All such patent applications shall be co-owned by the Parties and
shall be filed in the joint names of the Parties. The patent expenses incurred
with preparing, filing, prosecuting, and maintaining the said patent(s) and
patent application(s) shall be shared equally between the Parties. Selection of
outside patent prosecution counsel shall be made by the Steering Committee.
Should one party elect not to pursue patent protection or to discontinue support
in respect of any specified patent(s) and/or patent application(s), it may
relieved of any further financial obligations for such patent costs by
relinquishing its co-ownership rights in such specified patent(s) or patent
application(s) by written notification to the other party of its discontinuance
of support for such patent expenses, and relinquishment of its co-ownership
rights in the same. The party relinquishing such patent rights shall not be
reimbursed for incurred patent expenses in respect of such relinquished patent
rights. Upon receipt of any such notification, the other party may at its option
gain sole ownership of said patent(s) and/or patent application(s) by continuing
to support such patent(s) or patent application(s) at its own expense and such
solely owned Alliance IP shall thereafter be deemed to be Background IP of the
party owning the same for all purposes under this Agreement.
7.4 Subject always to the terms of any Project Agreement:
7.4.1 each party shall promptly notify the other in the event that
it becomes aware of any infringement by a third party of any Alliance IP or
receives any notice, claims or proceedings from any third party alleging
infringement of any Alliance IP (whether during the term of the Alliance or
thereafter for the life of any Intellectual Property rights existing therein);
and
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7.4.2 upon receipt of any such notification, the parties shall
liaise in such manner as may reasonably be required in order to agree and
determine the manner in which any such claim or alleged infringement may be
dealt with.
8. CONFIDENTIALITY
8.1 Proteus hereby agrees and undertakes that during the term of this
Agreement and thereafter without limit in time (howsoever termination may be
caused or arise) it shall keep confidential and shall not without the prior
written consent of ChemBridge (save as may be expressly provided in this
Agreement) disclose to any third party or use any ChemBridge Confidential
Information or any Alliance Confidential Information Provided Always that such
obligation of confidentiality shall not extend to any part of the ChemBridge
Confidential Information or Alliance Confidential Information which:
8.1.1 shall (otherwise than by reason of any default by Proteus)
become freely available to the general public; or
8.1.2 Proteus can show by documentary evidence was legally in its
possession or control prior to the date upon which it was received from
ChemBridge free of any obligation of confidentiality; or
8.1.3 Proteus can show by documentary evidence came into its
possession or control legally from a third party free of any obligation of
confidentiality and otherwise than by reason of any breach of any obligation of
confidentiality by such third party subsequent to the date of this Agreement.
8.2 Proteus shall procure that any employee or consultant to Proteus
who shall obtain or who shall have access to any ChemBridge Confidential
Information or Alliance Confidential Information in connection with the
performance of this Agreement shall be bound by obligations of confidentiality
substantially similar to the provisions of this Clause 8 in accordance with
Proteus' normal commercial practice. Such access to any ChemBridge Confidential
Information or Alliance Confidential Information by Proteus employees or
consultants will be provided only as strictly required for the performance by
Proteus of its obligations hereunder.
8.3 ChemBridge hereby agrees and undertakes that during the term of
this Agreement and thereafter without limit in time (howsoever termination may
be caused or arise) it shall keep confidential and shall not without the prior
written consent of Proteus (save as may be expressly provided in this Agreement)
disclose to any third party or use any Proteus Confidential Information or any
Alliance Confidential Information Provided Always that such obligation of
confidentiality shall not extend to any part of the Proteus Confidential
Information or Alliance Confidential Information which:
8.3.1 shall (otherwise than by reason of any default by ChemBridge)
become freely available to the general public; or
8.3.2 ChemBridge can show by documentary evidence was legally in
its possession or control prior to the date upon which it was received from
Proteus free of any obligation of confidentiality; or
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8.3.3 ChemBridge can show by documentary evidence came into its
possession or control legally from a third party free of any obligation of
confidentiality and otherwise than by reason of any breach of any obligation of
confidentiality by such third party subsequent to the date of this Agreement.
8.4 ChemBridge shall procure that any employee or consultant to
ChemBridge who shall obtain or who shall have access to any Proteus Confidential
Information or Alliance Confidential Information in connection with the
performance of this Agreement shall be bound by obligations of confidentiality
substantially similar to the provisions of this Clause 8 in accordance with
ChemBridge's normal commercial practice. Such access to any Proteus Confidential
Information or Alliance Confidential Information by ChemBridge employees or
consultants will be provided only as strictly required for the performance by
ChemBridge of its obligations hereunder.
