Exhibit 10.3
ORCHID BIOSCIENCES, INC. HAS REQUESTED THAT THE MARKED PORTIONS OF THIS DOCUMENT
BE ACCORDED 406 CONFIDENTIAL TREATMENT PURSUANT TO RULE 406 UNDER THE SECURITIES
ACT, AS AMENDED.
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
LICENSE AND SUPPLY AGREEMENT FOR AUTOMATED SNP ANALYSIS
THIS AGREEMENT, dated June 12, 2000 (the "Effective Date"), is between
ORCHID BIOSCIENCES, INC., a corporation organized and existing under the laws of
the State of Delaware, having a principal place of business at 303 College Road
East, Princeton, New Jersey 08543 ("Orchid"), and BRISTOL-MYERS SQUIBB COMPANY,
a corporation organized and existing under the laws of the State of Delaware,
having a principal place of business at Route 206 and Province Line Road,
Princeton, New Jersey 08543-4000 ("CUSTOMER").
WHEREAS, Orchid develops and /or manufactures SNPstream Instruments(TM),
Software Packages, Consumables and Systems to perform automated SNP analysis;
WHEREAS, Orchid makes its SNPstream Instruments, Software Packages,
Consumables, and Intellectual Property available for purchase or license both
separately and as part of Systems that provide turnkey ability for performing
automated SNP analysis; and
WHEREAS, CUSTOMER desires to have Orchid provide it with a turnkey System
for performing automated SNP analysis;
NOW THEREFORE, the parties agree as follows:
1. Definitions
For all purposes of this Agreement, the following terms have the meanings
set forth below:
1.1 "Affiliate" means any legal entity directly or indirectly controlling,
controlled by or under common control with a party to this Agreement.
For purposes of this Agreement, "control" means the direct or indirect
ownership of more than fifty percent (50%) of the outstanding voting
securities of the legal entity, or the right to receive more than
fifty percent (50%) of the profits or earnings of the legal entity, or
the right to direct the policy decisions of the legal entity.
1.2 "Analytic Software" means software for the analysis of data generated
by the SNPstream Instrument.
1.3 "Assay Data" means all CUSTOMER assay or research plans, methods,
objectives, results or analyses, DNA sequences, polymorphisms, genes,
experimental protocols, genotyping results and other information
relating to CUSTOMER's use of the System.
1.4 "Authorized Representative" means a company or individual who is
authorized by Orchid to perform certain limited obligations under this
Agreement.
1.5 "Consumables" means SNP Assay Kits and other items listed on Schedule
1.5 as amended from time to time.
1.6 "Improvements" means any and all new and useful processes,
manufactures, compositions of matter or methods of use, first
conceived, reduced to practice or developed after the Effective Date,
and during the term of this Agreement, by CUSTOMER or its employees,
consultants or contractors.
1.7 "Intellectual Property" means the patents, patent applications,
copyrights and Know How relating to SNPstream Instruments, Software
Packages, Consumables and Systems for performance of SNP-IT, owned by
or licensed to Orchid.
1.8 "Know How" means Orchid's non-patented, proprietary information as of
the Effective Date for performing automated SNP-IT.
1.9 "Operator's Manual" means the instructional manual and sheets for the
proper operation and maintenance of the SNPstream Instrument provided
by Orchid with each SNPstream Instrument as may be amended or
supplemented by Orchid from time to time.
1.10 "Operation Software" means the software for the operation of the
SNPstream Instrument.
1.11 "SNP Identification Technology" or "SNP-IT" means an assay that
identifies one and only one base position of a target nucleic acid.
1.12 "SNPstream Instrument" means the platform for performing automated
SNP-IT conforming to the Specifications.
1.13 "SNP Assay Kit" means the GenoPak(TM) preformatted consumable SNP
assay kits containing validated and quality controlled reagents or
similar kits for genotyping.
1.15 "Software Package" means Analytic Software and Operation Software.
1.16 "Specifications" means the features of the SNPstream Instrument,
Software Package and Consumables as described on Schedule 1.15.
1.17 "System" means SNPstream Instrument, Software Package, Consumables,
and Intellectual Property to perform automated SNP analysis.
1.18 "Technical Data" means all data and other information relating to the
accuracy, speed, throughput rates, usage, duration of operations,
downtime, disruptions in use, ease of use, errors, problems,
solutions, and all other information regarding the performance of the
SNPstream Instrument or Software Package, but not including any Assay
Data.
2. SNPstream Instrument
2.1 Supply, Delivery and Assembly of SNPstream Instrument
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2.1.1 Orchid will provide to CUSTOMER, for the term of this
Agreement, one SNPstream Instrument pursuant to the terms of
attached Schedule 2.1.1 for CUSTOMER to use in the manner
specified in this Agreement.
2.1.2 Orchid will use reasonable commercial efforts to deliver,
assemble and install the SNPstream Instrument at the
location(s) and on the date(s) designated by CUSTOMER pursuant
to Schedule 2.1.1, without charge to CUSTOMER, in accordance
with its Standard Terms and Conditions of Delivery and
Installation set forth in attached Schedule 2.1.2.
2.1.3 If the premises of CUSTOMER are not prepared for assembly and
installation of the SNPstream Instrument as required by
Orchid's Standard Terms and Conditions of Delivery and
Installation as of the scheduled assembly and installation
date, CUSTOMER will reimburse all reasonable costs and
expenses, including travel expenses, incurred by Orchid or its
Authorized Representative, in any delay of the assembly or
installation resulting therefrom.
2.2 Training and Support
2.2.1 Only employees of CUSTOMER who have been trained by Orchid in
the proper operation of the SNP Instrument may operate it.
Orchid will provide, at no cost to CUSTOMER, reasonable
technical training to CUSTOMER's employees on the proper
operation of the SNPstream Instrument at CUSTOMER's site or at
Orchid's or another site in accordance with its Standard Terms
and Conditions of Training set forth in attached Schedule
2.2.1. CUSTOMER is solely responsible for the expenses of its
employees in connection with such training.
2.2.2 Orchid will provide, at no cost to CUSTOMER, reasonable
technical support to CUSTOMER in its operation of the SNPstream
Instrument in accordance with its Standard Terms and Conditions
of Support set forth in attached Schedule 2.2.2.
