Exhibit 4.19


 


Execution Version


 


“CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN OMITTED AND HAVE BEEN SEPARATELY FILED WITH THE COMMISSION.
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS,
WHICH ARE IDENTIFIED BY ***.”


 


 


LICENSE AGREEMENT


 


Effective
as of September 30, 2007 (“EFFECTIVE DATE”), GENETIC
TECHNOLOGIES LIMITED, having an office at 60 Hanover Street,
Fitzroy, Victoria 3065, Australia (“GTG”) and BioSearch. Technologies Inc.,
having an office at 81 Digital Drive, Novato, California, 94949, USA (“LICENSEE”),
agree as follows:


 


ARTICLE I


BACKGROUND


 


1.1                               GTG represents
that it has certain proprietary and intellectual property rights pertaining to
methods and processes used to extract gene discovery and diagnostic utility
from the non-coding region of genomes.


 


1.2                               LICENSEE wishes
to acquire a license under, and. to obtain access to GTG’s non-coding patents
in order to distribute oligonuelcotides and probes to END USERS (defined below)
and to allow END USERS to use same for such END USERS’ internal research
purposes only (the “PURPOSE”).


 


1.3                               GTG is prepared
to grant a non-exclusive license to LICENSEE under its non-coding patents,
subject to the terms and conditions of this AGREEMENT.


 


ARTICLE II


GENERAL
DEFINITIONS AND RELATIONSHIPS AMONG DEFINITIONS


 


2.1                               “AGREEMENT”
means this document, its attachments, all addenda, schedules, exhibits,
appendices, and any amendments to the foregoing.


 


2.2                               “CONFIDENTIAL
INFORMATION” means any and all information which is disclosed by either party
to the other verbally, electronically, visually, or in a written or other
tangible form which is either identified or should be reasonably
understood to be confidential or proprietary. CONFIDENTIAL INFORMATION includes,
but is not limited to, the specific terms and/or conditions of this AGREEMENT,
trade secrets, ideas, processes, formulas, programs, software, source of
supply, technology, discoveries, developments, inventions, techniques,
marketing plans, strategies, forecasts, unpublished financial  statements, prices, costs, and customer
lists.


 


2.3                               “END USER”
means a third party that (i) purchases LICENSED PRODUCTS (defined below)
directly from a RESELLER (defined below) or directly from LICENSEE; and (ii) uses
such LICENSED PRODUCTS for its own business purposes and not for the benefit of
other parties.


 


2.4                               “FIELD OF USE”
means all species and all genes.


 


2.5                               GTG and
LICENSEE may sometimes hereinafter be collectively referred to as the “parties”
and, individually as a “party” (as required by the context).


 


CONFIDENTIAL


 

















 


2.6                               “LICENSED
PATENT(S)” means the United States Patents listed in Appendix “A” attached to
this AGREEMENT and all reissues, reexaminations, divisionals, continuations,
continuations-in-part, substitutions, and extensions of the foregoing,
applications therefor, and patents which may issue upon such applications,
and foreign counterparts of the foregoing.


 


2.7                               “LICENSED
PRODUCT(S)” means oligonucleotides and probes (i) manufactured by LICENSEE
and (ii) sold under LICENSEE’s brand or name that but for the license
granted herein would infringe or contribute to or induce the infringement of
one or more claims of a LICENSED PATENT. For purposes of clarity, neither (i) co-branded
products nor (ii) products sold under the brand or name of a third party
shall be considered LICENSED PRODUCTS.


 


2.8                               “RESELLER”
means a third party that purchases LICENSED PRODUCTS directly from LICENSEE for
resale directly to END USERS.


 


2.9                               “TERRITORY”
means worldwide.


 


2.10                         The words “hereof,”
“herein” and “hereunder” and words of similar import when used in this
AGREEMENT will refer to this AGREEMENT as a whole and not to any particular
provision of this AGREEMENT and Article, Section and Subsection references
are to this AGREEMENT unless otherwise specified. Whenever the words “include,”
“includes” or “including” are used in this AGREEMENT, they will be deemed to be
followed by the words “without limitation.” The meanings given to terms defined
herein will be equally- applicable to both the singular and plural forms of
such terms.


