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EXHIBIT 10.2
LICENSE AGREEMENT
This Agreement is made as of June 20, 2002 (hereinafter referred to as the
"Effective Date"), by and between Paracelsian, Inc., a Delaware corporation with
a place of business at Langmuir Laboratories, Cornell Technology Park, 95 Brown
Road #1005, Ithaca, New York 14850 (hereinafter referred to as "Paracelsian")
and Biosense Laboratories AS, a Norwegian corporation with a place of business
at Thormohlensgt. 55, N-5008 Bergen, Norway (hereinafter referred to as
"Biosense").
RECITALS
A. Paracelsian has developed a proprietary, cost-effective and user
friendly technology for the screening of environmental samples for very small
quantities of the highly toxic environmental chemical, dioxin, and related
chemicals called the Ah-IMMUNOASSAY(R).
B. Biosense is a biotech company focusing on the development and
production of immunoassays and bioassays for environmental monitoring, chemical
product testing, and food safety studies.
C. Biosense desires to commercialize the Ah-IMMUNOASSAY(R) in Europe.
D. Paracelsian is willing to provide to Biosense Know-How and an
exclusive license of IP Rights in the Territory to manufacture, have
manufactured, distribute, sell, use, sublicense, and develop the Products within
the Territory.
In consideration of the following mutual promises and covenants contained
in this Agreement, Paracelsian and Biosense hereby agree as follows:
ARTICLE 1.
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
meanings indicated.
1.1 IP RIGHTS. The term "IP Rights" means all intellectual property rights
arising under the laws of any jurisdiction, including any patents, which relate
to the Ah-IMMUNOASSAY(R) or portions thereof which Paracelsian possesses or
controls, and which it may obtain during the term of this Agreement.
1.2 KNOW-HOW. The term "Know-How" means all information, patentable or
not, relating to the Ah-IMMUNOASSAY(R), including but not limited to, physical
and chemical characteristics, manufacturing processes, product specifications,
analytical technology, safety and efficacy data, testing data, future market and
product plans, marketing and financial data which Paracelsian possesses,
controls, or utilizes, and which it may obtain during the term of this
Agreement.
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1.3 Ah-IMMUNOASSAY(R). The term "Ah-IMMUNOASSAY(R)" means biological
detection of dioxin-like compounds by using transformed Ah receptor/ARNT
complex.
1.4 PRODUCTS. The term "Products" means any product utilizing the
Ah-IMMUNOASSAY(R) which incorporates any Know-How of significant importance for
the utilization of the Ah-IMMUNOASSAY or is covered by any IP Rights licensed to
Biosense hereunder.
1.5 TERRITORY. The term "Territory" means Europe. Any extension or
addition to the Territory must be agreed to in advance by both parties in
writing.
1.6 DOCUMENTATION. The term "Documentation" means the current or future
literature and other printed materials prepared by Paracelsian for use with the
Products.
1.7 TRADEMARKS. The term "Trademarks" means Paracelsian's trademarks.
1.8 NET SELLING PRICE. The term "Net Selling Price" means the invoice
price of any Product minus any trade discounts, allowances for defective goods,
and/or sales commissions up to 5% of the invoice price. For the purpose of
calculating the royalty due to Paracelsian, Biosense may, for each individual
customer, use the price amount, charged to that customer, which is calculated by
multiplying the average unit net selling price by the quantity of units sold to
compute the Net Selling Price for that customer.
1.9 Ah-IMMUNOASSAY(R) IMPROVEMENTS. The term "Ah-IMMUNOASSAY(R)
Improvements" means improvements, modifications or enhancements to the
Ah-IMMUNOASSAY(R).
ARTICLE 2.
RIGHTS GRANTED
2.1 GRANT OF LICENSES
(a) Paracelsian grants to Biosense an exclusive license to distribute, sell,
use, sublicense, develop and manufacture, and/or have manufactured, the Products
in the Territory.
(b) Paracelsian shall cooperate fully with Biosense to seek protection in the
Territory of the license granted by Paracelsian under this Agreement by
registration of the nature of the license granted hereunder.