2.2.3 If CUSTOMER desires training or support in addition to that
provided by Orchid under paragraphs 2.2.1 and 2.2.2, CUSTOMER
will reimburse Orchid at Orchid's then prevailing rate for such
training and support, including the travel and per diem
expenses of the employees of Orchid traveling to CUSTOMER's
site at CUSTOMER's request, in accordance with CUSTOMER's non-
employee travel policy. CUSTOMER is solely responsible for the
expenses of its employees in connection with such training or
support.
2.3 Service and Repair
2.3.1 CUSTOMER will permit Orchid or an Authorized Representative
reasonable access during normal business hours to periodically
service, repair and inspect the SNPstream Instrument. At
CUSTOMER's request,
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Orchid and/or any such Authorized Representative shall execute
a non-disclosure agreement, in form and substance reasonably
acceptable to CUSTOMER, prior to being granted such access.
CUSTOMER is not authorized to, and agrees not to, service or
repair, or to have a third party not authorized by Orchid,
service or repair, the SNPstream Instrument.
2.3.2 Orchid will, at its option, repair or replace any SNPstream
Instrument or any component thereof that does not meet
Specifications or is otherwise materially defective in
materials or workmanship, provided that CUSTOMER has at all
times (1) operated and maintained the SNPstream Instrument in
full accordance with the Operator's Manual, as same may be
amended by Orchid from time to time, (2) used only those
Consumables delivered to it by Orchid (or those supplied by
CUSTOMER or an authorized third party pursuant to paragraph
4.5.3), and (3) has had all service, repair or replacement of a
component of the SNPstream Instrument performed by Orchid.
2.3.3 CUSTOMER is solely responsible for any repair, replacement,
loss or damage resulting from (1) any operation or maintenance
of the SNPstream Instrument, or any component thereof, not in
full accordance with the Operator's Manual, (2) use of any
Consumable not delivered to it by Orchid (and not manufactured
by CUSTOMER or an authorized third party pursuant to paragraph
4.5.3), or (3) service, repair or replacement of a component of
the SNPstream Instrument other than by Orchid or an Authorized
Representative. CUSTOMER must reimburse Orchid for all costs
and expenses resulting from such repair, replacement, loss or
damage to Orchid.
2.4 Records
2.4.1 CUSTOMER will use reasonable commercial efforts to keep
accurate and complete records as to quantity of usage,
performance, reliability, and operation of the SNPstream
Instrument and other Technical Data, and will periodically make
such records and Technical Data available to Orchid; provided,
however, that CUSTOMER shall not be required to disclose any
Assay Data.
2.4.2 Orchid is free to use and disclose any Technical Data and other
information received from CUSTOMER under this Agreement without
any obligation to CUSTOMER.
2.5 Return of SNPstream Instrument
At the end of the term of this Agreement, Orchid will remove the
SNPstream Instrument, without charge to CUSTOMER, in accordance with
its Standard Terms and Conditions of Removal set forth in attached
Schedule 2.5.
2.6 No License
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2.6.1 Orchid retains all right, title, and interests to the SNPstream
Instrument and related materials and information provided under
this paragraph 2. Acquisition or operation of the SNPstream
Instrument does NOT provide any right or license, express or
implied, in or to any patent, copyright, trademark, trade
secret, or other proprietary right, foreign or domestic, of
Orchid or any third party, except to the limited extent
necessary for CUSTOMER's operating the System and its
components in accordance with the terms of this Agreement.
2.6.2 CUSTOMER will use the SNPstream Instrument, Software Package,
Consumables, and Know How solely for internal research and
development use and only for the detection of genetic
polymorphisms by SNP-IT and NOT for diagnostic or therapeutic
use, or for or on behalf of any third party, except its
Affiliates and its bona fide research collaborators.
2.6.3 The rights provided herein are personal to CUSTOMER and may not
be sublicensed or otherwise transferred without the prior
express written approval of Orchid.
2.7 Further Restrictions
2.7.1 CUSTOMER will not sell or offer for sale, assign, mortgage,
pledge, or allow any lien to be created upon the SNPstream
Instrument; and will duly and punctually pay all rents, rates,
taxes, charges and impositions payable in respect of the
premises of CUSTOMER wherein the SNPstream Instrument is
situated, subject to CUSTOMER's legal rights to offset, contest
and protect same.
2.7.2 CUSTOMER will not remove, alter, deface or cover any labels,
markings, warnings, instructions, icons, serial numbers, model
numbers, trademarks, trade names, or logos affixed or applied
by Orchid to the SNPstream Instrument.
3. Software
3.1 Supply of Software
3.1.1 Orchid will provide to CUSTOMER, at no cost and on the terms
and conditions of this Agreement, one (1) copy of the Software
Package for use with and as part of each SNPstream Instrument.
3.2 Limited License
3.2.1 Orchid and/or its licensor(s) retains all right, title, and
interests to the SNPstream Software Package.
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3.2.2 CUSTOMER agrees to use the Software Package only with and as
part of the SNPstream Instrument; such use being limited to the
storing, loading, installing, executing or displaying of the
Operation Software on a single computer, processor or
controller; the storing, loading, installing, executing or
displaying of the Analytic Software on the dedicated
computer(s) provided by Orchid; and the making of one (1) copy
of the Software Package for archival or backup purposes only.
3.2.3 Additional site licenses for the Analytic Software are
available to CUSTOMER and its Affiliates from Orchid on payment
of a license fee.
3.2.4 CUSTOMER will not modify or make derivative works of the
Software Package or reverse engineer, disassemble, or decompile
any of the Software Package.
3.2.5 Upon expiration or termination of this Agreement, CUSTOMER must
cease use of the Analytic Software and promptly return it and
all copies, including any and all copies acquired under
paragraph 3.2.3, to Orchid.
3.2.6 Upon expiration or termination of this Agreement, CUSTOMER must
cease use of the Operation Software and promptly return it and
all copies to Orchid.
3.2.7 This paragraph 3 survives any termination or expiration of this
Agreement.
4. Consumables
4.1 Supply Of Consumables
4.1.1 During the term of this Agreement, Orchid will sell to
CUSTOMER, and CUSTOMER will purchase from Orchid, all of
CUSTOMER's requirements of Consumables, except as provided in
paragraphs 4.1.3 and 4.5.3.
