{"id":42449,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/license-agreement-agraquest-inc-and-dragoco-gerberding-amp.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"license-agreement-agraquest-inc-and-dragoco-gerberding-amp","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/license-agreement-agraquest-inc-and-dragoco-gerberding-amp.html","title":{"rendered":"License Agreement &#8211; AgraQuest Inc. and Dragoco Gerberding &#038; Co. AG"},"content":{"rendered":"<pre> \n                               LICENSE AGREEMENT\n\n\n     THIS LICENSE AGREEMENT, including the exhibits referred to herein and\nattached hereto (the \"Agreement\"), effective as of July 1, 2001 (the \"Effective\nDate\"), is made and entered into by and between AgraQuest, Inc., a Delaware\ncorporation having a principal place of business located at 1530 Drew Avenue,\nDavis, California 95616 (\"AgraQuest\") and Dragoco Gerberding &amp; Co. AG having a\nprincipal place of business located at Dragocostrasse, D 36703 Holzminnden,\nGermany (\"Licensee\").\n\n                                   RECITALS\n\n     A.  WHEREAS AgraQuest owns or has the right to grant licenses under certain\npatents, patent applications, technology, trade secrets, data, know-how and\nother intellectual property relating to [***] insect repellant and any\nderivatives, analogs, or combinations with other repellant materials; and\n\n     B.  WHEREAS Licensee desires to obtain from AgraQuest, and AgraQuest is\nwilling to grant to Licensee, a license under such technology and intellectual\nproperty for the development and commercialization of certain products and\nservices under the terms and conditions herein.\n\n     NOW, THEREFORE, in consideration of the mutual covenants and obligations\nset forth herein, and for other good and valuable consideration, the receipt and\nsufficiency of which is hereby acknowledged, AgraQuest and Licensee hereby agree\nas follows:\n\n1.   DEFINITIONS\n\n     As used in this Agreement, the following terms shall have the meanings\nindicated:\n\n     1.1.    \"Confidential Information\" shall have the meaning set forth in\nSection 10.1 below.\n\n     1.2.    \"Deductible Expenses\" \"shall mean the following items of expense\nactually incurred in connection with Sales of Licensed Products to the extent\npaid or allowed by Licensee or Sublicensees and included in accordance with\nrecognized principles of accounting (consistently applied) in the gross sales\nprice billed: (a) sales, use or turnover taxes; (b) excise, value added or other\ntaxes, custom duties or consular fees; (c) transportation, freight, and handling\ncharges, and insurance on shipments to customers; (d) trade, cash or quantity\ndiscounts or rebates to the extent actually granted; (e) agent fees or\ncommissions; and (f) refunds and credits for any rejected or returned Licensed\nProducts or because of retroactive price reductions, rebates or chargebacks.\n\n     1.3.    \"Field\" shall mean the manufacture, use and sale of insect\nrepellents in toiletries and cosmetics.\n\n     1.4.    \"Improvements\" shall mean the improvements, modifications, or\nenhancements to the Licensed Patents.\n\n     1.5.    \"Joint Inventions\" means inventions made or conceived jointly by or\nfor employees of AgraQuest and Licensee during the term of this Agreement and\nwhich, under principles arising under the patent laws and regulations of the\nUnited States governing inventorship, would be found to be jointly \n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       1\n\n \ninvented by AgraQuest and Licensee, and all intellectual property and\nproprietary rights therein, thereto and thereunder.\n\n     1.6.    \"Licensed Patents\" shall mean those patents, inventors'\ncertificates and patent applications set forth in Exhibit A, together with any\nrenewal, division, continuation, continued prosecution application or\ncontinuation-in-part of any of such patents, certificates and applications, any\nand all patents or certificates of invention issuing thereon, and any and all\nreissues, reexaminations, extensions, divisions, renewals of or to any of the\nforegoing, and any foreign counterparts of any of the foregoing.\n\n     1.7.    \"Licensed Product\" shall mean any material, composition, product,\ndevice, or procedure the manufacture, use or sale of which would infringe a\nValid Claim in the country of such manufacture, use or sale, but for a license\ngranted hereunder.\n\n     1.8.    \"Net Revenues\" shall mean the combined amounts (whether in cash or\nin non-cash consideration) received or invoiced by Licensee and Sublicensees,\nwhichever is earlier, from Sales of Licensed Products to third parties, less\nDeductible Expenses.\n\n     1.9.    \"Sale\" or \"Sold\" shall mean the sale, transfer, exchange or other\ndisposition of Licensed Products by or for Licensee of a Sublicensee whether by\ngift or otherwise, including but not by way of limitation, the use of Licensed\nProducts.  Any commercial use of a Licensed Product by Licensee or a Sublicensee\nshall be considered a Sale hereunder for accounting and royalty purposes.  Sales\nof Licensed Products shall be deemed consummated upon the first to occur of:\n\n             (a)  receipt of payment from the purchaser;\n\n             (b)  delivery of Licensed Products to the purchaser or a common\ncarrier at the risk of the purchaser;\n\n             (c)  release of Licensed Products from consignment;\n\n             (d)  if deemed sold by use, when first put to such use; or\n\n             (e)  if otherwise transferred, exchanged or disposed of whether by\ngift or otherwise when such transfer, exchange, gift or other disposition occurs\n\n     1.10.   \"Sublicensee(s)\" shall mean any third party to whom Licensee has\nsublicensed any or all of the rights in, to and under the Licensed Patents\nlicensed to Licensee hereunder.\n\n     1.11.   \"Sublicense Income\" shall mean any proceeds, whether cash or non-\ncash consideration, received by Licensee in connection with a grant of a\nsublicense to the Licensed Patents, including without limitation any license fee\npayments, milestone payments, royalty payments or other cash revenues related to\nsuch sublicense grant. For the avoidance of doubt, Sublicense Income does not\ninclude amounts received by Sublicensee for Sales of Licensed Products, which\nshall constitute Net Revenues. In addition, Sublicense Income shall not include\namounts received (a) in consideration of equity or dept securities of Licensee\n(with the exception of equity premiums) or (b) in consideration for the license\nor sublicense of any intellectual property other than Licensed Patents.\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       2\n\n \n     1.12.  \"Valid Claim\" shall mean (a) any claim of an issued and unexpired\npatent within the Licensed Patents which has not been held unenforceable or\ninvalid by a court or other governmental agency of competent jurisdiction in an\nunappealed or unappealable decision, and which has not been disclaimed or\nadmitted to be invalid or unenforceable through reissue or otherwise, or (b) a\nclaim in a pending patent application within the Licensed Patents.\n\n2.   LICENSES\n\n     2.1.   License Grant. Subject to the terms and conditions of this\nAgreement, AgraQuest hereby grants to Licensee a [***], royalty bearing,\nexclusive license, including the right to grant sublicenses in accordance with\nSection 2.3, under the Licensed Patents to [***] (and to have such rights\nexercised on Licensee's behalf by third parties).\n\n     2.2.   Ownership; Reservation of Rights. Licensee acknowledges and agrees\nthat AgraQuest shall retain ownership of the Licensed Patents, and the\nImprovements, subject only to the rights and licenses expressly granted herein.\nExcept as expressly provided herein, no right, title, or interest is granted by\nAgraQuest to Licensee, implied or otherwise, in to or under the Licensed\nPatents, or the Improvements.\n\n     2.3.   Sublicenses.  Subject to the terms and conditions of this Agreement,\nLicensee shall have the right to sublicense any or all of the rights granted to\nLicensee under Section 2.1; provided that any such sublicense (a) shall be made\npursuant to a binding and written agreement which protects AgraQuest's interests\nand rights in its proprietary information and intellectual property to at least\nthe same extent as this Agreement, (b) shall contain provisions for the benefit\nof AgraQuest substantially similar in language and scope to Articles 4, 5, 8, 9,\n10, and 11, and Sections 2.3, 3.3, 7.3 of this Agreement and (c) shall be of no\ngreater scope than the license granted to Licensee in Section 2.1.  Licensee\nshall provide AgraQuest with a copy of each fully executed sublicense agreement\nin which Licensee sublicenses any or all of the rights set forth in Section 2.1\nwhich Licensee may enter into during the term of this Agreement.\n\n3.   PAYMENTS AND RELATED OBLIGATIONS\n\n     3.1.   Royalty Payments. In consideration for the rights and licenses\ngranted pursuant to Article 2 above, Licensee shall make royalty payments to\nAgraQuest as follows:\n\n            3.1.1.  Licensee shall pay to AgraQuest each calendar quarter\nrunning royalties in the amount of [***].\n\n            3.1.2.  Licensee shall pay to AgraQuest each calendar quarter\nrunning royalties in the amount of [***].\n\n            3.1.3.  [***] shall be due or payable because the manufacture, use,\noffer for sale, sale or import of any Licensed Product is or shall be covered by\nmore than one Valid Claim.\n\n     3.2.   Royalty Term. Licensee's obligation to pay royalties to AgraQuest\nunder Section 3.1 shall continue on a Licensed Product by Licensed Product,\ncountry by country basis, until the expiration or final determination of\ninvalidity of the last Valid Claim within the Licensed Patents. Notwithstanding\nthe above, Licensee shall be obligated after expiration of the royalty term to\npay any royalty amounts that accrued under Section 3.1 prior to such expiration.\nLicensee acknowledges and agrees that Licensee shall \n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       3\n\n \nbe solely responsible for paying all royalties owed to AgraQuest on account of\nNet Revenues and Sublicensee Income by any and all Sublicensees.\n\n     3.3.   Royalty Reports. Licensee shall deliver to AgraQuest, within [***]\ndays after the end of each calendar quarter in which Licensed Products are Sold,\na written report setting forth in reasonable detail (a) the calculation of the\nroyalties payable to AgraQuest for such calendar quarter under Section 3.1,\nincluding the number and types of Licensed Products Sold and distributed in each\ncountry, gross sales, Net Revenues thereof and Deductible Expenses, and (b) all\nSublicensee Income received on a Sublicensee by Sublicensee basis and further\norganized based on the type of payment (e.g., royalty, license fee, milestone).