2.2 TRADEMARK LICENSES
(a) Paracelsian hereby grants to Biosense, and Biosense hereby accepts, an
exclusive, royalty-free license to use the Trademarks in the Territory in
connection with the distribution and sublicensing of the Products and the
Documentation, including the marketing thereof in accordance with the terms of
this Agreement.
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(b) Paracelsian and Biosense agree that Biosense may affix its own trademarks to
the Products and Documentation in addition to Paracelsian's Trademarks, provided
however that Biosense shall not omit or remove Paracelsian's Trademarks. The
parties may agree otherwise.
(c) Paracelsian agrees that Biosense shall own all rights in any trademarks that
Biosense coins and affixes to the Products and the Documentation. Paracelsian
further agrees that Paracelsian shall not, during or at any time after the
expiration or termination of this Agreement, in any way question or dispute
Biosense's rights in such trademarks.
(d) Biosense recognizes the substantial goodwill associated with the Trademarks
and acknowledges that such goodwill belongs exclusively to Paracelsian. Any and
all uses of the Trademarks by Biosense shall inure solely to the benefit of
Paracelsian, and Biosense shall not contest the validity of the Trademarks, nor
shall Biosense claim any ownership interest therein.
(e) Unless Biosense obtains written consent from Paracelsian, Biosense will not
use any Trademark outside the Territory or on or in association with any product
other than the Products, and Biosense will not sell or dispose of any Products
bearing or associated with any Trademark with a view to their being resold or
distributed outside the Territory. Notwithstanding the foregoing, Biosense may
have Products bearing or associated with any Trademark manufactured outside of
the Territory for distribution and sale solely within the Territory.
(f) Biosense may use the Trademarks only in the forms agreed to by the parties.
Each Trademark will be registered in the name of Paracelsian, and Biosense will
execute such documents and take such other action as may be necessary to
register the Trademarks in the name of Paracelsian in association with the
Products. Until Paracelsian notifies Biosense that a Trademark has been
registered with respect to the Products, Biosense will use the notation "TM" in
association with the Products. After a Trademark is registered with respect to
the Products, Biosense will use the notation "R" in association with the
Trademark. Biosense covenants and warrants that all Products and the
manufacture, production, marketing, promotion, advertising and sale of the
Products will comply with all applicable laws, rules and regulations in the
Territory.
(g) Biosense will maintain high standards of quality with respect to all
Products bearing or associated with any Trademark, including, without
limitation, the quality of the materials utilized in their manufacture and the
quality of the promotions and advertisement for the Products. The types of
materials and styles and designs will be determined by Biosense. The other
provisions of this Section 2.2 will not release or relieve Biosense from its
obligations under this subdivision.
(h) Biosense shall use its best efforts to commercialize and promote the
Products in the Territory. Paracelsian shall use reasonable efforts to support
Biosense's marketing efforts.
(i) Paracelsian may, on reasonable notice, at any time during Biosense's normal
business hours, inspect the premises of Biosense to determine compliance with
the provisions of this Section 2.2.
(j) Neither Biosense nor Paracelsian will use any trademark belonging to the
other party on any promotion, packaging, or advertisement unless the other party
has approved the use of its trademark(s). Neither party shall unreasonably
withhold or delay its approval under this subdivision (j), and if the trademark
owner does not notify the requesting party in writing of its
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disapproval and the reason therefore within ten (10) days after receiving a
submission, the trademark owner will be deemed to have given its approval as to
that submission.
ARTICLE 3.
DEVELOPMENT & OTHER JOINT ACTIVITIES
3.1 DEVELOPMENT AND OTHER JOINT ACTIVITIES
(a) Paracelsian and Biosense will work together for the verification of IP
status for Europe before October 1, 2002.
(b) The parties will participate in the joint validation of the
Ah-IMMUNOASSAY(R) in the Swedish Interlaboratory study, including the exchange
of samples.
(c) The parties may hold technical review meetings to exchange and train
scientists, discuss progress, plan future actions, and to discuss and effect
changes. Paracelsian and Biosense each will appoint a leader to coordinate the
efforts pursuant to this Agreement and the flow of information between the
parties. The respective costs incurred will be covered by each party,
respectively. However, Biosense will pay the travel expenses of two persons from
Paracelsian for initial training in Bergen, Norway.
