FOR THE DELIVERY TO JHU BY THE COMPANY OF THE
INFORMATION REQUIRED TO BE INCLUDED IN THE REPORTS DESCRIBED IN PARAGRAPH 5.1
ABOVE, COMPANY SHALL REQUIRE OF ITS AFFILIATED COMPANIES THAT THEY RETAIN
RECORDS AND PROVIDE TO THE COMPANY ANY AND ALL
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.
19
SUCH INFORMATION AND DATA, AND THE COMPANY SHALL INCLUDE IN ANY AND ALL
AGREEMENTS WITH SUCH AFFILIATED COMPANIES A PROVISION TO THAT EFFECT AND
ALLOWING FOR THE INSPECTION BY JHU OF SUCH RECORDS.
5.3
COMMERCIAL EFFORTS.
COMPANY SHALL EXERCISE COMMERCIALLY REASONABLE
EFFORTS TO DEVELOP AND INTRODUCE FECAL BASED TESTS THAT USE THE PATENT RIGHTS
INTO THE COMMERCIAL MARKET AS SOON AS PRACTICABLE, CONSISTENT WITH SOUND AND
REASONABLE BUSINESS PRACTICE AND JUDGMENT.
COMPANY SHALL ALSO EXERCISE
COMMERCIALLY REASONABLE EFFORTS TO DEVELOP OTHER ITEMS AS SOON AND AS BROADLY AS
PRACTICABLE, CONSISTENT WITH SOUND AND REASONABLE BUSINESS PRACTICE AND
JUDGMENT, THE SOLE REMEDY FOR THE COMPANY'S FAILURE IN SO DOING TO BE
TERMINATION OF THE LICENSE GRANTED HEREON IN A PARTICULAR MARKET AS CONTEMPLATED
BY THE LAST SENTENCE OF PARAGRAPH 5.4 BELOW.
5.4
OTHER PRODUCTS.
AFTER JHU PROVIDES COMPANY WITH OBJECTIVE EVIDENCE
(THE "NOTIFICATION") THAT DEMONSTRATES THE COMMERCIAL PRACTICALITY OF
APPLICATION OF THE PATENT RIGHTS IN A CLEARLY DEFINED PRODUCT OR MARKET SEGMENT
(E.G.
OTHER CANCERS BEYOND COLORECTAL) (THE "MARKET") WHICH, AS OF THE DATE OF
NOTIFICATION, IS NOT BEING DEVELOPED OR COMMERCIALIZED BY COMPANY, ITS
AFFILIATES OR ITS SUBLICENSEE, COMPANY SHALL EITHER (I) PROVIDE JHU WITH A
REASONABLE DEVELOPMENT PLAN AND START DEVELOPMENT, OR (II) SUBLICENSE THE
PARTICULAR TECHNOLOGY TO A THIRD PARTY, FOR APPLICATION IN THE PARTICULAR
MARKET.
IF WITHIN TWO (2) YEARS AFTER COMPANY'S RECEIPT OF THE NOTIFICATION,
COMPANY HAS NOT (A) INITIATED SUCH DEVELOPMENT EFFORTS, OR (B) SUBLICENSED THE
PARTICULAR MARKET DESCRIBED IN THE NOTIFICATION (WITH SUCH SUBLICENSE AGREEMENT
CONTAINING CONTRACTUAL ASSURANCES THAT THE SUBLICENSEE WILL EXERCISE REASONABLE
EFFORTS TO PURSUE THE PARTICULAR MARKET), THEN JHU MAY TERMINATE THE LICENSE
GRANTED HEREUNDER FOR THE PARTICULAR MARKET.
5.5
PATENT ACKNOWLEDGEMENT.
COMPANY AGREES TO MARK ALL APPLICABLE
PRODUCTS OR SERVICES SOLD BY COMPANY WITH THE NUMBER OF THE APPLICABLE
PATENT(S) LICENSED HEREUNDER IN ACCORDANCE WITH EACH COUNTRY'S PATENT LAWS.
ARTICLE 6
REPRESENTATIONS
6.1
REPRESENTATIONS BY JHU.
JHU WARRANTS THAT IT HAS GOOD AND
MARKETABLE TITLE TO ITS INTEREST IN THE INVENTIONS CLAIMED IN THE PATENT RIGHTS
WITH THE EXCEPTION OF CERTAIN RETAINED RIGHTS OF THE UNITED STATES GOVERNMENT
AND/OR HHMI, BUT DOES NOT WARRANT THE VALIDITY OF ANY PATENTS OR THAT PRACTICE
UNDER SUCH PATENTS SHALL BE FREE OF INFRINGEMENT.
COMPANY AGREES, AND WILL
CAUSE ALL AFFILIATED COMPANIES AND ANY AND ALL SUBLICENSEES TO AGREE FOR THE
BENEFIT OF JHU, AND OTHERS THAT THE PATENT RIGHTS ARE PROVIDED "AS IS", AND JHU
MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE PERFORMANCE OF ANY
PRODUCT OR SERVICE, INCLUDING WITH RESPECT TO