[*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
EXHIBIT 10.55
COLLABORATION AGREEMENT
THIS COLLABORATION AGREEMENT (the "Agreement") is entered into this 4th
day of June, 2003 ("Effective Date") by and between Bio-Rad Laboratories, Inc.,
a Delaware corporation, with a principal place of business at 1000 Alfred Nobel
Drive Hercules, CA 94547 ("Bio-Rad"), and Caliper Technologies Corp., a Delaware
corporation, with a principal place of business at 605 Fairchild Drive, Mountain
View, CA 94043 ("Caliper") (each a "Party;" together the "Parties").
BACKGROUND
A. Caliper is in the business of developing, manufacturing, and
supplying microfluidic LabChip(R) systems which miniaturize and integrate
laboratory processes on a Chip (as defined below).
B. Bio-Rad is in the business of developing, manufacturing, and
supplying the life science, analytical chemistry and clinical diagnostics
markets with a broad range of products and systems used to separate complex
chemical and biological materials, and to identify, analyze and purify their
components.
C. Bio-Rad and Caliper wish to form a collaboration to develop
and commercialize a [ * ] (as defined below) and possibly other products based
on Caliper's microfluidic technology and Bio-Rad's expertise in instrument
systems and applications for the analysis of complex chemicals and biological
materials, and to utilize Bio-Rad's existing product marketing expertise and
distribution infrastructure to market and sell such products.
NOW, THEREFORE, for and in consideration of the covenants, conditions
and undertakings hereinafter set forth, Caliper and Bio-Rad each agree as
follows:
1. DEFINITIONS
As used in this Agreement, the following terms shall have the meaning
as defined below. Terms defined in singular form shall include the plural form
and vice versa.
1.1 "Affiliate" shall mean, with respect to any Person, any other
Person controlling, controlled by or under common control with, such Person, so
long as such control exists. For purposes of this definition, the term "control"
means the possession of the power to direct the management or policies of a
Person through ownership of fifty percent (50%) or more of its
voting securities entitled to vote in the election of directors (or, in the case
of a Person that is not a corporation, for the election of the corresponding
managing authority).
1.2 "Bio-Rad Improvements" shall mean all Improvements that are
made solely by Bio-Rad in the course of performing a Development Workplan
pursuant to this Agreement [ * ].
1.3 "Caliper Improvements" shall mean all Improvements that are
made solely by Caliper in the course of performing a Development Workplan
pursuant to this Agreement that are [ * ].
1.4 "Caliper Know-How" shall mean all know-how, discoveries,
materials, techniques, procedures, data, trade secrets and other scientific,
technical or engineering information which Caliper or its Affiliates (i) own or
control, or in which Caliper or its Affiliates have an interest that they are
not legally or contractually prohibited from licensing or sublicensing to
Bio-Rad or its Affiliates, and (ii) treat as confidential or proprietary, as of
the Effective Date or at any time thereafter during the term of this Agreement.
Caliper Know-How does not include Caliper Patents.
1.5 "Caliper Materials" shall mean any gel, buffer, dye or other
material owned or controlled by Caliper or its Affiliates, or in which Caliper
or its Affiliates have an interest, that they are not legally nor contractually
prohibited from selling, or licensing or sublicensing manufacturing rights, to
Bio-Rad, and that is provided by Caliper for use in a Chip.
1.6 "Caliper Patents" shall mean any and all Patents which Caliper
or its Affiliates own or control, or in which Caliper or its Affiliates have an
interest that they are not legally nor contractually prohibited from licensing
or sublicensing to Bio-Rad or its Affiliates, as of the Effective Date or at any
time thereafter during the term of this Agreement.
1.7 "Caliper Products" shall mean any Chips, Caliper Materials or
any other products sold by Caliper to Bio-Rad pursuant to Article 6.
1.8 "Caliper Product Software" shall mean any software in Object
Code Form or Source Code Form, any accompanying documentation and any
modifications or enhancements to the foregoing that (i) is owned or controlled
by Caliper or its Affiliates, or is in-licensed from third parties by Caliper or
its Affiliates (other than Bio-Rad or any of its Affiliates) subject to any
applicable license restrictions, and (ii) is designed for use in or otherwise
included in a System.
1.9 "Caliper Software Copyrights" means any and all copyrights
which Caliper or its Affiliates own or control, or in which Caliper or its
Affiliates have an interest that they are not legally nor contractually
prohibited from licensing or sublicensing to Bio-Rad or its Affiliates, with
respect to Caliper Product Software.
1.10 "Caliper Technology" shall mean, collectively, the Caliper
Patents, the Caliper Know-How and the Caliper Software Copyrights.
1.11 "Chip" shall mean a chip based on Caliper Technology offered
by Caliper or its Affiliates to perform microfluidic or miniaturization
experimentation and having one or more
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fluidic chambers or channels where such chambers or channels have at least one
cross-sectional dimension of less than about 500 microns.
1.12 "[ * ]" shall mean a System designed [ * ] and which the
Parties intend to develop and commercialize pursuant to this Agreement.
1.13 "Component" shall mean one of the elements of a complete
System, including but not limited to, the Chip, the Instrument, the System
Software or a Reagent.
1.14 "Confidential Information" of a Party shall mean all
information and know-how and any tangible embodiments thereof provided by such
Party to the other Party either in connection with the discussions and
negotiations pertaining to this Agreement or in the course of performing this
Agreement (including, without limitation, data; knowledge; practices; processes;
ideas; research plans; engineering designs and drawings; research data;
manufacturing processes and techniques; scientific, manufacturing, marketing and
business plans; and financial and personnel matters relating to the disclosing
Party or to its present or future products, sales, suppliers, customers,
employees, investors or business), which information, know-how and tangible
embodiments are reasonably considered to be proprietary and confidential by the
disclosing Party and are designated as confidential in writing by the disclosing
Party, whether by letter or by the use of an appropriate stamp or legend, prior
to or at the time any such information, know-how or tangible embodiment is
disclosed by the disclosing Party to the other Party. Notwithstanding the
foregoing, information or know-how that is orally, electronically or visually
disclosed by a Party, or is disclosed in writing or in some other tangible
embodiment without an appropriate letter, stamp or legend, shall constitute
Confidential Information of a Party (i) if the disclosing Party, within thirty
(30) days after such disclosure, delivers to the other Party a written document
or documents describing the information, know-how or other material, indicating
the information, know-how or other material is confidential information of the
disclosing Party, and referencing the place and date of such oral, visual,
electronic or other disclosure and the names of the persons to whom such
disclosure was made, or (ii) such information or know-how is of the type that is
customarily considered to be confidential information by persons engaged in
activities that are substantially similar to the activities being engaged in by
the disclosing Party (including, without limitation, software source code).
Notwithstanding the foregoing, information or know-how shall not be deemed
Confidential Information for purposes of this Agreement if such information or
know-how:
(a) was already known to the receiving Party or its Affiliates at
the time of disclosure by the disclosing Party;
(b) was part of the public domain at the time of its disclosure to
the receiving Party;
(c) became otherwise part of the public domain after its
disclosure to the receiving Party through no fault of the
receiving Party;
(d) was disclosed to the receiving Party or its Affiliates by a
third party who had no obligation to the disclosing Party not
to disclose such information or know-how to others; or
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(e) was independently discovered or developed by the receiving
Party or its Affiliates, as evidenced by their written
records, without the use of Confidential Information belonging
to the disclosing Party.
1.15 "Contract Quarter" shall mean each fiscal quarter of Bio-Rad,
or portion thereof, during the term of this Agreement, as determined by Bio-Rad
in a manner consistent with any commercially reasonable mechanism that Bio-Rad
employs for its own financial reporting purposes.
1.16 "Development Workplan" shall mean a detailed plan and budget
for the development and commercialization of the [ * ] or any other System
agreed to by the Parties pursuant to Section 3.1. Unless otherwise agreed to by
the Parties, each Development Workplan shall (i) follow Bio-Rad's product
development process, (ii) include for each System covered by such Development
Workplan phases for Definition and Feasibility, Development, and
Commercialization, (iii) include deliverables for packaging, labeling and
quality control protocols intended to be used for testing any Caliper Products,
and (iv) set forth each Party's good faith guidelines and/or estimates with
respect to:
(a) the features or specifications for the [ * ] or any such other
System included in such Development Workplan;
(b) the activities to be performed by each Party with respect to
the development of the [ * ] or any such other System and any
deliverables in connection therewith;
(c) a detailed timeline for the completion of such activities and
the delivery of such deliverables;
(d) a budget with respect to such development activities that sets
forth the FTEs to be committed by Caliper and other costs to
be incurred by Caliper with respect to the development of the
[ * ] or any such other System, and the allocation of any
third party costs related to the project;
(e) a schedule of all development systems, materials, Chips,
Instruments, Reagents, software, and other products required
to complete the development of the [ * ] or any such other
System and any cost to each Party thereof;
(f) a five (5) year non-binding forecast of sales of the [ * ] or
any such other System; and
(g) such other matters as the parties determine to be appropriate
with respect to the [ * ] or any such other System.
1.17 "Experimental Method" shall mean a set of data or
instructions, not necessarily in the form of software, used to control the
Components of a System for performance of a particular application. For example,
for a particular application the Experimental Method performs control of
Instruments (e.g., control of Chip voltages and detection system) and defines
the particular data interpretation algorithm, information presentation or
information management routines in the System Software.