\n\n     3.4.   Payment Terms.\n\n            3.4.1.  Licensee shall pay all royalties due and payable on [***]\npursuant to Section 3.1.1 within [***] days after the last day of each quarter\nin which the applicable Licensed Products are Sold by Licensee or Sublicensees.\n\n            3.4.2.  Licensee shall pay all royalties due and payable on\nSublicensee Income pursuant to Section 3.1.2 within [***] days after the last\nday of each quarter in which such Sublicense Income is due and payable to\nLicensee.\n\n            3.4.3.  Except as otherwise expressly provided herein, all other\npayments due to AgraQuest pursuant to the terms and conditions of this Agreement\nshall be due and payable within [***] after receipt of a proper invoice therefor\nfrom AgraQuest. Any sums not paid when due, including amounts determined to be\ndue under Section 3.6, shall automatically accrue interest from the date when\ndue until actually paid at a rate of [***].\n\n            3.4.4.  All payments made by Licensee under this Agreement shall be\nmade in United States dollars, and such payments shall be made by check or wire\ntransfer to one or more bank accounts to be designated in writing by AgraQuest.\nIn the event that Licensed Products are sold in currencies other than United\nStates dollars, Net Revenues shall be calculated by Licensee by conversion of\nforeign currency to U.S. dollars at the conversion rate existing in the United\nStates (referencing the \"U.S. dollar noon buying rates\", or its equivalent,\npublished in the Wall Street Journal) on the last working day of each period\nduring which royalties are calculated, net of applicable exchange related\ncharges, or otherwise in accordance with generally accepted accounting\nprinciples consistently applied.\n\n     3.5.   Taxes.  Licensee shall pay, and shall indemnify and hold AgraQuest\nharmless from, all taxes, duties and levies directly imposed by all foreign,\nfederal, state, local or other taxing authorities (including, without\nlimitation, export, sales, use, excise, and value-added taxes) based on the\ntransactions or payments under this Agreement, other than taxes imposed or based\non AgraQuest's net income.  All amounts payable hereunder by Licensee shall be\npaid without deduction or withholding for or on account of any present or future\ntax, levy, impost, fee, assessment, deduction or charge by any taxing authority.\nNotwithstanding the foregoing, if Licensee is required by law to deduct or\nwithhold any taxes, levies, imposts, fees, assessments, deductions or charges\nfrom or in respect of any amounts payable hereunder to AgraQuest, (a) Licensee\nshall pay the relevant taxation authority the minimum amounts necessary to\ncomply with the applicable law, (b) Licensee shall make such payment prior to\nthe date on which interest or penalty is attached thereto, and (c) the amounts\npayable by Licensee to AgraQuest under this Agreement shall be increased as may\nbe necessary so that, after Licensee makes all required deductions or\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       4\n\n \nwithholdings, AgraQuest shall receive amounts equal to the amounts it would have\nreceived had no such deductions or withholdings been required.\n\n     3.6.   Inspection of Books and Records. Licensee shall maintain, and\nrequire its Sublicensees to maintain, complete and accurate books and records\nwhich enable the calculation of royalties and other payments payable hereunder\nto be verified. Licensee and its Sublicensees shall retain such books and\nrecords for each quarterly period for ten (10) years after the submission of the\ncorresponding report under this Section 3.6. Upon two weeks prior notice to\nLicensee, AgraQuest or independent accountants selected by AgraQuest may have\naccess to such books and records to conduct a review or audit no more than twice\nper calendar year at AgraQuest's discretion, for the sole purpose of verifying\nthe accuracy of Licensee's payments, any Sublicensees' payments and Licensee's\ncompliance with this Agreement. Such access shall be permitted during Licensee's\nnormal business hours during the term of this Agreement and for three (3) years\nafter the expiration or termination of this Agreement. In the event of any\nunderpayment, Licensee shall promptly pay to AgraQuest the difference between\nthe amount actually paid by Licensee and the amount determined to be owing under\nthis Section 3.6. Any such inspection or audit shall be at AgraQuest's expense,\nunless the inspection or audit results in a determination that Licensee's\npayment obligations to AgraQuest have been understated, or that Licensee's\npayments have been underpaid, by more than five percent (5%) of the amount\nactually paid by Licensee for the period examined, in which case Licensee shall\npay all reasonable costs and expenses incurred by AgraQuest in the course of\nmaking such determination, including the fees and expenses of such accountant.\n\n4.   DUE DILIGENCE\n\n     4.1.   Development Reports. Licensee shall deliver to AgraQuest, within\n[***] following the Effective Date, a written report setting forth in reasonable\ndetail (a) the identity of all Licensed Products or prototype products in\nresearch or manufacturing, (b) the stage of development for each such Licensed\nProduct or prototype licensed and (c) the partnership or collaboration status,\nif any, of Licensee's efforts in connection with such Licensed Products.