**Exhibit 4.19**

 

**Execution Version**

 

“CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THISDOCUMENT 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**

** **

Effectiveas of September 30, 2007 (“EFFECTIVE DATE”), **GENETICTECHNOLOGIES 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 representsthat it has certain proprietary and intellectual property rights pertaining tomethods and processes used to extract gene discovery and diagnostic utilityfrom the non-coding region of genomes.

 

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

 

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

 

ARTICLE II

GENERALDEFINITIONS 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                               “CONFIDENTIALINFORMATION” means any and all information which is disclosed by either partyto the other verbally, electronically, visually, or in a written or othertangible form which is either identified or should be reasonablyunderstood 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source ofsupply, technology, discoveries, developments, inventions, techniques,marketing plans, strategies, forecasts, unpublished financial  statements, prices, costs, and customerlists.

 

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) usessuch LICENSED PRODUCTS for its own business purposes and not for the benefit ofother parties.

 

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

 

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

 

**CONFIDENTIAL**

 

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2.6                               “LICENSEDPATENT(S)” means the United States Patents listed in Appendix “A” attached tothis 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                               “LICENSEDPRODUCT(S)” means oligonucleotides and probes (i) manufactured by LICENSEEand (ii) sold under LICENSEE’s brand or name that but for the licensegranted herein would infringe or contribute to or induce the infringement ofone or more claims of a LICENSED PATENT. For purposes of clarity, neither (i) co-brandedproducts nor (ii) products sold under the brand or name of a third partyshall be considered LICENSED PRODUCTS.

 

2.8                               “RESELLER”means a third party that purchases LICENSED PRODUCTS directly from LICENSEE forresale 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 thisAGREEMENT will refer to this AGREEMENT as a whole and not to any particularprovision of this AGREEMENT and Article, Section and Subsection referencesare to this AGREEMENT unless otherwise specified. Whenever the words “include,”“includes” or “including” are used in this AGREEMENT, they will be deemed to befollowed by the words “without limitation.” The meanings given to terms definedherein will be equally- applicable to both the singular and plural forms ofsuch terms.

 

ARTICLE III

RELEASE

 

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

 

ARTICLE IV

GRANTTO LICENSEE

 

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

 

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4.1.1                      make and useLICENSED PRODUCTS in the FIELD OF USE throughout the TERRITORY solely for thePURPOSE;

 

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

 

4.1.3                      offer for saleand sell LICENSED PRODUCTS to RESELLERS in the FIELD OF USE throughout theTERRITORY solely for the PURPOSE.

 

4.2                               The rights andlicenses granted by GTG in this AGREEMENT are personal to LICENSEE. LICENSEEshall not assign or otherwise transfer any license or right granted hereunderor any interest therein without the prior written consent of GTG (which may bewithheld in GTG’s sole and absolute discretion), except to a purchaser of allor 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 expresslyassume in writing LICENSEE’s obligations under this AGREEMENT and expresslyacknowledges in writing that no products or services of such purchaser existingprior to the transfer of ownership shall be considered LICENSED PRODUCTS.

 

4.3                               The licensesgranted in Section 4.1 are subject to the following:

 

4.3.1                      LICENSEE willnot grant or purport to grant purchasers of LICENSED PRODUCTS rights under theLICENSED PATENTS.

 

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

 

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

 

4.4                               PRODUCTMARKING:

 

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

 

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

 

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

 

ARTICLE V

CONSIDERATION

 

5.1                               Asconsideration for the licenses and rights granted by this AGREEMENT, LICENSEEagrees to pay to GTG a one-time, nonrefundable license issue fee of *** payablein eight (8) equal monthly installments as follows:

 

*** EFFECTIVE DATE; and

 

5.2                               The payment toGTG of the license issue fee and other payments that may be provided forin 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 taxesand charges of any kind (“TAXES”), whether levied by federal, state, ormunicipal governments in the TERRITORY, or by other authorities, except forsuch income tax which may be expressly required by the laws of thegovernments in the TERRITORY to be paid for the account of GTG. The payment ofany such income taxes levied upon or withheld from royalties, fees,compensations, or other payments due to GTG, and the filing of any informationor tax returns with respect thereto, shall be the responsibility of and shallbe borne by LICENSEE. GTG will cooperate to help LICENSEE minimize, in anylawful manner, the foregoing TAXES and will provide LICENSEE with reasonableassistance to enable LICENSEE to recover such TAXES as permitted by law.

