{"id":42559,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/master-services-agreement-deltagen-inc-and-roche-bioscience.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"master-services-agreement-deltagen-inc-and-roche-bioscience","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/operations\/master-services-agreement-deltagen-inc-and-roche-bioscience.html","title":{"rendered":"Master Services Agreement &#8211; Deltagen Inc. and Roche Bioscience Inc."},"content":{"rendered":"<pre>\n                            MASTER SERVICES AGREEMENT\n\n         This Agreement, including all attachments hereto, (this \"Agreement\") is\nentered into as of October 2, 1998 (the \"Effective Agreement Date\"), by and\nbetween Deltagen, Inc., a Delaware corporation having an address at 1031 Bing\nStreet, San Carlos, California 94070, and all of its Affiliates (as defined\nbelow) (\"DELTAGEN\"); and ROCHE BIOSCIENCE, A DIVISION OF SYNTEX (U.S.A.) INC., a\nDelaware corporation having an address at 3401 Hillview Avenue, Palo Alto,\nCalifornia 94304 (as defined below) (\"ROCHE BIOSCIENCE\").\n\n         WHEREAS, DELTAGEN possesses knowledge and experience in the research\nand generation of Knockout Mice (defined below); and\n\n         WHEREAS, ROCHE BIOSCIENCE wishes to engage DELTAGEN to obtain the\nbenefit of such knowledge and experience with respect to projects being\nconducted by ROCHE BIOSCIENCE in research, development or evaluation of various\ngene sequences, pharmaceutical compounds or products of ROCHE BIOSCIENCE;\n\n         NOW THEREFORE, in consideration of mutual covenants set forth herein,\nDELTAGEN and ROCHE BIOSCIENCE (individually \"Party\" and collectively \"Parties\")\nagree as follows:\n\n1.   DEFINITIONS.\n\n         1.1      \"Affiliate\" of a Party shall mean any corporation or other\nbusiness entity controlled by, controlling or under common control with, such\nParty. For this purpose \"control\" shall mean direct or indirect beneficial\nownership of more than fifty percent (50%) of the voting or income interest in\nsuch corporation or other business entity.\n\n         1.2      \"Budget\" means the pricing and payment terms for a Knockout\nMice Project substantially in the form set forth in Attachment II attached\nhereto.\n\n         1.3      \"Claim(s)\"shall have the meaning set forth in Section 12.1\nbelow.\n\n         1.4      \"Confidential Information\" means with respect to a Party\nhereto (the \"Disclosing Party\"), collectively, all technical, financial and\nbusiness information of any kind whatsoever, and all tangible and intangible\nembodiments thereof of any kind whatsoever, disclosed by the Disclosing Party to\nthe other Party hereto (the \"Receiving Party\") or obtained by the Receiving\nParty through observation or examination of the foregoing, but only to the\nextent such information or embodiment is maintained, as confidential by the\nDisclosing Party and is marked or otherwise identified as confidential when\ndisclosed to the Receiving Party or, in the case of information given verbally,\nis identified as confidential in a written document\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n\n\nprovided to the Receiving Party within thirty (30) days after verbal disclosure\nto the Receiving Party. For purposes of this Agreement and without limiting the\ngenerality of the foregoing, the Data and the Study materials shall be\nconsidered the Confidential Information of ROCHE BIOSCIENCE.\n\n         1.5      \"Data\" means all data-or information generated under this\nAgreement during a Knockout Mice Project * * * required to be generated,\ncollected or analyzed by Deltagen under a Scope of Work.\n\n         1.6      * * *.\n\n         1.7      \"Designated Site(s)\" means the site(s) designated for a\nKnockout Mice Project as set forth in the applicable Scope of Work.\n\n         1.8      \"Effective Commencement Date\" shall have the meaning set forth\nin Section 2.3 below.\n\n         1.9      \"FDA\" means the United States Food and Drug Administration.\n\n         1.10     \"Inventions\" means technology, information, data, know-how,\ninventions, improvements and all patent or other intellectual property rights\ntherein-and thereto.\n\n         1.11     * * *.\n\n         1.12     \"Knockout Mice (Mouse) Project\" means a specific project to\ncreate, test and generate Knockout Mice under this Agreement in accordance with\nthe terms of a specific Scope of Work.\n\n         1.13     \"Law\" means any federal, state or local law, rule, or\nregulation.\n\n         1.14     \"Milestone\" shall mean the milestones set forth on the Scope\nof Work attached hereto.\n\n         1.15     \"Regulatory Agency\" means the FDA or any other similar\ngovernmental agency or agencies in countries other than the United States.\n\n         1.16     \"Regulatory Filing\" means any form or other statement required\nto be filed with any Regulatory Agency.