EXHIBIT 10.19
***** Confidential Treatment has been requested for portion of this agreement.
The copy file herewith omits information subject to the confidentiality request.
Omissions are designated as [*****]. A complete version of this agreement has
been filed separately with the Securities and Exchange Commission.
DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT
This Data Analysis Products Development and Distribution Agreement
("Agreement") is made this 16th day of August, 2000 (the "Effective Date") by
and between Amersham Pharmacia Biotech Inc., a Delaware corporation, with an
office at 800 Centennial Avenue, Piscataway, New Jersey 08855 ("APB") and
InforMax, Inc., a Delaware corporation, with an office at 6010 Executive
Boulevard, Rockville, Maryland 20852 ("InforMax"). APB and InforMax shall each
individually be referred to as "Party" and collectively as the "Parties."
SECTION 1 - DEFINITIONS
The following terms and any other terms defined in this Agreement shall
have the meaning associated therewith, whether such term is used in the singular
or plural form.
1.1 BIOTECH MARKET. "Biotech Market" shall mean any life sciences or
biotechnology company whose principal place of business is located in North
America or Western Europe that is not ranked among the top fifty (50) life
sciences and biotechnology companies as ranked by revenues at the end of each
calendar year. The parties shall mutually agree upon a source that publishes the
revenue rankings of life sciences and biotechnology companies for purposes of
this Section 1.1.
1.2 BUSINESS INFORMATION AGREEMENT. "Business Information Agreement" shall
mean the agreement between APB and InforMax for the development and license of
the Espresso platform and any other platform the Parties agree upon.
1.3 DATA ANALYSIS PRODUCTS. "Data Analysis Products" shall mean the
software products developed by InforMax substantially in accordance with the
Specifications, and acceptance test criteria set forth in Exhibit A attached
hereto and incorporated herein by reference. The functionality of the Data
Analysis Products shall include, but not be limited to, the following: [*****]
The Data Analysis Products will consist of the Jointly Developed Code (as
defined below) combined with the InforMax Software.
1.4 END USERS. "End Users" shall mean the external end users of the Data
Analysis Products.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 1
<PAGE>
1.5 INFORMAX SOFTWARE. "InforMax Software" shall mean the software
identified on Exhibit B attached hereto and incorporated by reference.
1.6 JOINTLY DEVELOPED CODE. "Jointly Developed Code" shall mean the
computer code created by InforMax pursuant to Exhibit A.
1.7 LIFE SCIENCES MARKET. "Life Sciences Market" shall mean (i) any life
sciences or biotechnology company whose principal place of business is located
in North America or Western Europe and is ranked in the top fifty (50) life
sciences and biotechnology companies as ranked by revenues at the end of each
calendar year, and (ii) any life sciences or biotechnology company whose
principal place of business is located outside of North America and Western
Europe. The parties shall mutually agree upon a source that publishes the
revenue rankings of life sciences and biotechnology companies for purposes of
this Section 1.7.
1.8 MAINTENANCE. "Maintenance" shall mean those services provided pursuant
to Sections 5.4, 5.5, 5.6 and 5.7.
1.9 MAINTENANCE FEES. "Maintenance Fees" shall mean the fees paid by an End
User for all Maintenance.
1.10 NORTH AMERICA. "North America" shall mean the United States and
Canada.
1.11 SPECIFICATIONS. "Specifications" shall mean the technical requirements
for the Data Analysis Products set forth in Exhibit A.
1.12 SUBSIDIARY. A "Subsidiary" shall mean any corporation or entity that
is owned or controlled by APB and/or its parent corporation. Except as set forth
in Section 3.1(a), to be owned means that at least twenty percent (20%) of all
equity interests in the subsidiary corporation or subsidiary entity are
beneficially owned by APB and/or its parent corporation. To be controlled means
that APB and/or its parent has the right and authority to appoint and direct the
management of the Subsidiary corporation or Subsidiary entity.
1.13 WESTERN EUROPE. "Western Europe" shall mean the United Kingdom,
Ireland, France, Germany, Spain, Portugal, Italy, Switzerland, Austria, Sweden,
Finland, Norway, Denmark, The Netherlands, Belgium, Greece, Iceland, Luxemberg
and Liechtenstein.
SECTION 2 - DEVELOPMENT AND DELIVERY
2.1 DEVELOPMENT OF DATA ANALYSIS PRODUCTS. InforMax shall use commercially
reasonable efforts to develop the Data Analysis Products in accordance with the
Specifications. The development of the Data Analysis Products will include the
development of the Jointly Developed Code combined with the InforMax Software.
In the event that InforMax does not use commercially reasonable efforts to
develop the Data Analysis Products, APB shall have the right to terminate this
Agreement immediately without penalty to InforMax and shall also have the right
to seek all available legal and equitable remedies.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 2
<PAGE>
2.2 SPECIFICATIONS DEVELOPMENT. The Parties hereby acknowledge that Exhibit
A attached hereto is not in final form. Upon execution of this Agreement, the
Parties shall use commercially reasonable efforts to complete Exhibit A within
one hundred eighty (180) days following the Effective Date. The parties hereby
agree that Exhibit A shall include the Specifications, schedules, milestones,
completion dates and acceptance testing criteria applicable to the Data Analysis
Products.
2.3 PROCESS DEVELOPMENT. Simultaneously with the preparation and completion
of Exhibit A, the Parties shall use commercially reasonable efforts to establish
mutually agreed upon procedures and guidelines for the development process
within one hundred eighty (180) days following the Effective Date.
2.4 DOCUMENTATION. The Data Analysis Products will include that
documentation developed by InforMax for use by End Users with the Data Analysis
Products. Such documentation shall hereinafter be referred to as the
"Documentation." All references in this Agreement to Data Analysis Products
shall also apply to the Documentation to the extent that the context reasonably
permits.
2.5 DELIVERY. Within thirty (30) days of the Effective Date, InforMax shall
deliver to APB the currently existing development platform documentation as
described on Exhibit A attached hereto, and within one hundred and eighty (180)
days thereafter the Parties shall identify all modifications to such development
platform documentation, and all additional platform documentation, which must be
provided to APB on such milestone dates as the Parties shall mutually agree
within the same hundred and eighty (180) days. In any event, upon a request by
APB any time after December 31, 2001, InforMax shall promptly deliver to APB all
available development platform documentation. After completion of the
development of the Data Analysis Products, InforMax shall deliver copies of the
Data Analysis Products, including the source code to the Jointly Developed Code,
to APB for acceptance testing pursuant to Section 4.