(d) The parties will work together to develop marketing activities, including
common participation at the Dioxin 2002 Conference in Barcelona, Spain to be
held in August 2002. Paracelsian will also supply all market leads to Biosense
received before this agreement is established, as well as all leads coming to
Paracelsian during the period this agreement is valid.
Paracelsian undertakes to provide to Biosense as soon as possible but not later
then within [30] days from Effective Date the Know How.
3.2 ACCEPTANCE
Biosense shall retain the right to renegotiate this Agreement after three months
from the Effective Date if to the satisfaction of Biosense:
(a) The IP protection for Europe is not clarified as defined in 3.1(a).
(b) The activities, as defined in 3.1 are not performed.
(c) The Ah-IMMUNOASSAY(R) core technology fails to perform in accordance
with mutually agreeable criteria.
(d) The kits purchased under section 4f is not delivered before 1, August
2002
In case of Biosense decides according to its discretion to renegotiate the
Agreement, subject to the above, Paracelsian undertake to renegotiate in good
faith and accept reasonable changes to this Agreement.
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3.3 OWNERSHIP OF IMPROVEMENT
(a) All rights in the course of performance of this Agreement, including but not
limited to patent rights, ideas, discoveries or inventions relating to
Ah-IMMUNOASSAY(R) Improvements which are conceived by the employees, consultants
or agents of Paracelsian, shall be the property of Paracelsian, provided however
that any such Ah-IMMUNOASSAY(R) Improvements are hereby included in the license
grant to Biosense provided in this Agreement. All rights in the course of
performance of this Agreement, including but not limited to patent rights,
ideas, discoveries or inventions relating to Ah-IMMUNOASSAY(R) Improvements
which are conceived by the employees, consultants or agents of Biosense, shall
be the property of Biosense, provided however that any such Ah-IMMUNOASSAY(R)
Improvements are here by licensed to Paracelsian to use, make, or sell in the
United States.
(b) Outside of Europe, Ah-IMMUNOASSAY(R) Improvements developed jointly by
Paracelsian and Biosense shall be the undivided joint property ("Jointly Owned
Property") of Paracelsian and Biosense. Each party may make, use, sell, or have
made Products utilizing Jointly Owned Property and may assign, license, or
otherwise transfer its individual interest in any Jointly Owned Property, but
cannot unilaterally transfer or otherwise affect the other party's interest in
that Jointly Owned Property. Any license by a party hereto to any third party
that contains either Jointly Owned Property, or Ah-IMMUNOASSAY(R) Improvements
owned by the other party hereto, shall provide for pro-rata compensation to the
owner(s) of said property.
(c) Biosense will retain intellectual property rights in Europe for improvements
developed jointly.
(d) Improvements or changes in technology based on joint development, shall take
effect on the transfer prices and the royalty payments herein. Both parties
undertake to act reasonably and negotiate such changes in good faith.
(e) Paracelsian agrees that any Ah-IMMUNOASSAY(R) Improvements made by
Paracelsian will be immediately made known to Biosense. Biosense agrees that any
Ah-IMMUNOASSAY(R) Improvements made by Biosense will be immediately made known
to Paracelsian.
(f) Paracelsian shall be responsible for obtaining patents, copyrights, and
other intellectual property rights related to the IP Rights or the Know-How for
Ah-IMMUNOASSAY(R) Improvements in any countries other than the Territory at its
own expense. Biosense shall be responsible for obtaining such intellectual
property rights for Ah-IMMUNOASSAY(R) Improvements in the Territory in its own
name and at its own expense.
(g) Both parties have the obligation to notify each other on any development,
status, and action dates relating to IP protection inside or outside of the
Territory.
ARTICLE 4.
CONSIDERATION
4.1 CONSIDERATION. For the rights and privileges granted hereunder,
Biosense shall pay the following fees and royalty to Paracelsian in the manner
hereinafter provided:
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(a) Biosense shall pay to Paracelsian for the License Fee $40,000 (US dollars)
upon the Effective Date of this Agreement and $10,000 (US dollars) on October 1,
2002.