 


ARTICLE III


RELEASE


 


3.1                               Subject to the
licenses set forth herein, GTG agrees that, providing LICENSEE fully and
faithfully discharges all obligations undertaken by LICENSEE in this AGREEMENT,
including but not limited to the confidentiality obligations and the obligation
to pay the license issue fee and, provided further, that this AGREEMENT is not
terminated for LICENSEE’s breach of any term or condition hereof, GTG will
release LICENSEE from all claims, demands, and rights of action which GTG may have
as of the EFFECTIVE DATE on account of infringement of any LICENSED PATENT
prior to the EFFECTIVE DATE. Failure of LICENSEE at any time to so discharge
its obligations shall constitute a waiver of the benefits of this Section 3.1
and shall forthwith restore to GTG its full rights as they existed on the
EFFECTIVE DATE.


 


ARTICLE IV


GRANT
TO LICENSEE


 


4.1                               Subject to the
terms and conditions of this AGREEMENT, GTG hereby grants and agrees to grant
to LICENSEE, during the TERM (as defined below), a nonexclusive,
non-transferable, paid-up, perpetual, irrevocable, license under the LICENSED
PATENTS (without the right to sublicense) to:


 


2

















 


4.1.1                      make and use
LICENSED PRODUCTS in the FIELD OF USE throughout the TERRITORY solely for the
PURPOSE;


 


4.1.2                      offer for sale
and sell LICENSED PRODUCTS to END USERS in the FIELD OF USE throughout the
TERRITORY solely for the PURPOSE; and


 


4.1.3                      offer for sale
and sell LICENSED PRODUCTS to RESELLERS in the FIELD OF USE throughout the
TERRITORY solely for the PURPOSE.


 


4.2                               The rights and
licenses granted by GTG in this AGREEMENT are personal to LICENSEE. LICENSEE
shall not assign or otherwise transfer any license or right granted hereunder
or any interest therein without the prior written consent of GTG (which may be
withheld in GTG’s sole and absolute discretion), except to a purchaser of all
or substantially all of the business of LICENSEE to which this AGREEMENT relates,
whether by merger, sale of stock, sale of assets or otherwise; provided,
however that prior to the transfer of ownership such purchaser must expressly
assume in writing LICENSEE’s obligations under this AGREEMENT and expressly
acknowledges in writing that no products or services of such purchaser existing
prior to the transfer of ownership shall be considered LICENSED PRODUCTS.


 


4.3                               The licenses
granted in Section 4.1 are subject to the following:


 


4.3.1                      LICENSEE will
not grant or purport to grant purchasers of LICENSED PRODUCTS rights under the
LICENSED PATENTS.


 


4.3.2                      LICENSEE’s and
RESELLERS’ contracts with END USERS of LICENSED PRODUCTS will affirmatively
disclaim or otherwise clarify that the contract does not grant or otherwise
provide to the END USER any rights or licenses under the LICENSED PATENTS,
except to use the LICENSED PRODUCTS for internal research purposes only and not
for the benefit of any third party.


 


4.3.3                      LICENSEE’s
contract with RESELLERS of LICENSED PRODUCTS will affirmatively disclaim or
otherwise clarify that the contract does not grant or otherwise provide to the
RESELLER any rights or licenses under the LICENSED PATENTS, except to resell
directly to END USERS for such END USERS’ internal research purposes only and
not for the benefit of any third party.


 


4.4                               PRODUCT
MARKING:


 


4.4.1                      LICENSEE and
RESELLERS shall conspicuously mark any literature or other materials (in paper,
electronic or other format) distributed with or about any LICENSED PRODUCTS in
such a manner so as to clarify that (i) except as may be prohibited
by applicable law, such LICENSED PRODUCTS may not be resold except by an
authorized RESELLER; (ii) such LICENSED PRODUCTS are to be used only by
END USERS for internal research purposes only and (iii) the purchase of such
LICENSED PRODUCTS does not convey any rights or licenses (expressly or
impliedly) to any rights under the LICENSED PATENTS except those explicitly
provided in Section 4.1.


 


3

















 


4.4.2                      The PARTIES
agree to use their commercially reasonable best efforts to, within seven (7) business
days, agree upon language for an insert, which will be distributed with
LICENSED PRODUCTS, to inform END USERS regarding their limited rights to
use the LICENSED PRODUCTS for internal research purposes only and not for the
benefit of any third party.