4.1.2 CUSTOMER will issue written purchase orders to Orchid for
Consumables. The purchase orders are subject to the terms and
provisions of this Agreement which, if other or different than
those of the purchase order, will be controlling even if the
purchase order is accepted and filled by Orchid.
4.1.3 Orchid will use all commercially reasonable efforts to supply
CUSTOMER's reasonable requirements of Consumables. All purchase
orders will be accepted unless Orchid notifies CUSTOMER within
ten (10) business days of receipt of the purchase order that
Orchid cannot fill the purchase order. Unless Orchid notifies
CUSTOMER within ten (10) business days after the delivery of
any such notice that Orchid is, in fact, able to fill such
purchase order, the Minimum Throughput/yr. described
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in Schedule 2.1.1 shall be reduced in the amount of Consumables
Orchid is unable to supply.
4.1.4 CUSTOMER may defer or cancel delivery of Consumables specified
in a purchase order by notifying Orchid at least twenty (20)
business days prior to the requested delivery date.
4.1.5 All permitted cancellations are subject to cancellation charges
of ten percent (10%) of the purchase price. A request by
CUSTOMER to defer delivery of Consumables for more than sixty
(60) days after the date provided on the original invoice will
be considered a cancellation for purposes of this paragraph
4.1.5.
4.2 Delivery
4.2.1 Orchid will use reasonable efforts to deliver to CUSTOMER
Consumables on or before the date requested in CUSTOMER's
purchase order (but will have no obligation to deliver
Consumables in less than thirty (30) business days from receipt
of the purchase order). A purchase order can be placed only
after conversion of a marker site into a validated genotyping
assay, as described in the attached Schedule 1.15.
4.2.2 Orchid will ship Consumables F.O.B. Orchid's manufacturing
plant, or its supplier's plant, freight prepaid, to the address
specified in CUSTOMER's purchase order. CUSTOMER will be
invoiced for all shipping charges, freight, insurance, special
handling (where required) and similar costs, import permits and
duties (if applicable) and all taxes assessed. Title and the
risk of loss with respect to Consumables will transfer to
CUSTOMER at this time. Unless otherwise agreed or specified by
CUSTOMER in the applicable purchase order, Orchid may select
the carrier or freight forwarder; however, the carrier or
freight forwarder must be at all times an agent of CUSTOMER.
Orchid will not be liable for any damages, loss or penalty for
delay in delivery caused by the carrier or freight forwarder or
for failure of the carrier or freight forwarder to give
CUSTOMER notice of any delay.
4.3 Price
4.3.1 CUSTOMER has selected the price schedule for Consumables
indicated on attached Schedule 2.1.1. Therefore, the prices for
Consumables to be delivered by Orchid under this Agreement are
as CUSTOMER selected on Schedule 2.1.1.
4.3.2 Subject to the provisions of paragraphs 4.1.3 and 4.5.3, in the
event that the quantity of Consumables actually purchased by
CUSTOMER in any period is less than the committed quantity,
CUSTOMER will pay to Orchid the shortfall fee set forth in
CUSTOMER's selected price schedule
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within thirty (30) days of receipt of Orchid's invoice
therefor. Orchid shall be permitted to deliver such invoices
only once per year.
4.3.3 Notwithstanding the provisions of paragraph 4.3.1, Orchid may
at any time after one (1) year from the Effective Date of this
Agreement, further increase its prices (and amend Schedule
2.1.1 accordingly) if [*]
4.4 Payment
4.4.1 Payment of the Access Fee set forth in Schedule 2.2.1 will be
made upon the sooner of (i) the tenth (10th) business day after
the commissioning and validation of the SNPstream Instrument
and completion of the initial training to be provided by Orchid
hereunder, or (ii) September 29, 2000; provided, however, that
if such commissioning, validation and training are not complete
by September 29, 2000 for reasons that are within Orchid's
ability to control, then such payment shall be delayed until
such commissioning, validation and training are complete. Such
payment will be made in United States Dollars, by wire transfer
of funds to an account designated by Orchid or by delivery of
an irrevocable cashier's check to Orchid. The following is wire
transfer information for Orchid's bank:
[*]
All other payments will be made in United States Dollars and
within forty-five (45) days of receipt of Orchid's invoice.
4.4.2 If payment is not received by the due date, a service charge
will be added at the rate of 10% per year or the maximum legal
rate, whichever is less, to unpaid invoices from the due date
thereof.
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
8
4.5 Forecasts and Allocation
4.5.1 Within thirty (30) days after the Effective Date of this
Agreement and at the beginning of each calendar quarter
thereafter, CUSTOMER will provide Orchid with a written
forecast of its requirements for Consumables for a minimum of
the next four (4) calendar quarters. The first calendar quarter
of such forecast represents a firm commitment to purchase such
Consumables in that quarter (subject to the cancellation and
deferral provisions of paragraphs 4.1.4 and 4.1.5). The
remaining portion of each forecast represents a non-binding
projection on which Orchid will base its material procurement
and manufacturing plans.
4.5.2 In the event that demand for any Consumable should at any time
exceed Orchid's capacity to fill and deliver all of its
CUSTOMER's orders (and its own need for Consumables), Orchid
will notify CUSTOMER of the excess demand. Until such time as
the excess demand abates or Orchid's capacity becomes
sufficient to meet such demand Orchid will have the right,
subject to paragraphs 4.1.3 and 4.5.3, to equitably allocate,
in any reasonable manner, its available supplies, manufacturing
capacity, inventory and other resources, among CUSTOMER, itself
and its other customers, including those not then under
contract.
4.5.3 Further to paragraph 4.5.2, in the event Orchid is unable, or
expects to be unable, to reasonably supply CUSTOMER 's total
requirements of Consumables for [*] consecutive business
days, CUSTOMER may self-supply or obtain from any other source,
reasonably acceptable to Orchid, that portion of its
requirements for Consumables which Orchid is unable to
reasonably supply for so long as Orchid is unable or expects to
be unable to supply such portion of CUSTOMER's requirements.