(b) Biosense shall retain the right to manufacture the Ah-IMMUNOASSAY(R) Kits
after the first thirty months from the Effective Date of this Agreement and
Biosense shall pay Paracelsian a Licensing Fee, and a royalty of the sales price
of the Products sold. Royalty and License Fee shall be negotiated as a part of
the extension of this Agreement.
(c) The royalty payable by Biosense under this Section shall accrue upon
Biosense's receipt of payment or obligation to pay for the Products for which
such royalty are payable.
(d) In the event Biosense purchases Ah-IMMUNOASSAY(R) components from
Paracelsian, Paracelsian shall not include an amount for Royalty on any invoice
to Biosense. Biosense agrees that the cost of the components purchased from
Paracelsian shall not be deducted from the Net Selling Price for purposes of
calculating Royalty.
(e) Biosense may use the Ah-IMMUNOASSAY(R) Kits internally for its own testing
purposes only without the accrual of Royalty.
(f) On or before July 1, 2002. Biosense will purchase twenty initial
Ah-IMMUNOASSAY(R) Kits at a transfer price of $150 (US dollars) per Kit.
(g) Biosense agrees to purchase a minimum of 200 Ah-IMMUNOASSAY(R) Kits from
Paracelsian for the first eighteen months of this Agreement, beginning with the
Effective Date of this Agreement. Biosense will purchase forty Kits on or before
October 1, 2002, forty Kits on or before January 1, 2003, forty Kits on or
before April 1, 2003, forty Kits on or before July 1, 2003 and forty Kits on or
before October 1, 2003 at a transfer price of $500 (US dollars) per Kit. The
total Kits purchased for the first eighteen month period, including the twenty
initial Kits, equals $103,000 (US dollars). Delivery dates of kits will be set
by Biosense.
(h) Beginning with the nineteenth month and ending on the last day of the
thirtieth month following the Effective Date of this Agreement, Biosense agrees
to purchase a minimum of 300 Ah-IMMUNOASSAY(R) Kits. Biosense will purchase
seventy five Kits on or before January 1, 2004, seventy five Kits on or before
April 1, 2004, seventy five Kits on or before July 1, 2004, and seventy five
Kits on or before October 1, 2004 at the transfer price of $670 (US dollars) per
Kit. The total Kits purchased for this twelve month period equals $201,000 (US
dollars). Delivery dates of kits will be set by Biosense.
(i) If Biosense purchases more Kits, in addition to the minimum amounts defined
in 4.1(g) and 4.1(h), then the following transfer prices will apply:
For one to twenty Kits the transfer price will equal $750 (US dollars)
per Kit.
For twenty one to fifty Kits the transfer price will equal $685 (US
dollars) per Kit.
For fifty one to one hundred Kits the transfer price will equal $600
(US dollars) per Kit.
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Over one hundred Kits the transfer price will equal $500 (US dollars)
per Kit.
4.2 TAXES. Paracelsian shall be responsible for any taxes arising under
this Agreement that are attributable to Paracelsian under generally accepted
accounting principles, including, without limitation, any applicable
withholding, sales, use, excise or personal property taxes, or import or export
duties, Biosense shall be responsible for any taxes arising under this Agreement
that are attributable to Biosense under generally accepted accounting
principles, including, without limitation, any applicable withholding, sales,
use, excise or personal property taxes, or import or export duties, including
but not limited to taxes related to manufacture, use, sale or lease with respect
to commercialization of the Product(s). Biosense shall at its own expense be
responsible for applying for and obtaining any approvals, authorizations, or
validations relative to this Agreement under the appropriate national laws or
otherwise, including authorization for the remittances hereunder from the
appropriate governmental authorities.
4.3 BOOKS OF ACCOUNT AND RECORDS
(a) Within thirty days after the end of each quarter of the calendar year (the
"Quarter") during the term of this Agreement, Biosense shall pay to Paracelsian
all the royalties that have accrued during that quarter. Each such payment shall
be accompanied by a true and accurate written statement setting forth the basis
for Biosense's calculation of the royalty payable for the quarter, including,
the outline of the business conducted by Biosense and its sublicensees during
the preceding quarter as shall be pertinent to Royalty accounting hereunder.