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1.18 "FTE" (full-time equivalent) shall mean one or more Caliper
person(s), whether employees, contractors or consultants of Caliper, with
expertise with respect to the technology development activities of the type
contemplated by this Agreement, and who are working on and/or managing
Development Workplan activities under this Agreement for the equivalent of one
full-time employee's time (assuming a 40 hour work week).
1.19 "GAAP" shall mean, as of any time, generally accepted
accounting principles as in effect in the United States at such time.
1.20 "Improvements" shall mean all inventions, improvements,
discoveries, concepts, techniques, procedures, trade secrets and other technical
information, whether or not patentable and all embodiments thereof.
1.21 "Instrument" shall mean all hardware in a System, other than
Chips and any general purpose computer purchased by Bio-Rad from a third party
vendor.
1.22 "Microfluidics Systems" shall mean any systems for
manipulating fluid volumes or materials on or in a Chip.
1.23 "Net Revenue" shall mean [ * ]
With respect to any product that is sold by Bio-Rad or its Affiliates
or any group of related products that is sold by Bio-Rad or its Affiliates
together in combination and in each case is comprised in part of a System or
Component thereof and one or more other products or parts which could be sold
separately (a "Combination Product"), Net Revenue shall be determined by [ * ]
In the event that Bio-Rad or any of its Affiliates receives payment for
any Instrument and/or Systems Software in a currency other than U.S. dollars,
Bio-Rad shall convert such currency to U.S. dollars, in a manner consistent with
GAAP and with any commercially reasonable mechanism that Bio-Rad employs for its
own financial reporting purposes, for purposes of determining Net Revenue and
the amount of royalties payable by Bio-Rad to Caliper pursuant to the terms of
this Agreement.
1.24 "Object Code Form" shall mean a form of software code
resulting from the translation or processing of a computer program in Source
Code Form by a computer into machine language or intermediate code, which thus
is in a form that would not be convenient to human understanding of the program
logic, but which is appropriate for execution or interpretation by a computer.
1.25 "Patents" shall mean any and all patents, foreign or domestic,
together with any substitutions, extensions, divisions, continuations,
continuations-in-part, reexaminations, reissues, and renewals thereof, any
supplementary protection certificates relating thereto, and any inventors'
certificates, which have not been held invalid or unenforceable by a
non-appealable or non-appealed decision of a court of competent jurisdiction,
and all patent applications filed in any jurisdiction and any provisionals,
divisionals, continuations, and continuations-in-part of such applications.
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1.26 "Persons" shall mean an individual, partnership, firm,
corporation, limited liability company, joint venture, association, trust or
other entity, or any governmental agency or political subdivision thereof.
1.27 "Project Manager" shall mean that person designated by each
Party pursuant to Section 3.3 who shall be responsible for all technical matters
pertaining to Development Workplan for that Party, including but not limited to
the following responsibilities: (i) administering and coordinating the technical
aspects of each Development Workplan; (ii) arranging meetings, visits and
consultations relating to the technical aspects of each Development Workplan;
(iii) coordinating the submission and acceptance of all deliverables, if any;
(iv) coordinating the exchange of Confidential Information; and (v) preparing
reports to the Strategic Steering Committee regarding the progress and status of
Development Workplans.
1.28 [ * ]
1.29 "Reagent" shall mean a chemical or biochemical substance to be
used with a Chip in a particular application.
1.30 "Script" shall mean a set of instructions (typically, a
software file) that is sent to the Instrument to control the Chip environment
and fluidic manipulations inside the Chip, including (i) control of the power
sources used to apply and calibrate current and voltage across a Chip, (ii)
control of the Chip environment, including temperature, (iii) focusing optical
detection systems and selecting wavelength of excitation, and (iv) control of
the temporal duration of parameters such as those set forth in (i), (ii), and
(iii). Typically there will be a different Script for each application.
1.31 "Source Code Form" shall mean a form in which a computer
program's logic is easily deduced by a human being with skill in the art, such
as a printed listing of the program or a form from which a printed listing can
be easily generated and shall include interpretive code such as perl or shell
scripts.
1.32 "Strategic Steering Committee" or "SSC" shall mean the
committee consisting of two senior management representatives from each of
Bio-Rad and Caliper that will oversee the relationship between the Parties
pursuant to the terms of this Agreement.
1.33 "System" shall mean a complete set of Chips, hardware
(including the Instrument), software and reagents which (i) makes use of Caliper
Technology to perform a particular task, experiment or chemical or biochemical
manipulation, or series thereof, that a potential user of the System desires to
perform and (ii) is developed by the Parties pursuant to this Agreement. System
includes the [ * ].
1.34 "System Software" shall mean all software used in a System.
System Software defines and executes the Experimental Method for a particular
application and includes, but is not limited to, instrument control software,
data acquisition software, data interpretation software, information
presentation software, information management software, and firmware (i.e., the
software that physically resides in the Instrument and controls the hardware
functions of
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the Instrument, communicates with the other functional modules in the System,
and execute the Instrument control part of the Experimental Method for a
particular application).
2. LICENSE RIGHTS AND OBLIGATIONS
2.1 Grant of License. Subject to the terms and conditions of this
Agreement, Caliper hereby grants to Bio-Rad and its Affiliates a worldwide
license [ * ], during the term of this Agreement and thereafter to the extent
expressly provided in this Agreement, under Caliper Technology (including
without limitation any Caliper Improvements) to develop, manufacture, have
manufactured for Bio-Rad and its Affiliates, use, market, distribute, sell,
offer for sale and import the Instrument and Systems Software portions of the [
* ], and the Instrument and Systems Software portions of any other System
developed by the Parties pursuant to a Development Workplan agreed to by the
Parties pursuant to Section 3.1. [ * ] In connection with the license grant
pursuant to this Section 2.1 [ * ].
2.2 [ * ]
2.2.1 [ * ]
2.2.2 [ * ]
2.2.3 [ * ]
2.2.4 [ * ]
2.2.5 [ * ]
2.3 Royalty Obligations. In consideration of the rights and
license granted herein, Bio-Rad agrees to pay to Caliper royalties with respect
to the sale of [ * ] as follows: [ * ]
[ * ]
[ * ]
In connection with the Parties' agreement on a Development Workplan for any
other System, the Parties shall agree on a commercially reasonable royalty rate
(expressed as a percentage of Net Revenue) and royalty structure that will be
applicable with respect to sales of such System.
2.4 Reporting and Payment of Royalties. Within [ * ] calendar days
after the end of each Contract Quarter during the term of this Agreement,
Bio-Rad shall (i) furnish Caliper with a written report setting forth in
reasonable detail (A) the aggregate amount of Net Revenue recognized by Bio-Rad
or any of its Affiliates in respect of the sale of Systems during the preceding
Contract Quarter, (B) the number of units of Systems and Chips sold during the
preceding Contract Quarter by part number in each major territory, and the
average selling price for such Systems and Chips by major territory, and (C) the
aggregate amount of royalties due in U.S. Dollars for the preceding Contract
Quarter pursuant to the provisions hereof; and (ii) pay to Caliper the aggregate
amount of royalties shown to be payable by Bio-Rad in such report. All
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payments of royalties by Bio-Rad pursuant to this Agreement shall be made in
U.S. Dollars by wire transfer of immediately available funds to the account
designated in writing by Caliper from time to time. If Caliper wishes to contest
any royalty report or the amount of royalties stated to be due therein, it shall
do so in writing to Bio-Rad no later than [ * ] after the date of receipt of
such report by Caliper, provided that this provision shall not prohibit Caliper
from later contesting any Net Revenue figures in such report to the extent such
figures could only reasonably be verified through inspection of Bio-Rad's or its
Affiliates' records not provided with the royalty report. At Caliper's request,
to be made not more than twice per calendar year, Bio-Rad shall provide a
non-binding forecast of the royalties that will be payable by Bio-Rad pursuant
to this Section 2.4 for each of the next four (4) Contract Quarters.
2.5 Records. Bio-Rad agrees to keep for four (4) years following
each Contract Quarter adequate and sufficiently detailed records regarding the
sale of Systems and Components during such Contract Quarter by Bio-Rad or any of
its Affiliates to enable royalties payable hereunder to be determined. Bio-Rad
shall provide such records for inspection by independent accountants selected by
Caliper and reasonably acceptable to Bio-Rad at any time upon reasonable advance
notice during Bio-Rad's regular business hours up to a maximum of [ * ] per
calendar year. Bio-Rad agrees that any additional available records of Bio-Rad
or any of its Affiliates, as Caliper may reasonably determine are necessary to
verify the above records, shall also be provided to the independent accountants
selected by Caliper and reasonably acceptable to Bio-Rad for inspection during
such four (4) year period. If the inspection discloses that Caliper was
underpaid royalties by at least [ * ] for any Contract Quarter, then Bio-Rad
shall reimburse Caliper for any documented and reasonable costs associated with
the inspection, together with an amount equal to the additional royalties to
which Caliper is entitled as determined by the inspection.
2.6 Withholding Taxes. In the event that Bio-Rad is required to
withhold taxes under the laws of any foreign country for the account of Caliper,
then such payments will be made by Bio-Rad on behalf of Caliper to the
appropriate governmental authority, and Bio-Rad shall furnish proof of payment
of such tax together with official or other appropriate evidence issued by the
appropriate government authority. Any such tax actually paid on Caliper's behalf
shall be deducted from royalty payments then due and owing Caliper.
2.7 Interest on Late Payments. Should Bio-Rad fail to make any
payment to Caliper within the time period prescribed for such payment, then the
unpaid amount shall bear interest at the lesser of (i) [ * ] or (ii) the
greatest amount permitted by law, from the date when payment was due until
payment in full, with interest, is made.
