PARTY
OF ANY PROVISIONS OR CONDITIONS OF THIS AGREEMENT, MUST BE IN WRITING AND SHALL
BE EFFECTIVE ONLY TO THE EXTENT SPECIFICALLY SET FORTH IN
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Exchange Act; [*] denotes
omissions.
27
such writing.
All remedies either under this Agreement or by law or otherwise
afforded to any party, shall be cumulative and not alternative.
10.12
FORCE MAJEURE.
IF EITHER PARTY FAILS TO FULFILL ITS OBLIGATIONS
HEREUNDER (OTHER THAN AN OBLIGATION FOR THE PAYMENT OF MONEY), WHEN SUCH FAILURE
IS DUE TO AN ACT OF GOD, OR OTHER CIRCUMSTANCES BEYOND ITS REASONABLE CONTROL,
INCLUDING BUT NOT LIMITED TO FIRE, FLOOD, CIVIL COMMOTION, RIOT, WAR (DECLARED
AND UNDECLARED), ACTS OF TERRORISM, REVOLUTION, OR EMBARGOES, THEN SAID FAILURE
SHALL BE EXCUSED FOR THE DURATION OF SUCH EVENT AND FOR SUCH A TIME THEREAFTER
AS IS REASONABLE TO ENABLE THE PARTIES TO RESUME PERFORMANCE UNDER THIS
AGREEMENT.
10.13
FURTHER ASSURANCES.
EACH PARTY SHALL, AT ANY TIME, AND FROM TIME TO
TIME, DURING THE TERM OF THIS AGREEMENT, AT REASONABLE REQUEST OF THE OTHER
PARTY, EXECUTE AND DELIVER TO THE OTHER SUCH INSTRUMENTS AND DOCUMENTS AND SHALL
TAKE SUCH ACTIONS AS MAY BE REQUIRED TO IMPLEMENT THE TERMS OF THIS AGREEMENT.
10.14
SURVIVAL.
ARTICLES 1, 6, 7, 8, 9, AND 10, AND PARAGRAPHS 2.4, 5.1
AND 5.2, SHALL SURVIVE ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT.
10.15
NO THIRD PARTY BENEFICIARIES.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN TO THE CONTRARY, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED AS GIVING
ANY PERSON, FIRM, CORPORATION OR OTHER ENTITY, OTHER THAN THE PARTIES HERETO AND
THEIR SUCCESSORS AND PERMITTED ASSIGNS, ANY RIGHT, REMEDY OR CLAIM UNDER OR IN
RESPECT OF THIS AGREEMENT OR ANY PROVISION HEREOF.
10.16
HEADINGS.
ARTICLE HEADINGS ARE FOR CONVENIENT REFERENCE AND NOT A
PART OF THIS AGREEMENT.
ALL EXHIBITS ARE INCORPORATED HEREIN BY THIS REFERENCE.
10.17
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN COUNTERPARTS, EACH
OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH WHEN TAKEN TOGETHER SHALL
BE DEEMED BUT ONE INSTRUMENT.
10.18
AFFILIATE RIGHTS AND OBLIGATIONS.
THE LICENSE GRANTED HEREUNDER
SHALL EXTEND TO ALL AFFILIATES OF EXACT SCIENCES CORPORATION (BUT NOT, IN TURN,
TO THEIR AFFILIATES, AND SHALL EXTEND TO AN AFFILIATE FOR ONLY SO LONG AS THE
AFFILIATE REMAINS AN AFFILIATE) WHO NOTIFY JHU IN WRITING THAT THEY ACCEPT THE
TERMS, INCLUDING THE OBLIGATIONS, OF THIS AGREEMENT AS BINDING UPON THEM JOINTLY
AND SEVERALLY WITH EXACT SCIENCES CORPORATION AND ITS OTHER AFFILIATES SO
ACCEPTING; PROVIDED, HOWEVER, THAT (I) IN NO EVENT SHALL ANY SUCH AFFILIATE HAVE
ANY RIGHT TO SUBLICENSE UNDER PARAGRAPH 2.2 HEREOF; (II) IN NO EVENT SHALL ANY
SUCH AFFILIATE HAVE ANY RIGHT TO ASSIGN OR TRANSFER ANY RIGHTS INURING TO IT
HEREUNDER, AS OTHERWISE CONTEMPLATED BY PARAGRAPH 10.8 HEREOF; AND (III) ANY AND
ALL COMMUNICATIONS OR NOTICES TO BE GIVEN, OR ELECTIONS MADE OR TO