2.6 OWNERSHIP.
(a) DATA ANALYSIS PRODUCTS AND JOINTLY DEVELOPED CODE. InforMax and APB
shall jointly own all right, title and interest in and to the Data Analysis
Products and the Jointly Developed Code, and all intellectual property rights
associated therewith, including but not limited to patents, copyrights, know-how
and trade secrets, and each Party shall take all steps necessary to vest and
perfect such title in the other, regardless of whether any work or invention was
authored or developed solely by one party hereunder. Each Party's right, if any,
to license, distribute, use, copy and modify the Data Analysis Products and to
any compensation as a result of the other Party's transfer, sale or other
exploitation of the Data Analysis Products, shall be determined solely by this
Agreement. InforMax agrees that it shall use the Data Analysis Products and any
rights thereto solely for the purposes of carrying out this Agreement, provided,
however, that subject to Section 5.9, nothing herein shall limit or in any way
restrict InforMax's right, title or use of InforMax Software or any other
know-how arising out of this Agreement or any intellectual property rights
therein.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 3
<PAGE>
(b) INFORMAX SOFTWARE. APB agrees and acknowledges that InforMax and
its suppliers are, and shall remain, the owners of all right, title and interest
in and to the InforMax Software, including all documentation, enhancements and
updates thereto and all intellectual property rights therein, and that APB and
its Subsidiaries and its Resellers (as defined below) shall not obtain or claim,
pursuant to this Agreement or its rights granted hereunder, any ownership
interest in the InforMax Software or any documentation, enhancements or updates
thereto, or any intellectual property rights therein.
(c) APB SOFTWARE. InforMax acknowledges that APB may, during the term
of this Agreement provide InforMax with certain APB proprietary software. In the
event that APB does provide InforMax with any APB proprietary software, InforMax
acknowledges that APB shall remain the owner of all right, title and interest in
and to such APB proprietary software, including all documentation, enhancements
and updates thereto and all intellectual property rights therein, and InforMax
shall not claim any ownership interest in such APB proprietary software.
SECTION 3 - USE, DISTRIBUTION AND SUBLICENSING OF DATA ANALYSIS PRODUCTS
3.1 LICENSE GRANTS.
(a) INTERNAL USE LICENSE. InforMax hereby grants to APB and its
Subsidiaries during the term of this Agreement a world-wide, royalty free,
transferable (only to the extent permitted by Section 13.3 herein) license to
use InforMax's GenoMax software as part of the Data Analysis Products at such
sites and facilities owned or controlled by APB or its Subsidiaries
(hereinafter, the "Internal Use License"). InforMax shall provide Maintenance to
APB at no cost in connection with the Internal Use License pursuant to
InforMax's then-current Maintenance plan. The Internal Use License is restricted
to internal use by APB and its Subsidiaries. APB and its Subsidiaries shall be
permitted to make a limited number of copies of the InforMax GenoMax software as
reasonably necessary to exercise the Internal Use License and for back-up or
archival purposes. For purposes of this Section 3.1(a) only, "Subsidiary" shall
mean an entity of which APB owns greater than a fifty percent (50%) equity
interest.
(b) APB DISTRIBUTION LICENSE. Subject to the terms and conditions set
forth in this Agreement, InforMax hereby grants APB and its Subsidiaries during
the term of this Agreement, a world-wide exclusive, transferable (only to the
extent permitted by Section 13.3 herein) right and license to (i) distribute and
sublicense, directly or indirectly through Resellers (as defined below) to End
Users, the InforMax Software solely in bundled form with the Data Analysis
Products; (ii) to demonstrate, market, advertise and promote to prospective End
Users the InforMax Software solely in bundled form with the Data Analysis
Products; and (iii) make a reasonable number of copies of the Data Analysis
Products and use such copies in accordance with the terms set forth herein.
"Resellers" shall mean any distributors, dealers and retailers of APB.
(c) INFORMAX TRADEMARK LICENSE. Subject to InforMax's standard
trade-mark usage guidelines, which InforMax may amend from time to time in its
sole discretion,
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 4
<PAGE>
InforMax hereby grants to APB the right to use and display the trademarks,
tradenames, service marks and logos set forth on Exhibit C attached hereto and
incorporated herein by reference (the "Marks"), solely in connection with
discharging its rights and obligations under this Agreement. APB and its
Subsidiaries and Resellers shall be obligated to use the Marks in its
performance hereunder, including but not limited to, its distribution
obligations set forth in 3.1(b) above. APB and its Subsidiaries and Resellers
shall not use the Marks, or any other trademarks, service marks, logos or
tradenames of InforMax, or any word, symbol or design confusingly similar
thereto, as part of its corporate name, or as part of the name of any product of
APB or it Subsidiaries.
(d) APB TRADEMARK LICENSE. To the extent necessary and subject to APB's
standard trademark usage guidelines which APB may amend from time to time in its
sole discretion, and once the parties have agreed upon a marketing plan and
budget pursuant to Section 5.8(a), APB shall grant to InforMax the right to use
and display such trademarks, tradenames, service marks and logos of APB that are
reasonably necessary in connection with discharging its rights and obligations
under this Agreement. InforMax shall not use any trademarks, tradenames, service
marks and logos of APB, or any word, symbol or design confusingly similar
thereto, as part of its corporate name, or as part of the name of any product of
InforMax or its subsidiaries.
3.2 RESTRICTIONS. The rights and licenses granted to APB and its
Subsidiaries and Resellers in Section 3.1 above shall be limited as follows:
(a) APB and/or its Subsidiaries and Resellers may not in any way sell,
lease, rent, license, sublicense or otherwise distribute the InforMax Software
or the Data Analysis Products, or any part thereof, to any person or entity
except in bundled form as the Data Analysis Products.
(b) APB and/or its Subsidiaries and Resellers shall not re-brand or
private label the InforMax Software.
(c) APB and/or its Subsidiaries and Resellers shall not disassemble,
decompile or otherwise reverse engineer the InforMax Software or otherwise
attempt to learn the source code, structure, algorithms or ideas underlying the
InforMax Software or knowingly allow any third parties to do so.
3.3 COPYING AND PRODUCTION. InforMax shall provide five (5) master copies
of the Data Analysis Products to APB. APB will use the master copies to make
copies of the Data Analysis Products as permitted for distribution,
demonstration, advertising, and marketing pursuant to this Agreement. APB shall
also have the right to make a reasonable number of copies of the Data Analysis
Products for back-up and archival purposes. APB shall bear all costs of
production, distribution, media, printing, and packaging.