\n\n     4.2.   Efforts. Licensee agrees to [***] develop and commercialize Licensed\nProducts and to obtain such approvals as may be necessary for the sale of\nLicensed Products in the United States and in other major countries. Licensee\nmay conduct such activities itself or through third parties. Without limiting\nand in addition to the foregoing, to satisfy its diligence obligations under\nthis Article 4, Licensee must (a) provide written reports to AgraQuest in\naccordance with Section 4.1 and (b) upon AgraQuest's written and reasonable\nrequest, demonstrate to AgraQuest's satisfaction that it is proceeding with a\nLicensed Product in a manner consistent with moving such. If AgraQuest\ndetermines that Licensee is not making suitable progress towards\ncommercialization of Licensed Products, AgraQuest shall have the right in its\nsole discretion to terminate this Agreement pursuant to Section 9.2.\n\n5.   IMPROVEMENTS AND JOINT INVENTIONS.\n\n     5.1.   Disclosure. As soon as reasonably possible, either upon creation,\ndevelopment of an Improvement or conception or reduction to practice of a Joint\nInvention, as the case may be, each party shall disclose the same in writing to\nthe other. All such disclosures shall be maintained in confidence by the\nreceiving party.\n\n     5.2.   Improvements.\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       5\n\n \n             5.2.1. In the event that AgraQuest develops or creates\nImprovements, and subject to the terms and conditions of this Agreement, [***].\n\n             5.2.2. In the event that Licensee develops or creates Improvements,\nand subject to the terms and conditions of this Agreement, Licensee agrees to\ngrant and hereby grants to AgraQuest a worldwide, royalty-free, sublicensable,\nnon-cancellable, exclusive right and license, under Licensee's right, title and\ninterest to and under the Improvements to make, use, sell, distribute, offer to\nsell, import and export such Improvements (and to have such rights exercised on\nAgraQuest's behalf by third parties) outside the Field.\n\n     5.3.    Patent Prosecution.\n\n             5.3.1. AgraQuest shall have the initial right but not the\nobligation to file, prosecute and maintain all patents, patent applications and\ninventors' certificates claiming or covering Joint Inventions (the \"Joint\nPatents\"). In the event that AgraQuest elects to file, prosecute and maintain a\nJoint Patent, (a) Licensee agrees to assign and hereby assigns to AgraQuest all\nof it right, title and interest in and to such Joint Patent and (b) AgraQuest\nagrees that such Joint Patent shall be included in the license granted under\nSection 2.1 herein. AgraQuest shall add such Joint Patent to Exhibit A attached\nhereto. AgraQuest shall provide Licensee with all material documentation and\ncorrespondence from, sent to or filed with patent offices regarding such Joint\nPatents and with a reasonable opportunity to review and comment upon all filings\nwith such patent offices in advance. [***]. All expenses to be paid or\nreimbursed by Licensee pursuant to this Section 5.3.1 shall be obligations that\nare separate and apart from other payment obligations described in this\nAgreement and shall be invoiced and paid separately.\n\n             5.3.2. In the event that AgraQuest elects to not to file, prosecute\nand maintain a Joint Patent, or thereafter elects not to continue prosecution of\nany such patent application, or elects not to maintain any patent that may issue\ntherefrom Licensee shall have the right but not the obligation, at Licensee's\noption and expense, to file for and prosecute such patent application and\nmaintain such patent. In such event, (a) AgraQuest agrees to assign and hereby\nassigns to AgraQuest all of it right, title and interest in and to such Joint\nPatent and (b) Licensee agrees to grant and hereby grants to AgraQuest an\nexclusive, royalty-free, non-cancellable, worldwide license in, to and under\nLicensee's right, title and interest to such Joint Patent outside the Field, it\nbeing understood that Licensee retains exclusively all rights under such Joint\nPatent within the Field. Licensee shall provide AgraQuest with all material\ndocumentation and correspondence from, sent to or filed with patent offices\nregarding such Joint Patents and with a reasonable opportunity to review and\ncomment upon all filings with such patent offices in advance. [***].\n\n     5.4.    Cooperation. Each party will cooperate with the other party to\nexecute all lawful papers and instruments and to make all rightful oaths and\ndeclarations as may be necessary in the preparation and prosecution of all\npatents and other filings referred to in this Article 5.\n\n6.   PATENT MAINTENANCE AND ENFORCEMENT\n\n     6.1.    Patent Enforcement.\n\n             6.1.1.  If either party hereto becomes aware that any Licensed\nPatents or Joint Patents are being or have been infringed by any third party in\nthe Field, such party shall promptly notify the other party hereto in writing\ndescribing the facts relating thereto in reasonable detail. AgraQuest shall have\nthe \n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       6\n\n \ninitial right, but not the obligation, as to Licensee to institute, prosecute\nand control any action, suit or proceeding (an \"Action\") with respect to such\ninfringement in the Field, including any declaratory judgment action, at its\nexpense, using counsel of its choice and Licensee shall cooperate reasonably\nwith AgraQuest, at AgraQuest's request, in connection with any such Action.