(b) Biosense shall maintain throughout the term of this Agreement, and for a
period of one year following the expiration or termination of this Agreement,
such books and records as may be reasonably necessary to permit Paracelsian to
audit the statements submitted by Biosense under Section 4.3(a). Upon reasonable
notice, but no more frequently than once in any calendar year, Paracelsian shall
have the right to have certified public accountants bound by professional
secrecy audit such books and records for the purpose of verifying the accuracy
of the payments made by Biosense. This auditor shall have the right to inspect
all books and records of Biosense directly related to the Product(s). The
auditing costs shall be borne by Paracelsian unless the auditing proves the
failure of Biosense to provide Paracelsian with correct statements of the
royalty. In the latter case, Biosense shall pay for the costs of auditing if the
statement(s) provided by Biosense are in error in excess of five percent (10%)
of the amounts due to Paracelsian. In that case Biosense agrees to pay the
balance of such understated royalty to Paracelsian within ten (10) days after
written notice of the understatement. Furthermore, Biosense shall pay interest
on all understated royalty at the daily rate equivalent to 1.0% per month,
computed from the day on which said royalty were due and owing to Paracelsian.
The location of any audit shall be Biosense's address provided for the purposes
of notice under this Agreement. Paracelsian's right to audit the records of
Biosense with respect to any yearly statement or payment of license fees shall
expire three years following Paracelsian's receipt of such payment or statement.
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ARTICLE 5.
TERM AND TERMINATION
5.1 TERM
(a) The license shall come into force upon signing of this Agreement by both
parties and shall be valid for thirty months.
(b) Biosense has the right to extend this Agreement beyond the initial thirty
month period, for three additional years and beyond, upon the negotiation of
reasonable terms and conditions, including new business model. Both parties
undertake to act reasonably and negotiate such changes in good faith.
5.2 TERMINATION. Except as otherwise provided in this Agreement, either
party may terminate this Agreement at any time upon the occurrence of a breach
by the other party of a material obligation under this Agreement and failure to
cure such breach within thirty (30) days after written notice thereof.
5.3 TERMINATION FOR INSOLVENCY. Either party may terminate this Agreement
immediately: (i) upon the other party's making an assignment for the benefit of
creditors; or (ii) upon the other party's dissolution. All rights and licenses
granted under or pursuant to this Agreement by one party to another are, for all
purposes of Section 365(n) of Title Xl of the United States Code ("Title Xl"),
licenses of rights to "intellectual property" as defined in Title Xl. During the
term of this Agreement each party shall create and maintain current copies to
the extent practicable of all such intellectual property. If a voluntary or
involuntary bankruptcy proceeding is commenced by or against one party under
Title XI, the other party shall be entitled to a copy of any and all such
intellectual property and all embodiments of such intellectual property. If the
applicable intellectual property is not in the possession of such other party,
the intellectual property shall be promptly delivered to the other party (I)
upon such other party's written request following the commencement of such
bankruptcy proceeding or its trustee or receiver, elects within thirty (30) days
to continue to perform all of its obligations under this Agreement, or (ii) if
not delivered as provided under clause (I) above, upon such other party's
request after the rejection of this Agreement by or on behalf of the party
subject to the bankruptcy proceeding. If the licensor of intellectual property
under this Agreement seeks or involuntarily is placed under Title XI and the
trustee rejects this Agreement as contemplated in 11 USC 365(n)(1), the licensee
hereby elects, pursuant to Section 365(n) to retain all rights granted to a
licensee under this Agreement to the extent permitted by law.
5.4 EFFECT OF TERMINATION
(a) No expiration or termination of this Agreement shall affect the rights of
users to continue to use the Products previously sold to them by Biosense or
Biosense's distributors or original equipment manufacturers. Upon any expiration
or termination of the term of this Agreement, Biosense shall have the right to
sell all inventories of the Products and in its possession, and that Biosense
shall have right to retain such inventories as may be reasonably necessary to
permit Biosense to continue to provide maintenance and support services to
users.
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(b) No expiration or termination of this Agreement shall relieve either party of
its obligations under this Agreement.
ARTICLE 6.
WARRANTIES AND REPRESENTATIONS
6.1 WARRANTY
(a) Paracelsian represents and warrants to Biosense that Paracelsian is the
owner or authorized licensee of the IP Rights which Paracelsian licenses to
Biosense under this Agreement with due authorities to grant such licenses.