3.4 END USER LICENSE AGREEMENT. APB acknowledges and agrees that APB must
grant each End User a license to use the Data Analysis Products and that each
End User must execute a written end user license agreement with APB to use the
Data Analysis Products (the
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 5
<PAGE>
"End User License Agreement"). The End User License Agreement will be consistent
with the terms and conditions of this Agreement and will include such terms and
conditions as are customary for the protection of similar software products and
shall include all necessary terms and conditions reasonably required by InforMax
to adhere to its revenue recognition policies and procedures. In addition, the
End User License Agreement shall state that (i) InforMax is the owner of the
InforMax Software; (ii) InforMax is the co-owner of the Data Analysis Products;
and (iii) InforMax is a third party beneficiary under the End User License
Agreement and that InforMax shall have the right to enforce the End User License
Agreement to the extent necessary or appropriate to protect its proprietary
rights in the InforMax Software and the Data Analysis Products. APB hereby
covenants that the obligations set forth in this Section 3.4 shall also apply to
Resellers and that APB shall require all Resellers to comply with this Section
3.4.
SECTION 4 - ACCEPTANCE
4.1 ACCEPTANCE PERIOD. APB may test each Data Analysis Product for a thirty
(30) day period beginning on the date of receipt by APB from InforMax (the
"Acceptance Period"). APB may reject each delivered Data Analysis Product within
the Acceptance Period due to the failure of such Data Analysis Product to
materially perform in accordance with the acceptance criteria set forth in
Exhibit A. Acceptance of each delivered Data Analysis Product ("Acceptance")
will be effective on the earliest to occur of the following: (1) provision by
APB of a notice of acceptance, or (2) failure of APB to accept or reject each
delivered Data Analysis Product within the Acceptance Period.
4.2 REJECTION. If any Data Analysis Product is rejected by APB pursuant to
Section 4.1, InforMax will have thirty (30) days from receipt of such notice of
rejection to correct any non-conformities and APB will then have a new
acceptance period of thirty (30) days from the receipt of the corrected copy of
such Data Analysis Product to test such corrected copy in accordance with
Section 4.1 above. In the event that APB rejects any Data Analysis Product more
than three (3) times, a representative from the senior management of each Party
shall meet and attempt to devise a mutual resolution regarding any outstanding
non-conformities within five (5) days after the third rejection. In the event
such senior managers are unable to resolve any outstanding non-conformities
within ten (10) days after such meeting, this Agreement may be terminated by
either Party without penalty to the other Party. InforMax acknowledges and
agrees that in the event of termination pursuant to this Section 4.2, APB shall
have the right to pursue any remedies it may have in law or equity for
InforMax's failure to use commercially reasonable efforts to develop any Data
Analysis Product; APB acknowledges and agrees that in the event of termination
pursuant to this Section 4.2, InforMax shall have the right to pursue any
remedies it may have in law or equity if APB rejects any Data Analysis Product
on grounds other than those permitted by this Agreement.
SECTION 5 - END USER SERVICES/DISTRIBUTION EFFORTS
5.1 TRAINING OF APB REPRESENTATIVES.
(a) INITIAL TRAINING. InforMax will provide, at no additional charge,
initial training to APB which shall consist of training including, but not
limited to, the use and
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 6
<PAGE>
troubleshooting of the Data Analysis Products. Such initial training shall be
conducted in Sunnyvale (California, USA), Cardiff (Wales, UK) and Uppsala
(Sweden) and shall take place over a period of up to two (2) weeks at each
location. The initial training may be attended by a combined total of up to
sixty (60) employees of APB.
(b) PLACEMENT. At APB's request, InforMax will place up to two (2)
InforMax employee programmers from InforMax's research and development group of
an appropriate skill level and who are reasonably acceptable to APB at APB's
Sunnyvale site for up to four (4) months. Such employees shall not include any
member of InforMax' field and/or technical support group located in California.
Such employees may also provide services to APB under the Business Information
Agreement. For avoidance of doubt, InforMax will only have to place two (2)
employees total under both this Agreement and the Business Information Agreement
at the APB site in California.
5.2 PROJECT COMMITTEE. APB and InforMax will form a "Project Committee"
comprised of one (1) senior manager from each Party's technical support team.
Commencing upon execution of this Agreement, the Project Committee will meet on
a monthly basis, either in person at a site to be agreed upon by the Parties or
via teleconference, for the primary purpose of ensuring timely development of
the Data Analysis Products and coordinating the End User services. On an annual
basis, the APB Project Committee member will provide the InforMax Project
Committee member a proposed draft of the development plan and the products that
it proposes to be developed during the upcoming year. The Parties shall then
mutually agree upon a final draft of such development plan, which shall set
forth the obligations of each Party for such development.
5.3 CUSTOMER CONTRACTS; END USER MAINTENANCE. The contractual customer
relationships related to the Data Analysis Products and the Maintenance thereto
shall be between APB and the End User. APB will provide InforMax the relevant
information for each End User (e.g., End User name, address, and types of
service requested). The following services will be made available to End Users
at InforMax's then-current rates with no royalty obligations to APB:
(a) INSTALLATION, IMPLEMENTATION AND INTEGRATION. InforMax, at APB's
request, will provide installation, implementation and integration of the Data
Analysis Products for the End User.
(B) TRAINING OF END USERS. InforMax, at APB's request, will provide
reasonable training to End Users regarding the use and functionality of the Data
Analysis Products.
(C) OTHER SERVICES. The End User may request APB to perform other
professional services regarding the Data Analysis Products. In the event APB
does not perform such services, it will give InforMax a right of first refusal
to perform such services.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 7
<PAGE>
5.4 BACK-UP TECHNICAL SUPPORT.
(a) SUPPORT OBLIGATIONS. Each Party will provide support as follows:
(i) APB will provide End Users first line technical phone support for the Data
Analysis Products and such telephone support will be available during the hours
of 9 a.m. to 5 p.m. (Eastern Standard Time) from Monday to Friday, excluding
APB's company holidays; and (ii) InforMax shall provide back-up technical
support to APB with respect to the Data Analysis Products. This back-up
technical support will be available during the hours of 9 a.m. to 5 p.m.
(Eastern Standard Time) from Monday to Friday, excluding InforMax's company
holidays. The back-up technical support will be provided to APB through
telephone, e-mail and other appropriate means of communication. Back-up
technical support also includes those services set forth in Section 5.4(b)
below.
(b) ERRORS. An "Error" means a programming error or defect in the Data
Analysis Products that causes the Data Analysis Products to malfunction or
produce erroneous results. A "Critical Error" means an Error that, despite
implementation of work-around solutions, if any, provided by InforMax, causes
the Data Analysis Products to crash or that otherwise adversely affects an End
User to the extent that the Data Analysis Products is not useable by the End
User. A "non-Critical Error" is any Error other than a Critical Error. In the
event that a Critical Error is reported by APB to InforMax, InforMax shall
respond to APB regarding the Critical Error as follows:
(i) Within one (1) business day, InforMax will respond to the
call or other communication reporting the Critical Error and an InforMax support
person will be assigned to diagnosis or troubleshoot the Critical Error.
