Exhibit 10.41
"[**]" INDICATES THAT CONFIDENTIAL MATERIAL HAS BEEN OMITTED AND FILED
SEPARATELY IN A REQUEST FOR CONFIDENTIAL TREATMENT WITH THE SECURITIES
AND EXCHANGE COMMISSION.
LICENSE AGREEMENT
Affymetrix, Inc.
and
Molecular Dynamics, Inc.
Contents
DEFINITIONS 3
RECITALS 6
TECHNICAL INFORMATION 6
GRANTS 7
RECORDS, ACCOUNTS AND PAYMENTS 15
DURATION OF AGREEMENT 16
MISCELLANEOUS 17
Exhibit 1 21
2 22
3 23
4 24
5 27
6 28
THIS AGREEMENT is effective as of ("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 tc \l 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.
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 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 [**] 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 tc \l 1 "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 tc \l 1 "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.
3.4 Affymetrix and MD will advise the other with reasonable promptness
and detail of Technical Information developed after the Effective
Date.
4 GRANTS tc \l 1 "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 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.
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.
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 thery 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.
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 ▇▇▇ 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 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 tc \l 1 "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 [**].
Royalty [**]
[**] [**]
[**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
[**] [**] [**] [**] [**]
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
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 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 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 tc \l 1 "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-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 tc \l 1 "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 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 tc \l 1 "MISCELLANEOUS"
8.1 MD and Affymetrix will appropriately ▇▇▇▇ 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.
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 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.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
MD:
Molecular Dynamics, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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.
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:
Title:
Date:
Molecular Dynamics, Inc.
By:
Title:
Date:
Exhibit 1 tc \l 1 "1"
Affymetrix Patent Listing (by Affymetrix file no.)
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
[**]
Exhibit 2 tc \l 1 "Exhibit 2"
MD Patent Listing (by patent no. or MD file no.)
[**]
[**]
[**]
Exhibit 3 tc \l 1 "3"
Licensed Software Packages
GeneChipr System Software (current version)
GeneChip Expression Analysis Software (Cat No. 900136)
Exhibit 4 tc \l 1 "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 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 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 LicenseesThe 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, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. 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 LicenseesUse, reproduction, or
disclosure is subject to restrictions set forth in the relevant contract
between the Government and Affymetrix, Inc, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Exhibit 5 tc \l 1 "5"
Excused Fabrication Systems
[**]
[**]
[**]
[**]
[**]
[**]
[**]
Exhibit 6 tc \l 1 "6"
Discounted Organisms
[**]
[**]
[**]
[**]
[**]
[**]
Confidential
Affymetrix/MD
24
March 24, 1998 (12:53pm)
