EXHIBIT 10.13
ORCHID BIOSCIENCES, INC. HAS REQUESTED THAT THE MARKED PORTIONS OF THIS DOCUMENT
BE ACCORDED 406 CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES
ACT, AS AMENDED
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Genotyping Collaboration Agreement
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THIS GENOTYPING SERVICE AND COLLABORATION AGREEMENT, dated as of February
12, 2001 (the "Effective Date"), is between ORCHID BIOSCIENCES, INC., a Delaware
corporation having a principal place of business at 000 Xxxxxxx Xxxx Xxxx,
Xxxxxxxxx, Xxx Xxxxxx 00000 ("Orchid"), and ASTRAZENECA UK, LIMITED, an English
corporation, having its registered office at 00 Xxxxxxxx Xxxx, Xxxxxx, X0X 0XX
("AZ").
WHEREAS, Orchid develops, manufactures and/or commercializes genetic
diversity products, services and technologies to perform automated SNP analysis
based on its proprietary primer extension technology; and
WHEREAS, AZ desires to have Orchid provide it with genotyping services as
more fully described in this Agreement;
NOW THEREFORE, the parties agree as follows:
1. DEFINITIONS.
For purposes of this Agreement, the following terms have the meanings set
forth below:
1.1. "Access Fee" means the one-time, non-creditable fee in the total
amount of [*****] payable by AZ to Orchid pursuant to Section 2.3
and subject to 4.13.
1.2. "Accuracy Rate" means the achievement of 99% accuracy of genotype
calls on those assays that fall within the Genotyping Pass Rate. The
one million genotypes
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utilized by Orchid for Formatting purposes are excluded from any
calculation of Accuracy Rate.
1.3. "Affiliate" means any legal entity, directly or indirectly
controlling, controlled by or under common control with a party to
this Agreement. For purposes of this Agreement, "control" means the
direct or indirect ownership of at least fifty percent (50%) of the
outstanding voting securities of the legal entity, or the right to
receive at least fifty percent (50%) of the profits or earnings of
the legal entity, or the right to direct the policy decisions of the
legal entity.
1.4. "Assay Data" and "Formatted SNP Data" means the raw data produced by
Orchid's performance of the Genotyping Services, including SNP
conversion data and Genotyping results. Assay Data does not include
any data derived from the one million genotypes used for Formatting
("Formatted SNP Data"), other than whether the SNP passed or failed.
Information pertaining to these one million genotypes will be
available upon request from the JSC..
1.5. "Assay Development" means the Formatting of each individual SNP into
a working assay through the custom design and testing of specific
oligonucleotides for the interrogation of an individual SNP,
including one set of PCR Primers and one SNP-IT Primer for the
desired SNP, in conjunction with Genotyping against a known sample
set.
1.6. "AZ SNPs" means up to [*****] and (iii) are submitted by AZ to
Orchid pursuant to Section 6 with complete sequence information.
1.7. "Collaboration" means the Genotyping Studies undertaken by the
parties after [*****], as determined by the JSC.
1.8. "Confidential Information" means all proprietary and confidential
information and materials, patentable or otherwise, of a party that
is disclosed by or on behalf of such party (the "Disclosing Party")
to the other party (the "Receiving Party") including, but not
limited to, business, technical and financial information, DNA
sequences and proprietary sequence information, SNPS, SNP detection
techniques, vectors, cell substances, formulations, techniques,
methodology, equipment, data, reports, Know-How, technology, sources
of supply, patent
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strategy and business plans, and pharmacogenomic or pharmacogenetic
applications, procedures and plans.
1.9. "DNA Samples" means samples of genomic DNA to be supplied to Orchid
by AZ under this Agreement in accordance with the criteria set forth
in Schedule A. For all Genotyping Studies [*****], AZ will provide
to Orchid up to 1 nanogram of DNA per genotype to be studied. DNA
Samples will include control DNA Samples as specified in Schedule A.
The provision of all DNA Samples will be at AZ's sole expense.
1.10. "First Use" means the reporting of data [*****].
1.11. "Formatting" means the custom design of PCR and SNP-IT Primers and
quality control of the Primers for amplification and subsequent
SNP-IT functionality.
1.12. "Genotyping" means the process of identifying both alleles of one or
more SNP sites in a sample using SNP-IT.
1.13. "Genotyping Pass Rate" means the production of Assay Data on at
least [*****] of assays that were Successfully Converted. Excluded
from the calculation of Genotyping Pass Rate are (1) the one million
genotypes utilized by Orchid for Formatting purposes, and (2) those
assays that failed as a result of a Non-Assay Failure.