Diagnosis or troubleshooting will begin at this time.
(ii) Within three (3) business days, an InforMax programmer will
begin creating a patch, fix or other correction to address the Critical Error.
However, if the diagnosis or troubleshooting has not yet adequately identified
and revealed the nature of the Critical Error, InforMax may delay the creation
of a patch, fix or other correction as necessary, provided that InforMax remain
diligent in the diagnosis and troubleshooting of the Critical Error.
(iii) InforMax may provide temporary work-around solutions prior
to providing a permanent patch, fix or correction. If a temporary work-around
solution causes a Critical Error to become a non-Critical Error, then the Error
shall thereafter be governed as a non-Critical Error.
(iv) If a visit to an End User site is reasonably required to
diagnose or troubleshoot the Critical Error or for a patch, fix, or other
correction to the Critical Error, then InforMax shall send support personnel to
the End User site.
Non-Critical Errors shall be addressed by InforMax in the normal course of
maintenance as provided under Section 5.5 below.
5.5 ERROR CORRECTION. InforMax shall provide Error Corrections for the Data
Analysis Products. "Error Corrections" shall consist of: (a) the correction of
Errors that cause the Data Analysis Products to malfunction or produce erroneous
results, and/or (b) the provision of
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 8
<PAGE>
reasonable work-around solutions for such Errors. Error Correction does not
include any right to new or different features or functionality.
5.6 UPDATES. InforMax will provide to End Users updates, fixes or revisions
pursuant to Section 5.5 for use with the Data Analysis Products ("Updates"). Any
Updates shall be governed by this Agreement as Data Analysis Products and all
references in this Agreement to Data Analysis Products will include such
Updates.
5.7 UPGRADES. If and when InforMax upgrades the InforMax Software, InforMax
will upgrade the Data Analysis Products as necessary by replacing the outdated
InforMax Software in the Data Analysis Products with the new version of the
InforMax Software and by making such changes and enhancements to and
replacements of the Jointly Developed Code ("Upgraded Jointly Developed Code")
as are necessary to make the Jointly Developed Code compatible and useful with
the new version of the InforMax Software. An upgrade to the InforMax Software
means a new version of the InforMax Software which is characterized by new
features or functionality or other improvements and which is designated by
InforMax with a new version number (a new version will be software that has a
numerical change on the left side of the decimal of the version number (e.g.,
version 1.0 to version 2.0)). The corresponding upgrades to Data Analysis
Products are referred to as "Upgrades." Any Upgrades shall be governed by this
Agreement as Data Analysis Products and all references in this Agreement to Data
Analysis Products will include such Upgrades. All references in this Agreement
to InforMax Software will include such upgraded InforMax Software. Any Upgraded
Jointly Developed Code shall be governed by this Agreement as Jointly Developed
Code and all references in this Agreement to Jointly Developed Code will include
such Upgraded Jointly Developed Code.
5.8 DISTRIBUTION OBLIGATIONS FOR THE DATA ANALYSIS PRODUCTS.
(a) APB MARKETING BUDGET. Within one hundred eighty (180) days of the
Effective Date, and on an annual basis each year thereafter, the Parties shall
mutually agree upon a marketing plan and budget that sets forth APB's
anticipated marketing obligations and the amount of funds it shall dedicate to
its performance hereunder for each upcoming year. APB shall use commercially
reasonable efforts to implement such marketing plan and budget on an annual
basis. In the event that APB does not use commercially reasonable efforts to
implement the marketing and budget plan in any given year, InforMax shall have
the right to terminate this Agreement immediately without penalty to APB, its
Subsidiaries or Resellers and shall also have the right to seek all available
legal and equitable remedies.
(b) MARKETING COMMITTEE. APB and InforMax will also form a "Marketing
Committee" comprised of one (1) senior manager from each Party's sales and
marketing team. Commencing at least two (2) months prior to launch date of the
first Data Analysis Product, the Marketing Committee will meet on a monthly
basis, whether in person at a site to be agreed upon by the Parties or via
teleconference, for the primary purpose of discussing marketing and sales
channel strategies. The parties shall also agree on how each respective Party's
sales organization shall staff End User accounts and all potential new accounts,
and the procedure for APB to register and qualify prospects. For purposes of
Section 6.2(b) and 6.3(b) APB shall have registered a prospect if APB makes a
formal presentation to a prospective End User regarding a
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 9
<PAGE>
license for the Data Analysis Products. InforMax hereby agrees that it will
provide to APB all assistance reasonably necessary for APB and its Subsidiaries
and Resellers to market and promote the Data Analysis Products including, but
not limited to, assisting APB with lead generation, presentations and
demonstrations.
5.9 NON-SOLICITATION. The Parties hereby agree that once either of the
Parties has made an initial formal presentation to a prospective End User
regarding the licensing of the Data Analysis Products, each Party shall refrain
from offering to such prospective End User its own products and services on a
stand-alone basis until the earlier of: (i) the date upon which such prospective
End User notifies either Party that it is not interested in licensing the Data
Analysis Products, or (ii) six (6) months from the date that either Party made
such initial formal presentation to such prospective End User regarding the Data
Analysis Products.
SECTION 6 - PAYMENTS
6.1 LICENSE FEES. During the term of this Agreement, APB shall pay to
InforMax the non-refundable license fees and Maintenance Fees in accordance with
the amounts set forth in Sections 6.2 and 6.3 below and pursuant to the other
terms and conditions set forth in this Section 6. All payments owed to InforMax
by APB shall be made within fifteen (15) days after the last day of each
calendar quarter in which the End User has executed the End User License
Agreement, provided, however, that if an End User breaches the End User License
Agreement and does not pay APB, APB shall not be obligated to pay InforMax. For
purposes of this Section 6, "net license fees and Maintenance Fees" means the
license fees and Maintenance Fees owed by an End User for the Data Analysis
Products excluding taxes and freight.
6.2 LIFE SCIENCES MARKET.
(a) For every license to the Data Analysis Products granted by APB, its
Subsidiaries and Resellers to End Users in the Life Sciences Market, APB shall
pay InforMax sixty percent (60%) of the net license fees and Maintenance Fees
(to be paid at the time of the license grant) owed by each End User for the Data
Analysis Products pursuant to such transaction.
(b) In the event that an End User in the Life Sciences Market decides
not to license the Data Analysis Products, but does license the InforMax
Software on a standalone basis directly from InforMax, InforMax shall pay APB a
fifteen percent (15%) of the net license fee paid to InforMax for such
standalone license. Such payment shall be made to APB within fifteen (15) days
after the last day of each calendar quarter in which a software license
agreement has been executed for such standalone license, provided that APB has
registered such End User as a prospect in accordance with the criteria
established by the Parties pursuant to Section 5.8(b).