Any such third party alternate source will supply only
Consumables that conform to Specifications and are of the same
or better quality as those supplied by Orchid. Orchid will
provide CUSTOMER with Know How and technical assistance and
information as may be reasonably required by CUSTOMER to
establish an alternate source of Consumables, including a
license under any patent which Orchid has rights to license on
the method of manufacture of the Consumables or on the method
of use of the Consumables authorized in this Agreement. Any
Consumable that, when ordered by CUSTOMER in accordance with
the terms of this Agreement, Orchid is unable to supply shall
count toward satisfaction of CUSTOMER's Minimum Through-
put/year obligation under Schedule 2.1.1.
4.6 Inspection and Acceptance
4.6.1 CUSTOMER may conduct acceptance testing upon receipt of
Consumables to verify conformance with Specifications. In the
absence of written notice to Orchid of nonconformance and
nonacceptance within
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
9
thirty (30) business days of delivery, the Consumables will be
deemed accepted.
4.6.2 If Orchid disputes CUSTOMER's notice that a Consumable fails to
conform to Specifications, such dispute will be resolved by an
independent laboratory, selected by Orchid and reasonably
acceptable to CUSTOMER, whose determination will be final and
binding, absent manifest error. All fees and disbursements
incurred in connection with the independent determination will
be borne by the party which incorrectly determined that the
Consumable did or did not conform to the Specifications and
shall be shared equally by the parties if it is determined that
the Consumables conformed in part and failed to conform in
part.
4.6.3 Orchid promptly will replace any Consumable not conforming to
the Specifications, at its expense; or, if unable to make
prompt replacement, refund any payment made on the
nonconforming Consumable. The amount of any nonconforming
Consumables that are not replaced within thirty (30) days after
final determination of nonconformity shall be deducted from the
Minimum Throughput/yr. described in Schedule 2.1.1. CUSTOMER
shall not be required to pay for any non-conforming
Consumables.
4.7 Limited License
4.7.1 Orchid grants to CUSTOMER, for the term of this Agreement, a
non-exclusive license to use the Consumables (both those
provided under Section 4 and those provided under section 4.5.3
hereof) in connection with CUSTOMER's use of the System as
provided herein. CUSTOMER acknowledges that Consumables
delivered and sold to CUSTOMER are under license from Orchid
solely for the uses specified in paragraph 2.6.2. Orchid
acknowledges that it has no right to limit, and that no such
limitation of use shall apply to, CUSTOMER Assay Data. No other
license is intended or granted through sale of Consumables to
CUSTOMER.
4.7.2 Purchase by CUSTOMER of Consumables does not include or carry
any right to resell or transfer Consumables, either as a stand
alone product or as a component of another product, or to
disassemble and use any component or part of any Consumable
separate from its other components and parts, or to otherwise
commercially exploit the Consumables. Any use of Consumables
other than the licensed use without the prior, express written
authorization of Orchid is strictly prohibited.
5. Warranties
5.1 Generally
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5.1.1 Orchid warrants that for a period of [*] after
commissioning and validation hereunder (i) all SNPstream
Instruments and all Analytic Software delivered to CUSTOMER
shall conform to their respective Specifications, and (ii) all
SNPstream Instruments delivered to CUSTOMER shall be free from
defects in materials and workmanship. In addition, Orchid
warrants that, to the best of its knowledge, the Analytic
Software and any media used to distribute same shall contain no
computer instructions, circuitry or other technological means
the purpose of which is to disrupt, damage or interfere with
Customer's use of its computer and telecommunications
facilities for Customer's business purposes.
5.1.2 Orchid warrants that all Consumables, when delivered to
CUSTOMER, shall conform to their Specifications and shall be
free from defects in materials and workmanship.
5.1.3 Orchid makes no warranties concerning the Operation Software,
which Orchid has licensed and/or otherwise acquired from a
third party(ies), but Orchid shall assign to CUSTOMER, and
reasonably assist CUSTOMER in recovering under, any
manufacturer or vendor warranties that Orchid receives in
connection with the Operation Software.
5.2 THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND
NONE IS CREATED, WHETHER UNDER THE UNIFORM COMMERCIAL CODE, CUSTOM OR
USAGE IN THE INDUSTRY OR THE COURSE OF DEALINGS BETWEEN THE PARTIES.
5.3 ORCHID MAKES NO WARRANTY OR REPRESENTATION TO CUSTOMER THAT USE OF ANY
SNPSTREAM INSTRUMENT, SOFTWARE PACKAGE, CONSUMABLE, OR KNOW HOW, OR
ANY PRODUCT PRODUCED BY SUCH USE, WILL NOT INFRINGE ANY PATENT,
COPYRIGHT, TRADE SECRET, OR OTHER PROPRIETARY RIGHT, FOREIGN OR
DOMESTIC, OF ANY THIRD PARTY TO WHICH ORCHID HAS NOT OBTAINED RIGHTS.
NOTWITHSTANDING THE FOREGOING, HOWEVER, ORCHID WARRANTS THAT IT IS NOT
AWARE OF ANY SUCH INFRINGEMENT AND HAS NOT RECEIVED ANY NOTICE OF
POSSIBLE INFRINGEMENT.
5.4 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THE SCHEDULES
HERETO, ORCHID DOES NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION
REGARDING THE USE, OR THE RESULTS OF THE USE, OR THE PERFORMANCE OF
THE SNPSTREAM INSTRUMENT, SOFTWARE PACKAGE, CONSUMABLE, OR KNOW HOW.
CUSTOMER REPRESENTS AND WARRANTS THAT ANY STATEMENTS HERETOFORE OR
HEREAFTER MADE BY ORCHID OR ANY AUTHORIZED REPRESENTATIVE RELATIVE TO
THE USE, RESULTS OF THE
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
11
USE OR PERFORMANCE OF THE SNPSTREAM INSTRUMENT, SOFTWARE PACKAGE,
CONSUMABLE, OR KNOW HOW WERE AND WILL ALWAYS BE INDEPENDENTLY VERIFIED
BY CUSTOMER AND CUSTOMER AGREES THAT ITS ACCEPTANCE AND/OR USE OF SUCH
STATEMENTS IS ENTIRELY AT ITS OWN RISK.
