Microbial Dataflow Software License Agreement

TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
UNDER 17 C.F.R. SECTIONS 200.80(b)(4)
200.83 AND 230.406.


MICROBIAL DATAFLOW SOFTWARE LICENSE AGREEMENT


BETWEEN


ELITRA PHARMACEUTICALS INC.


AND


INCYTE GENOMICS, INC.


MICROBIAL DATAFLOW SOFTWARE LICENSE AGREEMENT


THIS AGREEMENT is entered into as of this 30th day of June, 2000 (the "EFFECTIVE DATE") by and between ELITRA PHARMACEUTICALS INC. ("ELITRA"), a Delaware corporation, having its principal place of business at 3510 Dunhill Street, San Diego, CA 92121, and INCYTE GENOMICS, INC. ("INCYTE"), a Delaware corporation, having its principal place of business at 3160 Porter Drive, Palo Alto, CA 94304.


WHEREAS, Incyte has developed and owns certain computer software providing analysis and data-management tools for handling complex information from multiple sources; and


WHEREAS, ELITRA desires to implement such software at ELITRA; and


WHEREAS, this Microbial Dataflow Software License Agreement shall not be considered valid or binding without execution by both Incyte and ELITRA of the Microbial Information Agreement of even date herewith; and


NOW, THEREFORE, Incyte and ELITRA, intending to be legally bound, hereby agree as follows:


1. DEFINITIONS.


When used in this Agreement, the following definitions shall apply:


"DOCUMENTATION" shall mean the user's manuals provided to ELITRA along with the Microbial Dataflow Software.


"ELITRA AFFILIATE(S)" shall mean any company or entity controlled by, controlling, or under common control with ELITRA shall include any company one hundred percent (100%) of whose voting stock or participating profit interest is owned or controlled, directly or indirectly, by ELITRA, and any company which owns or controls, directly or indirectly, one hundred percent (100%) of the voting stock of ELITRA.


"ELITRA FIELD OF USE" shall mean the field of microbial genomics, including, without limitation, that of fungal and bacterial pathogens.


"INCYTE TECHNOLOGY" shall mean Intellectual Property Rights claiming or covering the use of the Microbial Dataflow Software to the extent owned or controlled by Incyte and which Incyte has an unrestricted right to license without obligation of payment to a third party.


"INSTALLATION SITE" shall mean the research facilities of ELITRA and/or any ELITRA Affiliate which will have access to the Microbial Dataflow Software subject to this Agreement.


"INTELLECTUAL PROPERTY RIGHTS" shall mean all copyrights, trademarks, service marks, trade secrets, patents, patent applications, moral rights, contract rights and other proprietary rights.


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"MICROBIAL DATAFLOW AGREEMENT" shall mean that certain Software License Agreement dated [...***...] between Incyte and [...***...] as such agreement relates to the Microbial Dataflow Software.


"MICROBIAL DATAFLOW SOFTWARE" shall mean (a) Incyte's set of proprietary software modules, as of the Effective Date, used by Incyte in processing microbial data, as described generally in EXHIBIT A and (b) any updates or improvements to, or products substantially constituting replacements of, the foregoing.


"MICROBIAL DATAFLOW SOURCE CODE" shall mean the source code written for the Microbial Dataflow Software.


"PARTY" shall mean ELITRA or Incyte and, when used in the plural, shall mean ELITRA and Incyte.


"SOFTWARE" as generally used herein shall mean software in various stages of development or any product thereof and includes without limitation the literal elements of a program (source code, object code, manuals, instructions or otherwise), its audiovisual components (menus, screens, structure and organization), any human or machine readable form of the program, and any writing or medium in which the program or information therein is stored, written or described, including without limitation, diagrams, flow charts, designs, drawings, specifications, models, data, development tools and routines, bug reports and customer information.


2. LICENSE GRANT; SOFTWARE USE RESTRICTIONS AND SECURITY REQUIREMENTS.


2.1 LICENSES TO ELITRA. Subject to the terms and conditions of this Agreement, Incyte hereby grants to ELITRA:


(a) an exclusive (except as set forth below), worldwide, fully-paid, perpetual and irrevocable (unless terminated under Section 5.2) license, with the right to sublicense solely as set forth in Section 2.2 below, under the Microbial Dataflow Software in the ELITRA Field of Use; PROVIDED, HOWEVER, that the exclusivity of the foregoing license shall be subject to the following rights which are expressly retained by Incyte: (i) to use the Microbial Dataflow Software to [...***...] (ii) to use Microbial Dataflow Software solely to the extent necessary to [...***...]; (iii) to use the Microbial Dataflow Software to [...***...]; and (iv) to use the Microbial Dataflow Software to [...***...]


(b) the right to make up to [...***...] copies of the Microbial Dataflow Software solely for backup or archival purposes.