6.3 BIOTECH MARKET.
(a) For every license to the Data Analysis Products granted by APB, its
Subsidiaries and Resellers to End Users in the Biotech Market, APB shall pay
InforMax eighty percent (80%) of the net license fees and Maintenance Fees (to
be paid at the time of the license grant) owed by each End User for the Data
Analysis Products pursuant to such transaction.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 10
<PAGE>
(b) In the event that an End User in the Biotech Market decides not to
license the Data Analysis Products, but does license the InforMax Software on a
standalone basis directly from InforMax, then InforMax shall pay APB ten percent
(10%) of the net license fee paid to InforMax for such standalone license. Such
payment shall be made to APB within fifteen (15) days after the last day of each
calendar quarter in which a software license agreement has been executed for
such standalone license, provided that APB has registered such End User as a
prospect in accordance with the criteria established by the Parties pursuant to
Section 5.8(b).
6.4 ANNUAL MAINTENANCE PAYMENTS. APB shall also be required to pay InforMax
all recurring annual Maintenance Fees paid by each End User pursuant to the
percentage amounts set forth in Sections 6.2 and 6.3 above. Such payments shall
be paid within fifteen (15) days after the last day of each calendar quarter in
which such annual Maintenance Fees were paid by the End User.
6.5 MINIMUM PAYMENT AMOUNTS. The royalty base (i.e. the base amount on
which license fees and Maintenance Fees will be paid) used for computing the
license fees and Maintenance Fees to be paid by APB to InforMax pursuant to
Sections 6.2 (a) and 6.3 (a) shall in no event be less than eighty five percent
(85%) of the then-current suggested list price for the Data Analysis Products,
except that APB shall be entitled during the term of this Agreement to apply a
royalty base of less than eighty five percent (85%) in up to three (3) separate
transactions in which APB has granted discounts greater than fifteen percent
(15%) to the End User. In connection with any of the aforementioned three (3)
exempt transactions, the applicable royalty base shall be the then-current
suggested list price minus the discount granted by APB, provided however, that
in the event of a transaction in which the Data Analysis Products are bundled
with APB products or services other than the Data Analysis Products, the
discount to be deducted can not be greater than any discount granted to the End
User with respect to the bundled APB products or services.
6.6 TAXES. APB agrees to bear and be responsible for the payment of all
federal, state, local and foreign taxes, levies and assessments that arise under
this Agreement, excluding any taxes based on InforMax's net income.
6.7 REPORTS. Within sixty (60) days following the close of each calendar
quarter, APB shall provide InforMax with a written report showing the revenues
attributable to the Data Analysis Products for such quarter and the amount of
and Maintenance Fees payable to InforMax with respect thereto. Such reports
shall also specify the amount of revenues generated by each of APB, its
Subsidiaries and its Resellers related to the Data Analysis Products. If there
are no revenues in a calendar quarter, the report shall so state.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 11
<PAGE>
6.8 EXAMINATIONS AND AUDITS.
(a) AUDIT BY INFORMAX. Not more than once per calendar year, upon the
written request of InforMax and, except as otherwise provided below, at
InforMax's expense, APB shall allow the books and records related to Data
Analysis Products of APB and its Subsidiaries to be examined and audited by a
reputable accounting firm selected by InforMax that is reasonably acceptable to
APB for the purpose of determining APB's compliance with its payment obligations
pursuant to this Section 6; provided, however, that APB receives at a minimum
two (2) weeks prior written notice, the audit takes place during normal business
hours and the auditors agree to keep such books and records confidential except
for reasonable disclosures to InforMax in describing any noncompliance of APB or
as needed by InforMax in enforcing this Agreement in the event of such reported
noncompliance. In the event that any such examination or audit shall determine
that payments actually paid during any period were less than 95% of the amount
properly payable, APB shall pay the reasonable expenses actually incurred by
InforMax in connection with such audit, in addition to paying all previously
unpaid payments. InforMax and its representatives shall not use or disclose to
any third parties the contents of such books and records except as reasonably
necessary if there is a breach of this Agreement.
(b) AUDIT BY APB. Not more than once per calendar year, upon the
written request of APB and at APB's expense, InforMax shall allow the books and
records of InforMax related to payment obligations set forth in Sections 6.2(c)
and 6.3(c) to be examined and audited by a reputable accounting firm that is
reasonably acceptable to InforMax; provided, however, that InforMax receives at
a minimum two (2) weeks prior written notice, the audit takes place during
normal business hours and the auditors agree to keep such books and records
confidential except for reasonable disclosures to APB in describing any
noncompliance of InforMax or as needed by APB in enforcing this Agreement in the
event of such reported noncompliance.
6.9 LICENSES TO UNNAMED END USERS. In the event that APB or its
Subsidiaries or Resellers desire to license the Data Analysis Products to a
prospective End User that is not in the Life Sciences Market or the Biotech
Market, then the Parties shall mutually agree upon the terms and conditions for
such desired license on a case-by-case basis.
SECTION 7 - INDEMNIFICATION
(a) INTELLECTUAL PROPERTY RIGHTS INDEMNIFICATION. Subject to the
limitations set forth below, InforMax shall indemnify, defend and hold harmless
APB, its Subsidiaries and the End Users from and against all actions, damages,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, arising from any third party claim that use of the InforMax Software,
the Marks and/or the Data Analysis Products, and any maintenance services
related thereto, infringes any existing United States patent, copyright,
trademark or trade secret.
(b) INTELLECTUAL PROPERTY RIGHTS EXCLUSIONS. InforMax shall have no
indemnification obligation under Section 7(a) or other liability for any
infringement claim resulting or alleged to result from: (1) use of the Data
Analysis Products or InforMax Software in combination with any equipment,
software or data not approved for use by InforMax to the extent such combined
use is directly the cause of the infringement; (2) use of the Data Analysis
Products or InforMax Software in any manner for which the Data Analysis Products
or InforMax
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 12
<PAGE>
Software was not designed; (3) modification of the InforMax Software or Data
Analysis Products by any party other than InforMax or InforMax's agent; or (4)
the indemnified party's continued use of the allegedly infringing item after
being notified thereof or after being informed and provided with modifications
that would have avoided the alleged infringement.