 


4.5                               All rights not
explicitly granted to LICENSEE are reserved by GTG. Not limiting the foregoing,
LICENSEE acknowledges that it is not granted any rights to any other patents or
other intellectual property rights of GTG or any third party.


 


ARTICLE V


CONSIDERATION


 


5.1                               As
consideration for the licenses and rights granted by this AGREEMENT, LICENSEE
agrees to pay to GTG a one-time, nonrefundable license issue fee of *** payable
in eight (8) equal monthly installments as follows:


 


*** EFFECTIVE DATE; and


 


5.2                               The payment to
GTG of the license issue fee and other payments that may be provided for
in this AGREEMENT shall be free of and made without deduction of any taxes,
charges, imposts, tariffs, duties, remittance fees and/or other assessments,
including, without limitation all sales, use, goods, VAT, transfer, customs,
stamp duty, excise, withholding, personal property and other applicable taxes
and charges of any kind (“TAXES”), whether levied by federal, state, or
municipal governments in the TERRITORY, or by other authorities, except for
such income tax which may be expressly required by the laws of the
governments in the TERRITORY to be paid for the account of GTG. The payment of
any such income taxes levied upon or withheld from royalties, fees,
compensations, or other payments due to GTG, and the filing of any information
or tax returns with respect thereto, shall be the responsibility of and shall
be borne by LICENSEE. GTG will cooperate to help LICENSEE minimize, in any
lawful manner, the foregoing TAXES and will provide LICENSEE with reasonable
assistance to enable LICENSEE to recover such TAXES as permitted by law.


 


5.3                               All payments by
LICENSEE to GTG shall be sent by electronic wire transfer to:


 


Key Bank

#307070267

1130 Haxton Drive

Fort Collins, Colorado 80525

Account: Genetic Technologies Limited 

Account Number: 76009 000 2576


 


4

















 


5.4                               All fees
payable hereunder by LICENSEE shall be made in United States Dollars (USD) and
are payable to GTG’s successors, heirs, or assigns, as appropriate. When
calculating the fees payable hereunder, the exchange rate to be used shall be
the average of the USD exchange rate for the final ten (10) business days
of the applicable quarter, published in (i) the Financial Times; or (if
not available) (ii) the New York Times; or (if not available) (iii) the
Wall Street Journal.


 


5.5                               LICENSEE agrees
to pay interest of ten percent (10%) per year or the maximum rate allowed by
law, whichever is less, on payments owed but not paid to GTG when due.


 


5.6                               LICENSOR agrees
it will not grant a license after the EFFECTIVE DATE to a direct market
competitor of LICENSEE on more favorable terms. A license will be deemed to be
On more favorable terms if and only if such license includes substantially
similar or broader non-financial terms (such as, territory, field of use,
licensed patents, covenants and scope of the grant) as this AGREEMENT on more
favorable financial terms (taking into account, interalia,
payment terms, the effective royalty rate and any other consideration
associated with such license) than this AGREEMENT. A company will be deemed to
be a direct market competitor of LICENSEE if and only if such company on the
effective date of such license (i) competes with LICENSEE in relation to
LICENSED PRODUCTS in a common geographical area; (ii) employs related
technologies to LICENSEE in connection with manufacturing and developing
LICENSED PRODUCTS; and (iii) competes with LICENSEE in the same market
segment.


 


5.7                               MATERIAL
BREACH: Breach of any provision of this Article V or part thereof
shall be deemed a material breach.


 


ARTICLE VI


WAIVER


 


6.1                               No waiver by
either party, express or implied, of any breach of any term, condition, or
obligation of this AGREEMENT by the other party shall be construed as a waiver
of any subsequent breach of that term, condition, or obligation, or of any
other term, condition, or obligation of this AGREEMENT of the same or different
nature.


 


ARTICLE VII


TERM
AND TERMINATION OF AGREEMENT


 


7.1                               This AGREEMENT
shall commence on the EFFECTIVE DATE and shall remain in effect on a
country-by-country basis until the last to expire of the LICENSED PATENTS (“TERM”),
unless terminated earlier as provided below.


 


7.2                               Either party
shall have the right to terminate this AGREEMENT upon any material breach of
any term or condition of this AGREEMENT by the other party, which has not been
corrected within thirty (30) days after receipt of a notice in writing with
reference to this Section 7.2 and such termination shall be without
prejudice to any other rights or claims the aggrieved party may have
against the other party. Termination shall not affect any obligation owed by
LICENSEE to GTG prior to the termination.