1.14. "Genotyping Studies" means the services to be performed by Orchid
for AZ under this Agreement as shall be more fully described in the
JSC's work plans set forth in Schedule B, consisting of (i) Assay
Development of each Project SNP, (ii) performance of Genotyping on
the DNA Samples to provide AZ with a total of [*****] genotypes
during the term of the Agreement, and (iii) compilation and
dissemination to AZ of Assay Data with respect to the Project SNPs.
1.15. "JSC" means the Joint Steering Committee described in Section 3 and
established to review [*****] and aid in the development and
oversight of the Collaboration.
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1.16. "Non-Assay Failures" means failure to generate Assay Data as a
result of performing Genotyping that is not related to Formatting or
is outside the control of Orchid.
1.17. "OB SNPs" means up to [*****] pursuant to Section 7.
1.18. "Orchid Database" means Orchid's proprietary database [*****].
1.19. "Orchid FTE Rate" means full-time employee manpower rate of (i)
[*****] per annum for labor associated with Genotyping and [*****]
per annum for labor associated with informatics (such as additional
data or statistical analysis) that will be applied to work requested
by AZ that is outside of the specific scope of this Agreement. All
or any component of the Orchid FTE Rate may increase during the term
of this Agreement, provided, however, that no Orchid FTE Rate may
increase by more than 10% in any 12-month period, and provided
further that Orchid will notify AZ in writing of any such increase
prior to effectuating such increase.
1.20. "Orchid Technology" means all patents, patent applications,
copyrights, non-patented proprietary information, inventions,
developments, techniques, materials, processes, manufactures,
compositions of matter or methods of use and trade secrets, whether
or not patentable or copyrightable, and other intellectual property
owned or licensed by Orchid relating to SNP-IT (including any
instruments, platforms, software, consumable SNP assay kits
containing Primers and reagents or similar kits for Genotyping),
Assay Development, Primer design and Formatting useful for
performing SNP-IT and/or performing the services described in the
Genotyping Studies and the PoP Study.
1.21. [*****]
1.22. [*****]
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1.23. "Primers" mean primers useful in Orchid's SNP-IT method or PCR
primers or information to generate PCR primers. Primers shall
include any Primers designed by Orchid in connection with its
providing Formatting services or other services pursuant to its
performance of [*****] the Genotyping Studies or for any other
purposes pursuant to this Agreement.
1.24. "Project SNPs" means a panel of up to [*****].
1.25. "SNP" means single nucleotide polymorphism.
1.26. "SNP Criteria" means the following information and specifications:
[*****]
1.27. "SNP-IT(TM)" means an assay based on Orchid's proprietary primer
extension technology that identifies one and only one base position
of a target nucleic acid
1.28. "Successful Conversion" or "Successfully Converted" means the
conversion into working assays of at least [*****] of the SNP
sequences provided to Orchid pursuant to this Agreement, [*****].
Excluded from the calculation of Successful Conversion/Successfully
Converted are (1) the [*****] genotypes utilized by Orchid for
Formatting purposes, and (2) those SNPs that failed to convert as a
result of a Non-Assay Failures.
2. SCOPE OF AGREEMENT.
2.1. The parties will enter into [*****] a Collaboration to conduct the
Genotyping Studies on the terms and conditions set forth herein,
pursuant to which Orchid will provide AZ with up to [*****] during
the term of this Agreement.
2.2. AZ will pay to Orchid a total of not less than [*****] for the work
to be performed by Orchid under [*****] the Genotyping Studies,
consisting of an Access Fee and the annual payments described in
Section 9. Orchid will provide AZ with additional services at any
time during the term of this Agreement at AZ's request at the Orchid
FTE Rate as provided in Section 11.
2.3. Within fifteen (15) days of the Effective Date, AZ will pay to
Orchid the total Access Fee.
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3. JOINT STEERING COMMITTEE.
3.1. The parties will establish a JSC composed of two representatives
from each of Orchid and AZ, to be appointed by each party
respectively within thirty (30) days of the Effective Date.
3.2. Each party's representatives will serve at the discretion of such
party and may be replaced at any time by such party.
3.3. Each party, by its representatives, will have one vote on the JSC.
3.4. The JSC will review [*****], develop the protocols and timelines for
the Genotyping Studies and otherwise coordinate the work to be
conducted under the Collaboration. JSC will also be responsible for
monitoring `quality performance' (to be defined by the JSC at a
later point [*****]) throughout the collaboration
3.5. The JSC will determine and submit to Orchid and AZ the work plans
for the Collaboration including, without limitation, the protocols
and timelines to be followed by the parties in the performance of
the Genotyping Studies (including the parameters for performance of
the Genotyping and the format of such parameters), together with the
responsibilities of each party, where possible by the Collaboration
Start Date (as defined in Section 5.1), or otherwise on an on-going
basis.