(c) INFRINGEMENT REMEDIES. In the event of an infringement claim
relating to the Data Analysis Products or InforMax Software as described in
Section 7(a) above arises, or if InforMax reasonably believes that a claim is
likely to be made, APB must discontinue use, distribution, marketing and copying
of the infringing portion of the Data Analysis Products and InforMax Software
when InforMax so requests in writing, provided that InforMax has made reasonable
efforts to: (i) modify the InforMax Software or Data Analysis Products so that
it becomes non-infringing but functionally equivalent; (ii) replace the InforMax
Software or Data Analysis Products with material that is non-infringing but
functionally equivalent; or (iii) obtain for the indemnified party the right to
use the InforMax Software or Data Analysis Products.
(d) PERSONAL INJURY AND PROPERTY DAMAGE INDEMNITY. Each Party shall
indemnify, defend and hold harmless the other Party and its subsidiaries from
and against all actions, damages, liabilities, costs and expenses, including
reasonable attorneys' fees and expenses, arising from any third party claim for
bodily injury or damage to real or tangible personal property to the extent
caused by the gross negligence or willful misconduct of the indemnifying party
or its employees or agents.
(e) APB INDEMNITY. APB shall indemnify, defend and hold harmless
InforMax and its subsidiaries from and against all actions, damages,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, arising from any third party claim related to APB's and/or its
Subsidiaries' or Resellers' distribution, marketing or use of the InforMax
Software and Data Analysis Products, other than claims described in 7(a) above.
(f) INFORMAX INDEMNITY InforMax shall indemnify, defend and hold
harmless APB and its Subsidiaries from and against all actions, damages,
liabilities, costs and expenses, including reasonable attorney's fees and
expenses, arising from any third party claim related to InforMax's and/or its
subsidiaries' Maintenance in respect of the InforMax Software and Data Analysis
Products, other than claims described in 7(a) above.
(g) INDEMNIFICATION PROCEDURES. The obligations to indemnify, defend
and hold harmless set forth above in Sections 7(a) and 7(e) will not apply
unless the indemnified party (i) promptly notifies the indemnifying party of any
matters in respect of which the indemnity may apply and of which the indemnified
party has knowledge; (ii) gives the indemnifying party full opportunity to
control the response thereto and the defense thereof, including any agreement
relating to the settlement thereof, provided that the indemnifying party shall
not settle any such claim or action without the prior written consent of the
indemnified party (which shall not be unreasonably withheld or delayed); and
(iii) cooperates with the indemnifying party, at the indemnifying party's cost
and expense, in the defense or settlement thereof. The indemnified party may
participate, at its own expense, in such defense and in any settlement
discussions directly or through counsel of its choice on a monitoring,
non-controlling basis.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 13
<PAGE>
SECTION 8 - WARRANTIES
8.1 NO CONFLICT. Each Party represents and warrants that it has the right
and power to enter into this Agreement and that this Agreement does not
materially conflict with any existing obligation of the Party.
8.2 INFORMAX'S REPRESENTATIONS AND WARRANTIES. InforMax represents and
warrants the following:
(a) At the time of Acceptance, the Data Analysis Products will be free
of any viruses and malicious or harmful programs or instructions.
(b) InforMax shall not include in its design or programming of the Data
Analysis Products any computer time-bomb, kill switch, trap-door or other
similar methods of disabling the Data Analysis Products either by date and time,
remote access, failure to install the proper code to inactivate, or other
method, excluding any feature or function of the Data Analysis Products
identified in the Documentation or otherwise disclosed or known to APB.
(c) InforMax is the sole owner of the InforMax Software, and to the
extent the InforMax Software contains any third party products InforMax has
valid licenses to grant the rights set forth herein, and the InforMax Software
is free and clear of all claims, liens and demands of any other person or
entity. To the knowledge of InforMax, the InforMax Software and the Data
Analysis Products do not infringe on the intellectual property rights of any
third party.
(d) InforMax has the full power, authority and right to grant to APB
all of the rights granted under by this Agreement and the granting of such
rights does not violate the rights of any other person or entity.
(e) The services performed by InforMax hereunder shall be performed in
a professional and workmanlike manner in accordance with industry standards.
(f) The Data Analysis Products will materially conform to and function
in all material respects in accordance with the Specifications.
8.3 APB'S REPRESENTATIONS AND WARRANTIES. APB hereby represents and
warrants the following:
(a) APB shall discharge its obligations hereunder in a professional and
workmanlike manner in accordance with industry standards.
(b) APB shall not grant to its Subsidiaries or Resellers any rights
greater than those that InforMax has granted to APB hereunder.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 14
<PAGE>
8.4 REMEDIES. In the event that either Party fails to comply with its
respective obligations specified in Sections 8.2(e) and 8.3(a)-(b), the other
Party, without limiting any other remedy available to it under law or equity,
may at its option, require the breaching Party to use commercially reasonable
efforts to cure such breach.
8.5 DISCLAIMERS. EXCEPT AS PROVIDED HEREIN, EACH PARTY DIS-CLAIMS ALL OTHER
WARRANTIES, WHETHER EXPRESS OR, IMPLIED, INCLUDING WITHOUT LIMITATION ALL
WARRANTIES OF MERCHANT-ABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING
FROM A COURSE OF DEALING, USAGE, TRADE OR PRACTICE. INFORMAX SPECIFI-CALLY
DISCLAIMS THAT THE INFORMAX SOFTWARE AND THE DATA ANALYSIS PRODUCTS WILL OPERATE
UNINTERRUPTED OR ERROR FREE.
SECTION 9 - LIMITATION OF LIABILITY
9.1 LIMITATION ON LIABILITY. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE
LIABILITY TO THE OTHER PARTY AND ITS SUBSIDIARIES ARISING FROM OR RELATING TO
THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, WARRANTY,
TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY APB TO INFORMAX UNDER THIS
AGREEMENT DURING THE THIRTY-SIX (36) MONTH PERIOD PRECEDING THE DATE OF SUCH
CAUSE OF ACTION. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL,
SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, OR ANY LOSS OF DATA,
SOFTWARE, OR PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
THEREOF. THE PARTIES HAVE AGREED THAT THE LIMITATIONS SPECIFIED IN THIS SECTION
9.1 WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS
AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE. THIS AGREEMENT,
INCLUDING ITS DISCLAIMERS AND LIMITATIONS ON LIABILITY, REPRESENTS A MUTUALLY
AGREED UPON ALLOCATION OF RISK BY THE PARTIES.