5.5 EXCEPT AS EXPRESSLY PROVIDED IN PARAGRAPHS 5.1, 5.3 AND 6.1, ORCHID
WILL NOT BE LIABLE TO CUSTOMER, CUSTOMER'S AFFILIATES, CUSTOMER'S
SUCCESSORS OR ASSIGNS OR ANY THIRD PARTY WITH RESPECT TO ANY USE OF
THE SNPSTREAM INSTRUMENT, SOFTWARE PACKAGE, CONSUMABLE, OR KNOW HOW BY
CUSTOMER OR ANY AGENT OR EMPLOYEE OF CUSTOMER, OR ANY LOSS, CLAIM,
DAMAGE OR LIABILITY OF ANY KIND OR NATURE WHICH MAY ARISE FROM OR IN
CONNECTION WITH THE USE, HANDLING, STORAGE, OR DISPOSAL OF THE
SNPSTREAM INSTRUMENT, SOFTWARE PACKAGE, CONSUMABLE, OR KNOW HOW, OR
ANY PRODUCTS RESULTING FROM SUCH USE; OR ANY CLAIM FOR LOSS OF
PROFITS, LOSS OR INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND.
6. Indemnification
6.1 Orchid agrees to indemnify, defend, and hold harmless CUSTOMER, its
Affiliates and their respective directors, officers, agents,
employees, representatives and assigns, from and against all
liabilities, demands, damages, expenses and losses (including
reasonable attorney fees and costs), arising out of (i) the negligent
actions or willful misconduct of Orchid, its employees or any third
party acting on behalf or under authority of Orchid in the performance
of this Agreement (including, without limitation, any Authorized
Representative) and (ii) any actual or alleged act of patent
infringement, contributory patent infringement, inducing patent
infringement, copyright infringement, or trade secret misappropriation
resulting from CUSTOMER's use of the SNPstream Instruments, Software
Package, Consumables, Know How or any information and materials
received hereunder, in a manner permitted under this Agreement. At any
time during the course of any action involving a SNPstream Instrument,
Software Package or Consumable, or if in Orchid's opinion a SNPstream
Instrument, Software Package or Consumable is likely to become the
subject of a patent infringement claim, Orchid may at its option and
expense, (i) procure for CUSTOMER the right to continue using the
SNPstream Instrument, Software Package or Consumable, (ii) replace or
modify the SNPstream Instrument, Software Package or Consumable so
that it becomes noninfringing or (iii) accept return of the SNPstream
Instrument, Software Package or Consumable, refund the purchase price
for same and the Access Fee, pro rata from the date CUSTOMER was
prohibited from using the SNPstream Instrument, Software Package
and/or Consumables due to such action, and terminate this Agreement.
In the event Orchid is not successful in its efforts under clause (i)
and/or (ii) of the preceding
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sentence within three (3) months after any such claim arises, Orchid
shall, at CUSTOMER's request undertake an action set forth in clause
(iii).
6.2 Orchid will not be liable to CUSTOMER under paragraph 6.1 if the
patent or copyright infringement claim is based on an alteration or
modification of the SNPstream Instrument, Software Package or
Consumable or a use of the SNPstream Instrument, Software Package or
Consumable not authorized by Orchid.
6.3 CUSTOMER agrees to indemnify, defend and hold harmless Orchid, its
Affiliates, Authorized Representatives and their respective directors,
officers, agents, employees, and assigns, from and against all
liabilities, demands, damages, expenses and losses (including
reasonable attorney fees and costs) arising out of (i) CUSTOMER's use,
handling, storage and disposal of each SNPstream Instrument, Software,
Consumables, Know How and any information and materials received from
Orchid other than in accordance with Orchid's or its Authorized
Representative's instructions, except with respect to those resulting
from Orchid's (or its employees' or agents') negligence or willful
misconduct, (ii) any products developed or made by CUSTOMER as a
result of the use of the SNPstream Instrument, Software Package,
Consumables, Know How and any information and materials received from
Orchid and (iii) any actual or alleged act of patent infringement,
contributory patent infringement, inducing patent infringement,
copyright infringement or trade secret misappropriation resulting from
CUSTOMER's use of the SNPstream Instruments, Software Package,
Consumables, Know How and any information and materials received, in
any manner not permitted under this Agreement or in CUSTOMER's
manufacture, use or sale of any product resulting from such use;
provided, however, that CUSTOMER shall not have any obligation under
this paragraph 6.3 with respect to any such liabilities, demands,
damages, expenses or losses to the comparative extent that Orchid has
an obligation to indemnify CUSTOMER under paragraph 6.1 with respect
thereto.
6.4 Any person entitled to and seeking indemnification under this
Agreement will give prompt written notice to the indemnifying party of
the commencement of any action (and any prior claims relating to such
action) for which such person seeks indemnification. An indemnifying
party will have no liability or responsibility of any kind to the
person seeking indemnification if it is not promptly notified and does
not have adequate opportunity to defend. The indemnifying party will
have sole control of the defense of the action and of all negotiations
for its settlement or compromise, except that the indemnifying party
shall not agree to any settlement or compromise that adversely affects
the person being indemnified and/or the other party without the prior
written consent of such person or other party. Each indemnified party
shall cooperate with the indemnifying party under this section 6.
6.5 This section 6 survives any termination or expiration of this
Agreement.
13
7. Improvements
7.1 Upon, or before, delivery of CUSTOMER's initial order of Consumables,
and subject to paragraph 8, Orchid will disclose in confidence to
CUSTOMER its Know How regarding the ordered Consumables.
7.2 CUSTOMER hereby assigns to Orchid all CUSTOMER's rights to, and will
cause its employees, consultants and contractors to assign to Orchid
all their rights to, any direct Improvements to any of the hardware or
software comprising, or any biochemical assays used in, the SNPstream
Instrument, Software Package and Consumables. Orchid's rights under
this paragraph 7.2 shall not extend to (i) inventions, discoveries and
improvements in the field of genetic marker identification generally
or SNP analysis that are made by CUSTOMER's employees, consultants and
contractors, or (ii) any Assay Data, all of which shall be owned by
CUSTOMER exclusively. This paragraph survives any termination or
expiration of this Agreement.