\n\n         1.17     \"Roche Bioscience Representative\" means the representative\nidentified in writing by ROCHE BIOSCIENCE on a Scope of Work, as such\nrepresentative may be changed from time to time\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       2\n\n\n         in writing by ROCHE BIOSCIENCE.\n\n         1.18     * * *.\n\n         1.19     \"Scope of Work\" means a work plan for a Knockout Mice Project\n(or other similar document) substantially in the form attached hereto as\nAttachment I which references this Agreement and is mutually agreed to in\nwriting by ROCHE BIOSCIENCE and DELTAGEN.\n\n         1.20     * * *.\n\n         1.21     \"Study Materials\" means any samples or materials (including\nchemical or biological) provided by ROCHE BIOSCIENCE to DELTAGEN under this\nAgreement for purposes of a Knockout Mice Project, including but not limited to\ndrugs, compounds, genes, probes, formulations and other substances.\n\n2.   SCOPE OF WORK\n\n         2.1      INDIVIDUAL KNOCKOUT MICE PROJECTS. If ROCHE BIOSCIENCE wishes\nDELTAGEN to perform a Knockout Mice Project under this Agreement, ROCHE\nBIOSCIENCE and DELTAGEN shall meet and attempt to reach mutual-agreement upon a\nScope of Work for such Knockout Mice Project, including the applicable technical\nspecifications, budget and a time schedule for such Knockout Mice Project to be\nperformed pursuant to Attachments I and II. ROCHE BIOSCIENCE shall initiate a\nrequest for a Scope of Work by notifying DELTAGEN in writing and providing a\ndescription of the particular Knockout Mice Project requested. DELTAGEN shall\nevaluate each such request to determine whether such Knockout Mice Project is\nfeasible, if it is otherwise acceptable to DELTAGEN or if DELTAGEN requires\nmodifications thereto. If such a Knockout Mice Project, in DELTAGEN's\ncommercially reasonable discretion, is not feasible or is not otherwise\nacceptable to DELTAGEN, DELTAGEN shall have the right (without penalty) to\ndecline to undertake such Knockout Mice Project. The terms of this Agreement,\nthe Scope of Work and the Budget shall form the entire agreement of the Parties\nwith respect to each Knockout Mice Project.\n\n         2.2      INITIATION OF KNOCKOUT MICE PROJECTS. Prior to DELTAGEN's\ninitiation of each Knockout Mice Project, ROCHE BIOSCIENCE shall:\n\n                  2.2.1    Identify to DELTAGEN in writing each Knockout Mice \nProject to be initiated and agree with DELTAGEN upon the Scope of Work for such\nKnockout Mice Project;\n\n                  2.2.2    Disclose in writing to DELTAGEN all * * * in the\npossession of or freely available (without restriction) to\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       3\n\n\n                  ROCHE BIOSCIENCE that is reasonably necessary or useful for\nDELTAGEN to * * * to complete Milestones 1 and 2 under this Agreement with\nrespect to each Knockout Mice Project.\n\n                  2.2.3    Consult with and agree with DELTAGEN regarding * * *;\n\n                  2.2.4    Transfer to DELTAGEN any * * * licensed (without\nrestriction or cost), owned by or freely available (without restriction) to\nROCHE BIOSCIENCE that may be suitable for * * *; and\n\n                  2.2.5    Identify and notify DELTAGEN in writing of the\nspecifications (including the specific gene sequence) for each Knockout Mice\nProject for which DELTAGEN is requested by ROCHE BIOSCIENCE to produce Knockout\nMice.\n\n         2.3      COMMENCEMENT OF KNOCKOUT MICE PROJECT. Each Knockout Mice\nProject conducted hereunder shall commence fifteen (15) days after written\nagreement by both parties on a Scope of Work and DELTAGEN's receipt from ROCHE\nBIOSCIENCE of all information and materials set forth in Section 2.2 relating to\nsuch Knockout Mice project (the \"Effective Commencement Date\"). ROCHE BIOSCIENCE\nshall be solely responsible for identifying and notifying DELTAGEN in writing of\nthe specific gene sequence for each Knockout Mice Project.\n\n         2.4      PERFORMANCE. DELTAGEN shall use its commercially reasonable\nefforts to perform its obligations under this Agreement, PROVIDED THAT, ROCHE\nBIOSCIENCE acknowledges and agrees that the performance of the Knockout Mice\nProjects involves a number of technologically complex steps and that any time\nperiods for performance are reasonable estimates only and may be subject to\nchange due to potential technological difficulties encountered. DELTAGEN shall\nnotify ROCHE BIOSCIENCE of any such technical difficulties as soon as reasonably\npracticable after such difficulties are encountered and the parties shall\ndiscuss in good faith methods to resolve such technical difficulties in a\nreasonable manner. Except as otherwise set forth in this Agreement, if DELTAGEN\nis unable to complete a Milestone under any Scope of Work for a Knockout Mice\nProject within the estimated times set forth in the Scope of Work, ROCHE\nBIOSCIENCE shall have the right to terminate such Knockout Mice Project as set\nforth in Section 11.4.1.