2.8 Prosecution and Maintenance; Enforcement. Caliper shall
control and pay for the prosecution and maintenance of, and any enforcement of,
the Caliper Patents. Caliper may abandon any issued or granted Caliper Patent in
its sole discretion [ * ].
2.9 License for Caliper Materials. In the event that Bio-Rad and
Caliper agree that it would be mutually beneficial to the Parties for Bio-Rad to
manufacture or to have manufactured any of the Caliper Materials, rather than to
purchase such Caliper Material from Caliper pursuant to Article 6, the Parties
shall negotiate a royalty-bearing license agreement covering
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such Caliper Materials (at a royalty rate not to exceed [ * ] of net revenue
attributable to such Caliper Material) to enable Bio-Rad to manufacture or to
have manufactured such Caliper Materials.
2.10 Product Marking. Upon the Parties mutual agreement, Bio-Rad
shall (i) affix appropriate markings of the applicable Caliper Technology upon
or in association with Bio-Rad's Systems or the packaging thereof, as required
under 35 U.S.C. 287, and (ii) cause its Affiliates also to mark such Systems
consistent with the terms of this Agreement.
3. DEVELOPMENT OF SYSTEMS
3.1 Initiation of Development Workplans. Projects for the
development of Systems shall be implemented through Development Workplans
executed by the Parties and incorporated by reference herein. The Development
Workplan for the [ * ] is attached to this Agreement as SCHEDULE 3.1, which the
Parties shall commence performing on the Effective Date. The members of the
Strategic Steering Committee shall meet at least once per calendar quarter to
discuss potential Systems to be developed hereunder and to review the progress
under approved Development Workplans. If and when the Parties decide to proceed
with the development and commercialization of a System, the Project Managers for
each Party shall prepare a Development Workplan for such System for review and
approval by the Strategic Steering Committee. The Development Workplan shall
include a plan and budget for activities of Caliper personnel specifically
directed to developing and supporting the System covered by such Development
Workplan, which shall separately set forth the Caliper FTE activities that shall
be funded by Bio-Rad. Bio-Rad shall provide funding for such Caliper FTE
activities pursuant to the provisions of Section 3.7. No new Development
Workplan shall become effective unless and until such Development Workplan is
executed by the Chief Executive Officer of Caliper and the Chief Executive
Officer of Bio-Rad.
3.2 Allocation of Development Responsibilities. Unless otherwise
specified in a Development Workplan, the Parties shall have the following
responsibilities with respect to Systems developed under a Development Workplan:
(a) Caliper shall have exclusive engineering responsibility for
Chips.
(b) Bio-Rad shall have primary engineering responsibility for
Instruments, overall System integration and applications,
subject to Caliper's engineering responsibilities described in
paragraph (a). Bio-Rad shall have responsibility for the
overall system integration of Systems, meaning that Bio-Rad
shall make recommendations to Caliper for each element for
which Caliper has engineering responsibility regarding the
performance characteristics of such element that are necessary
to ensure that all elements function as a complete System when
assembled together.
(c) The engineering responsibility for System Software, Scripts,
Reagents and Experimental Method will be allocated between
Caliper and Bio-Rad in each Development Workplan.
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3.3 Management of Development Workplans. Caliper and Bio-Rad shall
each designate a Project Manager who together shall jointly plan and oversee all
Development Workplan activities carried out under this Agreement, monitor the
progress of such activities, and prepare reports on such progress for the
Strategic Steering Committee. At the request of one Party's Project Manager (to
be made not more than once per Contract Quarter), the other Party's Project
Manager shall provide the requesting Project Manager with a confidential written
report, within thirty (30) days after such request is made, summarizing the
activities undertaken and the results achieved under the applicable Development
Workplan since the date of the last such written report. Each Party shall,
within ten (10) business days after the Effective Date, appoint its initial
Project Manager for development projects under this Agreement and notify the
other Party in writing as to whom such Party has designated as its Project
Manager hereunder. Either Party, in its sole discretion, may replace its Project
Manager by delivering written notice to the other Party. The Parties shall
coordinate their efforts through the Project Managers for each Development
Workplan, but each Party shall be solely responsible for managing the personnel
and other resources it allocates to performing its designated tasks under each
Development Workplan.
3.4 Reports to SSC; Amendment of Development Workplans. Unless
each of the Parties otherwise agrees, for so long as there are any ongoing
activities under an approved Development Workplan, the Project Managers shall
meet at least once per calendar quarter with the Strategic Steering Committee to
report on the activities undertaken and the results achieved under each
outstanding Development Workplan, including project milestones achieved, project
resourcing, and project management. The members of the Strategic Steering
Committee shall assess the progress of each Development Workplan, and discuss
any amendments proposed by either Party to any of the outstanding Development
Workplans. Amendments or other modifications of approved Development Workplans
may be made only with the unanimous written approval of the Strategic Steering
Committee.
3.5 Termination of Development Workplans.
3.5.1 Termination at the End of a Phase. Each Development
Workplan shall include, for the product covered by such Development Workplan,
phases for Definition and Feasibility, Development, and Commercialization.
Transition from one Development Workplan phase to the next will require
successful completion of required milestones, as determined by the Strategic
Steering Committee. Each Party will be entitled to terminate further work on a
Development Workplan at the completion of the Definition and Feasibility phase
and at the completion of the Development phase. If a Development Workplan is
terminated by either Party at the end of the Definition and Feasibility phase,
neither Party will have any obligations to the other Party with respect to the
further development or commercialization of the System covered by the terminated
Development Workplan. If a Development Workplan is terminated by one Party at
the end of the Development phase, and the other Party desires to continue the
development of the System covered by the terminated Development Workplan, the
Party terminating the Development Workplan shall [ * ]. In the event Caliper
terminates a Development Workplan after the Development phase and Bio-Rad
desires to continue with the commercialization of the subject System, Caliper
shall also [ * ].
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3.5.2 Termination Due to Infringement. Notwithstanding
anything in this Agreement to the contrary, either Party may elect at any time
to cease developing any System pursuant to an approved Development Workplan if
(i) such Party reasonably determines, on advice of independent patent counsel
approved by both Parties, that the System contemplated by such Development
Workplan poses a substantial risk of infringing third party intellectual
property rights and (ii) either Party has not eliminated or substantially
mitigated such risk (either by obtaining a license from such third party or
modifying the System in a manner reasonably acceptable to each Party) within a
commercially reasonable time period. If one Party desires to continue the
development of the System covered by such terminated Development Workplan
notwithstanding the other Party's conclusions regarding third party
infringement, the Party terminating the Development Workplan shall [ * ]. In the
event Caliper elects to cease developing any System under this Section 3.5.2 and
Bio-Rad desires to continue with the commercialization of the subject System,
Caliper shall also [ * ]
3.5.3 Termination Due to Non-Performance. If one Party
fails to substantially perform under and in accordance with an approved
Development Workplan and if, within [ * ] after written notice of such
substantial non-performance by the performing Party, the non-performing Party
fails to remedy such non-performance, the performing Party shall have, in
addition to any other rights and remedies available under this Agreement, the
right to terminate such Development Workplan. In addition, [ * ]. [ * ]
3.5.4 Royalty Rate for [ * ]. Notwithstanding anything to
the contrary set forth in this Section 3.5, in the event that Caliper terminates
the Development Workplan for the [ * ] pursuant to either Section 3.5.1 or 3.5.2
and Bio-Rad desires to continue with the development and commercialization of
such System, [ * ]
3.5.5 Indemnification. In the event that a Party elects to
proceed with the development and commercialization of a System after the
termination of the Development Workplan for such System pursuant to Section
3.5.2, such Party shall defend, indemnify and hold harmless the other Party and
all of its officers, directors, employees and agents from and against any and
all damages, awards, costs and expenses (including court and arbitration costs,
witness fees and reasonable attorneys' fees) (collectively, "Losses") incurred
by any indemnified Party in connection with any claim, demand, law suit or other
legal action by any third party against such indemnified Party that arises from
or occurs as a result of development or commercialization of such System after
termination of the applicable Development Workplan, provided that no such
indemnification shall apply to the extent that such Losses arise from or occur
as a result of the negligence or intentional misconduct of an indemnified Party.
3.6 Due Diligence; Exchange of Information. Upon the effectiveness
of any Development Workplan, Caliper and Bio-Rad agree to use [ * ] efforts to
perform the development activities as described in each Development Workplan, in
accordance with the terms of this Agreement and such Development Workplan, until
such Workplan is completed in accordance with the terms thereof or terminated in
accordance with Section 3.5. Without limiting the foregoing, each Party shall
assign such of its staff to each Development Workplan activity for which it has
responsibility as it shall deem appropriate, in its sole discretion, to fulfill
its responsibilities under this Agreement and such Development Workplan. Each
Party also shall share with the other Party relevant information in its
possession that is necessary or useful for the
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development of a System pursuant to an agreed upon Development Workplan,
provided that such Party is not prohibited from disclosing such information to
the other Party pursuant to the terms of an agreement with a third party.
Notwithstanding the foregoing, because Caliper may be working with other third
parties on the development of products incorporating Caliper Technology for
applications or market segments of interest to Bio-Rad, Caliper shall not be
required to share any information with Bio-Rad regarding other applications,
marketing strategies or potential market segments for products incorporating
Caliper Technology.