 


5

















 


7.3                               GTG shall have
the right to terminate this AGREEMENT in the event that LICENSEE shall become
involved in insolvency, dissolution, bankruptcy, or receivership proceedings
affecting the operation of its business, or in the event that LICENSEE
discontinues business for any reason.


 


7.4                               In the event of
termination of this AGREEMENT all rights granted to LICENSEE hereunder shall
revert to GTG.


 


7.5                               SURVIVAL:
Articles II, VIII, X, XI, and all payment obligations incurred prior to
termination or expiration shall survive the termination or expiration of this
AGREEMENT.


 


ARTICLE VIII


CONFIDENTIALITY,
PUBLICITY AND PRESS RELEASES


 


8.1                               LIMITATIONS ON
USE AND DISCLOSURE: The parties agree that the terms and conditions set forth
in this AGREEMENT are CONFIDENTIAL INFORMATION. The CONFIDENTIAL INFORMATION
disclosed by either party (“DISCLOSING PARTY”) to the other party (“RECEIVING
PARTY”) constitutes the confidential and proprietary information of the
DISCLOSING PARTY and the RECEIVING PARTY agrees to treat all CONFIDENTIAL
INFORMATION of the other in the same manner as it treats its own similar
proprietary information, but in no case will the degree of care be less than
reasonable care. The RECEIVING PARTY shall use CONFIDENTIAL INFORMATION of the
DISCLOSING PARTY only in performing under this AGREEMENT and shall retain the
CONFIDENTIAL INFORMATION in confidence and not disclose to any third party
(except as authorized under this AGREEMENT) without the DISCLOSING PARTY’S
express written consent. The RECEIVING PARTY shall disclose the DISCLOSING
PARTY’s CONFIDENTIAL INFORMATION only to those employees and contractors of the
RECEIVING PARTY who have a need to know such information for the purposes of
this AGREEMENT, and such employees and contractors must have entered into
agreements with the RECEIVING PARTY containing confidentiality provisions
covering the CONFIDENTIAL INFORMATION, with terms and conditions at least as
restrictive as those set forth herein. Notwithstanding the foregoing, each
party’s confidentiality obligations hereunder shall not apply to information
which as evidenced by written records:


 


8.1.1                      is already
known to the RECEIVING PARTY without an obligation of confidentiality prior to
disclosure by the DISCLOSING PARTY;


 


8.1.2                      is or becomes
publicly available without fault of the RECEIVING PARTY;


 


8.1.3                      is rightfully
obtained by the RECEIVING PARTY from a third party without restriction as to
disclosure, or is approved for release by written authorization of the
DISCLOSING PARTY;


 


8.1.4                      is developed
independently by the RECEIVING PARTY without use of or access to the DISCLOSING
PARTY’s CONFIDENTIAL INFORMATION.


 


6

















 


8.2                               PERMITTED USE
AND DISCLOSURE: Each party hereto is permitted to disclose this AGREEMENT and
use or disclose the CONFIDENTIAL INFORMATION disclosed to it by the other
party:


 


8.2.1                      To the extent
such use or disclosure is reasonably necessary in connection with complying
with stock exchange rules.


 


8.2.2                      To its legal
and/or financial advisors, provided such advisors maintain the confidentiality
of this AGREEMENT.


 


8.2.3                      To the extent
such use or disclosure is reasonably necessary to enforce its rights under this
AGREEMENT in connection with a legal proceeding or as required to be disclosed
by law or governmental regulation.


 


8.2.4                      To the extent
such use or disclosure is reasonably necessary in connection with prosecuting
or defending litigation, complying with applicable law, court order, submitting
information to tax or other governmental authorities, or otherwise exercising
its rights hereunder,


 


8.2.5                      In the
instances set forth in Sections 8.2.3 or 8.2,4, the RECEIVING PARTY shall
provide reasonable advance written notice to DISCLOSING PARTY of such
disclosure and reasonably cooperate with the DISCLOSING PARTY in limiting such
disclosure.


 


8.3                               PERMITTED USE
AND DISCLOSURE: GTG is permitted to disclose terms and conditions of this
AGREEMENT if the scope of this AGREEMENT has been mischaracterized to a
customer and/or prospective customer of the LICENSEE, but only to the extent
necessary to correct such mischaracterization.