\n\n         2.5      COMPLETION OF KNOCKOUT MICE PROJECT. Each Knockout Mice\nProject shall be deemed complete upon DELTAGEN's completion of Milestone 3 on\nAttachment I for each such Knockout Mice Project ,and DELTAGEN's delivery of at\nleast * * * for a minimum of * * * and ROCHE BIOSCIENCE's confirmation of * * *.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       4\n\n\n         2.6      Design by Deltagen. DELTAGEN shall use reasonable efforts to\ndesign, as technically practical, * * * and to generate Knockout Mice under each\nKnockout Mice Project according to the specifications of ROCHE BIOSCIENCE as set\nforth in Section 2.2 above.\n\n         2.7      ADHERENCE TO SCOPE OF WORK. DELTAGEN shall perform those\nactivities described in the Scope of Work for each Knockout Mice Project at the\nDesignated Site, and shall comply with all the terms and requirements of both\nthis Agreement and the applicable Scope of Work. Neither Party shall change or\ndeviate from a Scope of Work without the prior written consent of the other\nParty. * * * pursuant to the terms of this Agreement and in compliance with all\napplicable laws.\n\n         2.8      CHANGES TO A KNOCKOUT MICE PROJECT. ROCHE BIOSCIENCE may, from\ntime to time, propose a modification to the terms of a Knockout Mice Project. If\nROCHE BIOSCIENCE intends to change any terms of a Knockout Mice Project,\nincluding but not limited to the time schedule for the work, ROCHE BIOSCIENCE\nshall submit such change(s) in writing to DELTAGEN (the \"Proposed Change\"). Such\nProposed Change shall be implemented by the parties only upon DELTAGEN's\nacceptance of such modifications in writing and upon the mutual agreement of the\nparties on a revised Budget as set forth in Section 3.2 below. DELTAGEN shall\nhave the right, in its commercially reasonable discretion, to accept or reject\nsuch Proposed Change based upon DELTAGEN's good faith belief as to whether such\nchange would alter DELTAGEN's technical or financial obligations under a Scope\nof Work.\n\n         2.9      STANDARDS OF WORK AND ANIMAL CARE. With respect to each\nKnockout Mice Project, DELTAGEN shall comply with all applicable * * * and good\nindustry standards regarding the maintenance and care of the Knockout Mice.\nPrior to delivery to ROCHE BIOSCIENCE, * * *. DELTAGEN warrants that the\nKnockout Mice delivered to ROCHE BIOSCIENCE under this Agreement shall be in\ngood health * * *. DELTAGEN shall replace any Knockout Mice that arrive at ROCHE\nBIOSCIENCE diseased or dead (except for disease or death resulting from the\nactions of ROCHE BIOSCIENCE's designated carrier). Upon the reasonable request\nof ROCHE BIOSCIENCE, DELTAGEN shall provide * * * reports to ROCHE BIOSCIENCE\nconcerning maintenance and care of the Knockout Mice.\n\n3.   PAYMENTS AND BUDGET.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       5\n\n\n         3.1      BUDGET. ROCHE BIOSCIENCE shall pay to DELTAGEN the payments\nset forth in the Budget for each Knockout Mice Project. Except as set forth in\nSection 3.2, such payments shall constitute full payment for such Knockout Mice\nProject, including all labor, materials and overhead and ROCHE BIOSCIENCE shall\nhave no other payment obligations hereunder. All payments made by ROCHE\nBIOSCIENCE under this Agreement shall be made in accordance with the Budget.\n\n         3.2      CHANGES TO BUDGET. Upon DELTAGEN's receipt of a Proposed\nChange in accordance with Section 2.8, if such Proposed Change is acceptable to\nDELTAGEN, ROCHE BIOSCIENCE and DELTAGEN shall negotiate in good faith a revised\nBudget (based upon the pricing and standards set forth in Attachment II) and\nmilestones based on the revised Scope of Work. No such revised Budget or\nschedule shall be effective until mutually agreed to in writing by both ROCHE\nBIOSCIENCE and DELTAGEN.\n\n         3.3      PAYMENTS. For each Knockout Mice Project, DELTAGEN shall\nsubmit invoices to ROCHE BIOSCIENCE upon DELTAGEN's completion of each Milestone\nset forth in the Scope of Work. ROCHE BIOSCIENCE shall pay such invoices within\nthirty (30) days after receipt. Invoices based on accomplishment of Milestones\nshall include a written representation of DELTAGEN's completion of such\nMilestones in compliance with the terms of this Agreement and, where applicable,\ndocumentation showing such completion.\n\n4.   RIGHTS TO INVENTIONS.\n\n         4.1      * * *.\n\n         4.2      * * *.\n\n         4.3      * * *.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       6\n\n\n         4.4      * * *.\n\n         4.5      NO OTHER TECHNOLOGY RIGHTS. Except as otherwise expressly\nprovided in this Agreement, under no circumstances shall a Party, as a result of\nthis Agreement, obtain any ownership interest or other right or license in any\ntechnology, information, know-how, patents, pending patent applications,\nproducts or materials of the other Party, including items owned, controlled or\ndeveloped by the other Party or transferred by the other Party to the-first\nParty at any time pursuant to this Agreement.