(b) Paracelsian represents and warrants to Biosense that Paracelsian shall use
its reasonable best efforts to see that the Know-How conveyed to Biosense shall
be reasonably complete as required hereunder. Paracelsian represents and
warrants to Biosense that the Know-How provided to Biosense pursuant to
Section 2 is the same as that used by Paracelsian with respect to
Ah-IMMUNOASSAY(R) at the time said Know-How is provided to Biosense.
(c) Except as expressly set forth in this Agreement, Paracelsian makes no
representations and extends no warranties of any kind, either express or
implied. There are no express or implied warranties of merchantability or
fitness for a particular purpose, or that the use of the products will not
infringe any patent, copyright, trademark or other rights.
6.2 LIMITATION OF LIABILITY. In no event shall either party be liable to
the other for any lost profits, incidental, special, exemplary, punitive,
indirect or other consequential damages, or for any claim by any other person,
resulting or arising out of the use of the products or documentation by any
users or any other third party, or resulting from or arising out of this
Agreement, even if such party has been advised of the possibility of such
potential loss or damage.
6.3 Infringements of intellectual property rights
Paracelsian shall defend , indemnify and hold Biosense and/or its employees,
agents, customers and sublicensee's harmless from and against any and all
losses, damages and/or expenses on account of any and all claims, suits or
judgments arising out of the use of the Know-How, the IP Rights, the Products
supplied by Paracelsian under this Agreement, in infringement or alleged
infringement of rights under any rights in industrial and/or intellectual
property including any rights under any patent, industrial designs, trademarks,
trade names, brands, copyrights or applications thereof.
Biosense shall, upon request from Paracelsian, to a reasonable extent support
any action to be taken by Paracelsian according to the above. Costs and expenses
incurred by Biosense in that respect shall be for the account of Paracelsian.
6.4 FORCE MAJEURE. NEITHER PARTY SHALL BE RESPONSIBLE OR LIABLE TO THE
OTHER PARTY FOR ANY LOSS OR DAMAGES OCCASIONED BY ITS LIABILITY TO PERFORM ANY
OF ITS OBLIGATIONS HEREIN, WHERE SUCH LIABILITY WAS CAUSED BY FIRER, STRIKE,
CIVIL OR MILITARY AUTHORITIES, INSURRECTION OR CIVIL
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DISORDER, EMBARGOES, LOCKOUTS, GOVERNMENTAL ACTION, OR ANY OTHER CAUSE WHICH IS
EITHER UNAVOIDABLE OR NOT IN THE CONTROL OF THAT PARTE.
ARTICLE 7.
CONFIDENTIALITY
7.1 CONFIDENTIAL INFORMATION
(a) "Confidential Information" consists of any information designated in writing
by either party as proprietary or confidential, or if orally disclosed,
identified at the time of disclosure as proprietary or confidential and
confirmed in writing to have been confidential within thirty days of disclosure.
Except as expressly authorized in writing, neither party shall disclose to any
person or entity or use any Confidential Information of the other party except
as reasonably necessary to perform and exercise its rights and obligations
hereunder. Neither party shall disclose any Confidential Information to any
person or entity that has not agreed in writing to keep such information
confidential. Any reproduction or copy of Confidential Information shall carry
the same proprietary and/or confidential notices and legends that appear on the
original.
(b) The foregoing restrictions shall not apply to information that: (i) is
already known to the receiving party without restriction on use or disclosure at
the time of communication to the receiving party; (ii) is or becomes publicly
known through no wrongful act or inaction of the receiving party; (iii) has been
rightfully received from a third party authorized to make such communication,
without restriction on use or disclosure; or (iv) has been independently
developed by the receiving party. The receiving party shall have the burden of
proving the existence of the foregoing exceptions.
7.2 OBLIGATIONS UPON TERMINATION. Except as otherwise provided in this
Agreement, each party shall, within fifteen days following the expiration or
termination of this Agreement, deliver to the other party or destroy the
original and all copies of Confidential Information supplied by the other party.
The foregoing shall not affect the user licenses granted prior to the effective
time of termination, nor Biosense's rights to keep and use the Confidential
information for maintenance or after sales services.