 


8.4                               PUBLICITY AND
PRESS RELEASES: The parties shall mutually agree upon and jointly issue. Within
seven (7) days of the EFFECTIVE DATE or as soon as reasonably practical
thereafter, one or more appropriate media/press releases with regard to the
existence of this AGREEMENT and recognizing the LICENSEE as an authorized
commercial manufacturer and supplier of oligonucleotides under the LICENSED
PATENTS. Neither party shall issue any other press releases relating to this
AGREEMENT without prior written approval of the other party; provided however,
that:


 


8.4.1                      Each party
shall be permitted to post a copy of, provide a link on its web site to or
otherwise summarize any permitted disclosures made under this AGREEMENT;


 


8.4.2                      GTG shall be
able to disclose to other licensees and/or prospective licensees the identity
of LICENSEE and the existence of this AGREEMENT; and


 


8.4.3                      LICENSEE shall
be able to disclose to customers and/or prospective customers the identity of
GTG and the existence of this AGREEMENT.


 


7

















 


ARTICLE IX


NOTICE


 


9.1                               Any notice,
request or statement hereunder shall be deemed to be sufficiently given or
rendered when personally delivered, delivered by a major commercial rapid
delivery courier service or mailed by certified or registered mail, return
receipt requested, and if given or rendered to LICENSEE, addressed to:


 


Ronald M. Cook, Ph.D.

President/CEO

Biosearch Technologies, Inc.

81 Digital Drive, Novato, CA 94949

Ph: +1 (415) 883-8400

Fax:    (415) 883-8488


 


or,
if given or rendered to GTG, addressed to:


 


Dr. Mervyn Jacobson
Licensing Consultant

Genetic Technologies Limited

60 Hanover Street

Fitzroy, Victoria

3065 Australia

Ph: +61 419 657 915

Fax: +1 (970) 484-6698


 


with
a copy to:


 


Michael A. DeSanctis, Esq.

Hamilton, DeSanctis Cha, LLP

225 Union Blvd., Ste. 305

Lakewood, CO 80228

USA

Ph: +1 (303) 284-5103

Fax: +1 (303) 362-0575


 


or, in any case, to such
changed address or person as GTG or LICENSEE shall have specified to the other
by written notice.


 


ARTICLE X


REPRESENTATIONS
AND WARRANTIES


 


10.1                         GTG represents
and warrants that it has the foil right, power, and authority to enter into and
perform its obligations under this AGREEMENT and grant to LICENSEE the
license and other rights as set forth herein, and there arc no outstanding
agreements, grants, licenses, encumbrances, liens, or agreements, either
written or implied, inconsistent therewith or pursuant to which this AGREEMENT
or the parties’ performance hereunder would violate, breach, or cause a
default.


 


8

















 


10.2                         GTG represents
and warrants that the execution, delivery, and performance of this AGREEMENT
have been duly authorized by all necessary corporate actions on the part of
GTG.


 


10.3                         LICENSEE
represents and warrants that it has the full right, power, and authority to
enter into and perform its obligations under this AGREEMENT, and there are
no outstanding agreements, grants, licenses, encumbrances, liens, or
agreements, either written or implied, inconsistent therewith or pursuant to
which this AGREEMENT or the parties’ performance hereunder would violate,
breach, or cause a default.


 


10.4                         LICENSEE
represents and warrants that the execution, delivery, and performance of this
AGREEMENT have been duly authorized by all necessary corporate actions on the part of
LICENSEE.


 


10.5                         INDEMNIFICATION:
10.5.1


 


10.5.1                BY LICENSEE:


 


10.5.1.1                                                       LICENSEE agrees
to hold GTG harmless from any claims by third parties arising from the
manufacture, use, sale, importation, or other disposition of LICENSED PRODUCTS
by LICENSEE. LICENSEE shall indemnify, hold harmless, and defend GTG, and GTG’s
SUBSIDIARIES, affiliates, officers, directors, representatives, employees, or
agents against any and all claims, causes of action, demands, judgments,
settlements, expenses, or losses including, but not limited to, reasonable
attorneys’ fees and court costs arising out of or in connection with: (i) the
design, development, manufacture, use, sale, packaging, distribution, or
shipment of LICENSED PRODUCTS; (ii) any breach by LICENSEE of any
representation, warranty, or covenant hereunder, or (iii) the failure of
LICENSEE to perform any covenants or obligations contained in this
AGREEMENT.