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*CONFIDENTIAL TREATMENT REQUESTED


2.2 MICROBIAL DATAFLOW AGREEMENT. Incyte shall retain all right, title and interest in and to the Microbial Dataflow Agreement. From and after the Effective Date of this Agreement, Incyte shall not [...***...] pursuant to the Microbial Dataflow Agreement, which agreement expires as of [... *** ...]. Incyte further agrees that it shall [...***...] nor shall Incyte [...***...] with respect to the [...***...] At least [... *** ...], Incyte shall provide [...***...]. To the extent that [...***...].


2.3 OWNERSHIP. ELITRA hereby acknowledges that (a) Incyte has expended significant resources and efforts to develop the Microbial Dataflow Software; (b) the Microbial Dataflow Software represents highly valuable and confidential assets of Incyte; (c) Incyte is willing to grant ELITRA access to the Microbial Dataflow Software in reliance that ELITRA shall protect such Software from unauthorized disclosure and use; and (d) the Microbial Dataflow Software at all times during the term of this Agreement shall remain the sole and exclusive property of Incyte.


2.4 RESERVATION OF RIGHTS. Subject to the grant of license rights ELITRA hereunder, the Microbial Dataflow Software and all proprietary rights, title, and other intellectual property rights, including, without limitation, patent, copyright, trademark, service mark, trade secret and trade name rights, in and to such Microbial Dataflow Software are hereby owned by Incyte.


2.5 RESTRICTIONS ON USE AND DISCLOSURE OF SOFTWARE.


2.5.1 DESIGNATED CPU'S. The Microbial Dataflow Software shall only be installed at each Installation Site on a single hard disk(s) or the hard disk(s) of a designated file server whereby multiple workstation(s) do not contain copy(s) of the Microbial Dataflow Software installed, other than ephemerally, on the workstation hard disk. A back-up computer or file server may be designated such that a copy of the Microbial Dataflow Software may be installed on this computer in the event that the primary computer fails. Under no circumstances will the Microbial Dataflow Software be installed on any designated CPU(s) which would allow unauthorized network access (E.G., third party access via the Internet). All other access to the Microbial Dataflow Software, including access by facilities of ELITRA and ELITRA Affiliates other than those designated as Installation Sites, is prohibited.


2.5.2 NON-DISCLOSURE. Except as expressly provided herein, ELITRA shall not disclose the Microbial Dataflow Software, the Microbial Dataflow Software Source Code or


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*CONFIDENTIAL TREATMENT REQUESTED


Confidential Information of Incyte or transfer the Microbial Dataflow Software, or any portion thereof or modifications thereto, to any third party.


2.5.3 NO TRANSFER OR MODIFICATION. Except as expressly provided herein, ELITRA shall not sublicense, sell, assign, convey, transfer, publish, display, copy, duplicate, adapt, merge, embed, disassemble, decompile, translate, reverse engineer or otherwise modify any portion of the Microbial Dataflow Software (by any means whatsoever whether now known or hereafter invented). Notwithstanding the foregoing, ELITRA shall have the right (a) to modify the Microbial Dataflow Software for its internal use and (b) to sublicense the Microbial Dataflow Software to Monsanto Company in accordance with Section 2.2.


2.5.4 LOSS OR THEFT. ELITRA promptly shall notify Incyte of any loss, theft or unauthorized disclosure or use of Microbial Dataflow Software which comes to ELITRA's attention.


2.6 IMPROVEMENTS AND UPDATES TO MICROBIAL DATAFLOW SOFTWARE. To the extent that Incyte is obligated to provide improvements or updates to the Microbial Dataflow Software or any component thereof [...***...], or Incyte otherwise develops improvements or updates to the Microbial Dataflow Software, Incyte shall [...***...].


3. INTELLECTUAL PROPERTY.


3.1 THIRD PARTY INTELLECTUAL PROPERTY. Subject to the warranties made hereunder as to each Party's knowledge of any third party rights that may be infringed by the uses of the Microbial Dataflow Software as contemplated herein, ELITRA acknowledges that, [...***...] ELITRA [...***...], and it is hereby agreed that it shall be [...***...], if necessary, [...***...]. SCHEDULE 3.1 attached hereto is a true and complete list of third party software programs which are required for ELITRA to access and utilize the Microbial Dataflow Software.


3.2 DELIVERY AND ACCEPTANCE. Incyte shall deliver the Microbial Dataflow Software, the Microbial Dataflow Source Code and the related Documentation to ELITRA upon execution of this Agreement. The Microbial Dataflow Software and the Microbial Dataflow Source Code shall be delivered on a CD-ROM and/or on such other media as the Parties shall mutually agree depending upon the nature and format of the information being transferred.


4. PAYMENTS.


4.1 FEES; PAYMENT TERMS. Payments for access and perpetual license to the Microbial Dataflow Software and other related payment are included under Article 4 of the Microbial Information Agreement.

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