SECTION 10 - CONFIDENTIALITY
10.1 CONFIDENTIALITY.
(a) DEFINITION. The term "Confidential Information" shall mean any and
all information or proprietary materials (in every form and media) not generally
known by the public and which has been or is hereafter disclosed or made
available by either Party (the "Disclosing Party") to the other Party (the
"Receiving Party") in connection with the efforts contemplated hereunder,
including, without limitation (i) all trade secrets, (ii) existing or
contemplated products, services, designs, technology, source code, algorithms,
processes, technical data, engineering, techniques, methodologies and concepts
and any information related thereto, and (iii) information relating to business
plans, sales, financial and accounting data, or marketing methods and customer
lists or requirements.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 15
<PAGE>
(b) CONFIDENTIAL INFORMATION. Both Parties acknowledge that either
Party may receive Confidential Information from the other Party under this
Agreement, including information designated as confidential at the time of
disclosure, which the Receiving Party could have reasonably determined is
confidential, or is marked as "confidential" or summarized in writing as
Confidential Information within a reasonable time after disclosure. The
Receiving Party shall disclose the Disclosing Party's Confidential Information
only to persons within the Receiving Party having the need to know the
information for the purpose of this Agreement. The Receiving Party shall treat
Confidential Information as it does its own valuable and sensitive information
of a similar nature, and, in any event, with not less than reasonable care. Upon
the Disclosing Party's written request, the Receiving Party shall return or
certify the destruction of all Confidential Information.
(c) EXCEPTIONS. The obligations of either Party under Section 10.1(b)
will not apply to information that the Receiving Party can demonstrate (i) was
in its possession at the time of disclosure and without restriction as to
confidentiality, (ii) at the time of disclosure is generally available to the
public or after disclosure becomes generally available to the public through no
breach of agreement or other wrongful act by the Receiving Party, (iii) has been
received from a third party without restriction on disclosure and without breach
of agreement or other wrongful act by the Receiving Party, (iv) is independently
developed by the Receiving Party without regard to the Confidential Information
of the other Party, or (v) is required to be disclosed by law or order of a
court of competent jurisdiction or regulatory authority, provided that the
Receiving Party shall furnish prompt written notice of such required disclosure
and reasonably cooperate with the Disclosing Party, at the Disclosing Party's
cost and expense, in any effort made by the Disclosing Party to seek a
protective order or other appropriate protection of its Confidential
Information.
(d) INJUNCTIVE RELIEF. Failure on the part of either Party to abide by
this Section 10 will cause the other Party irreparable harm for which damages,
although available, will not be an adequate remedy at law. Accordingly, the
Party that will be harmed shall have the right to obtain an injunction to
prevent any further violations of this Section 10 and may recover court costs
and reasonable attorney fees incurred by such Party in the enforcement of this
Section 10 in the event that such Party is successful in obtaining such
injunction.
SECTION 11 - SPECIAL PROVISIONS
11.1 TRADEMARKS. Nothing in this Agreement grants to either Party the right
to use any trademark or service mark or commercial symbol or logo of the other
Party except as expressly provided in Section 3.1.
11.2 COMPLIANCE WITH LAWS. Both Parties shall comply with all applicable
laws, rules and regulations concerning this Agreement. APB shall be responsible
for obtaining any approval, license or authorization by, and any registration or
filing with, any government or agency needed for this Agreement or the
world-wide use and distribution contemplated by this Agreement. Upon APB's
request and at APB's expense, InforMax will provide reasonable assistance to
assist APB in obtaining any approval, license or authorization by, and any
registration or filing with, any government or agency needed for this Agreement
or the world-wide use and distribution contemplated by this Agreement.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 16
<PAGE>
11.3 SOURCE CODE ESCROW. APB shall be entitled to be named as a
beneficiary under InforMax's standard source code escrow agreement for the
InforMax Software, the form of which is attached hereto as Exhibit D.
SECTION 12 - TERM AND TERMINATION
12.1 TERM OF AGREEMENT. The term of the this Agreement shall be twenty (20)
years unless terminated by mutual written agreement of the Parties or as
otherwise provided in this Agreement.
12.2 BREACH. Except as otherwise set forth herein, if APB breaches this
Agreement in any material respect and fails to cure such breach within thirty
(30) days of written notice of such breach, then InforMax may terminate this
Agreement. This right to terminate this Agreement shall be in addition to, and
shall in no way limit, any other remedies, damages and relief to which InforMax
may be entitled. Except as otherwise set forth herein, if InforMax breaches this
Agreement in any material respect and fails to cure such breach within thirty
(30) days of written notice of such breach, then APB may terminate this
Agreement. This right to terminate this Agreement shall be in addition to, and
shall in no way limit, any other remedies, damages and relief to which APB may
be entitled.
12.3 EFFECT OF TERMINATION/EXPIRATION. Upon expiration or termination of
this Agreement, (i) APB shall have no further rights under this Agreement with
respect to InforMax Software and shall cease all use, copying and distribution
thereof; (ii) InforMax shall immediately deliver to APB a copy of the Jointly
Developed Code (whether complete or not); (iii) APB and its Subsidiaries may
continue to provide support to these End Users; and (iv) to the extent necessary
and permitted by the source code escrow agreement attached hereto as Exhibit D,
APB shall be entitled to a copy of the portions of the InforMax Software source
code necessary for APB to continue to provide support to End Users. Any End User
License Agreements granted to End Users prior to termination or expiration of
this Agreement may continue in effect and unaffected by such termination.
SECTION 13 - GENERAL PROVISIONS
13.1 GOVERNING LAW. This Agreement shall be governed by and enforced in
accordance with the laws of the state of Delaware.
13.2 ENTIRE AGREEMENT. This Agreement (including its Exhibits): (i)
represents the entire agreement between the Parties relating to the subject
matter of this Agreement, (ii) supersedes all prior agreements, understandings,
letters, representations and warranties relating to the subject matter of this
Agreement, whether written or oral, and (iii) may only be amended by a writing
signed by duly authorized representatives of both Parties.
13.3 ASSIGNMENT. In the absence of the other Party's prior written consent,
neither Party shall have the right or the power to assign or transfer this
Agreement. Notwithstanding the
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 17
<PAGE>
foregoing: (i) APB may, without InforMax's prior written consent, assign this
Agreement to its Subsidiary, provided that APB first guarantees to InforMax such
Subsidiary's compliance with this Agreement; and (ii) either Party, may, without
the other Party's prior written consent, assign this Agreement to a third party
in the event of a sale of all or substantially all of its assets or in the event
of a merger or consolidation in which the assigning Party is not the surviving
entity or there is a change of control of such assigning Party, provided,
however, that APB shall have the right to terminate this Agreement in the event
of any such assignment provided that APB has not yet accepted the first Data
Analysis Product.
13.4 NOTICES. All notices and consents permitted or required under this
Agreement must be in writing and shall be delivered in person, by first class,
priority or express mail, by registered or certified mail, or by commercial
courier (e.g., Federal Express or U.P.S.) to the other Party at the address set
forth at the beginning of this Agreement or such substitute address as either
Party may specify by written notice for itself. All notices shall be effective
upon receipt.