\n[***].\n\n             6.1.2.  In the event AgraQuest fails to initiate any Action\ninvolving the Licensed Patents or Joint Patents within [***] of receiving notice\nof any commercially significant infringement, Licensee shall have the right, but\nnot the obligation, to initiate and\/or maintain such Action at its expense, and\nAgraQuest shall cooperate reasonably with Licensee, at Licensee's request, in\nconnection with any such Action. [***].\n\n             6.1.3. If Licensee initiates and maintains an infringement action\non AgraQuest's behalf pursuant to Section 6.1.2 with respect to the infringement\nof any Licensed Patents or Joint Patents, Licensee' reasonable and customary\nexpenses for such action (including attorneys' fees and expert fees) shall be\n[***].\n\n             6.1.4. If Licensee initiates and maintains an infringement action\non AgraQuest's behalf pursuant to Section 6.1.2, and subsequently decides to\nabandon such an action other than pursuant to a settlement with the alleged\ninfringer, Licensee shall give AgraQuest timely notice so that AgraQuest or its\nlicensor may, at its option and if it so desires, continue such action.\n\n     6.2.    Cooperation. In any Action, the parties shall provide each other\nwith reasonable cooperation and assistance, including agreeing to be named as a\nparty to such Action, and, upon the request and at the expense of the party\nbringing such Action, the other party shall make available, at reasonable times\nand under appropriate conditions, all relevant personnel, records, papers,\ninformation, samples, specimens, and the like in its possession. Notwithstanding\nany other provision of this Article 6, neither party shall make any settlements\nof any suit, proceeding or action relating to an infringement of any Licensed\nPatents in the Field or Joint Patents that would materially and adversely affect\nthe other party or the rights and licenses granted hereunder without first\nobtaining such other party's prior written consent, such consent not to be\nunreasonably withheld or delayed.\n\n7.   REPRESENTATIONS, WARRANTIES AND COVENANTS\n\n     7.1.    Representations, Warranties and Covenants of AgraQuest.  AgraQuest\nrepresents and warrants that, as of the Effective Date:\n\n             7.1.1.  AgraQuest is a corporation, duly organized, validly\nexisting and in good standing under the laws of its state of incorporation;\n\n             7.1.2.  AgraQuest has the right and authority to grant the rights\nand licenses granted to Licensee under this Agreement;\n\n             7.1.3.  The execution, delivery and performance of this Agreement\nhas been duly authorized by all necessary corporate action on the part of\nAgraQuest.\n\n     7.2.    Representations, Warranties and Covenants of Licensee.  Licensee\nrepresents, warrants and covenants that, as of the Effective Date:\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       7\n\n \n             7.2.1.  Licensee is a corporation, duly organized validly existing\nand in good standing under the laws of its state of incorporation;\n\n             7.2.2.  The execution, delivery and performance of this Agreement\nhas been duly authorized by all necessary corporate action on the part of\nLicensee; and\n\n             7.2.3.  Licensee will not practice any of the rights in, to or\nunder the Licensed Patents or Joint Patents outside of the Field.\n\n     7.3.    Nothing in this Agreement shall be construed as conferring, by\nimplication, estoppel or otherwise, any license or rights under any patents of\nAgraQuest other than the Licensed Patents, regardless of whether such patents\nare dominant or subordinate to the Licensed Patents.\n\n     7.4.    Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR IN THIS AGREEMENT,\nNEITHER PARTY MAKES, AND EACH PARTY HEREBY DISCLAIMS, ANY AND ALL\nREPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO\nTHE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, WARRANTIES\nOF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND\nANY WARRANTY ARISING OUT OF PRIOR COURSE OF DEALING AND USAGE OF TRADE.\n\n8.   INDEMNIFICATION\n\n     8.1.    Indemnity. Licensee shall indemnify, defend and hold harmless\nAgraQuest and its directors, officers, employees, agents and consultants (each\nan \"Indemnitee\") from and against any and all liabilities, damages, losses,\ncosts or expenses (including reasonable attorneys' and professional fees and\nother expenses of litigation and\/or arbitration) (a \"Liability\") resulting from\nor arising out of a claim, suit or proceeding brought by a third party against\nan Indemnitee for personal injury, death, product liability or property damage\narising out of or related to the manufacture, use, or sale of Licensed Products\nexcept to the extent such claim is caused by the gross negligence or willful\nmisconduct of AgraQuest.\n\n     8.2.    