\n\n         4.6      FURTHER ACTIONS. Each party shall reasonably (a) provide the\nother party with such information reasonably available to such party, and (b)\nexecute and deliver such instruments, in each case, to assist in perfecting each\nrespective party's patent and intellectual property rights to Inventions under\nSections 4.1, 4.2 and 4.3 above.\n\n5.       CONFIDENTIALITY.\n\n         5.1      CONFIDENTIAL INFORMATION. Except as otherwise expressly\nprovided in this Agreement, each Party shall maintain in confidence the\nConfidential Information of the other Party for a period of * * * years. Neither\nParty shall use, disclose or grant the use of the other's Confidential\nInformation except on a need-to-know basis to those directors, officers,\nemployees, Affiliates, agents, sublicensees and permitted assignees, to the\nextent such disclosure is reasonably necessary in connection with its activities\nas expressly authorized by this Agreement. To the extent that disclosure is\nauthorized by this Agreement, prior to disclosure, the Party wishing to disclose\nthe other's Confidential Information shall obtain the written agreement of any\nsuch Person who is not otherwise bound by confidentiality obligations at least\nas restrictive as the obligations set forth\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       7\n\n\n         in this Agreement, to hold in confidence and not make use of the\nConfidential Information for any purpose other than those permitted by this\nAgreement. Each Party shall notify the other upon discovery of any unauthorized\nuse or disclosure of that Party's Confidential Information.\n\n         5.2      PERMITTED DISCLOSURES. The nonuse and nondisclosure\nobligations contained in this Article 5 shall not apply to the extent that (a)\nthe Receiving Party is required to disclose information by law, order or\nregulation of a governmental agency or a court of competent jurisdiction,\nPROVIDED THAT, the Receiving Party shall notify the Disclosing Party prior to\nany such disclosure to permit the Disclosing Party to oppose such disclosure or\nto seek confidential treatment of such information); or (b) the Receiving Party\ncan demonstrate that (i) the information was public knowledge at the time of\nsuch disclosure by Receiving Party, or thereafter became public knowledge, other\nthan as a result of acts attributable to Receiving Party in violation hereof; or\n(ii) the information was rightfully known by the Receiving Party (as shown by\nits written records) prior to the date of disclosure to it by the Disclosing\nParty; or (iii) the information was disclosed to the Receiving Party on an\nunrestricted basis from a third party not under a duty of confidentiality to the\nDisclosing Party; or (iv) the information was independently developed by\nemployees or agents of the Receiving Party without access to the Confidential\nInformation of the Disclosing Party.\n\n         5.3      TERMS OF THIS AGREEMENT. Neither Party shall disclose any\nterms or conditions of this Agreement to any Third Party without the prior\nconsent of the other Party, except as required by applicable law; PROVIDED\nHOWEVER, that either Party may disclose the terms or conditions of this\nAgreement to a third party under an obligation of confidentiality to such Party\nin connection with a proposed sale or in the event of a proposed merger, change\nin control, consolidation or other similar transaction. Notwithstanding the\nforegoing, prior to execution of this Agreement, ROCHE BIOSCIENCE and DELTAGEN\nshall agree upon the substance of information that can be used to describe the\nexistence and\/or terms of this transaction in a press release and ROCHE\nBIOSCIENCE and DELTAGEN may disclose such information, as modified by mutual\nagreement from time to time, without the other Party's consent.\n\n         5.4      NO LICENSE. Except as expressly provided in this Agreement,\nnothing herein shall be construed as giving either Party any license, right,\ntitle or interest in or ownership of the other Party's Confidential Information.\nUpon termination of this Agreement or a particular Knockout Mice Project as\nprovided in Article 11, or upon either Party's request, each Party shall return\nall Confidential Information of the other Party and\/or destroy any portion of\nany documents, computer records, notes and other material retained by such Party\nwhich contains the Confidential Information of the other Party. However, each\nParty may retain one copy of such Confidential Information in its legal\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       8\n\n\n         files to be used only for interpretation of this Agreement.\n\n6.   REPRESENTATIONS AND WARRANTIES.