7.3 At any time, whether during the term of this Agreement or after
termination of this Agreement, Orchid may request CUSTOMER to (and to
cause its employees, consultants and contractors to) execute,
acknowledge and deliver all papers, including applications for
patents, and to perform such other acts as, in the reasonable opinion
of Orchid, may be necessary or desirable to obtain or maintain patents
or copyrights or other proprietary rights for the Technical Data and
Improvements to which Orchid has rights under paragraph 7.2 in any and
all countries and to vest title thereto in Orchid, its successors,
assigns or nominees. CUSTOMER agrees to perform these acts without
charge to Orchid, but at Orchid's expense. This paragraph survives
any termination or expiration of this Agreement.
8. Confidentiality
8.1 CUSTOMER agrees not to disclose publicly or to any third party, and to
keep in strictest confidence, all (i) prices and price schedules, (ii)
Technical Data, (iii) Know How, (iv) Improvements, and (v) all
information identified by Orchid as being secret or confidential. If
any information under clause (v) is disclosed in written or electronic
format, it must be prominently labeled "Confidential," "Proprietary,"
etc. If any information under clause (v) is disclosed in visual
and/or oral format, it must be stated to be confidential at the time
of disclosure and summarized in a writing sent to CUSTOMER within
thirty (30) days thereafter.
8.2 The obligation of confidentiality under this paragraph 8 does not
apply to information which CUSTOMER can demonstrate is known publicly,
is in the public domain or enters into the public domain without the
fault of CUSTOMER, was known to CUSTOMER prior to the Effective Date
of this Agreement, is disclosed to CUSTOMER by a third party not under
obligation of confidence, is independently developed by employees or
agents of CUSTOMER without access
14
to, or use of, Orchid's confidential information, or which CUSTOMER is
required to disclose in order to comply with any applicable law,
regulation or governmental order.
8.3 The obligations of this paragraph 8 survive and continue for a period
of five (5) years after any termination or expiration of this
Agreement.
9. Term and Termination
9.1 This Agreement will expire and terminate at the end of the price
schedule selected by CUSTOMER on attached Schedule 2.1.1; provided,
however, that CUSTOMER shall have the right to extend the term of this
Agreement, for a like period, up to three (3) times, upon notice and
payment to Orchid at least ninety (90) days in advance of the then
current expiration date. CUSTOMER shall pay Orchid an annual renewal
fee in connection with each such extension. The amount of such
renewal fee shall be determined by the parties, in good faith, after
delivery of CUSTOMER's renewal notice and shall be (i) based
CUSTOMER's past level of usage of Orchid's support and maintenance
services, and (ii) competitive with renewal fees Orchid is then
charging other similarly situated customers. The price of Consumables
during each successive extension period shall, notwithstanding
paragraph 4.3.3, decrease by at least [*].
9.2 Orchid and CUSTOMER have the right to terminate this Agreement if the
other fails to make any payment due and owing, or commits a breach of
any material provision of this Agreement and fails to make such
payment within thirty (30) days or remedy such breach within sixty
(60) days after receiving written notice of such default or breach.
This right of termination, however, cannot be exercised if at any time
during said time period, the party accused of default or breach cures
such default or breach or provides proof that such party is not in
default or has not committed such breach. In such event Orchid and
CUSTOMER will negotiate in good faith to resolve the disputed payment
or breach before taking any other action to resolve same.
9.3 Subject to applicable law (including the U.S. Bankruptcy Code), Orchid
and CUSTOMER each have the right to terminate this Agreement if any
proceeding is instituted by or against the other party seeking to
adjudicate it bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking an entry
of an order for relief or the appointment of a receiver, trustee or
other similar official for it or any substantial part of its property
or taking any action to authorize any of the foregoing or similar
actions. No assignee for the benefit of creditors, receiver,
liquidator, sequestrator, trustee in bankruptcy, sheriff or any other
officer of the court or official charged with taking over custody of
CUSTOMER's assets or business will have any right to continue the
performance of this Agreement. Notwithstanding any other provision of
this Agreement, Orchid acknowledges and agrees that this Agreement
constitutes a
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
15
license with respect to the SNPstream Instrument, Software Package,
Consumables and Know How for the purposes of this paragraph 9.3.
9.4 In the event this Agreement is terminated by CUSTOMER pursuant to the
provisions of paragraph 9.2 or 9.3, upon written notice from CUSTOMER,
Orchid will remove the SNPstream Instrument(s), at no cost to
CUSTOMER, in accordance with its Standard Terms and Conditions of
Removal set forth in attached Schedule 2.5. In addition Orchid shall
refund to CUSTOMER that portion of the then current Access Fee or
renewal fee, as the case may be, applicable, on a pro rata basis, to
the portion of the initial term or any renewal term of this Agreement,
as the case may be, from and after the effective date of any such
termination. This paragraph survives any termination or expiration of
this Agreement.
9.5 In the event this Agreement is terminated by Orchid pursuant to the
provisions of paragraph 9.2 or 9.3, upon written notice to CUSTOMER,
Orchid may remove the SNPstream Instrument, at CUSTOMER's expense, in
accordance with its Standard Terms and Conditions of Removal set forth
in attached Schedule 2.5; and, CUSTOMER will pay to Orchid, within
thirty (30) days of such termination, the early termination fee set
forth in the price schedule of attached Schedule 2.1.1. This paragraph
survives any termination or expiration of this Agreement.
9.6 Upon expiration or termination of this Agreement for any cause or
reason neither CUSTOMER nor Orchid will be released from any
obligation theretofore accrued. The parties' respective rights and
obligations under the following provisions shall survive pay
termination or expiration of this Agreement: Paragraphs 2.4.2, 2.6.1,
3.2.1, 3.2.5, 3.2.6, 4.3.3, 4.6, 5, 6, 8, 9.5, 9.6, 9.7, 10.2, 10.3
and 10.9.
10. Miscellaneous
10.1 The relationship of Orchid and CUSTOMER under this Agreement is that
of both licensor and licensee and seller and buyer. The provisions of
this Agreement may not be construed to create between Orchid and
CUSTOMER the relationship of principal and agent, joint venturers, co-
partners or any other similar relationship, the existence of which is
hereby denied by Orchid and CUSTOMER. Neither party hereto is liable
in any way for any engagement, obligation, liability, contract,
representation or warranty of the other party to or with any third
party. Orchid is not an agent for CUSTOMER and CUSTOMER is not an
agent for Orchid for any purpose whatsoever and each party has no
right or authority to assume or create any obligations, express or
implied, on behalf or in the name of the other party.