Procedure. For purposes of Section 8.1, the Indemnitee shall give\nprompt written notice to Licensee of any claims, suits or proceedings by third\nparties which may give rise to any claim for which indemnification may be\nrequired under this Article 8. Licensee shall be entitled to assume the defense\nand control of any such claim at its own cost and expense; provided, however,\nthat the Indemnitee shall have the right to be represented by its own counsel at\nits own cost in such matters. Neither Licensee nor the Indemnitee shall settle\nor dispose of any such matter in any manner which would adversely affect the\nrights or interests of the other party (including the obligation to indemnify\nhereunder) without the prior written consent of the other party, which shall not\nbe unreasonably withheld or delayed. Each party shall reasonably cooperate with\nthe other party and its counsel in the course of the defense of any such suit,\nclaim or demand, such cooperation to include without limitation using reasonable\nefforts to provide or make available documents, information and witnesses.\n\n9.   TERM AND TERMINATION\n\n     9.1.    Term. The term of this Agreement shall commence on the Effective\nDate and continue in full force and effect until expiration or termination of\nLicensee' royalty payment obligations as\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       8\n\n \nspecified under Section 3.1, unless and until terminated at an earlier date in\naccordance with Section 9.2 below.\n\n     9.2.    Termination for Cause. If either party materially breaches any term\nor condition of this Agreement, including without limitation Sections 4.2 and\n7.2 and the failure of Licensee to meet the minimum royalty payment of [***],\nthe other party may notify the breaching party in writing of such breach,\nsetting forth the nature of the breach in reasonable detail. [***].\n\n     9.3.    Effect of Termination; Survival. Section 9.3 and Articles 3 (to the\nextent provided therein), 7 (to the extent provided therein), 8, 9, 10 and 11\nshall survive expiration or termination of this Agreement. [***]. All other\nprovisions of this Agreement shall be of no further force and effect upon such\nexpiration or termination of this Agreement. Notwithstanding the foregoing,\nexpiration or termination of this Agreement shall not release either party from\nany obligation that has accrued prior to such expiration or termination,\nincluding without limitation any obligation to pay any amount which became due\nand payable under the terms and conditions of this Agreement prior to such\nexpiration or termination.\n\n10.  CONFIDENTIAL INFORMATION\n\n     10.1.  Confidentiality. In connection with this Agreement, the parties will\nprovide to each other Confidential Information, including but not limited to\neach party's know-how, invention disclosures, proprietary materials and\/or\ntechnologies, economic information, business or research strategies, trade\nsecrets and material embodiments thereof. As used herein, \"Confidential\nInformation\" means any information of a confidential or proprietary nature\ndisclosed by a party to this Agreement to the other party in written or oral\nform.\n\n     10.2.  Confidentiality and Non-Use. The recipient of a disclosing party's\nConfidential Information shall maintain such Confidential Information in\nconfidence, and shall disclose such Confidential Information only to those of\nits employees, agents, consultants, sublicensees, attorney's, accountants and\nadvisors who have a reasonable need to know such Confidential Information and\nwho are bound by obligations of confidentiality and non-use no less restrictive\nthen those set forth herein. The recipient of the disclosing party's\nConfidential Information shall use such Confidential Information solely to\nexercise its rights and perform its obligations under this Agreement (including,\nwithout limitation, the right to use and disclose such Confidential Information\nin regulatory applications and filings), unless otherwise mutually agreed in\nwriting. The recipient of the other party's Confidential Information shall take\nthe same degree of care that it uses to protect its own confidential and\nproprietary information of a similar nature and importance (but in any event no\nless than reasonable care).\n\n     10.3.  Exclusions. Confidential Information shall not include information\nthat: (a) is in the recipient's possession prior to receipt from the disclosing\nparty as demonstrated by contemporaneous documentation; (b) is or becomes,\nthrough no fault of the recipient, publicly known; (c) is furnished to the\nrecipient by a third party without breach of a duty to the disclosing party; (d)\nis independently developed by the recipient without use of, application of or\nreference to the disclosing party's Confidential Information as demonstrated by\ncontemporaneous documentation.\n\n     10.4.  Legal Disclosures. It shall not be a violation of this Article 10 to\ndisclose Confidential Information required to be disclosed under applicable law,\nbut such disclosure shall be only for the sole purpose of and solely to the\nextent required by such law, and provided that the recipient, to the extent\npossible, shall give the disclosing party prior written notice of the proposed\ndisclosure and cooperate fully \n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       9\n\n \nwith the disclosing party to minimize the scope of any such required disclosure,\nto the extent possible and in accordance with applicable law.\n\n     10.5.  Termination.  All obligations of confidentiality and non-use imposed\nunder this Article 10 shall expire three (3) years after the termination of this\nAgreement.\n\n11.  MISCELLANEOUS\n\n     11.1.  Use of Name.  