3.6. Orchid will provide the JSC with a schedule of the Orchid FTE Rate
by the Collaboration Start Date. Such schedule will be incorporated
into the JSC's work plans.
3.7. The JSC may at any time during the term of the Agreement make
modifications to the work plans that, in its reasonable discretion,
it believes is necessitated by sound business or scientific reasons,
provided that, the JSC may not, under any circumstances, modify the
minimum or maximum number of genotypes, the amount of any payment
(including the Access Fee) set forth herein or the Orchid FTE Rate.
3.8. All work plans and any permitted modification thereto submitted by
the JSC will be attached to this Agreement as Schedule B and made a
part hereof.
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3.9. The initial meeting of the JSC will occur at a site determined by
Orchid no later than thirty (30) days after the Effective Date.
Thereafter, during the term of this Agreement, the JSC will meet
once in each three-month period or at such other periodic intervals
as the JSC may determine is necessary or appropriate from time to
time.
3.10. After the initial meeting, the site of JSC meetings will alternate
between the offices of AZ and Orchid (or any other site or by
teleconference as mutually agreed upon by the JSC).
3.11. The proceedings of all meetings of the JSC will be summarized in
writing and sent to both parties. The party hosting the meeting will
be responsible for the preparation and circulation of such
summaries.
3.12. Each party will bear all expenses of their respective JSC
representatives related to their participation on the JSC and
attendance at JSC meetings.
4. [*****]
4.1. [*****].
4.2. [*****].
4.3. [*****].
4.4. [*****].
4.5. [*****].
4.6. [*****].
4.7. [*****].
4.8. [*****].
4.9. [*****].
a. [*****].
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4.13. [*****].
4.14. [*****].
4.15. [*****].
5. THE COLLABORATION.
5.1. The Collaboration will commence on [*****] ("Collaboration Start
Date") and be completed within the term of this Agreement.
5.2. Notwithstanding the JSC's discretion to develop the work plans for
the Collaboration, the parties agree that the objectives of the
Collaboration will be as follows:
Year 1: [*****];
Year 2: [*****]; and
Year 3: [*****].
6. GENOTYPING STUDIES.
6.1. AZ will select the Project SNPs and will provide to the JSC its
criteria for the Genotyping Studies (i.e. which Project SNPs will be
run on which DNA Samples) pursuant to the timelines and other
criteria set forth by the JSC in a work plan to be provided by the
JSC.
6.2. AZ will provide Orchid with the relevant Project SNPs and the
applicable DNA Samples no later than the date specified by the JSC
in the work plans.
6.3. AZ will (through the JSC) assist in augmenting the OB Database,
including providing recommendations as to its composition.
6.4 Orchid will use reasonable commercial efforts to perform the
Genotyping Studies in accordance with the date(s) set forth in the
work plans provided by the JSC,
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provided that AZ makes all payments due hereunder. AZ recognizes,
however, that Formatting and Genotyping involve a number of
technologically complex steps and are dependent upon the quality of
the submitted Project SNPs and DNA Samples. Accordingly, the time
periods set forth by the JSC in the work plans for the completion of
each step are approximate and subject to variation due to
technological difficulties that may be encountered in the
performance of the Genotyping Studies.
6.5. Orchid will supply all raw materials, other than the AZ SNPS and the
DNA Samples (all of which will be provided by AZ at its sole cost
and expense), necessary to perform the Genotyping Studies, including
reagents and Primers; provided, however, that Orchid may, in its
sole discretion, use amplification primers provided by AZ to Orchid.
7. ASSAY DEVELOPMENT PHASE.
7.1. The Assay Development phase of the Genotyping Studies will be
performed only on the Project SNPs selected by AZ for such purpose
in accordance with the JSC's work plans.
7.2. AZ will select the OB SNPs from the Orchid Database, [*****].
7.3. In accordance with any timelines developed by the JSC, AZ will
provide to Orchid at least [*****] AZ SNPs for the Assay Development
phase of the Genotyping Studies and Orchid will perform Assay
Development for each submitted AZ SNP to achieve Successful
Conversion [*****].
7.4. Orchid will use up to [*****] genotypes for conducting and
validating the Assay Development phase of the Genotyping Studies.
8. GENOTYPING PHASE.
8.1. Orchid will perform the Genotyping phase of the Genotyping Studies
on submitted DNA Samples for SNPs that have been Successfully
Converted to provide AZ with [*****] genotypes during the term of
the Agreement, [*****].
8.2. [*****].
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8.3. [*****].