 

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

 

**Key Bank#3070702671130 Haxton DriveFort Collins, Colorado 80525Account: Genetic Technologies Limited Account Number: 76009 000 2576**

 

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

 

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

 

5.6                               LICENSOR agreesit will not grant a license after the EFFECTIVE DATE to a direct marketcompetitor of LICENSEE on more favorable terms. A license will be deemed to beOn more favorable terms if and only if such license includes substantiallysimilar or broader non-financial terms (such as, territory, field of use,licensed patents, covenants and scope of the grant) as this AGREEMENT on morefavorable financial terms (taking into account, *interalia*,payment terms, the effective royalty rate and any other considerationassociated with such license) than this AGREEMENT. A company will be deemed tobe a direct market competitor of LICENSEE if and only if such company on theeffective date of such license (i) competes with LICENSEE in relation toLICENSED PRODUCTS in a common geographical area; (ii) employs relatedtechnologies to LICENSEE in connection with manufacturing and developingLICENSED PRODUCTS; and (iii) competes with LICENSEE in the same marketsegment.

 

5.7                               MATERIALBREACH: Breach of any provision of this Article V or part thereofshall be deemed a material breach.

 

ARTICLE VI

WAIVER

 

6.1                               No waiver byeither party, express or implied, of any breach of any term, condition, orobligation of this AGREEMENT by the other party shall be construed as a waiverof any subsequent breach of that term, condition, or obligation, or of anyother term, condition, or obligation of this AGREEMENT of the same or differentnature.

 

ARTICLE VII

TERMAND TERMINATION OF AGREEMENT

 

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

 

7.2                               Either partyshall have the right to terminate this AGREEMENT upon any material breach ofany term or condition of this AGREEMENT by the other party, which has not beencorrected within thirty (30) days after receipt of a notice in writing withreference to this Section 7.2 and such termination shall be withoutprejudice to any other rights or claims the aggrieved party may haveagainst the other party. Termination shall not affect any obligation owed byLICENSEE to GTG prior to the termination.

 

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7.3                               GTG shall havethe right to terminate this AGREEMENT in the event that LICENSEE shall becomeinvolved in insolvency, dissolution, bankruptcy, or receivership proceedingsaffecting the operation of its business, or in the event that LICENSEEdiscontinues business for any reason.

 

7.4                               In the event oftermination of this AGREEMENT all rights granted to LICENSEE hereunder shallrevert to GTG.

 

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

 

ARTICLE VIII

CONFIDENTIALITY,PUBLICITY AND PRESS RELEASES

 

8.1                               LIMITATIONS ONUSE AND DISCLOSURE: The parties agree that the terms and conditions set forthin this AGREEMENT are CONFIDENTIAL INFORMATION. The CONFIDENTIAL INFORMATIONdisclosed by either party (“DISCLOSING PARTY”) to the other party (“RECEIVINGPARTY”) constitutes the confidential and proprietary information of theDISCLOSING PARTY and the RECEIVING PARTY agrees to treat all CONFIDENTIALINFORMATION of the other in the same manner as it treats its own similarproprietary information, but in no case will the degree of care be less thanreasonable care. The RECEIVING PARTY shall use CONFIDENTIAL INFORMATION of theDISCLOSING PARTY only in performing under this AGREEMENT and shall retain theCONFIDENTIAL INFORMATION in confidence and not disclose to any third party(except as authorized under this AGREEMENT) without the DISCLOSING PARTY’Sexpress written consent. The RECEIVING PARTY shall disclose the DISCLOSINGPARTY’s CONFIDENTIAL INFORMATION only to those employees and contractors of theRECEIVING PARTY who have a need to know such information for the purposes ofthis AGREEMENT, and such employees and contractors must have entered intoagreements with the RECEIVING PARTY containing confidentiality provisionscovering the CONFIDENTIAL INFORMATION, with terms and conditions at least asrestrictive as those set forth herein. Notwithstanding the foregoing, eachparty’s confidentiality obligations hereunder shall not apply to informationwhich as evidenced by written records:

 

8.1.1                      is alreadyknown to the RECEIVING PARTY without an obligation of confidentiality prior todisclosure by the DISCLOSING PARTY;

 

8.1.2                      is or becomespublicly available without fault of the RECEIVING PARTY;

 

8.1.3                      is rightfullyobtained by the RECEIVING PARTY from a third party without restriction as todisclosure, or is approved for release by written authorization of theDISCLOSING PARTY;

 

8.1.4                      is developedindependently by the RECEIVING PARTY without use of or access to the DISCLOSINGPARTY’s CONFIDENTIAL INFORMATION.