3.7 Funding of Caliper Development Workplan Activities.
3.7.1 Development Workplan FTE Funding. Bio-Rad shall
provide funding for Development Workplan activities provided by Caliper and
specified as subject to funding by Bio-Rad in an approved Development Workplan
under this Article 3 at the rate of [ * ] per FTE per year; [ * ]; [ * ]. Each
Development Workplan, as amended from time to time with the approval of the
Strategic Steering Committee, shall set forth the authorized number of Caliper
FTEs for Development Workplan activities for each phase of activities under such
Development Workplan. The Parties may change this FTE commitment only by mutual
agreement. The management activities of the Caliper members of the SSC are not
intended to be FTEs hereunder. Bio-Rad shall not be responsible for any FTE
costs incurred by Caliper that have not been included in an approved Development
Workplan (including amendments approved by the SSC) or that have not been
approved in advance in writing by Bio-Rad's Project Manager, and Caliper shall
not be obligated to perform any development activities unless such activities
have been authorized in an approved Development Workplan (including approved
amendments) or have been so approved by Bio-Rad's Project Manager in writing.
3.7.2 Reporting, Reconciliation and Payment of FTEs.
Bio-Rad's funding for Caliper FTEs shall be paid in advance in quarterly
installments due [ * ] after the beginning of each Contract Quarter. The funding
for each Contract Quarter shall be based on the number of Caliper FTEs scheduled
in all approved Development Workplans (including amendments approved by the SSC)
for such quarter, or which have been separately approved in writing by Bio-Rad's
Project Manager. Within thirty (30) days after the end of each Contract Quarter,
Caliper shall deliver a report in reasonable detail to Bio-Rad describing the
actual time applied to Bio-Rad-funded Development Workplan tasks for each
approved Development Workplan during such quarter. Requests at any time for
Caliper FTE support for an approved Development Workplan in excess of the
amounts set forth in such approved Development Workplan for the next four (4)
Contract Quarter shall be subject to mutual agreement. In any event, during the
month of January the Parties shall reconcile any discrepancy between funding and
actual Caliper FTE time provided during the immediately preceding four (4)
consecutive Contract Quarters, unless there was no active Development Workplan
during any of such quarters. If actual Caliper FTE time is less than the funding
provided, Caliper shall refund the difference or credit it towards the next
contract Quarter's funding, at Bio-Rad's option. If actual Caliper FTE time
exceeds the funding provided, Caliper may invoice Bio-Rad for the difference but
Bio-Rad shall not be obliged to pay such amount unless such time was previously
authorized by Bio-Rad in writing.
3.7.3 Development Workplan Expenses. In addition to the FTE
funding described in Section 3.7.1, Bio-Rad shall reimburse Caliper for [ * ].
Bio-Rad shall not be
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responsible for any such individual expense incurred by Caliper in excess of [ *
] that has not been approved in advance in writing by Bio-Rad's Project Manager,
and Caliper shall not be obligated to incur any such expense in connection with
its development activities unless such expense has been approved by Bio-Rad in
writing. Caliper shall submit an itemized statement of all Development Workplan
expenses to be reimbursed by Bio-Rad for each Contract Quarter, which shall be
payable by Bio-Rad within [ * ] after receipt.
3.7.4 Prototypes. In connection with the development of
Systems pursuant to approved Development Workplans, at the request of Bio-Rad,
Caliper shall provide prototype Chips or other Components to Bio-Rad for testing
and analysis [ * ]. Caliper shall submit an invoice for such prototype Chips
upon delivery of such Chips to Bio-Rad, which shall be payable by Bio-Rad within
[ * ] after receipt.
3.8 Development Workplan Software. Each Development Workplan shall
set forth any rights and obligations of the Parties with respect to the
development of any Systems Software to be developed in connection therewith. The
rights and obligations of the Parties with respect to any such Systems Software
shall be governed by this Agreement. Except as expressly provided under this
Agreement, no other rights are granted under this Agreement with respect to any
software of the Parties.
3.8.1 Restrictions. Except as otherwise expressly permitted
under this Agreement, neither Party shall (i) decompile, disassemble or
otherwise reverse engineer any software code licensed hereunder; (ii) use, copy
or distribute any software code licensed hereunder or any documentation thereof,
directly or indirectly, except as otherwise expressly permitted under this
Agreement; or (iii) enhance, modify or create derivative works of any software
code licensed hereunder, except as otherwise expressly permitted under this
Agreement.
3.8.2 Treatment of Source Code Form. Each Party shall store
the Source Code Form of any software it receives from the other Party on no more
than [ * ] client computers at the receiving Party's facility and in files on
each computer which are password protected and which can only be accessed by
authorized people having a need to access such source code solely for use in
accordance with the license grants set forth in this Agreement.
3.8.3 Support. Nothing in this Agreement shall obligate
either Party or its Affiliates to provide any support, updates and/or upgrades
for any software code licensed under this Agreement unless such support is
expressly provided in an approved Development Workplan.
3.8.4 Third Party Software. Neither Party shall use or
incorporate any third party software into any Systems Software without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. In the event the Parties agree to incorporate any third party software
into any Systems Software, a description of such software shall be attached to
the Development Workplan for such System and Bio-Rad shall be responsible for
the payment of any reasonable fees associated with such third party software;
provided that notwithstanding anything to the contrary contained herein, except
to the extent otherwise expressly agreed to by Bio-Rad in writing, Bio-Rad shall
have no obligation to pay Caliper any royalties in respect of sales of any third
party software.
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3.8.5 Disclaimer of Warranty. Nothing in this Agreement
shall be construed as a representation made or warranty given by any Party that
any software code will be operated without interruption or will be error-free.
3.9 Order of Precedence. To the extent any terms and conditions of
the main body of this Agreement conflict with the terms and conditions of a
Development Workplan, the terms and conditions of the Development Workplan shall
control.
4. INTELLECTUAL PROPERTY
4.1 Ownership of Improvements and Software.
4.1.1 Ownership of Improvements. Each Party shall own all
Improvements, whether patentable or not, conceived and reduced to practice
solely by its employees, consultants or agents in the course of performing any
Development Workplan. Caliper and Bio-Rad shall jointly own all Improvements,
whether patentable or not, conceived and reduced to practice jointly by
employees, consultants or agents of both Parties in the course of performing any
Development Workplan. Each Party shall execute all documents and take all
actions reasonably necessary to perfect such ownership rights of the other Party
and to enable the filing of Patent applications. Inventorship shall be
determined under U.S. patent laws. The Parties shall reasonably cooperate with
one another in connection with the prosecution and defense of Patents and
applications with respect to jointly owned Improvements, and shall share equally
in any costs and expenses incurred in connection therewith. If at any time one
Party declines to fund the prosecution or maintenance of a Patent pursued by the
other Party with respect to a joint Improvement, the declining Party shall
immediately, and does hereby, assign all of its right, title and interest in and
to such joint Improvement to the other Party, and shall provide such support as
the other Party may reasonably request in the prosecution of such Patent.
4.1.2 Ownership of Software. Each Party shall own all
software code (in Object Code Form or Source Code Form) that is conceived and
reduced to practice or otherwise developed in the course of performing any
Development Workplan solely by its employees, consultants or agents. Caliper and
Bio-Rad shall jointly own all software code (in Object Code Form or Source Code
Form) conceived and reduced to practice, or otherwise developed, jointly by
employees, consultants or agents of both parties in the course of performing any
Development Workplan. Each Party shall execute all documents and take all
actions reasonably necessary to perfect such ownership rights of the other Party
and to enable the filing of any copyright registrations or Patent applications,
as the case may be, with respect thereto.
4.2 License Rights to Development Intellectual Property.
4.2.1 License Rights to Improvements Owned by Caliper.
Caliper hereby grants to Bio-Rad and its Affiliates a [ * ] license under any
Improvements or software made during the course of performing a Development
Workplan and solely owned by Caliper pursuant to Sections 4.1.1 and 4.1.2, other
than any such Improvements or software that constitute Caliper Improvements, for
which no license or other rights are granted to Bio-Rad or its Affiliates
pursuant to this Section 4.2.1. [ * ]
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4.2.2 License Rights to Improvements Owned by Bio-Rad.
Bio-Rad hereby grants to Caliper and its Affiliates a [ * ] license, under any
Improvements or software made during the course of performing a Development
Workplan and solely owned by Bio-Rad pursuant to Sections 4.1.1 and 4.1.2, other
than any such Improvements or software that constitute Bio-Rad Improvements, for
which no license or other rights are granted to Caliper or its Affiliates
pursuant to this Section 4.2.2. [ * ]
4.3 Notification of Improvements. During the term of this
Agreement, each Party agrees to disclose promptly to the other Party each
Improvement made by such Party in the performance of Development Workplans
pursuant to this Agreement or otherwise relating to any System developed by the
Parties pursuant to this Agreement, specifically pointing out the features or
concepts of such Improvement which such Party believes to be new or different.
4.4 Delivery of Source Code. Each Party agrees to deliver to the
other Party any software to which such Party has license rights pursuant to
Section 4.2 in Source Code Form, and transfer to the other Party any know-how
required for such Party to be able to interpret and use such software.
5. COMMERCIALIZATION OF SYSTEMS
5.1 Manufacturing Systems.
5.1.1 Manufacture by Caliper. Caliper shall have the
exclusive right to manufacture, and supply to Bio-Rad pursuant to the terms of
Article 6, all Chips included in Systems sold by Bio-Rad. Caliper may engage
other Persons to manufacture and supply Chips to Bio-Rad, provided that Caliper
retains ultimate responsibility for such Chips.