9. PAYMENTS.
9.1. In addition to the Access Fee, AZ will pay Orchid a nonrefundable,
noncreditable annual fee equal to [*****] on each of the first and
second anniversaries of the Effective Date.
9.2. The annual fees will be payable ([*****]) to Orchid by AZ as
follows:
9.2.1. [*****];
9.2.2. [*****], and
9.2.3. [*****].
9.3. All payments hereunder will be made by AZ in United States Dollars
by wire transfer of funds to an account designated by Orchid or by
delivery of an irrevocable cashier's check to Orchid. The following
is wire transfer information for Orchid's bank:
Bank Name: [*****]
Bank Address: [*****]
ABA #: [*****]
Account Name: [*****]
Account #: [*****]
10. RECORDS AND REPORTING OF RESULTS.
10.1. Orchid will keep accurate and complete records during its
performance of the Genotyping Studies in order to compile and
provide to AZ the Assay Data.
10.2. Orchid will provide AZ with the Assay Data in accordance with the
timelines set forth by the JSC in the work plans.
10.3. Notwithstanding the foregoing, Orchid will have no obligation to
provide AZ with any Assay Data unless it has received from AZ
payment of all of the then due
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fees, other than the balance of the annual fee due pursuant to
Section 9.2.
10.4. Orchid will submit the Assay Data to AZ to the address and in the
manner reasonably specified by the JSC to Orchid. AZ will select the
courier service, if necessary, for the delivery of the Assay Data,
and Orchid will pay for the courier service but will not be liable
for any damages, loss or penalty for delay or failure in delivery
caused by such service.
11. ADDITIONAL WORK.
11.1. From time to time during the term of this Agreement, AZ may request,
directly or through the JSC, (i) a modification, addition,
supplement or other change in the work plan of the JSC or the
services provided by Orchid hereunder, (ii) additional data
including additional information concerning the Formatted SNP Data;
(iii) additional Formatting, reports, Genotyping, consulting,
presentations or other support (collectively, the "Additional
Work"), none of which is covered by this Agreement.
11.2. AZ will submit its request through the JSC. The JSC will, to the
extent relevant and necessary, provide the timeline, protocols and
other specifications for such Additional Work.
11.3. Orchid will perform such Additional Work for AZ at the then
prevailing Orchid FTE Rate. Orchid will submit an invoice for the
total amount due for the Additional Work upon completion (unless
otherwise defined by the JSC in an approved plan) and AZ will pay
Orchid the amount invoiced within 30 days.
12. LIMITED OR NO LICENSE.
12.1. Subject to clauses 16.1 and 16.2, AZ grants to Orchid a paid-up,
royalty-free, worldwide, non-exclusive, non-sublicensable,
non-assignable license to use the AZ SNPs and DNA Samples received
from AZ under this Agreement solely for the purpose of performing
[*****] the Genotyping Studies (including, without limitation,
including AZ SNPs in the Orchid Database).
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12.4. Subject to 16.1 and 16.2, no other license is intended or granted
through delivery of the Project SNPs and DNA Samples.
12.5. The performance of [*****] the Genotyping Studies for AZ by Orchid
does not include or carry any right or license, express or implied,
in or to any Orchid Technology.
12.6. AZ acknowledges that Orchid commercializes Primers and Orchid
Technology. AZ further acknowledges and agrees that Orchid intends,
and is permitted, to sell and otherwise commercialize Primers and
Orchid Technology (with no obligation to AZ) that may be generated
(whether or not an invention) as a result of or in connection with
the performance by Orchid of the Genotyping Studies. This paragraph
12.5 survives any termination or expiration of this Agreement.
13. INTELLECTUAL PROPERTY.
13.1 As between Orchid and AZ, Orchid has sole ownership of, and retains
all right, title and interest to, the Orchid Technology.
13.2 AZ has sole ownership of, and retains all right, title and interest
to, the AZ SNPS, and Assay Data subject only to Orchid's limited
license set forth in Section 12.1.
13.3 Any intellectual property developed by AZ through the use of Assay
Data will be the sole property of AZ.
14. REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND LIMITATIONS ON LIABILITY.
14.1. OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE
SCHEDULES TO THIS AGREEMENT, ORCHID MAKES NO REPRESENTATIONS,
GUARANTIES OR WARRANTIES, EXPRESS OR IMPLIED, TO AZ REGARDING THE
RESULTS FROM ITS PERFORMANCE OF [*****] THE GENTOYPING STUDIES OR
THE USE, OR THE RESULTS OF THE USE OF ANY ASSAY DATA, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND
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NONE ARE CREATED, WHETHER UNDER THE UNIFORM COMMERCIAL CODE, CUSTOM
OR USAGE IN THE INDUSTRY OR THE COURSE OF DEALINGS BETWEEN THE
PARTIES.