 

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8.2                               PERMITTED USEAND DISCLOSURE: Each party hereto is permitted to disclose this AGREEMENT anduse or disclose the CONFIDENTIAL INFORMATION disclosed to it by the otherparty:

 

8.2.1                      To the extentsuch use or disclosure is reasonably necessary in connection with complyingwith stock exchange rules.

 

8.2.2                      To its legaland/or financial advisors, provided such advisors maintain the confidentialityof this AGREEMENT.

 

8.2.3                      To the extentsuch use or disclosure is reasonably necessary to enforce its rights under thisAGREEMENT in connection with a legal proceeding or as required to be disclosedby law or governmental regulation.

 

8.2.4                      To the extentsuch use or disclosure is reasonably necessary in connection with prosecutingor defending litigation, complying with applicable law, court order, submittinginformation to tax or other governmental authorities, or otherwise exercisingits rights hereunder,

 

8.2.5                      In theinstances set forth in Sections 8.2.3 or 8.2,4, the RECEIVING PARTY shallprovide reasonable advance written notice to DISCLOSING PARTY of suchdisclosure and reasonably cooperate with the DISCLOSING PARTY in limiting suchdisclosure.

 

8.3                               PERMITTED USEAND DISCLOSURE: GTG is permitted to disclose terms and conditions of thisAGREEMENT if the scope of this AGREEMENT has been mischaracterized to acustomer and/or prospective customer of the LICENSEE, but only to the extentnecessary to correct such mischaracterization.

 

8.4                               PUBLICITY ANDPRESS RELEASES: The parties shall mutually agree upon and jointly issue. Withinseven (7) days of the EFFECTIVE DATE or as soon as reasonably practicalthereafter, one or more appropriate media/press releases with regard to theexistence of this AGREEMENT and recognizing the LICENSEE as an authorizedcommercial manufacturer and supplier of oligonucleotides under the LICENSEDPATENTS. Neither party shall issue any other press releases relating to thisAGREEMENT without prior written approval of the other party; provided however,that:

 

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

 

8.4.2                      GTG shall beable to disclose to other licensees and/or prospective licensees the identityof LICENSEE and the existence of this AGREEMENT; and

 

8.4.3                      LICENSEE shallbe able to disclose to customers and/or prospective customers the identity ofGTG and the existence of this AGREEMENT.

 

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ARTICLE IX

NOTICE

 

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

 

Ronald M. Cook, Ph.D.President/CEOBiosearch Technologies, Inc.81 Digital Drive, Novato, CA 94949Ph: +1 (415) 883-8400Fax:    (415) 883-8488

 

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

 

Dr. Mervyn JacobsonLicensing ConsultantGenetic Technologies Limited60 Hanover StreetFitzroy, Victoria3065 AustraliaPh: +61 419 657 915Fax: +1 (970) 484-6698

 

witha copy to:

 

Michael A. DeSanctis, Esq.Hamilton, DeSanctis Cha, LLP225 Union Blvd., Ste. 305Lakewood, CO 80228USAPh: +1 (303) 284-5103Fax: +1 (303) 362-0575

 

or, in any case, to suchchanged address or person as GTG or LICENSEE shall have specified to the otherby written notice.

 

ARTICLE X

REPRESENTATIONSAND WARRANTIES

 

10.1                         GTG representsand warrants that it has the foil right, power, and authority to enter into andperform its obligations under this AGREEMENT and grant to LICENSEE thelicense and other rights as set forth herein, and there arc no outstandingagreements, grants, licenses, encumbrances, liens, or agreements, eitherwritten or implied, inconsistent therewith or pursuant to which this AGREEMENTor the parties’ performance hereunder would violate, breach, or cause adefault.

 

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10.2                         GTG representsand warrants that the execution, delivery, and performance of this AGREEMENThave been duly authorized by all necessary corporate actions on the part ofGTG.