5.1.2 Manufacture by Bio-Rad. Bio-Rad shall have the
exclusive right to manufacture (or to have manufactured for it) all Instruments,
System Software, and other Components other than Chips and Reagents. Bio-Rad may
engage other Persons (including Caliper) to manufacture and supply such
Instruments, System Software and other Components, provided that Bio-Rad retains
ultimate responsibility for such Instruments, System Software and other
Components.
5.1.3 Reagents. The Parties shall agree from time to time
during the term of this Agreement which Party shall have responsibility for
manufacturing or procuring from third Persons any Reagent included with a
System, and in the event that Caliper is the party designated to manufacture or
procure any Reagent, whether such Reagent will be supplied to Bio-Rad in bulk or
kitted form.
5.2 Marketing of Systems.
5.2.1 Scope. Bio-Rad and its Affiliates shall have the
exclusive right to market, sell and distribute, and to provide customer support
for, Systems and Components (other than Chips and Reagents) in the manner they
deem appropriate in their sole discretion, including the determination of prices
to end-user customers of Systems and Components. All such marketing, selling,
distribution, and customer support shall be provided by Bio-Rad at its expense.
Unless the Parties otherwise agree in connection with the their agreement on a
Development Plan for a
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System, [ * ] as agreed by the Parties in connection with the Development Plan
for such System. The agreed upon [ * ] is attached hereto as SCHEDULE 5.2.1.
Subject to the terms of the following paragraph, [ * ]
In the event that either [ * ].
5.2.2 [ * ]
5.2.3 Advertising, Promotional and Educational Materials.
The Parties shall mutually establish guidelines for the use of Bio-Rad's and
Caliper's corporate names, logos and trademarks in written sales, promotional,
educational and advertising materials relating to Systems. All such written and
visual materials and all documentary information and promotional materials shall
not portray Bio-Rad, Caliper, and their respective corporate names, logos and
trademarks in a manner contrary to their respective roles under this Agreement.
5.3 Customer Support. Bio-Rad shall, at its expense, manage the
customer interface and provide a first level of service and support to end-user
customers for all Systems. Bio-Rad shall provide Caliper with a quarterly
written report describing in reasonable detail any customer complaints regarding
the quality or performance of Systems or Components, as well as the resolution
of each such complaint. Bio-Rad shall be solely responsible for determining the
suitability of any System or Component for any proposed application of such
System or Component, other than any applications for which Caliper and Bio-Rad
have agreed in writing are suitable applications for such System and/or
Components. For purposes of this Section 5.3, the Parties agree that the [ * ]
applications described in the Development Workplan for the [ * ] are suitable
applications for such System. Caliper shall provide such backup technical
support to Bio-Rad as Bio-Rad may reasonably request.
5.4 Due Diligence. Bio-Rad shall use [ * ] efforts in marketing,
promoting, selling and supporting Systems.
5.5 Other Caliper Collaborations. Except as otherwise expressly
provided in this Agreement, nothing in this Agreement shall be interpreted to
limit or prevent Caliper from manufacturing for, or selling or otherwise making
available to, any other Person any Chip, Caliper Material or Caliper Product
Software that has the same or substantially the same design or functionality as
any Chip, Caliper Material or Caliper Product Software intended for use in the [
* ] or any other System developed by the Parties pursuant to this Agreement,
provided that during the term of this Agreement, [ * ].
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6. SUPPLY OF PRODUCTS BY CALIPER
6.1 Purchase and Sale; Resale by Bio-Rad. Subject to the terms and
conditions of this Agreement, Caliper agrees to sell Caliper Products to
Bio-Rad, and Bio-Rad agrees to purchase Caliper Products from Caliper, for
resale by Bio-Rad. Subject to the terms and conditions of this Agreement,
Caliper agrees to sell to Bio-Rad all of Bio-Rad's requirements for Chips and
any other proprietary Caliper Products necessary for a System and Bio-Rad agrees
to purchase from Caliper all of its requirements for Chips and such other
proprietary Caliper Products, and not to manufacture any Chips and such other
proprietary Caliper Products, except as may otherwise be expressly agreed in
writing by the Parties. [ * ] Bio-Rad represents and agrees that (i) the primary
use for Caliper Products purchased by Bio-Rad under this Agreement will be for
resale by Bio-Rad, and (ii) the Caliper Products purchased from Caliper
hereunder will not be resold under any trademark, trade name or brand name other
than as set forth in Section 5.2.2.
6.2 Forecasting; Firm Purchase Commitments. Beginning with the
Contract Quarter immediately preceding the Contract Quarter in which Bio-Rad
expects to begin commercial sales of Systems, Bio-Rad shall provide to Caliper,
by the [ * ], Bio-Rad's written, good-faith forecast of the quantity of each
Caliper Product that Bio-Rad anticipates it will order in each month during the
following twelve-month period (each, a "Forecast"). Each Forecast shall be
delivered in substantially the form attached hereto as SCHEDULE 6.2. Unless
Caliper otherwise agrees in writing, Bio-Rad shall be obligated to purchase the
quantity of Caliper Products set forth in the first [ * ] of each Forecast, and
each Forecast shall be deemed to be a purchase order for the quantity of Caliper
Products set forth for each month in the first [ * ] period of such Forecast,
for delivery in the weeks specified in such Forecast. The quantity of any
Caliper Product set forth for any month in the second [ * ] period of any
Forecast may not be increased for such month by more than [ * ] in the next
delivered Forecast without the written consent of Caliper. In addition, in the
event that [ * ] Subject to Section 6.4, if Bio-Rad desires to purchase a
quantity of any Caliper Product in excess of the amount for such Caliper Product
set forth in the first [ * ] of the most recent Forecast, Caliper shall use [ *
] efforts to supply such greater quantity by the specified delivery dates,
provided that Caliper shall in no event be required to supply timely that amount
of Caliper Products which is in excess of [ * ] of the amount set forth in the
most recent Forecast.
6.3 Shelf-Life of Delivered Products. Unless Bio-Rad otherwise
agrees in writing, Caliper shall not deliver any Caliper Products to Bio-Rad
that have a remaining shelf-life, as of the date of delivery, of less than [ *
]; provided that [ * ]. The Parties shall collectively evaluate the current
shelf life of Caliper Products, identify opportunities to extend such shelf life
and seek to optimize supply chain processes so that end-user customers receive a
greater apportionment of the total available shelf life for purchased Caliper
Products.
6.4 Purchase Orders and Delivery. Bio-Rad shall purchase Caliper
Products by submitting purchase orders for Caliper Products to Caliper or, in
the case of quantities of Caliper Products set forth in the first [ * ] of each
Forecast, a Forecast for such Caliper Products. Bio-Rad's purchase of Caliper
Products shall be subject to any minimum order quantities reasonably specified
by Caliper from time to time. Each such purchase order must also allow for
Caliper's
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reasonably established lead-time for the applicable Caliper Product from the
date of Caliper's receipt of each purchase order for delivery. Caliper's current
minimum order quantities and standard lead times for each Caliper Product are
set forth in SCHEDULE 6.4 attached hereto. Caliper may make reasonable changes
to its minimum order quantities and standard lead times for any Caliper Product
on not less than [ * ] written notice to Bio-Rad.
6.5 Pricing. [ * ].
[ * ]
Unless otherwise agreed by the Parties in writing, all prices for Caliper
Products are based on Caliper's delivery of Chips to Bio-Rad [ * ].
In the event Bio-Rad requests any modification to the applicable specification
of any of the Caliper Products, [ * ]
[ * ]
6.6 Payment Terms. Payment terms are [ * ] from the date of
invoice. Invoices shall be dated as of the date that Caliper places the
applicable Caliper Products to be shipped [ * ]. In the event payments are not
made in accordance with this Section 6.6 [ * ]. Bio-Rad hereby unconditionally
guarantees payment of any undisputed invoices issued by Caliper to an Affiliate
of Bio-Rad pursuant to this Agreement.
6.7 Sales Taxes. The prices set forth herein for Caliper Products
are not subject to trade or other discounts and do not include any sales taxes
applicable to the sale of Caliper Products pursuant to this Agreement. All such
taxes shall be paid by Bio-Rad unless Bio-Rad provides Caliper with evidence
reasonably satisfactory to Caliper of exemption from such taxes. When Caliper is
required by law or regulation to collect such taxes, Caliper will add such taxes
to the sales price of the Caliper Products sold to Bio-Rad hereunder and will
pay such taxes on Bio-Rad's behalf.
6.8 Terms and Conditions. Purchase orders for Caliper Products
submitted by Bio-Rad that conform to the applicable prices, packaging
requirements, minimum order amounts, and standard lead-times for Caliper
Products, and to the other terms and conditions set forth in this Agreement, [ *
] at its facility in Mountain View, California, or at such other place(s) as may
be designated in writing by Caliper. Caliper's failure to acknowledge acceptance
of any order within such time period shall be deemed an acceptance of the order.
Any purchase orders containing terms or conditions outside such parameters shall
be subject to acceptance by Caliper in its sole discretion, and no such order
shall be accepted or deemed accepted by Caliper, except by a writing signed by
Caliper or by (and only to the extent of) shipment of the Caliper Products
covered by such order. Except as otherwise provided herein, each sale hereunder
shall be governed by this Agreement. Any preprinted terms and conditions in any
purchase order, request for quotation or other document submitted by Bio-Rad,
and any preprinted terms and conditions in any order acknowledgment or invoice
issued by Caliper, are hereby deleted and superseded by the terms of this
Agreement. No other terms shall be applicable unless they are fully set forth in
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the typed portion of a purchase order submitted by Bio-Rad and such typed
portion has been expressly accepted by Caliper in writing, or unless they are
fully set forth in the typed portion of an order acknowledgment issued by
Caliper and such typed portion has been expressly accepted by Bio-Rad in
writing.