10.2 Orchid, in its performance of this Agreement, may delegate its
obligations or duties to one or more Authorized Representatives as
agent(s) for Orchid under this Agreement. However, no Authorized
Representative has the right or authority to make any representation
or warranty to CUSTOMER, or to assume or
16
create any obligations with or for CUSTOMER, whether express or
implied, on behalf or in the name of Orchid except as expressly set
forth in this Agreement. Notwithstanding any such delegation, Orchid
shall remain liable for the performance of such obligations and duties
and for the performance of any Authorized Representatives to which
Orchid may delegate performance of same.
10.3 During the term of this Agreement and for a period of one year
thereafter, neither Orchid nor CUSTOMER will actively solicit for
employment any of the other's technical personnel.
10.4 No waiver of any breach of any provision of this Agreement will
constitute a waiver of any prior, concurrent or subsequent breach of
the same or any other provision of this Agreement; and no waiver will
be effective unless in writing.
10.5 Any notice required or permitted under this Agreement will be deemed
to have been sufficiently provided and effectively made if sent by
facsimile and either hand-delivered or sent by overnight express
courier (e.g., Federal Express), signature required, and addressed to
the receiving party at its respective address as follows:
Orchid Biosciences, Inc. Bristol-Myers Squibb Company
P.O. Box 4000
303 College Road East Route 206 & Province Line Road
Princeton, NJ 08540 Princeton, NJ 08543-4000
Facsimile: (609) 750-2250 Facsimile: (609) 452-4232
Attn: Kevin Nash Attn: Vice-President & Senior Counsel
Pharmaceutical Research Institute and
Worldwide Business Development
With a courtesy copy to:
Kalow Springut & Bressler LLP
488 Madison Avenue
New York, NY 10016
Facsimile: (212) 813-9600
Attn: David A. Kalow
or such other address of which the receiving party has given notice
pursuant to this paragraph 10.5. The effective date of the notice is
the date of receipt of the hand or courier delivery.
10.6 In the event that the performance of this Agreement or of an
obligation hereunder, other than the payment of money, is prevented,
restricted or interfered with by reason of any cause not within the
control of the respective party, and which could not by reasonable
diligence have been avoided by such party, the party so affected,
upon the giving of prompt notice to the other party, as to the nature
and probable duration of such event, is excused from such performance
to the extent and for the duration of such prevention, restriction or
interference, provided that
17
the party so affected uses its reasonable efforts to avoid or remove
such cause of non-performance and continues performance under this
Agreement whenever and to the extent such cause or causes are
removed. For the purpose of this paragraph 10.6, but without limiting
the generality hereof, the following will be considered as not being
within the control of a party: acts of God; acts or omissions of a
governmental agency or body; compliance with requests,
recommendations, rules, regulations, or orders of any governmental
authority or any officer, department, agency, or instrument thereof;
flood; storm; earthquake; fire; war; insurrection; riot; accidents;
acts of the public enemy; invasion; quarantine restrictions; strike;
labor lockout; differences with workmen; embargoes; delays or
failures in transportation; and acts of a similar nature.
10.7 If any provision of this Agreement is held to be invalid, illegal,
unenforceable or void, such will be without effect on the validity,
legality and enforceability of the remaining provisions or this
Agreement as a whole. Both parties will endeavor to replace the
invalid, illegal, unenforceable or void provision with a valid and
enforceable one which in its equitable effect is most consistent with
the prior provision.
10.8 The paragraph headings are for convenience only and cannot have any
effect on the interpretation or construction of this Agreement.
10.9 The laws of the State of New Jersey, excluding the principles of
conflicts of laws, govern this Agreement.
10.10 This Agreement is binding upon and inures to the benefit of the
heirs, successors and assigns of the parties hereto, provided that
this Agreement, in whole or in part, is not assignable by either
party without the prior written consent of the other party, such
consent not to be unreasonably withheld, except that Orchid may
assign this Agreement to an Affiliate of Orchid without any such
consent. As a condition precedent to any such permitted assignment,
the assignee shall agree, in writing, to be bound by the provisions
of this Agreement applicable to its assignor. Any effort to assign in
violation hereof is considered void. In the event of any assignment,
the assigning party must provide the other party with appropriate
documentation of the assignment.
10.11 Each party acknowledges that it has read this Agreement, understands
it, and agrees to be bound by its terms and further agrees that it
constitutes the complete and exclusive understanding between the
parties, which supersedes and merges all prior proposals,
understandings and all other agreements, oral and written, between
the parties regarding the subject matter of this Agreement; and no
party has relied on any representation not expressly set forth or
referred to in this Agreement.
10.12 No amendment, variation, waiver or modification of any of the terms
or provisions of this Agreement will be effected unless set forth in
writing,
18
specifically referencing this Agreement, and duly signed by an
authorized officer of the party to be bound thereby.
10.13 Except as expressly provided herein, nothing in this Agreement shall
create or imply any license or grant of rights to either party under,
or act as a waiver as of, any rights that the other party may have to
prevent infringement or misappropriation of any patents, patent
applications, trademarks, copyrights, trade secrets, know how or
other intellectual property rights owned or controlled by such other
party or any of its Affiliates.
10.14 Except with the express written consent of a party in each instance,
neither party nor its Affiliates, officers or employees will at
anytime include such party's name (or that of any of its Affiliates,
shareholders, officers, directors, employees or personnel) in any
written material, marketing or advertising brochures, bids,
contracts, proposals, applications or otherwise, except as may be
required by law, or in any way represent or imply that such party or
its Affiliates, shareholders, officers, directors, employees or
personnel have endorsed the other party or its business.
10.15 This Agreement may be executed in two or more counterparts, all of
which constitute one and the same legal instrument.
10.16 CUSTOMER and Orchid agree to execute, acknowledge, and deliver such
further instruments and to do all such other acts as may be necessary
or appropriate to effect the purpose and intent of this Agreement.