\n\n         6.1      GENERAL REPRESENTATIONS. Each Party hereby represents and\nwarrants to the other Party as follows:\n\n                  6.1.1    CORPORATE -EXISTENCE. Such Party is a corporation\nduly organized, validly existing and in good standing under the laws of the\nstate in which it is incorporated.\n\n                  6.1.2    AUTHORIZATION AND ENFORCEMENT OF OBLIGATIONS. Such\nParty (a) has the corporate power and authority and the legal right to enter\ninto this Agreement and to perform its obligations hereunder, and (b) has taken\nall necessary corporate action on its part to authorize the execution and\ndelivery of this Agreement and the performance of its obligations hereunder.\nThis Agreement has been duly executed and delivered on behalf of such Party, and\nconstitutes a legal, valid, binding obligation, enforceable against such Party\nin accordance with its terms.\n\n                  6.1.3    NO CONSENTS. All necessary consents, approvals and\nauthorizations of all governmental authorities and other persons required to be\nobtained by such Party in connection with this Agreement have been obtained.\n\n                  6.1.4    NO CONFLICT. The execution and delivery of this\nAgreement and the performance of such Party's obligations hereunder (a) do not\nconflict with or violate any requirement of applicable laws or regulations, and\n(b) do not conflict with, or constitute a default under, any contractual\nobligation of it.\n\n         6.2      * * *.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       9\n\n\n         6.3      * * *.\n\n         6.4      .* * *.\n\n7.       REPORTING.\n\n         DELTAGEN shall deliver via overnight delivery service (or other service\nagreed to by the parties) to the ROCHE BIOSCIENCE Representative all reports\nrequired to be delivered in connection with a Knockout Mice Project.\n\n8.       RECORD RETENTION, INSPECTIONS, AND COOPERATION.\n\n         8.1      MAINTENANCE OF DATA. DELTAGEN shall maintain all written Data\nfor a period of not less than * * * years. At the expiration of such * * * year\nperiod, ROCHE BIOSCIENCE, at ROCHE BIOSCIENCE's cost and expense, shall promptly\narrange with DELTAGEN for delivery of such Data to ROCHE BIOSCIENCE or DELTAGEN\nmay dispose of such written Data sixty (60) days after providing written notice\nof the same to ROCHE BIOSCIENCE.\n\n         8.2      NOTICE OF REGULATORY ACTION. If a Regulatory Agency or, any\nother federal, state or local government authority conducts, or gives notice of\nits intent to conduct, an inspection at any Designated Site, or takes any other\nregulatory action with respect to a Knockout Mice Project conducted under this\nAgreement, then the Party learning thereof shall promptly give the other Party\nnotice thereof,\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       10\n\n\n         and each Party shall provide the other with any information reasonably\nrequired in connection therewith.\n\n9.   DATA.\n\n         For each Knockout Mice Project, DELTAGEN shall prepare and submit to\nROCHE BIOSCIENCE or its designee all Data as set forth under the applicable\nScope of Work, but in no event later than thirty (30) business days after (i)\nthe date of termination of such Knockout Mice Project or (ii) the date on which\nROCHE BIOSCIENCE otherwise requests delivery of the Data.\n\n10.      SUBCONTRACTING AND INDEPENDENT CONTRACTOR.\n\n         10.1     SUBCONTRACTING. ROCHE BIOSCIENCE is aware that certain\nKnockout Mice Projects may require DELTAGEN to subcontract to third parties\nportions of the work required by a Scope of Work. ROCHE BIOSCIENCE shall be\ndeemed to have approved such subcontracting on the following terms and\nconditions: (i) DELTAGEN shall not be allowed or authorized to make any\nrepresentations relating to ROCHE BIOSCIENCE without the prior written consent\nof ROCHE BIOSCIENCE; and (ii) such third party subcontractor shall be subject to\nthe terms and conditions of this Agreement. Prior to subcontracting any work\ncontemplated by a Knockout Mice Project, DELTAGEN shall notify ROCHE BIOSCIENCE\nof the intended third party subcontractor and ROCHE BIOSCIENCE shall be provided\nwith fourteen (14) days in which to object to the use of a particular\nsubcontractor. If ROCHE BIOSCIENCE does not object to the use of a particular\nsubcontractor within such fourteen (14) day period, DELTAGEN may subcontract\nsuch work under the Scope of Work to such third party subcontractor.\n\n         10.2     INDEPENDENT CONTRACTOR. DELTAGEN shall perform its obligations\nunder this Agreement as an independent contractor, and NOTHING CONTAINED herein\nshall be construed to be inconsistent with that relationship or status. Neither\nParty, nor their employees, agents and consultants, shall be considered\nemployees or agents of the other Party and shall not be entitled to participate\nin any of the other Party's benefit plans, programs, employment policies, or\nworkers' compensation insurance. This Agreement shall not constitute, create, or\nin any way be interpreted as a joint venture, partnership or business\norganization of any kind. Neither Party shall have the authority to bind the\nother Party to any agreement whatsoever. Each Party shall provide evidence\nsatisfactory to the other Party of the existence of workers' compensation and\nemployer's liability insurance covering any personnel of such Party supplied\nhereunder.