14.2. AZ REPRESENTS AND WARRANTS THAT ANY STATEMENTS HERETOFORE OR
HEREAFTER MADE BY ORCHID OR ANY OF ITS REPRESENTATIVES RELATIVE TO
THE USE OR THE RESULTS OF THE USE OR THE ASSAY DATA OR THE
PERFORMANCE OF [*****] THE GENOTYPING STUDIES WILL ALWAYS BE
INDEPENDENTLY VERIFIED BY AZ AND AZ AGREES THAT ITS ACCEPTANCE
AND/OR USE OF SUCH STATEMENTS IS ENTIRELY AT ITS OWN RISK.
14.3. ORCHID MAKES NO WARRANTY OR REPRESENTATION TO AZ THAT THE USE OF ANY
ASSAY DATA OR ANY PRODUCT PRODUCED BY SUCH USE, WILL NOT INFRINGE
ANY PATENT, COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT,
FOREIGN OR DOMESTIC, OF ANY THIRD PARTY TO WHICH ORCHID HAS NOT
OBTAINED RIGHTS.
14.4. ORCHID WILL NOT BE LIABLE TO AZ OR ITS AFFILIATES, CUSTOMER'S
SUCCESSORS OR ASSIGNS OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM
FOR LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR
INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND.
14.5. AZ represents to Orchid that: it is duly organized, validly existing
and in good standing under the laws of England; it has the power and
requisite authority to deliver the AZ SNPS and DNA Samples to Orchid
pursuant to this Agreement; it has taken all actions necessary to
secure all approvals required to be secured by it in connection with
the transactions contemplated hereby; the execution, delivery and
performance of this Agreement has been duly authorized by all
necessary corporate and other action; this Agreement has been duly
executed and delivered and constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms; the
execution, delivery and performance of this
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agreement does not violate any agreement to which it is a party or
by which it is bound or any law, order or decree applicable to it,
or any provision of its charter documents or bylaws.
14.6. Orchid represents to AZ that: it is duly organized, validly existing
and in good standing under the laws of the State of Delaware; it has
taken all actions necessary to secure all approvals required to be
secured by it in connection with the transactions contemplated
hereby; the execution, delivery and performance of this Agreement
has been duly authorized by all necessary corporate and other
action; this Agreement has been duly executed and delivered and
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms; the execution, delivery and
performance of this Agreement does not violate any agreement to
which it is a party or by which it is bound or any law, order or
decree applicable to it, or any provision of its charter documents
or bylaws.
15. INDEMNIFICATION.
15.1. Orchid agrees to indemnify, defend, and hold harmless AZ and its
directors, officers, agents, employees, representatives and assigns,
from and against all liabilities, damages, expenses and losses
(including reasonable attorney fees and costs), arising out of the
gross negligence or willful misconduct of Orchid, its employees or
any third party acting on behalf or under authority of Orchid in the
performance of this Agreement.
15.2. Notwithstanding the foregoing, Orchid will not be liable to AZ or
any of its successors or assigns, or to any third party with respect
to any use of the Assay Data, or any loss, claim, damage or
liability of any kind or nature which may arise from or in
connection with the use of the Assay Data or any products resulting
from such use; or for any claim for loss of profits, loss or
interruption of business, or for indirect, special or consequential
damages of any kind.
15.3. AZ agrees to indemnify, defend and hold harmless Orchid, its
Affiliates and their respective directors, officers, agents,
employees, representatives, successors and assigns, from and against
all liabilities, demands, damages, expenses and losses (including
reasonable attorney fees and costs) and any actual or alleged act of
patent infringement, contributory patent infringement, inducing
patent infringement, or copyright infringement arising out of or
resulting from (i) AZ's or any third party's use of the Assay Data,
(ii) any products developed or made by
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AZ or any third party as a result of the use of the Assay Data, and
(iii) AZ's delivery to Orchid of AZ SNPs and DNA Samples.
15.4. A party seeking indemnification under this Agreement will give
prompt written notice to the indemnifying party of the commencement
of any action (and any prior claims relating to such action) for
which the party seeks indemnification. An indemnifying party will
have no liability or responsibility of any kind to the party seeking
indemnification if it is not promptly notified and does not have
adequate opportunity to defend. The indemnifying party will have
sole control of the defense of the action and of all negotiations
for its settlement or compromise.
15.5. This section 15 survives any termination or expiration of this
Agreement.