 


10.5.1.2                                                       LICENSEE shall
be liable to GIG with respect to any amounts, fines, or penalties arising out
of or resulting from any failure, delay or error in discharging the obligations
of Section 5.2.


 


10.5.2                BY GTG: GTG
shall indemnify, bold harmless, and defend LICENSEE, and LICENSEE’ s
affiliates, officers, directors, representatives, employees, or agents against
any and all claims, causes of action, demands, judgments, settlements,
expenses, or losses including, but not limited to, reasonable attorneys’ fees
and court costs arising out of or in connection with; (i) any breach by
GIG of any representation, warranty, or covenant hereunder, or (ii) the
failure of GTG to perform any covenants or obligations contained in this
AGREEMENT.


 


10.5.3                The
indemnifying party’s indemnification obligations under this Section 10.5
arc conditioned upon the indemnified party (i) giving prompt notice of the
claim to the indemnifying party; (ii) granting sole control of the defense
or settlement of 


 


9

















 


the
claim or action to the indemnifying party; and (iii) providing reasonable
cooperation to the indemnifying party and, at the indemnifying party’s request
and expense, assistance in the defense or settlement of the claim.


 


10.6                         DISCLAIMER OF
WARRANTIES:


 


10.6.1                EXCEPT AS
EXPRESSLY SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS, TO THE EXTENT
ALLOWED BY APPLICABLE LAW, ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF DESIGN,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF INFORMED OF SUCH
PURPOSE), NO INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES,
OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES, IN ALL CASES
WITH RESPECT THERETO.


 


10.6.2                EXCEPT AS
EXPRESSLY SET FORTH HEREIN, LICENSEE AGREES THAT THE LICENSED PATENTS ARE
PROVIDED “AS IS,” AND THAT GTG MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT
TO THE PERFORMANCE OR SALE OF LICENSED PRODUCTS INCLUDING THEIR. SAFETY,
EFFECTIVENESS, OR COMMERCIAL VIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF
THIS AGREEMENT, GTG ADDITIONALLY DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FOR
DAMAGES WHICH ARISE OUT OF OR RESULT FROM THE PERFORMANCE OR SALE OF LICENSED
PRODUCTS. LICENSEE ASSUMES ALL RESPONSIBILITY AND LIABILITY FOR LOSS OR DAMAGE
CAUSED BY PERFORMANCE OR SALE OF LICENSED PRODUCTS.


 


10.7                         LIMITATION OF
LIABILITY: EXCEPT FOR BREACH OF PAYMENT TERMS UNDER ARTICLE V OR FOR
LIABILITY FOR BREACH OF ARTICLE VIII, NEITHER PARTY SHALL BE ENTITLED TO
RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE
DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE GRANTED HEREUNDER. GTG
SHALL NOT BE LIABLE FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNTS PAID TO GTG
BY LICENSEE HEREUNDER.


 


10.8                         Nothing
contained in this AGREEMENT shall be construed as:


 


10.9                         a warranty or
representation by GTG as to the validity, enforceability or scope of any LICENSED
PATENT; or


 


10.10                   a warranty or
representation that any manufacture, sale, lease, use or other disposition
hereunder will be free from infringement of patents other than those under
which and to the extent to which licenses are in force hereunder; or


 


10

















 


10.11                   an agreement to
bring or prosecute actions or suits against third parties for infringement or
conferring any right to bring or prosecute actions or suits against third
parties for infringement; or


 


10.12                   conferring any
right to use by either party, in advertising, publicity, or otherwise, any
trademark, trade name or name, or any contraction, abbreviation or simulation
thereof, of the other party; or


 


10.13                   conferring by
implication, estoppel or otherwise, upon LICENSEE, any license or other right
under any intellectual property or patent, except that expressly granted
hereunder,


 


ARTICLE XI


MISCELLANEOUS


 


11.1                         PRODUCT
LITERATURE: LICENSEE and RESELLERS will prominently display on any literature or
other materials (in paper, electronic or other format) distributed with or
about any LICENSED PRODUCT, a notice indicating that the LICENSED PRODUCT is
provided pursuant to a license from GTG under the LICENSED PATENTS, which
patents are owned by GTG.