9. FUNDING AND RESOURCES
9.1 Each of the parties undertakes to allocate to the Alliance and to
each Project such resources as may reasonably be required for the proper conduct
by such party of its obligations hereunder and for the performance of such tasks
in accordance with such timetable as may be specified and agreed in any Project
Plan. Each party undertakes that it shall be solely responsible for all costs
incurred (whether internally or by third party subcontractors) in the
performance of tasks allocated to it under the Alliance in connection with any
specified Project in accordance with the Project Plan agreed by the Steering
Committee.
9.2 It is intended that no Project will be commenced until a Project
Agreement shall have been entered into with the customer. Such agreement shall
be entered into in such manner as may be agreed and approved by the Steering
Committee by either ChemBridge or Proteus (or jointly) as appropriate. It is
acknowledged that neither party shall enter into any Project Agreement without
the prior written consent and approval of the other party to the terms of such
Project Agreement. In the event that any Project Agreement is entered into by
one party, the parties shall forthwith enter into an agreement providing inter
alia for the performance by the non-contracting party of its obligations under
the Project Plan (as subcontractor for the contracting party) and for payment by
the contracting party to the non contracting party in accordance with Clause
9.5.
9.3 The party entering into any Project Agreement with any customer
undertakes to be solely responsible for the performance of the Project Agreement
and undertakes to use all reasonable endeavours to police, maintain and enforce
any such Project Agreement for the benefit of both parties hereunder.
9.4 It is intended that each Project Agreement shall be entered into
upon terms whereby the customer shall pay:
9.4.1 an up-front payment upon signature;
9.4.2 funding for the conduct of the Project in such amounts and
upon such terms as to payment as may reasonably be required in connection with
the conduct of the Project;
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9.4.3 milestone payments to be triggered by specified performance
criteria in the conduct of the Project and subsequently in connection with the
further development and exploitation by the customer of such compounds;
9.4.4 royalties to be payable in connection with the Customer's
future commercial exploitation of compounds supplied under the Project.
9.5 It is agreed between the parties that in respect of any payments
received under any Project Agreement (whether such payments are payable to one
party or to both parties jointly) such payments shall be allocated and paid
between the parties such that:
9.5.1 all up-front payments received under Clause 9.4.1 shall be
divided equally between the parties; and
9.5.2 all payments received under Clause 9.4.2 shall be paid to the
parties as may be required in order to fund expenses incurred by each party and
work performed by each party in the conduct of the Project in accordance with
any agreed Project Plan; and
9.5.3 all payments received under Clauses 9.4.3 and 9.4.4 shall be
allocated and paid between the parties as applicable as follows:
9.5.3.1 if in respect of a compound existing in the
ChemBridge Databases and expressly approved for inclusion in the Alliance
Database or in respect of a compound derived (either synthetically or
computationally) from such existing compound which has been expressly approved
for inclusion into the Alliance Database the payment shall be apportioned in the
ration of 75% to ChemBridge and 25% to Proteus; and
9.5.3.2 if in respect of any "de novo" designed compound the
payment shall be apportioned equally between the parties.
9.6 Each party undertakes within 30 days of receipt to remit to the
other party all sums due to such other party under the terms of this Agreement
in connection with any Project Agreement. In the event of any late payment of
any sum due from one party to the other party hereunder in respect of any
Project Agreement;
9.6.1 interest shall be payable thereon at the rate of 4% above the
base rate for the time being of Barclays Bank plc (such interest to accrue daily
from the due date of payment to receipt of payment in full); and
9.6.2 such other party shall be entitled to suspend work under any
Project unless and until payment in full is received.
9.7 The parties undertake to collaborate and liaise as appropriate to
ensure that sums received from any customer in connection with any Project
Agreement shall be apportioned allocated and paid between the parties in the
most tax efficient manner and it is acknowledged that it may be deemed
appropriate in some circumstances for Project Agreements to be entered into by
the parties jointly.
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10. WARRANTIES AND LIABILITIES
10.1 Each party acknowledges and warrants to the other that it has
authority to enter into this Agreement in accordance with the terms hereof and
that the performance of its obligations hereunder shall not be prevented or
hindered by any agreement in existence between such party and any third party.
10.2 Each party shall be solely responsible for its activities in the
conduct of the Alliance generally and in particular for the performance by it of
any work allocated to it in connection with any Project including (without
limitation) the health and safety of any personnel involved and all other
regulatory, legal and other requirements relating to work of the type conducted
under any Project.