16. CONFIDENTIALITY.
16.1. Orchid agrees that with respect to AZ SNPs that are not OB SNPs,SNPs
independently provided to Orchid by any third party and/or SNPs of
The SNP Consortium, Ltd., Orchid will not make such AZ SNPs
available to any third party (whether through the Orchid Database or
otherwise) and will treat such SNPs as Confidential Information for
a period of 15 months from the First Use of such AZ SNP (the
"Standstill Period"). Orchid may use public domain AZ SNPs for
internal research purposes so long as the identification of such
SNPs and the subsequent research into drug development and/or
adverse drug reactions is independently derived (supportable and
verified by documents) by Orchid and not derived from any
information gained from AZ through this collaboration. Orchid will
not make available to third parties any public domain AZ SNPs.
16.2. Subsequent to the Standstill Period, any such AZ SNP may be used by
Orchid and/or made available by Orchid to third parties, unless,
prior to the expiration of the Standstill Period, AZ notifies Orchid
in writing that it wishes to extend the Standstill Period and pays
Orchid [*****] per SNP within 15 days of such notification. In such
event, the Standstill Period will be extended indefinitely with
respect to those selected AZ SNPs.
16.3. Notwithstanding Sections 16.1 and 16.2, Orchid may perform any
service or enter into any collaboration or research project with
respect to a SNP submitted to
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Orchid by any third party after the Effective Date that is the same
SNP as an AZ SNP.
16.4. Orchid and AZ each agrees that it will keep confidential, and will
cause its employees, consultants, Affiliates and licensees to keep
confidential, and will not transfer or disclose to any third party,
and will not use for any purpose other than the purposes
contemplated by this Agreement, any Confidential Information of the
other party.
16.5. Each Receiving Party's nondisclosure obligation will not apply to
information that is:
16.5.1. already known to the Receiving Party at the time of its
disclosure or communication, to the extent evidenced by
written documentation;
16.5.2. becomes published or otherwise part of the public domain
through no fault of the Receiving Party;
16.5.3. disclosed to the Receiving Party by any third party not
under an obligation of confidentiality;
16.5.4. required, by law, regulation or action of any governmental
agency or authority, to be disclosed, provided the Receiving
Party complies with Section 16.3 ; or
16.5.5 disclosed by the Receiving Party with the prior written
consent of the Disclosing Party.
16.5.5 independently generated by the Receiving Rarty.
16.6. If either party becomes legally compelled to disclose Confidential
Information of the other, the Receiving Party will provide the
Disclosing Party with prompt notice so that the Disclosing Party may
seek a protective order or other appropriate remedy and/or waive
compliance with the provisions of this Agreement. If in the absence
of a protective order or the receipt of a waiver, the Receiving
Party nevertheless is legally required to disclose Confidential
Information of the other to any governmental authority or court of
competent jurisdiction, or else stand liable for contempt or suffer
other censure or penalty, the Receiving Party may disclose such
Confidential Information, to the most
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protected and limited extent feasible, without liability under this
Agreement.
16.7. This Section 16 survives any termination or expiration of this
Agreement.
17. TERM AND TERMINATION .
17.1. Unless extended by mutual agreement, this Agreement will expire and
terminate three (3) years after the Effective Date.
17.2. Each party has the right to terminate this Agreement forthwith upon
written notice to the other party if any proceeding is instituted by
or against the other party seeking to adjudicate it bankrupt or
insolvent, or seeking liquidation, winding up, reorganization,
rearrangement, adjustment, protection, relief or composition of it
or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking an entry of an order
for relief or the appointment of a receiver, trustee or other
similar official for it or any substantial part of its property or
taking any action to authorize any of the foregoing or similar
actions. No assignee for the benefit of creditors, receiver,
liquidator, sequestator, trustee in bankruptcy, sheriff or any other
office of the court or official charged with taking over custody of
AZ's assets or business will have any right to compel Orchid to
continue the performance of this Agreement.
17.3. [*****].
17.4. [*****].
17.5. Orchid has the right to terminate this Agreement if AZ fails to make
any payment due and owing, or commits a breach of any other material
provision of this Agreement and fails to make such payment or remedy
such breach within sixty (60) days after receiving written notice of
such default or breach.
17.6 Upon termination of this Agreement for any reason, Orchid will
promptly return to AZ any unused DNA Samples in its possession, but
will have no obligation to complete any Formatting or other service
on the AZ SNPS nor to compile and deliver any Assay Data not
previously complied.
[*****] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERICKS DENOTE SUCH OMISSIONS
17
17.7 On termination, AZ will have no further obligations for the payment
of fees.
18. ANNOUNCEMENTS.
18.1. AZ and Orchid will make public a joint press release in the form
attached as Schedule D within ten (10) days of execution of the
Effective Date.