ARTICLE 8.
GENERAL
8.1 WAIVER, AMENDMENT OR MODIFICATION. No waiver, amendment or
modification of any provision of this Agreement shall be effective unless in
writing and signed by the party against whom such waiver, amendment or
modification is sought to be enforced. No failure or delay by either party in
exercising any right, power or remedy under this Agreement shall operate as a
waiver of any such right, power or remedy.
8.2 NOTICES. All notices to be given by either party to the other under
this Agreement shall be deemed given (i) upon receipt, in the case of personal
delivery, or (ii) on the third day following delivery to an express courier
service (such as Federal Express or its equivalent) by the
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sender for delivery to the recipient party's address appearing above. A party's
address for notice purpose may be changed by a notice given in accordance with
this Section.
8.3 ARBITRATION
(a) The parties shall make a good faith effort to resolve all disputes in an
amicable and mutually beneficial manner. In the event that a dispute cannot be
resolved within twenty (20) days after an authorized representative of one party
informs the other of the existence of said dispute, said dispute shall be
submitted to resolution by binding arbitration in accordance with this
Section 8.3.
(b) All disputes, controversies, or differences which may arise between the
parties, out of or in relation to or in connection with this Agreement, or for
the breach thereof, shall be finally settled by arbitration under the commercial
rules of the American Arbitration Association in New York State.
8.4 ENTIRE AGREEMENT. This Agreement (including any agreements and
exhibits referenced herein) is intended to be the sole and complete statement of
the obligations and rights of the parties as to all matters covered by this
Agreement, and supersedes all previous understandings, agreements, negotiations
and proposals relating thereto.
8.5 ASSIGNMENT AND DELEGATION. Neither party may assign any of its rights
nor delegate any of its obligations under this Agreement without the prior,
written consent of the other party.
8.6 GOVERNING LAW. This Agreement shall be governed by and construed under
the law of New York State without regard to conflicts of laws provisions thereof
and without regard to the United Nations Convention on Contracts for the
International Sale of Goods.
8.7 ATTORNEYS' FEE. If either party commences any action or proceeding
against the other party to enforce or interpret this Agreement, the prevailing
party in such action or proceeding shall be entitled to recover from the other
party the actual costs, expenses and attorneys' fees (including all related
costs and expenses), incurred by such prevailing party in connection with such
action or proceeding and in connection with obtaining and enforcing any judgment
or order thereby obtained.
8.8 SEVERABILITY. If any provision of this Agreement or the application of
any such provision shall be held by a tribunal of competent jurisdiction to be
invalid, illegal, or unenforceable in any respect under any applicable statute
or rule of law, then such provision shall be deemed inoperative to the extent
that it is invalid, illegal, or unenforceable, and the remaining provisions of
this Agreement shall continue in full force and effect.
8.9 INDEPENDENT CONTRACTORS. No provision of this Agreement shall be
construed to constitute either party as the agent, servant, employee, partner or
joint venturer of the other party. The parties to this Agreement are and shall
remain independent contractors. Each party shall retain exclusive management,
direction and control of its employees and the work to be performed by it
hereunder.
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8.10 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, and each counterpart shall constitute an original instrument, but
all such separate counterparts shall constitute one and the same instrument.
8.11 SUBJECT HEADINGS. The subject headings of the Articles and Sections of
this Agreement are included for the purposes of convenience only, and shall not
affect the construction or interpretation of any of its provisions.
8.12 FURTHER ASSURANCES. The parties to this Agreement shall each perform
such acts, execute and deliver such instruments and documents, and do all such
other things as may be reasonably necessary to accomplish the transactions
contemplated in this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
Biosense Laboratories AS Paracelsian, Inc.
By: /s/ Audun Wiborg By: /s/ NoriYoshi Inoue
-------------------------------------- -------------------------------
Audun Wiborg NoriYoshi Inoue
Title: CEO Title: President and Chief
Executive Officer
Witness: Tone B. Berntsen Witness: Gary G. Chabot
--------------------------------- --------------------------
By: /s/ Tone B. Berntsen By: /s/ Gary G. Chabot
-------------------------------------- -------------------------------
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