6.9 Acceptance and Rejection of Products. All Caliper Products
delivered hereunder shall be [ * ] after the date of receipt of such Caliper
Products by Bio-Rad or its Affiliate from the carrier, Caliper receives written
notice of rejection from Bio-Rad or its Affiliate. Notwithstanding the
foregoing, no inspection or test of any Caliper Products by Bio-Rad or its
Affiliates shall relieve Caliper from its warranty obligations under section
6.15 and Bio-Rad's failure to inspect or test any Caliper Products shall not
constitute a waiver by Bio-Rad of any of its rights or remedies in respect of
any breach of warranty.
6.10 Delivery of Caliper Products; Delivery Dates. The delivery
dates for all Caliper Products sold pursuant to this Agreement shall be deemed
to be the dates on which such Caliper Products are delivered into the possession
of the carrier designated by Bio-Rad, packed and ready for shipment to Bio-Rad,
or to a Bio-Rad Affiliate designated by Bio-Rad (subject to applicable minimum
order quantities). Caliper shall ship all Caliper Products [ * ]. If Caliper
shall fail to so deliver any Caliper Products purchased by Bio-Rad under this
Agreement within the lead-time for such Caliper Products specified in this
Agreement, Caliper shall immediately inform Bio-Rad of such failure by facsimile
notice, advise Bio-Rad of the reasons for such failure and the expected date of
delivery of the subject Caliper Products, and obtain Bio-Rad's instructions with
respect to the delivery of such Caliper Products to Bio-Rad. [ * ]
6.11 Rejection or Cancellation of Orders. Caliper may reject any
order and may cancel any order previously accepted if Caliper reasonably
determines that such order will not be paid for in accordance with the terms and
conditions of this Agreement. Bio-Rad may only cancel orders with the written
consent of Caliper.
6.12 Change of Caliper Products. Caliper shall have the absolute
right at any time and from time to time during the term of this Agreement, [ *
], to modify, improve or supersede any of the Caliper Products (or any of the
manufacturing processes for such products), [ * ].
6.13 [ * ]
[ * ]
[ * ]
6.14 Technical Information. Caliper shall provide Bio-Rad, [ * ],
with such technical information regarding the Caliper Products (including
without limitation Material Safety Data Sheets) as Bio-Rad may reasonably
request from time to time during the term of this Agreement, provided that (i)
Caliper shall not be obligated to deliver to Bio-Rad any technical information
regarding the Caliper Products that Caliper reasonably considers to be a trade
secret or otherwise proprietary to Caliper and (ii) Bio-Rad shall continue to be
solely responsible for determining the suitability of the Caliper Products for
any proposed application of the Caliper Products notwithstanding the delivery of
any such technical information to Bio-Rad, other than any
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applications for which Caliper and Bio-Rad have agreed in writing are suitable
applications for such Caliper Products.
6.15 Warranty and Disclaimer; Remedy.
6.15.1 Warranty and Disclaimer. Caliper warrants the Caliper
Products delivered by it hereunder against faulty workmanship and use of
defective materials for a period equal to [ * ] from the date such Caliper
Products are delivered into the possession of the carrier designated by Bio-Rad
or its Affiliate, packed and ready for shipment to Bio-Rad or its Affiliate; [ *
]. Faulty workmanship and/or use of defective materials shall be hereinafter
referred to as a "deficiency" and shall include any failure of any Caliper
Product to conform to its applicable specifications. Such warranty is the only
warranty made by Caliper and it can be amended only by a written instrument
signed by a duly authorized officer of Caliper. Caliper's obligations are also
subject to the condition that Caliper shall have no liability whatsoever for any
deficiency unless (x) Caliper is notified in writing promptly [ * ] after
discovery by Bio-Rad of the alleged deficiency, which notice shall include a
detailed explanation of the alleged deficiency, (y) a representative sample of
the Caliper Products containing the alleged deficiency is promptly returned to
Caliper, and (z) Caliper's examination of such returned sample of Caliper
Products discloses to Caliper's reasonable satisfaction that such alleged
deficiency actually exists and occurred in the course of proper and normal use
and was not caused by accident, misuse, neglect, alteration or improper
installation, repair or testing. If any Caliper Products so prove to contain a
deficiency and Bio-Rad elects to have them replaced, Caliper shall have a
reasonable time to make such replacement. Bio-Rad shall dispose of any
nonconforming Caliper Products, at Caliper's expense, in accordance with the
written instructions of Caliper. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND OF ANY OTHER
OBLIGATION ON THE PART OF CALIPER, EITHER EXPRESS OR IMPLIED, WHETHER ARISING
UNDER ANY STATUTE, LAW, COMMERCIAL USAGE OR OTHERWISE, ARE HEREBY EXCLUDED.
6.15.2 Remedy for Breach of Warranty. Bio-Rad acknowledges
and agrees that Caliper's responsibility in the case of breach of the foregoing
warranty shall be for Caliper, [ * ] to provide a replacement for the Caliper
Products or portion thereof with respect to which such warranty is breached or
to return all payments made with respect to such Caliper Products or portion
thereof. [ * ]
6.15.3 Limitation of Liability. Caliper's liability and
obligations with respect to any claim pursuant to Section 6.15.1 shall in no
event exceed in the aggregate the total purchase price received by Caliper for
the Caliper Products delivered hereunder (or, in the case of obligations arising
from or relating to particular Caliper Products delivered hereunder, the
purchase price of such Caliper Products). Except as set forth in Section 8.1,
Caliper shall in no event be liable to Bio-Rad or any other Person, whether in
contract, strict liability, tort or otherwise, for loss of or damage to or loss
of use of facilities or other property, loss of revenue, loss of use of revenue,
loss of anticipated profits, or other punitive, special, incidental, indirect or
consequential damages of any kind whatsoever, or claims of any customers of
Bio-Rad or other
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claimants, resulting or arising from or relating to the sale of Caliper Products
pursuant to this Agreement or Caliper's performance of its obligations
hereunder.
7. CONFIDENTIALITY; PUBLICITY
7.1 Confidential Information. During the term of this Agreement,
and for a period of [ * ] following the expiration or termination of this
Agreement, each Party shall maintain in confidence any and all Confidential
Information of the other Party, provided that any Source Code Form of any
software provided by either Party hereunder shall be maintained in confidence in
perpetuity. Each Party further agrees that it shall not use for any purpose not
authorized under this Agreement or disclose to any third party the Confidential
Information of the other Party, except that either Party may disclose
Confidential Information of the other Party on a need-to-know basis to its
directors, officers, employees, consultants and agents, and Bio-Rad may disclose
such information to its Affiliates to the extent that such Affiliates have
undertaken an obligation of confidentiality and non-use similar to this Section
7.1. Upon request from a Party, the other Party shall return to such Party any
and all tangible embodiments of the Confidential Information of such other Party
or its Affiliates except to the extent that a Party is expressly permitted to
use such Confidential Information pursuant to a license grant set forth in this
Agreement or otherwise and except as necessary to monitor its compliance with
its obligations under this section 7.1.
7.2 Publicity. The Parties anticipate that upon execution and
delivery of this Agreement, each Party will issue a press release regarding the
collaboration established pursuant to this Agreement. However, neither Party
shall issue any press release or other public announcement relating to the
contents of this Agreement without the prior written approval of the other
Party, which approval shall not be unreasonably withheld, or delayed for longer
than five (5) business days. Notwithstanding the foregoing, either Party may
disclose the existence and/or the provisions of this Agreement (i) under
standard obligations of confidentiality and non-use on a need-to-know basis, to
investors and their representatives in a private or public financing
transaction, or to potential acquirers or targets and their representatives in a
corporate change of control transaction, provided that no such disclosure shall
be permitted to the extent it would constitute a violation of Section 7.1, or
(ii) as required by law (including but not limited to the filing of this
Agreement as an exhibit to a document filed with the Securities and Exchange
Commission), order or regulation of a governmental agency. The disclosing Party
shall provide written notice to the other Party of any such disclosure required
by law, order or regulation of a governmental agency, reasonably in advance of
such disclosure if practical. If either Party intends to file this Agreement
with the Securities and Exchange Commission, it shall provide the other Party
with the opportunity to review and comment on the proposed filing, and the
filing Party will incorporate the comments of the other Party subject only to
securities law requirements.
8. INDEMNIFICATION; DISCLAIMERS; LIMITATION OF LIABILITY
8.1 Indemnification by Caliper. Caliper shall defend, indemnify
and hold harmless Bio-Rad and its Affiliates and all their officers, directors,
employees, consultants and agents (collectively, the "Bio-Rad Indemnitees") from
and against any and all damages, awards, costs
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and expenses (including court and arbitration costs, witness fees and reasonable
attorneys' fees) (collectively, "Losses") incurred by any Bio-Rad Indemnitee in
connection with (a) any breach of any representation, warranty or covenant under
this Agreement, or (b) any claim, demand, law suit or other action or proceeding
by any third party against such Bio-Rad Indemnitee, that arises from or occurs
as a result of personal injury or property damage (other than on account of
product warranty claims, for which claims shall be asserted by Bio-Rad pursuant
to Section 6.15) and it is determined that such Losses were caused by a design
defect, materials defect or faulty workmanship in Caliper Products sold to
Bio-Rad under this Agreement, provided that no such indemnification shall apply
to the extent that such Losses arise from or occur as a result of (i) the [ * ]
of Bio-Rad or its Affiliates, (ii) Bio-Rad's use of Caliper Products in
violation of this Agreement, or (iii) Bio-Rad's unauthorized modification of
Caliper Products.