19 PUBLICATIONS.
AZ will be free to make scientific publication of the Assay Xxxx.Xx
such written publications where the use of Orchid technology is
described, AZ will provide Orchid with drafts of the publications at
least thirty (30) days prior to its submission or presentation, and
accord Orchid with credit and/or right of co-authorship where
appropriate. If the draft discloses any trade secrets or inventions
of Orchid, AZ will delete such disclosures and delay publication up
to 60 days to allow Orchid to draft and file patent applications on
any disclosed patentable inventions prior to publication. This
Section 19 survives any termination or expiration of this Agreement.
20. DISPUTE RESOLUTION.
20.1. In the event the JSC is deadlocked with respect to any decision of
the JSC, or in the event of any other controversy or claim relating
to, arising out of or in any way connected to any provision of this
Agreement ("Dispute"), the Dispute will be submitted to the senior
official of each party designated below for attempted resolution:
For Orchid: CEO
For AZ:Head of Global Enabling Science & Technology Group
20.2 If the designated senior officials of each party are unable to
resolve the Dispute within sixty (60) days after good faith
negotiation, the dispute resolution provisions of Section 20.4 will
apply, unless the dispute is related solely to a question of
scientific interpretation or otherwise involves only scientific or
18
technological issues [*****] ("Scientific Dispute"). In the event of
a Scientific Dispute, the parties will resolve that matter through
the use of an expedited mediation process, in which the parties
first try to agree on a mutually acceptable scientist to serve as
the mediator (failing mutual agreement on a single scientist, each
party appoints a scientist not affiliated with such party and the
two so selected pick a third unaffiliated scientist) within 30 days.
The mediator(s) will review the disputed matter on an expedited
basis (not to exceed 45 days), considering the relevant data,
standards established by this Agreement, and any work plans. The
decision of the mediator(s) will be binding on the parties.
20.3. If the Dispute is not resolved by the designated senior officials of
each party within 60 days in accordance with Section 20.2, or if
such senior officials fail to meet within such time period, either
party may seek arbitration under the rules of the American
Arbitration Association ("AAA Rules") pursuant to Section 21.5.
20.4. Whenever a party decides to institute arbitration proceedings, it
will give written notice to that effect to the other party. The
arbitration proceeding will be held in Delaware. The arbitration
will be conducted before a single arbitrator mutually chosen by the
parties, but if the parties have not agreed upon a single arbitrator
within fifteen (15) days after notice of the institution of the
arbitration proceeding, then the arbitration will be conducted by a
panel of three arbitrators, one chosen by each party with the third
chosen by the other two arbitrators. No arbitrator (nor the panel of
arbitrators) will have the power to award punitive damages or any
award of multiple damages under this Agreement and such awards are
expressly prohibited. Decisions of the arbitrator(s) will be final
and binding on the parties.
20.5. Notwithstanding the foregoing, nothing in this Article 2 will be
construed as limiting in any way the right of a party to seek
injunctive, equitable or other relief from a court of competent
jurisdiction. Both AZ and Orchid consent to the personal
jurisdiction and venue of the United States District Court for the
District of New Jersey; and such court will have exclusive
jurisdiction over any Dispute. AZ and Orchid both further consent
that any process or notice of motion or other application to the
court or Judge thereof may be served outside the State of New
[*****] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERICKS DENOTE SUCH OMISSIONS
19
Jersey by registered or certified mail or by personal service,
provided a reasonable period of time for appearance is allowed.
21. MISCELLANEOUS.
21.1. Orchid, in its performance of this Agreement, may delegate its
obligations or duties to one or more Affiliates, agent(s),
subcontractors or licensees; provided that no such Affiliate, agent,
subcontractor or licensee will have the right or authority to make
any representation or warranty to AZ, or to assume or create any
obligations with or for AZ, whether express or implied, on behalf or
in the name of Orchid. In the event Orchid does delegate any
obligation or duty to an Affiliates, agent(s), subcontractors or
licensees, Orchid shall not be relieved of its responsibility for
the terms of this agreement as it pertains to such delegated
obligation or duty.
21.2. This Agreement is binding upon and inures to the benefit of the
heirs, successors and assigns of the parties hereto.
21.3. The rights provided herein are personal to the parties and may not
be assigned or otherwise transferred without the prior express
written approval of the other party, except that either party may
assign this Agreement to any Affiliate or any successor by merger or
sale of substantially all of its business or assets to which this
Agreement pertains, without any such consent. Any assignment in
violation hereof is void. Notwithstanding the foregoing, Orchid
agrees that AZ may terminate this Agreement immediately upon the
merger or sale of substantially all of its business or assets to
which this Agreement pertains to a direct competitor of AZ in the
field of drug discovery.