13.5 HEADINGS. Headings used herein are for convenience only and shall not
be used to broaden or limit this Agreement.
13.6 SEVERABILITY. If any provision in this Agreement is invalid or
unenforceable, such provision shall be construed, limited, or if necessary,
severed to the extent necessary to eliminate such invalidity or
unenforceability, and all other provisions of this Agreement shall remain in
effect.
13.7 DISPUTE RESOLUTION. In the event of any dispute between the Parties
relating to this Agreement or its subject matter, they shall first seek to
amicably resolve or settle the dispute in good faith by mutual agreement. If the
Parties have not reached a resolution or settlement within fifteen (15) days of
the provision of notice by one Party to the other Party of its intent to invoke
its rights under this Section 13.7, then either Party may after such fifteen
(15) day period submit the dispute to arbitration, and if so submitted, shall be
finally settled by arbitration conducted in accordance with the commercial
arbitration rules of the American Arbitration Association or its successor. In
the event of any conflict between such rules and this Section 13.7, this Section
13.7 shall govern. The Parties shall attempt to mutually agree upon a neutral
arbitrator. If the Parties cannot reach such agreement, they shall request the
American Arbitration Association or its successor to designate a neutral
arbitrator. Such arbitrator shall not render a decision that is in conflict with
the terms and conditions agreed upon by the Parties in this Agreement. The
arbitration shall be conducted in New Jersey if the arbitration is demanded by
or initiated by InforMax and shall be conducted in Maryland if the arbitration
is demanded by or initiated by APB. The institution of any arbitration
proceeding hereunder shall not relieve any Party of its obligation to make
undisputed payments under this Agreement. The decision by the arbitrator shall
be binding and conclusive upon the Parties, their successors, assigns and
trustees and they shall comply with such decision in good faith, and each Party
hereby submits itself to the jurisdiction of the State and Federal courts of the
place where the arbitration is held, but only for the entry of judgment or for
the enforcement of the decision of the arbitrator hereunder. Judgment upon the
award may be entered in any court having jurisdiction. Notwithstanding anything
herein to the contrary, neither Party has any obligation to arbitrate any claims
relating to the infringement or violation of its copyrights or other
intellectual property or the unlicensed use, disclosure or transfer of any Data
Analysis Products. Such Party may assert such claims in any court of competent
jurisdiction at any time.
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 18
<PAGE>
13.8 RELATIONSHIP. Neither Party is the partner, joint venturer, agent or
representative of the other Party. Each Party is an independent contractor.
There is no employment relationship between the Parties. Neither Party has the
authority to make any representations or warranties or incur any obligations or
liabilities on behalf of the other Party. Neither Party shall make any
representation to a third party inconsistent with this Section 13.8.
13.9 CONSTRUCTION. This Agreement represents the wording selected by the
Parties to define their agreement and no rule of strict construction shall apply
against either Party. Whenever the context reasonably permits, the singular
shall include the plural, the plural shall include the singular, and the whole
shall include any part thereof.
13.10 WAIVER. Any waiver of, or promise not to enforce, any right under
this Agreement shall not be enforceable unless evidenced by a writing signed by
the Party making said waiver or promise.
13.11 EMPLOYEE HIRING. Neither Party will hire a current employee of the
other Party who performs in any capacity under this Agreement without the prior
written consent of the other Party. Notwithstanding the foregoing, neither Party
shall be restricted from hiring an employee of the other Party by means of
general advertisement.
13.12 SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the Parties and their respective permitted successors and assigns.
13.13 SURVIVAL. The following sections shall survive termination of this
Agreement and remain in effect: 2.5, 6, 8.5, 9, 10, 11, 12 and 13.
13.14 EXECUTION. This Agreement may be executed in any number of duplicate
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument. Each of the persons
signing below represent that they are duly authorized to execute this Agreement
for and on behalf of the Party for whom they are signing.
[SIGNATURE PAGE FOLLOWS]
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 19
<PAGE>
IN WITNESS WHEREOF, the authorized representatives of the parties have
executed this Data Analysis Products Development and Distribution Agreement as
of the date set forth above.
AMERSHAM PHARMACIA BIOTECH, INC.: INFORMAX, INC.:
By: /s/ Peter B. Coggins By: /s/ Alexander Titomirov
-------------------------------- ---------------------------------
Name: Peter B. Coggins Name: Alexander Titomirov
------------------------------ -------------------------------
Title: V.P. Drug Discovery Title: President/CEO
----------------------------- ------------------------------
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 20
<PAGE>
EXHIBIT A
A. DEVELOPMENT PLATFORM DOCUMENTATION:
I. A written description of the tools used for designing the integration
capability supported in the GenoMax system.
II. A written description of the middleware application programming
interfaces (APIs) that exist for integrating tools as is presently
done with GenoMax. This documentation shall include an enumeration of
all internal development APIs and object definitions, along with
definitions of how these APIs are used along with examples of use.
The documentation shall include references to : internal object data
models; APIs for reading in and writing out objects; APIs for
updating and modifying; APIs and instructions for adding new
databases/data models to GenoMax; APIs and configuration for
integrating new GUI based JAVA tools into GenoMax; API instructions
for tightly integrating external tools so that they can update
database structures; APIs for all "hook" functionality of all current
and near future GenoMax modules. All additional collateral documents,
if any, necessary or helpful in compiling the above.
B. Data Analysis Products Technical Specifications: [To be provided]
C. Acceptance Testing Criteria: [To be provided]
D. Formal Development Plan: [To be provided]
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 21
<PAGE>
EXHIBIT B
A. InforMax Software:
(i) Vector NTI
(ii) GenoMax
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 22
<PAGE>
EXHIBIT C
A. The following trademarks, service marks and logos are licensed for use to
APB pursuant to the terms of the Agreement:
(i) The following are registered trademarks of InforMax:
ALIGNX
BIOPLOT
INFORMAX (stylized with logo)
VECTOR NTI
(ii) InforMax is pursuing trademark registration of the following:
CONTIGEXPRESS
INFORMAX (word only)
GENOMAX
HIGH-THROUGHPUT RESEARCH
HTR
HTR PARTNERS PROGRAM
PROTEOMAX
RESEARCHLOGIC
RESEARCHLOGIC EXTENSION
SOFTWARE SOLUTION for BIO-MEDICINE
SSBM
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 23
<PAGE>
EXHIBIT D
A. InforMax standard source code escrow agreement: (see attached)
EXECUTION COPY - DATA ANALYSIS PRODUCTS DEVELOPMENT
AND DISTRIBUTION AGREEMENT - PAGE 24