8.2 Indemnification by Bio-Rad. Bio-Rad shall defend, indemnify
and hold harmless Caliper, its Affiliates and sublicensees, and all their
officers, directors, employees, consultants and agents (collectively, the
"Caliper Indemnitees") from any Losses (as defined in Section 8.1) incurred by
any Caliper Indemnitee in connection with (a) any breach of any representation,
warranty or covenant under this Agreement, or (b) any claim, demand, law suit or
other action or proceeding by any third party against any Caliper Indemnitee
that arises from or occurs as a result of personal injury or property damage and
it is determined that such Losses were caused by a design defect, materials
defect or faulty workmanship in Systems or Components (other than Caliper
Products) sold by Bio-Rad, provided that no such indemnification shall apply to
the extent that such Losses arise from or occur as a result of (i) the [ * ] of
Caliper or its Affiliates, (ii) Caliper's use of any materials supplied to
Caliper by Bio-Rad in violation of any reasonable restrictions on use imposed by
Bio-Rad, or (iii) Caliper's unauthorized modification, transfer or use of any
such materials.
8.3 Indemnification Procedure. The Party seeking indemnification
under this Article 8 (the "Indemnified Party") shall (i) give the other Party
(the "Indemnifying Party") written notice of the relevant claim and the related
facts with reasonable promptness after becoming aware of same, (ii) reasonably
cooperate with the Indemnifying Party, at the Indemnifying Party's expense, in
the defense of such claim, and (iii) permit the Indemnifying Party to control
the defense and settlement of any such claim, except that the Indemnifying Party
shall not enter into any settlement without the Indemnified Party's prior
written approval, not to be unreasonably withheld or delayed. The Indemnified
Party shall have no authority to settle any claim on behalf of the Indemnifying
Party. In the event the Indemnifying Party controls the defense of a claim
hereunder, the Indemnified Party, at its own expense, shall have the right to
participate in such defense through counsel of its own choosing.
8.4 Caliper Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION
6.15 OR ELSEWHERE IN THIS AGREEMENT, CALIPER MAKES NO REPRESENTATION AND EXTENDS
NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY CALIPER
TECHNOLOGY, CALIPER PRODUCT, CALIPER SOFTWARE, OR DEVELOPMENT WORKPLAN. Bio-Rad
acknowledges that some of the products to be provided to Bio-Rad pursuant to
Development Workplans under this Agreement are prototype products, and as such
are not completely tested
-22-
for defects. Bio-Rad acknowledges that such products require a greater degree of
caution than other standard laboratory products and equipment. Caliper shall not
be liable to Bio-Rad for any personal injury or property damage resulting from
use of such equipment in a manner other than that as recommended or directed by
Caliper.
8.5 Bio-Rad Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED ELSEWHERE
IN THIS AGREEMENT, BIO-RAD MAKES NO REPRESENTATION AND EXTENDS NO WARRANTIES OF
ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SYSTEM, BIO-RAD SOFTWARE,
OR DEVELOPMENT WORKPLAN. Caliper acknowledges that Bio-Rad may provide prototype
Instruments to Caliper pursuant to this Agreement, and such prototype
Instruments may not be equipped with standard safety features nor completely
tested for defects. Caliper acknowledges that such prototype Instruments require
a greater degree of caution than other standard laboratory equipment. Bio-Rad
shall not be liable to Caliper for any personal injury or property damage
resulting from use of such prototype Instruments in a manner other than as
recommended or directed by Bio-Rad.
8.6 Limitation of Liability. EXCEPT IN CIRCUMSTANCES OF [ * ], IN
NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, EXEMPLARY,
SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS)
SUFFERED BY THE OTHER PARTY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF. Each party acknowledges that the foregoing limitations are
an essential element of the Agreement between the parties and that in the
absence of such limitations the pricing and other terms set forth in this
Agreement would be substantially different.
9. TERM AND TERMINATION
9.1 Term. The term of this Agreement shall commence on the
Effective Date and, unless terminated earlier pursuant to this Article 9, shall
expire on [ * ]. This Agreement shall automatically be extended for additional,
consecutive terms of [ * ], each on the terms and conditions set forth in this
Agreement, unless prior to the [ * ] before the end of the initial term or of
any succeeding term, as the case may be, either Party gives written notice to
the other Party that this Agreement will not be renewed beyond the then current
term. In such event, this Agreement shall terminate at the end of such term. The
Agreement may be further extended by mutual written agreement of the Parties
pursuant to Section 11.5.
9.2 Termination of Agreement. In addition to the provisions of
Section 9.1, this Agreement may be terminated at any time during the term as
follows:
(a) by mutual consent in writing at any time;
(b) by either Party if the other Party is in breach of any of its
material obligations under this Agreement, and such default
shall not have been cured within [ * ] after written notice of
such default has been delivered to such other Party, if
curable within such [ * ] period (or if not curable within
such [ * ] period, if the cure shall
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not have been commenced by the Party in default within such [
* ] period or the cure is not being diligently pursued to
completion); and
(c) by either Party immediately [ * ]the other Party shall
commence any proceeding under any law relating to bankruptcy,
reorganization, insolvency, arrangement, adjustment of debt,
appointment of a trustee or receiver, dissolution, liquidation
or similar matter, or any such proceeding is commenced against
the other Party and remains undismissed for a period of [ * ].
Each Party agrees that it immediately shall give written notice to the other
Party of the occurrence of any event of the type described in Section 9.2(c)
above.
9.3 Post-Termination License and Supply of Caliper Products.
Following the expiration or termination of this Agreement, other than any
termination by Caliper pursuant to paragraph (b) or (c) of Section 9.2, if
Bio-Rad has commenced commercial sales of a System before the date of such
expiration or termination of this Agreement (i) the license granted to Bio-Rad
pursuant to Article 2, and all rights and obligations thereunder shall continue
with respect to any such System; (ii) Caliper shall either (A) continue to
supply Caliper Products to Bio-Rad for any such System pursuant to the
provisions of Article 6 which shall survive expiration or termination of this
Agreement, or such other agreement as the Parties may mutually agree to
following the expiration or termination of this Agreement or (B) grant to
Bio-Rad a non-exclusive license (subject to a [ * ]) to manufacture, market,
distribute and sell Caliper Products used in any such System [ * ]; and (iii)
the [ * ] provisions set forth in Section 5.2.2 shall continue with respect to
the sale of any such System and its Components by Bio-Rad. In the event of any
expiration or termination of this Agreement, other than any termination by
Caliper pursuant to paragraph (b) or (c) of Section 9.2, Caliper shall provide
Bio-Rad with written notice, no later than the effective date of any such
expiration or termination, as to whether Caliper shall continue to supply
Caliper Products to Bio-Rad or grant to Bio-Rad the license rights to
manufacture Caliper Products itself. If Caliper elects to grant to Bio-Rad the
license rights described in clause (B) above, the provisions of Article 2 (other
than Section 2.2 and the royalty rate set forth in Section 2.3) shall apply to
such license rights, mutatis mutandis. [ * ]
9.4 No Obligation to Renew Agreement. Each Party acknowledges and
agrees that the other Party shall be under no obligation to renew or extend this
Agreement notwithstanding the successful development of any Systems or any other
action taken by any Party prior to termination of this Agreement. Upon
termination of this Agreement in accordance with this Article 9, neither Party
shall be liable to the other Party for any termination compensation whatsoever,
whether based upon goodwill or business established, expenditures incurred,
investments made by any Party or otherwise.
9.5 Surviving Obligations. No expiration or termination of this
Agreement shall relieve either Party of any obligation accruing prior to such
expiration or termination. In addition to the survival of provisions of this
Agreement pursuant to Section 9.3, [ * ] together with any definitions or
provisions required for their enforcement, shall survive the expiration or
termination of this Agreement.
10. STRATEGIC STEERING COMMITTEE
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The product development and commercial relationships of the Parties under this
Agreement shall be managed and governed by the Strategic Steering Committee
consisting of two members appointed by Bio-Rad and two members appointed by
Caliper. Without limiting the foregoing, the members of the Strategic Steering
Committee shall assess the progress of each Development Workplan in light of the
goals set forth therein, including marketing and other commercialization
efforts, and discuss proposed amendments to each outstanding Development
Workplan as necessary. The Strategic Steering Committee shall meet, in person or
by teleconference, at least once per quarter during the term of this Agreement.
Minutes of the meetings of the SSC shall be prepared alternately by the Parties,
and submitted to the other Party for review and approval. The members of the
Strategic Steering Committee shall be at least a vice president or senior
director level employee of a Party. All decisions of the Strategic Steering
Committee shall be made by unanimous vote. Each Party may replace its appointed
members of the SSC at any time. The Parties shall, within ten (10) business days
after the Effective Date, appoint their initial members of the SSC and notify
the other Party in writing as to whom such Party has appoint as its members of
the SSC.