21.4. This Agreement will be governed by the laws of the State of New
Jersey (excluding the principles of conflict of laws and the 1980 UN
Convention on Contracts for the International Sale of Goods).
21.5. In the event that either party is prevented from performing or is
unable to perform any of its respective obligations under this
Agreement due to any act of God, fire, casualty, flood, war, strike,
lockout, failure of public utilities, injunction; or any act,
exercise, assertion or requirement of governmental authority,
epidemic, destruction of production facilities, riots, insurrection,
inability to procure or use materials, labor, equipment,
transportation or energy; or any other cause beyond the reasonable
control of a party, such party will give notice to the other party
in
20
writing promptly, and if the affected party will have used its
commercially reasonable best efforts to avoid such occurrence, its
performance will thereafter be excused and the time for performance
will be extended for the period of delay or inability to perform due
to such occurrence.
21.6. Any notice required or permitted under this Agreement will be deemed
to have been sufficiently provided, and effective on the date of
receipt, if sent by facsimile and either hand-delivered or sent by
overnight express courier (e.g. Federal Express) and addressed to
the receiving party at its respective address as follows:
If to AZ:
AstraZeneca UK Limited
00 Xxxxxxxx Xxxx
Xxxxxx
X0X 0XX
Xxxxxx Xxxxxxx
With a copy to:
AstraZeneca UK Limited
Xxxxxxxx Xxxxx, Xxxxxxxx Xxxx
Xxxxxxxxxxxx, Xxxxxxxx
XX00 0XX
Xxxxxx Xxxxxxx
Attn: Legal Department
If to Orchid:
Orchid BioSciences, Inc.
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxx Xxxx, Esq.
With a copy to:
Kalow & Springut LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
21
or such other address as is provided pursuant to this Section.
21.7. The relationship of Orchid and AZ under this Agreement is that of
independent contractors. The provisions of this Agreement will not
be construed to create between Orchid and AZ the relationship of
principal and agent, joint venturers, co-partners or any other
similar relationship, the existence of which is hereby denied by
Orchid and AZ. Orchid is not an agent for AZ and AZ is not an agent
for Orchid for any purpose whatsoever and each party has no right or
authority to assume or create any obligations, express or implied,
on behalf or in the name of the other party.
21.8. Neither party will be liable in any way for any engagement,
obligation, liability, contract, representation or warranty of the
other party to or with any third party.
21.9. If any provision of this Agreement is held to be invalid, illegal,
unenforceable or void, such provision will be without effect on the
validity, legality and enforceability of the remaining provisions or
this Agreement as a whole. Both parties will endeavor to replace the
invalid, illegal, unenforceable or void provision with a valid and
enforceable one that in its equitable effect is most consistent with
the prior provision.
21.10. No amendment, variation, waiver or modification of any of the terms
or provisions of this Agreement will be effected unless set forth in
writing, specifically referencing this Agreement, and duly signed by
an authorized officer of the party to be bound thereby.
21.11. The section and paragraph headings and numbering are for
convenience only and cannot have any effect on the interpretation or
construction of this Agreement.
21.12. Each party acknowledges and agrees that (i) this Agreement together
with the attached Schedules constitutes the complete and exclusive
understanding between the parties, which supersedes and merges all
prior proposals, term sheets, understandings and all other
agreements, oral and written, between the parties regarding the
subject matter of this Agreement; and (ii) no party has relied on
any representation not expressly set forth or referred to in this
Agreement.
21.13. This Agreement may be executed in two or more counterparts, all of
which constitute one and the same legal instrument.
22
21.14 Each Party acknowledges and agrees that: (i) its counsel reviewed
and negotiated the terms and conditions of this Agreement and have
contributed to its revision; (ii) it understands and agrees to be
bound by the terms and conditions of this Agreement; (iii) the rule
of construction to the effect that any ambiguities are resolved
against the drafting party will not be employed in the
interpretation of this Agreement; and (iv) the terms and provisions
of this Agreement will be construed fairly as to all parties hereto
and not in a favor of or against any party, regardless of which
party was generally responsible for the preparation of this
Agreement.
21.15 AZ and Orchid agree to execute, acknowledge, and deliver such
further instruments and do all other such acts as may be necessary
or appropriate to effect the purpose and intent of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective
Date.
ASTRAZENECA UK LIMITED ORCHID BIOSCIENCES, INC.
By: /s/ Xxxx Xxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- --------------------------
Title: Authorized Signatory Title: SVP, COO & CFO
-------------------------- ------------------------
23
SCHEDULE A
DNA Sample Criteria
Include all specifications and other requirements for properly obtained samples
24
SCHEDULE B
Workplans for Genotyping Studies
(TBD by JSC)
cannot be included
25
Schedule C
Sample Press Release
26