\n\n11.      TERM AND TERMINATION.\n\n         11.1     TERM . This Agreement shall begin on the Effective Agreement\nDate and remain in full force and effect until the\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       11\n\n\n         later of (a) two (2) years after the Effective Agreement Date, or (b)\nthe completion by DELTAGEN of all Milestones under any applicable Knockout Mice\nProjects under this Agreement, unless earlier terminated as provided in this\nArticle 11.\n\n         11.2     * * *.\n\n         11.3     TERMINATION BY DELTAGEN.DELTAGEN may terminate a Knockout Mice\nProject upon DELTAGEN's identification of an item described in Section 2.4 which\nwould prevent DELTAGEN from completing such Knockout Mice Project using\ncommercially reasonable efforts.\n\n         11.4     TERMINATION BY EITHER PARTY.\n\n                  11.4.1   MATERIAL DEFAULT. This Agreement or a Knockout Mice\nProject may be terminated by either Party upon any material breach of this\nAgreement by the other Party, provided that any breaching Party shall be given\nnot less than twenty (20) days prior written notice of such breach and the\nopportunity to cure such breach during such period.\n\n                  11.4.2   BANKRUPTCY. This Agreement or a Knockout Mice Project\nmay be immediately terminated by either Party if the other Party is dissolved or\nliquidated, makes a general assignment for the benefit of its creditors, or\nfiles or has filed against it, a petition in bankruptcy or has a receiver\nappointed for a-substantial part of its assets.\n\n         11.5     RIGHTS AND OBLIGATIONS AFTER NOTICE OF TERMINATION.\n\n                  11.5.1   TERMINATION BY ROCHE BIOSCIENCE * * * OR FOR BREACH\nOR BANKRUPTCY OF ROCHE BIOSCIENCE. If this Agreement or a Knockout Mice Project\nis terminated by ROCHE BIOSCIENCE pursuant to Section 11.2 or terminated by\nDELTAGEN pursuant to Section 11.4, DELTAGEN shall cease further work on\napplicable Knockout Mice Projects as immediately as practicable in accordance\nwith its responsibilities under this Agreement and applicable Laws, in order to\nreduce or eliminate further costs, and to cancel, if permitted under the terms\nof applicable agreements, any third party obligations. Within thirty (30) days\nafter DELTAGEN's ceasing of work on such Knockout Mice Projects, DELTAGEN shall\nprovide ROCHE BIOSCIENCE with a written itemized statement of all work performed\nby it through termination, including any non-cancelable costs or expenses\nincurred by DELTAGEN prior to termination. DELTAGEN shall invoice ROCHE\nBIOSCIENCE for all unpaid Milestones completed by DELTAGEN and if such notice is\nreceived by DELTAGEN prior to DELTAGEN's completion of work under a Milestone,\nDELTAGEN shall in addition have the right to further invoice ROCHE BIOSCIENCE\nfor payment of such one uncompleted Milestone as if DELTAGEN had completed such\nMilestone. DELTAGEN shall deliver to ROCHE BIOSCIENCE all deliverables prepared\nor completed by DELTAGEN at the time of\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       12\n\n\n                  such cessation of work and all unused Study Materials and\n                  Data.\n\n                  11.5.2   TERMINATION BY ROCHE BIOSCIENCE FOR BANKRUPTCY OF\nDELTAGEN OR BY DELTAGEN FOR DELTAGEN'S INABILITY TO COMPLETE MILESTONE. If this\nAgreement or a Knockout Mice Project is terminated by DELTAGEN pursuant to\nSection 11.3 or by ROCHE BIOSCIENCE pursuant to Section 11.4.2 above, DELTAGEN\nshall deliver all deliverables prepared or completed by DELTAGEN at the time of\nsuch termination, all unused Study Materials and all Data to ROCHE BIOSCIENCE\nwithin sixty (60) days of receipt by DELTAGEN of notice of termination. DELTAGEN\nshall provide ROCHE BIOSCIENCE with a written itemized statement of all work\nperformed by DELTAGEN through the date of termination (including any Milestones\ncompleted by DELTAGEN) and ROCHE BIOSCIENCE shall pay such invoiced amount\nwithin thirty (30) days of receipt of such statement.\n\n                  11.5.3   TERMINATION BY ROCHE BIOSCIENCE FOR BREACH BY\nDELTAGEN. If this Agreement or a Knockout Mice Project is terminated by ROCHE\nBIOSCIENCE pursuant to Section 11.4.1 above, DELTAGEN shall deliver all\ndeliverables prepared or completed by DELTAGEN at the time of such termination,\nall unused Study Materials and all Data to ROCHE BIOSCIENCE within sixty (60)\ndays of receipt by DELTAGEN of notice of termination. DELTAGEN shall provide\nROCHE BIOSCIENCE with a written itemized statement of all work performed by\nDELTAGEN through the date of termination (including any Milestones completed by\nDELTAGEN) and ROCHE BIOSCIENCE shall pay such invoiced amount (or portion\nthereof that is not reasonably the subject of such breach) within thirty (30)\ndays of receipt of such statement.