 


11.2                         COPIES OF
LITERATURE: LICENSEE will provide GTG with copies of literature, bulletins, and
other customer materials, such as copies of web pages or other electronic
information used in connection with LICENSED PRODUCTS prior to the public
release of such information.


 


11.3                         NO ASSISTANCE
TO THIRD PARTIES: Except as required by law or court order, LICENSEE; for
itself, its successors and assigns, will not contest (or knowingly assist
another to contest) the validity or enforceability of the LICENSED PATENTS or
GTG’s ownership interests thereto.


 


11.4                         CONSTRUCTION:
This AGREEMENT has been negotiated by the parties and their respective counsel.
This AGREEMENT shall be interpreted fairly in accordance with its terms and
without any strict construction in favor of or against either party. This
AGREEMENT shall not be construed in favor or against either party by reason of
the authorship of any provisions hereof The existence or absence of any term or
condition of this AGREEMENT shall not be used in the construction or
interpretation of any other agreement between the parties. The existence or
absence of any term or condition of any other agreement between the parties
shall not be used in the construction or interpretation of this AGREEMENT.


 


11.5                         NOTICE
REGARDING INFRINGEMENT: LICENSEE shall promptly notify GTG of any third party
that it reasonably believes to be infringing a LICENSED PATENT, and will use
reasonable efforts to provide to GTG any non-confidential information it has in
support of such belief. LICENSEE agrees to use its commercially reasonable best
efforts to cooperate, at GTG’s expense, with GTG in any action for infringement
of a LICENSED PATENT brought by GTG against a third party.


 


11

















 


11.6                         MARKINGS: LICENSEE
shall use markings as GTG may reasonably request from time to time,
including, but not limited to, marking the LICENSED PRODUCTS and/or
documentation related thereto with patent number(s).


 


11.7                         MODIFICATION:
This AGREEMENT sets forth the entire agreement and understanding between the
parties as to the subject matter of this AGREEMENT and merges all prior
discussions between the parties, and no one of the parties shall be bound by
any modification of this AGREEMENT, or by any conditions, definitions,
warranties, or representations with respect to the subject matter of this
AGREEMENT, other than as expressly provided for herein, or as duly set forth on
or subsequent to the EFFECTIVE DATE in writing and signed by duly authorized
representatives of the party to be bound thereby.


 


11.8                         CHOICE OF LAW:
This AGREEMENT and matters connected with the performance thereof shall be
construed, interpreted, applied and governed in all respects in accordance with
the laws of the State of Colorado (excluding conflicts of laws) and of the
United States.


 


11.9                         FORUM
SELECTION: The exclusive venue for any controversy or claim arising out of or
in connection with this AGREEMENT shall be Denver County, Colorado and the
parties hereto submit and consent to jurisdiction and venue in Denver County,
Colorado, except to the extent preempted by federal jurisdiction in which case
such jurisdiction shall be in the Federal courts of Colorado.


 


11.10                   DISPUTE
RESOLUTION:


 


11.10.1                                  Notwithstanding
Section 11.9 above, other than injunctive relief or pre-award attachment
of assets which may, but need not be, pursued in a court of Jaw, the parties
agree that, in the event of any difference, dispute or question, arising from
this AGREEMENT, the parties will endeavor to settle such matters amicably
between themselves in good faith. Should the parties be unable to do so within
a period of thirty-five (35) working days, except as provided for elsewhere
herein, the matter shall be promptly submitted to arbitration in accordance
with the rules of the American Arbitration Association, and judgment upon
the award rendered by the arbitrators may be entered in any court in
Colorado having jurisdiction thereof. This arbitration agreement shall not
apply to any controversy or claim involving an issue of the infringement,
validity, or enforceability of any patent. The arbitration shall be governed by
the United States Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion of
any provisions of state law inconsistent therewith or which would produce a
different result.


 


11.10.2                                  A single
arbitrator who is (i) fluent in written and spoken English; and (ii) skilled
and experienced in technology licensing shall be selected by agreement between
the parties. If the parties fail to agree on an arbitrator, a single arbitrator
shall be selected in accordance with the procedures set forth in the
Arbitration Rules. The arbitrator shall render a final award in accordance with



 


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the substantive law of the
State of Colorado, excluding the conflicts provisions of such law.