10.3 SAVE AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY GIVES
ANY WARRANTIES OR MAKES ANY REPRESENTATIONS IN RELATION TO ITS BACKGROUND IP,
ANY SERVICES TO BE PROVIDED UNDER THIS AGREEMENT OR IN THE ALLIANCE OR OTHERWISE
IN RELATION TO ANY PROJECT AND ALL SUCH WARRANTIES AND REPRESENTATIONS WHETHER
EXPRESS OR IMPLIED (BY LAW OR OTHERWISE) ARE HEREBY EXCLUDED TO THE FULLEST
EXTENT PERMITTED BY LAW.
10.4 NEITHER PARTY SHALL BE LIABLE TO THE OTHER IN CONTRACT, TORT,
NEGLIGENCE, BREACH OF STATUTORY DUTY OR OTHERWISE FOR ANY LOSS, DAMAGE, COST OR
EXPENSE OF ANY NATURE INCURRED BY THE OTHER PARTY OF AN INDIRECT OR
CONSEQUENTIAL NATURE INCLUDING ANY ECONOMIC LOSS OR OTHER LOSS OF TURNOVER,
PROFITS, BUSINESS OR GOODWILL.
11. FORCE MAJEURE
In the event that the performance of the obligations of either party is
prevented, restricted or hindered by any event of Force Majeure such
party:
11.1 shall not be liable to the other party for any damages arising
from any breach of the terms of this Agreement caused by Force Majeure; and
11.2 shall immediately serve notice in writing to the other party
specifying the nature of the Force Majeure, its effect upon the Party's
performance of this Agreement and the period of time in which performance is
anticipated to be delayed; and
11.3 shall use its reasonable endeavors to overcome the Force Majeure
and resume its proper performance of its obligations under this Agreement.
12. TERM AND TERMINATION
12.1 Term
The Agreement shall commence on the Effective Date and shall
continue for an initial period of twelve (12) months and
thereafter for such subsequent periods as
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may be agreed between the parties prior to the expiry of any
current term of the Agreement.
12.2 Termination Without Cause
Notwithstanding any other provision to the contrary, this
Agreement may be terminated without cause by either party upon
service of three (3) month notice in writing to the other party.
Effective immediately upon such termination, all Confidential
Information and materials will be immediately returned to the
respective original owners as specified in Section 12.5. However,
any obligations of the Parties in connection with any Project
Agreements executed prior to the effective date of termination
shall remain in effect.
12.3 Termination For Material Breach
In the event of a material breach of this Agreement, the aggrieved
party may terminate this Agreement by giving written notice of
termination to the breaching party, which termination shall be
effective immediately upon delivery or as otherwise specified in
such notice; provided, however, that if the nature of the breach
is such that it can reasonably be cured, said notice shall specify
the nature of such breach, and shall further state that the
breaching party shall have thirty (30) days from the effective
date of such notice to cure such breach, at which time, if the
breach is not cured, this Agreement shall be terminated. The
following constitutes a material breach.
12.3.1 where a party has persistently failed to meet its
obligations and to carry out work required by it in accordance with any Project
competently and punctually, or otherwise shall have persistently failed to
perform its obligations in accordance with reasonable request of other party; or
12.3.2 where a party has become insolvent, or has entered into
liquidation whether compulsory or voluntary, or shall have a receiver appointed
over all or any part of its assets or shall be the subject of any petition for
the appointment of an administrator or shall otherwise become the subject of any
applicable insolvency procedures.
Effective immediately upon any such termination, all Confidential
Information and materials will be immediately returned to the
respective original owners as specified in Section 12.5, including
but not limited to Confidential Information that is stored or kept
in any form of computer accessible media, including but not
limited to hard disks, floppy disks, tapes, CD-ROM and the like.
However, any obligations of the Parties in connection with any
Project Agreements executed prior to the effective date of
termination shall remain in effect.
12.4 Termination By Mutual Consent
The Parties may elect to terminate this Agreement at any time by
mutual consent. In such event the Parties shall agree and specify
the disposition of all Alliance IP and Alliance Confidential
information and other results of work accomplished or in progress,
arising from or performed under this Agreement, and they shall
agree
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and specify the disposal of all such property and Agreement
provisions in a manner consistent with this Agreement.
12.5 Termination and Confidential Information
Effective immediately upon any termination, all Confidential
Information and materials shall be immediately returned to the
respective original owners, or destroyed at the option of the
original owner. Original Confidential Information or copies of
Confidential Information kept in any form of computer accessible
media, including but not limited to hard drives, removable hard
drives, floppy disks, tapes, CDROM and the like, shall be returned
to the original owner, if practicable. Otherwise the Confidential
Information stored on computer accessible media is destroyed, or
deleted in such a manner that the information cannot be undeleted
or otherwise retrieved. Written confirmation shall be sent to the
original owner attesting to the disposition of original owner's
Confidential Information.