\n\n         11.6     EFFECT OF EXPIRATION OR TERMINATION. Expiration or termination\nof this Agreement shall not relieve the parties of any obligation accruing prior\nto such expiration or termination. The provisions of Articles 4, 5, 6.4 and 12\nshall survive any expiration or termination of this Agreement.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       13\n\n\n12.  INDEMNIFICATION.\n\n         12.1     * * *.\n\n         12.2     * * * .\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       14\n\n\n         12.3     PROCEDURE. A Party (the \"Indemnified Party\") which intends to\nclaim indemnification under this Article 12, shall promptly notify the other\nParty (the \"Indemnifying Party\") of any Claim with respect to which the\nIndemnified Party intends to claim such indemnification. The Indemnifying Party\nshall assume and control the defense of such Claim with counsel selected by the\nIndemnifying Party; PROVIDED, HOWEVER, that the Indemnified Party shall have the\nright to retain its own counsel, with the fees and expenses to be paid by the\nIndemnifying Party if representation of the Indemnified Party by the counsel\nretained by the Indemnifying Party would create a conflict for the interests of\nthe Indemnified Party. The indemnity obligations under this Article 12 shall not\napply to amounts paid in settlement of any Liability if such settlement is\neffected without the consent of the Indemnifying Party, which shall be given or\nnot in the Indemnifying Party's sole discretion. The failure to deliver notice\nto the Indemnifying Party within a prompt time after the commencement of any\nsuch action, if prejudicial to its ability to defend such action, shall relieve\nthe Indemnifying Party of any liability to the Indemnified Party under this\nArticle 12, but the omission so to deliver notice to the Indemnifying Party will\nnot relieve it of any liability that it may have to the Indemnified Party\notherwise than under this Article 12. The Indemnifying Party may not settle the\naction or otherwise consent to an adverse judgment in such action that\ndiminishes the rights or interests of the Indemnified Party without the express\nwritten consent of the Indemnified Party. The Indemnified Party, its employees\nand agents, shall cooperate fully with the Indemnified Party and its legal\nrepresentatives in the investigation of any Claim covered by this\nindemnification.\n\n13.  TAXATION.\n\n         In order that ROCHE BIOSCIENCE may comply with applicable tax laws and\nregulations, DELTAGEN, at ROCHE BIOSCIENCE's cost and expense, if reasonably\nrequested by ROCHE BIOSCIENCE, agrees to provide within thirty (30) days after\nthe close of each calendar year such non-confidential information reasonably\navailable to DELTAGEN which ROCHE BIOSCIENCE reasonably requests and deems\nnecessary to properly compute its tax liability. In order to assist DELTAGEN in\nproviding such information, ROCHE BIOSCIENCE shall provide DELTAGEN with a\nsummary of payments made to it during such year for research activities\nconducted during such year.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       15\n\n\n14.  TRADEMARKS.\n\n         Neither Party shall use of the trademarks or tradenames of the other\nParty without the express written consent of the other Party.\n\n15.  DELAYS OR FORCE MAJEURE.\n\n         15.1     FORCE MAJEURE. Neither Party shall be liable for the failure\nto perform its obligations under this Agreement or a Knockout Mice Project if\nsuch failure is occasioned by a contingency beyond such Party's reasonable\ncontrol, including but not limited to strikes or other labor disturbances,\nlockouts, riots, wars, fires, floods, earthquakes or storms. A Party claiming a\nright to excused performance under this Section 15.1 shall immediately notify\nthe other Party in writing of the extent of its inability to perform, which\nnotice shall specify the occurrence beyond its reasonable control that prevents\nsuch performance.\n\n         15.2     DELAY. If ROCHE BIOSCIENCE delays the actual start of a\nKnockout Mice Project for any reason, the date by which DELTAGEN is obligated to\ncomplete its duties and obligations as described in the applicable Scope of Work\nshall be extended by the number of days the start was delayed.\n\n16.  NOTICES.