11. MISCELLANEOUS
11.1 Notices. Any consent, notice or report required or permitted
to be given or made under the Agreement by one Party to the other Party shall be
in writing, delivered personally or by confirmed facsimile, first class mail
postage prepaid, courier, or nationally-recognized delivery service, and
addressed to the other Party at its address indicated below, or to such other
address as the addressee shall have last furnished in writing to the addresser.
Such consent, notice or report shall be effective upon delivery to the
addressee.
If to Caliper: Caliper Technologies Corp.
605 Fairchild Drive
Mountain View, California 94043-2234
Attention: Chief Executive Officer
Facsimile No.: (650) 623-0505
If to Bio-Rad: Bio-Rad Laboratories, Inc.
1000 Alfred Nobel Drive
Hercules, California 94547
Attention: General Counsel
Facsimile No.: (510) 741-5815
11.2 Dispute Resolution.
11.2.1 Procedures. Except with respect to disputes arising
under Articles 4 or 7 or as otherwise provided in this Agreement, if a dispute
arises between the Parties in connection with or relating to this Agreement or
any Development Workplan that cannot be resolved by the Project Managers or
other employees of the Parties, the Parties shall use the following procedure in
good faith:
(a) With respect to disputes arising between the Project
Managers under a Development Workplan, either Project Managers shall
have the right to refer the dispute to the Strategic Steering
Committee, which shall attempt in good faith to negotiate a
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resolution of such dispute within thirty (30) days. Any dispute that
the Strategic Steering Committee is unable to resolve pursuant to
Section 11.2.1(a) within thirty (30) days after the matter is referred
to them shall be referred to Bio-Rad's Chief Executive Officer and
Caliper's Chief Executive Officer, who shall attempt in good faith to
negotiate a resolution of the dispute within thirty (30) days of such
referral or such longer period as they may agree. Each such officer
shall have the right to engage, at the expense of the Party engaging
such Person, the services of any number of independent experts in the
field in question (the Person so engaged by each officer to be
reasonably acceptable to the other officer in terms of independence and
expertise and shall be engaged under obligations of confidentiality) to
assist the officers in making a joint determination in the best
interests of the collaboration, and each officer shall be obligated to
consider in good faith the analyses and opinions of any such
independent experts engaged by either of them in making a
determination. Any written resolution of the dispute agreed to by such
officers shall be final and binding on the Parties.
(b) If the executive officers have not succeeded in
negotiating a written resolution of the dispute within the time
allotted therefor, either Party shall have the right to take legal
action in a court of law.
11.2.2 Interim Relief. Notwithstanding anything herein to
the contrary, nothing in this Section shall preclude either Party from seeking
interim or provisional relief, including a temporary restraining order,
preliminary injunction or other interim equitable relief concerning a dispute,
either prior to or during the dispute resolution process, if necessary to
protect the interests of such Party. This Section shall be specifically
enforceable.
11.3 Governing Law. The Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflicts of law principles thereof.
11.4 Assignment. This Agreement is personal in its character, and
neither Party shall assign its rights or obligations under this Agreement, in
whole or in part, without the prior written consent of the other Party; provided
that either Party may assign this Agreement (i) to any successor by merger or
sale of substantially all of the line of business to which this Agreement
relates, or (ii) to any Affiliate, in each case so long as such successor,
acquirer or Affiliate expressly agrees to be bound by the terms of this
Agreement and the Party assigning its rights and obligations expressly agrees to
guarantee the due and timely performance of the obligations of such successor,
acquirer or Affiliated under this Agreement. This Agreement shall be binding on
and inure to the benefit of the successors or permitted assigns of the Parties,
and all entities controlled by them.
11.5 Waivers and Amendments. No waiver shall be deemed to have been
made by any Party hereto of any of its rights under this Agreement unless such
waiver is in writing and is signed on behalf of such Party by its duly
authorized officer. Any such waiver shall constitute a waiver only with respect
to the specific matter described in such writing and shall in no way impair the
rights of the waiving Party in any other respect or at any other time. No change
or modification of this Agreement, or any of the provisions herein contained,
shall be valid unless made in writing and signed by duly authorized
representatives of the Parties.
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11.6 Entire Agreement. This Agreement, together with the exhibits
and schedules hereto, embodies the entire understanding between the Parties and
supersedes any prior understanding and agreements between Caliper and Bio-Rad
with respect to the subject matter of this Agreement.
11.7 Severability. If a court of competent jurisdiction declares
any provision of this Agreement invalid or unenforceable, or if any government
or other agency having jurisdiction over either Party deems any provision to be
contrary to any laws, then that provision shall be severed and the remainder of
the Agreement shall continue in full force and effect. To the extent possible,
the Parties shall revise such invalidated provision in a manner that will render
such provision valid without impairing the Parties' original intent.
11.8 Disclaimer of Agency or Employment. The relationship between
Caliper and Bio-Rad is that of independent contractors. Caliper and Bio-Rad are
not joint venturers, partners, principal and agent, master and servant, employer
or employee, and have no relationship other than that of independent contracting
parties. Neither Party shall have the right or authority to assume, create, or
incur any third party liability or obligation of any kind, express or implied,
against or in the name of or on behalf of another. All persons employed by a
Party shall be employees of such Party and not of the other Party and all costs
and obligations incurred by reason of any such employment shall be for the
account and expense of such Party.
11.9 [ * ]
11.10 Third-Party Rights. This Agreement is not intended to confer
any benefit upon, or create any right in favor of, any Person other than the
Parties and, where expressly provided, their Affiliates.
11.11 References. Unless otherwise specified, (i) references in this
Agreement to any Article, Section, Schedule or Exhibit shall mean references to
such Article, Section, Schedule or Exhibit of this Agreement, (ii) references in
any section to any clause are references to such clause of such section, and
(iii) references to any agreement, instrument or other document in this
Agreement refer to such agreement, instrument or other document as originally
executed or, if subsequently varied, replaced or supplemented from time to time,
as so varied, replaced or supplemented and in effect at the relevant time of
reference thereto.
11.12 Construction of Agreement. Except where the context otherwise
requires, wherever used, the singular shall include the plural, the plural the
singular, the use of any gender shall be applicable to all genders, the word
"or" is used in the inclusive sense, and the word "including" means including
but not limited to. The captions of this Agreement are for convenience of
reference only and in no way define, describe, extend or limit the scope or
intent of this Agreement or the intent of any provision contained in this
Agreement. This Agreement was prepared as a result of negotiation and mutual
agreement between the Parties. Accordingly, no provision of this Agreement shall
be construed against any Party on the basis that such Party drafted this
Agreement or such provision.
-27-
11.13 Compliance With Laws. Each Party shall comply with all
applicable laws, regulations and ordinances including, but not limited to, the
regulations of the United States Department of Commerce relating to the export
of products or technical data.
11.14 Force Majeure. Except for payment obligations under this
Agreement, nonperformance of either Party shall be excused to the extent that
performance is rendered impossible by fire, earthquake, flood, governmental acts
or orders or restrictions, failure of suppliers, or any other reason where
failure to perform is beyond the reasonable control of and is not caused by the
negligence of the non-performing Party; provided, however, that the Party whose
performance is excused by force majeure shall promptly notify the other Party of
the circumstances of such force majeure and shall thereupon exert [ * ] efforts
to circumvent or overcome the effects of such force majeure at the earlier
opportunity.
11.15 Further Assurances. The Parties covenant and agree that,
subsequent to the execution and delivery of this Agreement, and without any
additional consideration therefor, each Party shall execute and deliver any
further legal instruments and perform any further acts that are or may become
necessary to effectuate the purposes of this Agreement.
11.16 Counterparts. The Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
{THIS SPACE INTENTIONALLY LEFT BLANK}
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
-28-
IN WITNESS WHEREOF, the Parties have executed the Agreement as of the Effective
Date.
CALIPER TECHNOLOGIES CORP. BIO-RAD LABORATORIES, INC.
By: /s/ Michael R. Knapp By: /s/ N. Schwartz
------------------------------- --------------------------
Name: Michael R. Knapp Name: Norman Schwartz
Title: Chief Executive Officer Title: President
LIST OF SCHEDULES
Schedule 2.2 [ * ]
Schedule 3.1 Development Workplan for [ * ]
Schedule 5.2.1 [ * ]
Schedule 6.2 Form of Forecast
Schedule 6.4 Minimum Order Quantities and Standard Lead-Times
Schedule 6.5A Initial Prices for Caliper Products
Schedule 6.5B [ * ]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
-29-
Schedule 2.2
[ * ]
SCHEDULE 3.1
[ * ]
SCHEDULE 5.2.1
[ * ]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
SCHEDULE 6.2
CHIP UNIT FORECAST
Rolling 12 month forecast to be updated at least quarterly
DATE OF FORECAST: INDICATE REQUIRED # OF EACH ORDER NUMBER ITEM
ORDER NUMBER DESCRIPTION MONTH 1 MONTH 2 MONTH 3 MONTH 4 MONTH 5 MONTH 6
- ----------------------------------------------------------------------------------
XXXX-XXXXX <DESCRIPTION OF PART> 0 0 0 0 0 0
ORDER NUMBER DESCRIPTION MONTH 7 MONTH 8 MONTH 9 MONTH 10 MONTH 11 MONTH 12
- -------------------------------------------------------------------------------------
XXXX-XXXXX <DESCRIPTION OF PART> 0 0 0 0 0 0
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
SCHEDULE 6.4
MINIMUM ORDER QUANTITIES & LEAD TIMES
[ * ]
SCHEDULE 6.5A
[ * ]
SCHEDULE 6.5B
[ * ]
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.