 

10.3                         LICENSEErepresents and warrants that it has the full right, power, and authority toenter into and perform its obligations under this AGREEMENT, and there areno outstanding agreements, grants, licenses, encumbrances, liens, oragreements, either written or implied, inconsistent therewith or pursuant towhich this AGREEMENT or the parties’ performance hereunder would violate,breach, or cause a default.

 

10.4                         LICENSEErepresents and warrants that the execution, delivery, and performance of thisAGREEMENT have been duly authorized by all necessary corporate actions on the part ofLICENSEE.

 

10.5                         INDEMNIFICATION:10.5.1

 

10.5.1                BY LICENSEE:

 

10.5.1.1                                                       LICENSEE agreesto hold GTG harmless from any claims by third parties arising from themanufacture, use, sale, importation, or other disposition of LICENSED PRODUCTSby LICENSEE. LICENSEE shall indemnify, hold harmless, and defend GTG, and GTG’sSUBSIDIARIES, affiliates, officers, directors, representatives, employees, oragents against any and all claims, causes of action, demands, judgments,settlements, expenses, or losses including, but not limited to, reasonableattorneys’ fees and court costs arising out of or in connection with: (i) thedesign, development, manufacture, use, sale, packaging, distribution, orshipment of LICENSED PRODUCTS; (ii) any breach by LICENSEE of anyrepresentation, warranty, or covenant hereunder, or (iii) the failure ofLICENSEE to perform any covenants or obligations contained in thisAGREEMENT.

 

10.5.1.2                                                       LICENSEE shallbe liable to GIG with respect to any amounts, fines, or penalties arising outof or resulting from any failure, delay or error in discharging the obligationsof Section 5.2.

 

10.5.2                BY GTG: GTGshall indemnify, bold harmless, and defend LICENSEE, and LICENSEE’ saffiliates, officers, directors, representatives, employees, or agents againstany and all claims, causes of action, demands, judgments, settlements,expenses, or losses including, but not limited to, reasonable attorneys’ feesand court costs arising out of or in connection with; (i) any breach byGIG of any representation, warranty, or covenant hereunder, or (ii) thefailure of GTG to perform any covenants or obligations contained in thisAGREEMENT.

 

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

 

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

 

10.6                         DISCLAIMER OFWARRANTIES:

 

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

 

10.6.2                EXCEPT ASEXPRESSLY SET FORTH HEREIN, LICENSEE AGREES THAT THE LICENSED PATENTS AREPROVIDED “AS IS,” AND THAT GTG MAKES NO REPRESENTATION OR WARRANTY WITH RESPECTTO THE PERFORMANCE OR SALE OF LICENSED PRODUCTS INCLUDING THEIR. SAFETY,EFFECTIVENESS, OR COMMERCIAL VIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OFTHIS AGREEMENT, GTG ADDITIONALLY DISCLAIMS ALL OBLIGATIONS AND LIABILITIES FORDAMAGES WHICH ARISE OUT OF OR RESULT FROM THE PERFORMANCE OR SALE OF LICENSEDPRODUCTS. LICENSEE ASSUMES ALL RESPONSIBILITY AND LIABILITY FOR LOSS OR DAMAGECAUSED BY PERFORMANCE OR SALE OF LICENSED PRODUCTS.

 

10.7                         LIMITATION OFLIABILITY: EXCEPT FOR BREACH OF PAYMENT TERMS UNDER ARTICLE V OR FORLIABILITY FOR BREACH OF ARTICLE VIII, NEITHER PARTY SHALL BE ENTITLED TORECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVEDAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE GRANTED HEREUNDER. GTGSHALL NOT BE LIABLE FOR ANY AMOUNTS IN EXCESS OF THE TOTAL AMOUNTS PAID TO GTGBY LICENSEE HEREUNDER.

 

10.8                         Nothingcontained in this AGREEMENT shall be construed as:

 

10.9                         a warranty orrepresentation by GTG as to the validity, enforceability or scope of any LICENSEDPATENT; or

 

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

 

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

 

10.12                   conferring anyright to use by either party, in advertising, publicity, or otherwise, anytrademark, trade name or name, or any contraction, abbreviation or simulationthereof, of the other party; or

 

10.13                   conferring byimplication, estoppel or otherwise, upon LICENSEE, any license or other rightunder any intellectual property or patent, except that expressly grantedhereunder,

 

ARTICLE XI

MISCELLANEOUS

 

11.1                         PRODUCTLITERATURE: LICENSEE and RESELLERS will prominently display on any literature orother materials (in paper, electronic or other format) distributed with orabout any LICENSED PRODUCT, a notice indicating that the LICENSED PRODUCT isprovided pursuant to a license from GTG under the LICENSED PATENTS, whichpatents are owned by GTG.