10.17 Each party hereby represents and warrants to the other that: (i)
such party is duly organized and validly existing under the laws of
the state of its incorporation and has full corporate power and
authority to enter into this Agreement and to carry out the
provisions hereof; (ii) such party has the requisite power and
authority and the legal right, and has taken all necessary actions on
its part, to enter into this Agreement and to perform its obligations
and grant the rights extended by it hereunder; (iii) this Agreement
has been duly executed and delivered on such party's behalf, is a
legal and valid obligation binding upon it and is enforceable in
accordance with its terms; (iv) the execution, delivery and
performance of this Agreement by such party do not conflict with any
agreement, instrument or understanding, oral or written, to which it
is a party or by which it may be bound, nor violate any law or
regulation of any court, governmental body or administrative or other
agency having authority over it; and (v) all necessary consents,
approvals and authorizations of all governmental authorities and
other persons required to be obtained by such party in connection
with the execution and performance of this Agreement have been
obtained.
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective
Date.
BRISTOL-MYERS SQUIBB COMPANY ORCHID BIOSCIENCES, INC.
By: /s/ Marilyn Hartig By: /s/ Donald R. Marvin
------------------ --------------------
Title: VP, External Title: SVP, COO and CFO
Science & Tech. ----------------
- - -------------------
20
Schedules To Be Attached
------------------------
1.5 Consumables List
1.15 Specifications for SNPstream Instrument, Software Package and Consumables
2.1.1 Terms for providing SNPstream Instrument including delivery and
installation date, price schedule, termination date, short fall fee and
termination fee
2.1.2 Standard Terms and Conditions of Delivery and Installation
2.2.1 Standard Terms and Conditions of Training
2.2.2 Standard Terms and Conditions of Support
2.5 Standard Terms and Conditions of Removal
21
SNPSTREAM CONTRACT SCHEDULES:
1.5 [*]
1.15 Specifications for SNPstream Instrument, Software Package and Consumables:
[*]
[*]
[*]
SNPstream Consumables Specifications:
- - -------------------------------------
Reagent Kit Specifications: See schedule 1.5.
[*]
[*]
[*]
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
2.1.1 Terms for providing SNPstream Instrument including delivery and
installation timelines, purchase option, price schedule, termination date, short
fall fee and terminations fee.
A SNPstream System will be provided to customer for the purpose of automated SNP
analysis under the following terms:
Delivery and Installation:
- - --------------------------
[*]
[*]
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
2.1.2 Standard Terms and Conditions of Delivery and Installation:
Orchid or its Authorized Representative will install the SNPstream instrument at
a site designated by the client. The client must have the designated location
for installation prequalified by Orchid or an Authorized Representative to meet
certain criteria defined as such:
. Space Requirements
The 3m ORCA will require a working surface space of 180" (457cm) x 90"
(229cm). It is also recommended to include a 36" (91cm) access space
around the entire system. The entire floor spacing surrounding the
system should be completely unobstructed from any plumbing,
electrical, conduits, chases, other mechanical features, etc.
. Air Requirements
The Multimek system requires clean, filtered air regulated to 85 psi to the
system for use. The air supply should terminate at the system with a
1/4" NPT FEMALE fitting. If house air is not available, a compressor
will be provided with the SNPstream Instrument.
. Electrical Requirements
The minimum requirement for this system is four 15Amp circuits, or three
20Amp circuits for power. The optimal case is four 20 amp circuits. For
each of the 6 optical tables required there should be a 6-outlet power
strip. Each of these outlet strips is then connected to the provided
circuits.
- - ----------------------------------------------------------------------------------------------------------------------
DEVICE ELEC. CUR. @ 120V AIR VAC COMMENTS
(amps)
- - ----------------------------------------------------------------------------------------------------------------------
Host Computers 3
- - ----------------------------------------------------------------------------------------------------------------------
Host Monitors 1.5
- - ----------------------------------------------------------------------------------------------------------------------
ORCA Robot 6
- - ----------------------------------------------------------------------------------------------------------------------
96-Channel Pipettor 3.5 Y
- - ----------------------------------------------------------------------------------------------------------------------
Deck Controller 1.5 Y Y
- - ----------------------------------------------------------------------------------------------------------------------
Ambient Carousel 1.5
- - ----------------------------------------------------------------------------------------------------------------------
Master Flex Console Drive 3.0
- - ----------------------------------------------------------------------------------------------------------------------
LabLine Shaker 1
- - ----------------------------------------------------------------------------------------------------------------------
EL405 Microplate Washer 6.3 Y* Y* * Unless provided by P/V
pump.
- - ----------------------------------------------------------------------------------------------------------------------
EL405 Microplate Washer 5
Pressure/Vacuum
- - ----------------------------------------------------------------------------------------------------------------------
Bar Code Reader 0.5
- - ----------------------------------------------------------------------------------------------------------------------
BMG FLUOstar 97 2
- - ----------------------------------------------------------------------------------------------------------------------
Best UPS 12 Provides 1.4 kVA of
battery backup
- - ----------------------------------------------------------------------------------------------------------------------
Multidrop 384 .6
- - ----------------------------------------------------------------------------------------------------------------------
. Plumbing Requirements
This system includes a tip-wash station, refillable reservoirs, waste
reservoirs, and plate washers. Use of any of these components will
require tubing routing and some regard to placement of the system, as
these require regular maintenance in the form of filling and/or
emptying.
Orchid or an Authorized Representative will perform installation of the
SNPstream Instrument after delivery. Installation will require
approximately 10 days to complete. Commissioning, verification of the
SNPstream functionality for GBA-based SNP genotyping, will occur within the
installation time frame and the installation shall not be considered
complete until such functionality is verified to CUSTOMER's reasonable
satisfaction.
2.2.1 Standard Terms and Conditions of Training:
[*]
[*]
[*]
[*] CONFIDENTIAL MATERIAL OMITTED AND FILED WITH THE SECURITIES AND EXCHANGE
COMMISSION. ASTERISKS DENOTE SUCH OMISSIONS.
ORCA and Multimek are trademarks of Beckman Coulter Inc.
EL405 Microplate Washer is a trademark of Bio-Tek Instruments
FLUOstar 97 is a trademark of BMG Lab Technologies, Inc.
Windows is a registered trademark of Microsoft Corp