Licensee agrees that it shall not use the name of the\nAgraQuest in any advertising or publicity material, or make any form of\nrepresentation or statement which would constitute an express or implied\nendorsement by AgraQuest of any Licensed Product, and that it shall not\nauthorize others to do so, without first having obtained written approval from\nAgraQuest, except as may be required by governmental law, rule or regulation.\n\n     11.2.  Press Releases.  The parties may agree to issue a joint press\nrelease upon execution of this Agreement or as promptly as practicable\nthereafter. The content of any such joint press release will be agreed upon by\nboth parties.\n\n     11.3.  Marking Requirement.  Licensee agrees to mark the appropriate patent\nnumber or numbers on all Licensed Products made or Sold in accordance with all\napplicable governmental laws, rules and regulations to the extent reasonably\npossible, and to require its Sublicensees to do the same.\n\n     11.4.  Governing Law.  This Agreement shall be governed by, and construed\nand interpreted, in accordance with the internal laws of the State of California\n(as permitted by Section 1646.5 of the California Civil Code or any similar\nsuccessor provision) without giving effect to any choice of law rule that would\ncause the application of the laws of any jurisdiction other than the internal\nlaws of the State of California to the rights and duties of the parties.\n\n     11.5.  Export Regulations.  Licensee agrees that this Agreement is subject\nin all respects to the laws and regulations of the United States of America,\nincluding the Export Administration Act of 1979, as amended, and any regulations\nthereunder.\n\n     11.6.  Limitation of Liability.  EXCEPT WITH RESPECT TO EACH PARTY'S\nINDEMNITY OBLIGATIONS UNDER ARTICLE 8 AND CONFIDENTIALITY OBLIGATIONS UNDER\nARTICLE 11, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL,\nCONSEQUENTIAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES OF THE OTHER PARTY ARISING\nOUT OF OR RELATED TO THIS AGREEMENT, HOWEVER CAUSED, UNDER ANY THEORY OF\nLIABILITY EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.\n\n     11.7.  Arbitration.  All disputes arising between the parties under this\nAgreement will be settled by arbitration conducted in the English language in\naccordance with the Commercial Arbitration Rules of the American Arbitration\nAssociation.  The parties will cooperate with each other in causing the\narbitration to be held in as efficient and expeditious a manner as practicable.\nAny arbitration proceeding instituted under this Agreement will be brought in a\nmutually agreeable neutral territory.  Any award rendered by the arbitrators\nwill be final and binding upon the parties hereto.  Judgment upon the award may\nbe entered in any court of record of competent jurisdiction.  Each party will\npay its own expenses of arbitration and the expenses of the arbitrators will be\nequally shared unless the arbitrators assess as part of their award all or any\npart of the arbitration expenses of one party (including reasonable attorneys'\nfees) against the other party.   Each party irrevocably and unconditionally\nconsents to the jurisdiction of any \n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       10\n\n \nsuch proceeding and waives any objection that it may have to personal\njurisdiction or the laying of venue of any such proceeding.\n\n     11.8.  Force Majeure.  Neither party shall be held responsible for any\ndelay or failure in performance (with the exception of the payment of money)\nhereunder to the extent caused by strikes, embargoes, unexpected government\nrequirements, civil or military authorities, acts of God, earthquake, or by the\npublic enemy or other causes reasonably beyond such party's control and without\nsuch party's fault or negligence; provided that the affected party notifies the\nunaffected party as soon as reasonably possible, and resumes performance\nhereunder as soon as reasonably possible following cessation of such force\nmajeure event.\n\n     11.9.  Independent Contractors.  The relationship of AgraQuest and Licensee\nestablished by this Agreement is that of independent contractors.  Nothing in\nthis Agreement shall be constructed to create any other relationship between\nAgraQuest and Licensee.  Neither party shall have any right, power or authority\nto bind the other or assume, create or incur any expense, liability or\nobligation, express or implied, on behalf of the other.\n\n     11.10. Assignment.  The parties agree that their rights and obligations\nunder this Agreement may not be transferred or assigned to a third party without\nthe prior written consent of the other party hereto. Notwithstanding the\nforegoing, a party may transfer or assign its rights and obligations under this\nAgreement, without consent, to a successor to all or substantially all of its\nbusiness or assets relating to this Agreement whether by sale, merger, operation\nof law or otherwise. Any assignment not in conformance with this Section 12.10\nshall be null, void and of no legal effect.\n     \n     11.11. Notices.  Any notice, report, communication or consent required or\npermitted by this Agreement shall be in writing and shall be sent (a) by prepaid\nregistered or certified mail, return receipt requested, (b) by overnight express\ndelivery service by a nationally recognized courier, or (c) via confirmed\nfacsimile or telecopy, followed within five (5) days by a copy mailed in the\npreceding manner, addressed to the other party at the address shown below or at\nsuch other address for which such party gives notice hereunder.  