 


11.10.3                                  The arbitrator
shall be fully compensated in accordance with his or her normal hourly or per
diem rates for all time spent in connection with the arbitration proceeding.
Pending a final award, the arbitrator’s compensation and expenses shall be
advanced equally by the parties.


 


11.10.4                                  The parties may request
a court for interim or provisional relief, and any such request shall not be
deemed incompatible with the agreement to arbitrate or as a waiver of that
agreement.


 


11.10.5                                  In no event
will the arbitrator have the power to include any element of punitive damages
or incidental or consequential damages in the arbitration award.


 


11.10.6                                  Notwithstanding
the foregoing or anything to the contrary herein, either party may seek
and obtain an injunction or other appropriate relief from a court to preserve
the status quo with respect to any matter pending conclusion of the arbitration
proceeding or to enforce or protect any of its intellectual property rights.


 


11.11                   EQUITABLE
REMEDIES: LICENSEE acknowledges that its failure to perform any of the
material terms or conditions of this AGREEMENT may result in immediate and
irreparable damage to GTG, LICENSEE also acknowledges that there may be no
adequate remedy at all for such failures and that in the event thereof, GIG
shall be entitled to equitable relief in the nature of an injunction, pre-award
attachment of assets, and/or other equitable remedies.


 


11.12                   ATTORNEYS’
FEES: Upon resolution of any claim or controversy arising under this AGREEMENT,
the prevailing party shall be awarded its reasonable attorneys’ fees and costs
in addition to any other amount awarded.


 


11.13                   NON-DISPARAGEMENT:
Neither LICENSEE nor LICENSOR shall make any disclosures, issue any statements
or otherwise cause to be disclosed any information, statement, press release or
other public disclosure, whether oral, written, express or implied, which
disparages, defames, criticizes, slanders, or libels, or denigrates the other
party, its shareholders, officers, directors, or employees, any aspect of the
management, policies, operations, practices, or decisions of the other party,
the LICENSED PATENTS, this AGREEMENT, or GTG’s patent licensing activities (“STATEMENTS”).
Additionally, neither LICENSEE nor LICENSOR shall permit its officers,
directors or employees to issue any such STATEMENTS.


 


11.14                   INDEPENDENT
BUSINESS: The parties acknowledge that their business operations are completely
independent and neither party shall at any time hold itself out as an agent or
representative of the other party. No partnership, joint venture, or other
relationship shall be deemed to exist by virtue of this AGREEMENT.


 


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11.15                   INDEPENDENT
TERMS: All the terms of this AGREEMENT shall be independent and unconditional
so that the performance of any one term shall not be subject to any set off or
counterclaim.


 


11.16                   SEVERABILITY:
In the event any clause or term of this AGREEMENT is  determined to be void, invalid, or
unenforceable, the clause shall be reformed to the extent necessary in order to
overcome the limitation and as revised this AGREEMENT shall remain in full
force and effect.


 


11.17                   HEADINGS: The
headings contained within this AGREEMENT are for convenience and reference
purposes only. They do not form a part hereof and shall not affect
the meaning or interpretation of this AGREEMENT.


 


11.18                   FURTHER
ASSURANCES: The parties hereto shall execute such further documents and perform such
further acts as may be necessary to comply with the terms of this
AGREEMENT and consummate the transactions herein provided.


 


11.19                   FORCE MAJEURE:
Neither party shall be held responsible if the fulfillment of any terms or
provisions of this AGREEMENT are delayed or prevented by wars, revolutions,
fires, floods, acts of God, acts of terrorism whether actual or threatened, or
other causes similar to those enumerated and not within the control of the
party whose performance is interfered with, and which by the exercise of
reasonable diligence, the party is unable to prevent.


 


11.20                   COUNTERPARTS:
This AGREEMENT may be executed in counterparts (and evidenced by facsimile
signatures), each of which will be deemed an original and all of which together
constitute one instrument.


 


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IN
WITNESS WHEREOF, the parties hereto have caused their authorized
representatives to execute this AGREEMENT.


 


	
  GTG

  	
  LICENSEE:

  
	
   

  	
   

  
	
  GENETIC TECHNOLOGIES LIMITED

  	
  BIOSEARCH TECHNOLOGIES INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Printed Name / Date

  	
  Printed Name / Date

  
	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Title

  	
  Title

  



 


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