 

11.2                         COPIES OFLITERATURE: LICENSEE will provide GTG with copies of literature, bulletins, andother customer materials, such as copies of web pages or other electronicinformation used in connection with LICENSED PRODUCTS prior to the publicrelease of such information.

 

11.3                         NO ASSISTANCETO THIRD PARTIES: Except as required by law or court order, LICENSEE; foritself, its successors and assigns, will not contest (or knowingly assistanother to contest) the validity or enforceability of the LICENSED PATENTS orGTG’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 andwithout any strict construction in favor of or against either party. ThisAGREEMENT shall not be construed in favor or against either party by reason ofthe authorship of any provisions hereof The existence or absence of any term orcondition of this AGREEMENT shall not be used in the construction orinterpretation of any other agreement between the parties. The existence orabsence of any term or condition of any other agreement between the partiesshall not be used in the construction or interpretation of this AGREEMENT.

 

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

 

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

 

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

 

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

 

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

 

11.10                   DISPUTERESOLUTION:

 

11.10.1                                  NotwithstandingSection 11.9 above, other than injunctive relief or pre-award attachmentof assets which may, but need not be, pursued in a court of Jaw, the partiesagree that, in the event of any difference, dispute or question, arising fromthis AGREEMENT, the parties will endeavor to settle such matters amicablybetween themselves in good faith. Should the parties be unable to do so withina period of thirty-five (35) working days, except as provided for elsewhereherein, the matter shall be promptly submitted to arbitration in accordancewith the rules of the American Arbitration Association, and judgment uponthe award rendered by the arbitrators may be entered in any court inColorado having jurisdiction thereof. This arbitration agreement shall notapply to any controversy or claim involving an issue of the infringement,validity, or enforceability of any patent. The arbitration shall be governed bythe United States Arbitration Act, 9 U.S.C. §§ 1-16, to the exclusion ofany provisions of state law inconsistent therewith or which would produce adifferent result.

 

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

 

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

 

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

 

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

 

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

 

11.10.6                                  Notwithstandingthe foregoing or anything to the contrary herein, either party may seekand obtain an injunction or other appropriate relief from a court to preservethe status quo with respect to any matter pending conclusion of the arbitrationproceeding or to enforce or protect any of its intellectual property rights.

 

11.11                   EQUITABLEREMEDIES: LICENSEE acknowledges that its failure to perform any of thematerial terms or conditions of this AGREEMENT may result in immediate andirreparable damage to GTG, LICENSEE also acknowledges that there may be noadequate remedy at all for such failures and that in the event thereof, GIGshall be entitled to equitable relief in the nature of an injunction, pre-awardattachment 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 costsin addition to any other amount awarded.

 

11.13                   NON-DISPARAGEMENT:Neither LICENSEE nor LICENSOR shall make any disclosures, issue any statementsor otherwise cause to be disclosed any information, statement, press release orother public disclosure, whether oral, written, express or implied, whichdisparages, defames, criticizes, slanders, or libels, or denigrates the otherparty, its shareholders, officers, directors, or employees, any aspect of themanagement, 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                   INDEPENDENTBUSINESS: The parties acknowledge that their business operations are completelyindependent and neither party shall at any time hold itself out as an agent orrepresentative of the other party. No partnership, joint venture, or otherrelationship shall be deemed to exist by virtue of this AGREEMENT.

 

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11.15                   INDEPENDENTTERMS: All the terms of this AGREEMENT shall be independent and unconditionalso that the performance of any one term shall not be subject to any set off orcounterclaim.

 

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

 

11.17                   HEADINGS: Theheadings contained within this AGREEMENT are for convenience and referencepurposes only. They do not form a part hereof and shall not affectthe meaning or interpretation of this AGREEMENT.

 

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

 

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

 

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

 

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INWITNESS WHEREOF, the parties hereto have caused their authorizedrepresentatives 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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