Such notice\nwill be deemed to have been given when delivered or, if delivery is not\naccomplished by some fault of the addressee, when tendered.\n\n            If to AgraQuest:           AgraQuest, Inc.\n                                       1530 Drew Avenue\n                                       Davis, CA 95616\n                                       Attn: Dr. Pamela G. Marrone\n                                       Main: (530) 750-0150\n                                       Facsimile: (530) 750-0153\n                                \n            If to License e:           Dragoco, Inc.\n                                       One Gordon Drive\n                                       Totowa, New Jersey 07512\n                                       Attn: Klaus Stanzl, Ph.D\n                                       Facsimile: _____________\n\n     11.12. Modification; Waiver. This Agreement may not be altered, amended or\nmodified in any way except by a writing signed by both parties. The failure of a\nparty to enforce any rights or provisions of the Agreement shall not be\nconstrued to be a waiver of such rights or provisions, or a waiver by such\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       11\n\n \nparty to thereafter enforce such rights or provision or any other rights or\nprovisions hereunder. No waiver shall be effective unless made in writing and\nsigned by the waiving party.\n\n\n     11.13.  Severability.  If any provision of any provision of this Agreement\nshall be found by a court to be void, invalid or unenforceable, the same shall\nbe reformed to comply with applicable law or stricken if not so conformable, so\nas not to affect the validity or enforceability of this Agreement; provided that\nno such reformation or striking shall be effective if the result materially\nchanges the economic benefit of this Agreement to either AgraQuest or Licensee.\nIn the event that any provision of this Agreement becomes or is declared by a\ncourt of competent jurisdiction to be void, invalid or unenforceable, and\nreformation or striking of such provision would materially change the economic\nbenefit of this Agreement to either AgraQuest or Licensee, AgraQuest and\nLicensee shall modify such provision in accordance with this Section 11.13 to\nobtain a legal, valid and enforceable provision and provide an economic benefit\nto AgraQuest and Licensee that most nearly effects AgraQuest's and Licensee'\nintent on entering into this Agreement.\n\n     11.14.  Entire Agreement.  The parties hereto acknowledge that this\nAgreement, together with the exhibits attached hereto, set forth the entire\nagreement and understanding of the parties as to the subject matter hereto, and\nsupersedes all prior and contemporaneous discussions, agreements and writings in\nrespect hereto.\n\n     11.15.  Headings. The article, section and paragraph headings contained\nherein are for the purposes of convenience only and are not intended to define\nor limit the contents of the articles, sections or paragraphs to which such\nheadings apply.\n\n     11.16.  Counterparts.  This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original and all of which\ntogether shall constitute one instrument.\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       12\n\n \n     IN WITNESS WHEREOF, AgraQuest and Licensee have executed this Agreement by\ntheir respective duly authorized representatives.\n\nAgraQuest, Inc.                         DragocoGerberding &amp; Co.AG\n (\"AgraQuest\")                           (\"Licensee\")\n\n\nBy:    \/s\/ Pam Marrone                  By:    \/s\/ Klaus Stanzl\n       ---------------------------             --------------------------\nName:  Pam Marrone                      Name:  Klaus Stanzl            \n       ---------------------------             --------------------------\nTitle: President, CEO                   Title: Corp. Vice President   \n       ---------------------------             --------------------------\n       8\/20\/01                                 Head of Cosmetics Division\n       Aug. 20, 2001                           Worldwide\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       13\n\n \n                                   Exhibit A\n\n                               Licensed Patents\n                               ----------------\n\n[***]\n[***]\n[***]\n[***]\n[***]\n\n[***] Confidential information has beem omitted and filed separately with the \nSecurities and Exchange Commission pursuant to 17 C.F.R (S) 230.406.\n\n                                       14\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6597],"corporate_contracts_industries":[9451],"corporate_contracts_types":[9613,9616],"class_list":["post-42449","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-agraquest-inc","corporate_contracts_industries-manufacturing__chemicals","corporate_contracts_types-operations","corporate_contracts_types-operations__ip"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42449","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=42449"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42449"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42449"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42449"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}