12.6 Termination and Survival
In the event of termination of the Agreement under Clauses 12.1,
12.2 or 12.3, the provisions of Clauses 6, 7 and 8 and the terms
of any Project Agreement (and any agreement between the parties
under Clause 9.2) shall continue in accordance with their terms.
12.7 Termination and Accrued Rights
Termination of the Agreement howsoever caused or arising shall be
without prejudice to the accrued rights of either party existing
as at the date of termination or in respect of any antecedent
breach.
13. RESTRICTIONS
13.1 Each of the parties hereby undertakes and confirms that it shall
not during the term of this Agreement and for a period of twelve months
following termination of the Agreement without cause enter into any
collaborative agreement or arrangement with any third party in respect of any
alliance competitive with or substantially similar to the terms of the Alliance
under this Agreement.
13.2 For the avoidance of doubt, notwithstanding the provisions of this
Agreement and Clause 13.1, each party may continue to independently enter into
any contract arrangements with any customers or potential customers under which
it uses its Background IP to design, select, develop, synthesize and supply any
chemical compounds and compound libraries to such customers for such customers'
internal use.
14. ASSIGNMENT AND TRANSFER
The benefit of this Agreement is personal to the parties hereto and
shall not be capable of assignment or transfer in whole or in part by
either party without the prior consent in writing of the other party.
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15. AMENDMENT AND WAIVER
Any agreement to amend, vary or modify the terms of this Agreement in
any manner shall be valid only if the amendment, variation or
modification is effected in writing and signed by duly authorised
representatives of each of the parties hereto.
16. ENTIRE AGREEMENT
This Agreement shall constitute the entire agreement between the
Parties in relation to its subject matter. This Agreement shall be
deemed to have effect from the date hereof and shall supersede any
other agreement between the parties whether written or oral with
respect to the subject matter of this Agreement.
17. SEVERABILITY AND ILLEGALITY
Each provision of this Agreement will be interpreted in such a manner
as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under
applicable law, such provision will be ineffective only to the extent
of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
18. INDEPENDENT CONTRACTOR
Each party in undertaking its responsibilities hereunder shall be
deemed an independent contractor and nothing in this Agreement shall
constitute, create or in any way be interpreted as a joint venture,
partnership or formal business organization of any kind.
19. EQUITABLE RELIEF FOR BREACH
The Parties agree that in the event of a breach of this Agreement in
respect of which there is no adequate legal remedy at law, in addition
to any other rights and remedies the non-breaching Party may have, the
non-breaching Party may be entitled to injunctive or other equitable
relief in respect of any such breach.
20. APPLICABLE LAW
This Agreement shall be governed by the applicable laws of the State of
California and the United States of America.
21. NOTICES
21.1 All notices required to be served by the parties to this Agreement
under the terms hereof shall be sufficiently served is dispatched by air mail or
courier to the addresses of each of the parties set out below:
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PROTEUS MOLECULAR DESIGN LIMITED
Beechfield House
Lyme Xxxxx Xxxxxxxx Xxxx
Xxxxxxxxxxxx
Xxxxxxxx XX00 0XX
Xxxxxxx
CHEMBRIDGE CORPORATION
16981 Xxx Xxxxx
Xxxxx X
Xxx Xxxxx
Xxxxxxxxxx 00000
Xxxxxx Xxxxxx of America
and any modification or amendment to such address must itself
be notified in writing to the other party in accordance with
the terms of this Clause.
21.2 It shall be permitted for notices to be served hereunder by
facsimile transmission and for this purpose the following fax numbers shall
apply:
Proteus: 00-0000-000000
ChemBridge: 0-000-000-0000
Provided that such notice shall be confirmed by written notice
sent under Clause 21.1.
21.3 In the absence of proof to the contrary, notice shall be deemed
served:
21.3.1 in the event of notice served under 18.1 above if properly
sent and addressed five working days after the time of dispatch; and
21.3.2 in the event of notice served under Clause 18.2 if properly
sent and addressed and where evidence of transmission is available, two working
hours after the time of transmission.
IN WITNESS whereof this Agreement has been executed by duly authorized
representatives of the parties hereto the day and year first before written.
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SIGNED by A XXXXXXX )
duly authorized for and on behalf of )
PROTEUS MOLECULAR DESIGN )
)
in the presence of: )
)
)
Witness Signature )
)
Witness Name )
)
Witness Address )
SIGNED by X X XXXXXXXX )
duly authorizd for and on behalf of )
CHEMBRIDGE CORPORATION )
)
in the presence of: )
)
)
Witness Signature )
)
Witness Name )
)
Witness Address )
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