\n\n         Any notice-required or permitted to be given hereunder shall be deemed\nsufficient if sent by facsimile letter or overnight courier, or delivered by\nhand to ROCHE BIOSCIENCE or DELTAGEN at (i) in the case of notices pursuant to\nthis Agreement, the respective addresses set forth below or at such other\naddress as either Party hereto may designate. If sent by facsimile letter,\nnotice shall be deemed given when the TRANSMISSION IS completed if the sender\nhas a confirmed transmission report. If a confirmed transmission report does not\nexist, then the notice shall be deemed given when the notice is actually\nreceived by the person to whom it is sent. If delivered by overnight courier,\nnotice shall be deemed given when it has been signed for. If delivered by hand,\nnotice shall be deemed given when received. Any notice sent by facsimile must\nalso be sent by mail or overnight courier or delivered by hand.\n\nIF TO DELTAGEN:\n\n***\n\nIF TO ROCHE BIOSCIENCE:\n\n***\n\n17.  MISCELLANEOUS PROVISIONS.\n\n         17.1     * * *.\n\n         17.2     AMENDMENTS. No provision of this Agreement, the Budget or the\nScope of Work may be amended, revoked, or waived except in writing signed and\ndelivered by an authorized officer of each Party. Either Party's failure to\nrequire the other Party to comply with the provisions of this Agreement shall\nnot be deemed a waiver of such provision or any other provision of this\nAgreement.\n\n         17.3     VALIDITY. If any clause, section or paragraph of this\nAgreement is determined by a court of competent jurisdiction to be illegal,\ninvalid or unenforceable, it will be deemed severed from the remainder of this\nAgreement and will have no effect on the legality, validity or enforceability of\nthe remaining provisions.\n\n         17.4     HEADINGS. The paragraph headings of this Agreement are merely\nfor the convenience of the parties and are not to be construed as modifying or\nchanging the obligations or conditions expressed in this Agreement.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       16\n\n\n         17.5     ENTIRETY. This Agreement represents the entire understanding\nas of the Effective Agreement Date hereof between the parties with respect to\nthe matter hereof, and supersedes all prior agreements, negotiations;\nunderstandings, representations, statements, and writings between the parties\nrelating thereto.\n\n         17.6     CONFLICT WITH SCOPE OF WORK OR BUDGET. If any terms of this\nAgreement are in conflict with any terms of any Scope of Work or Budget, the\nterms of this Agreement shall govern.\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       17\n\n\n         17.7     COUNTERPARTS. This Agreement may be executed in several\ncounterparts, each of which shall be deemed an original but all of which shall.\nconstitute one and the same instrument.\n\n         17.8     GOVERNING LAW. This Agreement shall be governed by and\nconstrued in accordance with the laws of the State of California, without regard\nto the conflicts of law principles of California or any other state or\njurisdiction.\n\n         IN WITNESS WHEREOF, the Parties hereto through each of their respective\nduly authorized representatives have caused this Agreement to be executed as of\nthe Effective Date.\n\nROCHE BIOSCIENCE DIVISION OF SYNTEX (U.S.A.) INC.    DELTAGEN, INC\n--------------------------------------------------------------------------------\n\nBy                                                   By\n     \/s\/ R.L. WHITING                                     \/s\/ WILLIAM MATTHEWS\n     --------------------------------------------         ----------------------\n\nName:                                                Name:\n        R.L. WHITING                                          WILLIAM MATTHEWS\n        -----------------------------------------             ------------------\nTitle:  SUP, HEAD, NEUROBIOLOGY                      Title:   PRESIDENT\n\nDate:                                                Date:\n          8\/2\/98                                              9\/30\/98\n          ---------------------------------------             ------------------\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       18\n\n\n                                  ATTACHMENT I\n\n\n [5 pages of milestone and budget information redacted and filed separately with\n the Commission]\n\n\n                                      * * *\n\n\n* * *  Confidential material redacted and separately filed with the Commission.\n\n\n                                       19\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7296],"corporate_contracts_industries":[9405],"corporate_contracts_types":[9613,9620],"class_list":["post-42559","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-deltagen-inc","corporate_contracts_industries-drugs__biotech","corporate_contracts_types-operations","corporate_contracts_types-operations__services"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/42559","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=42559"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=42559"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=42559"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=42559"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}