EXHIBIT 10.6
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE
OMITTED PORTION.
BETA TEST AGREEMENT
This Agreement is made effective as of the 1st day of March, 2001,
between BioNumerik Pharmaceuticals, Inc., with a place of business at 8122
Datapoint Drive, Suite 1250, San Antonio, Texas 78229 ("BioNumerik"), and Cray
Inc., with a place of business at 411 1st Avenue S. Suite 600, Seattle, WA
98104-2860 ("CRAY").
RECITALS:
WHEREAS BioNumerik and a predecessor of CRAY entered into a Beta Test
Agreement, dated as of August 18, 1994, as amended.
WHEREAS, BioNumerik and CRAY wish to amend and restate the Beta Test
Agreement to add Cray as a party and provide for the use and evaluation of
computer systems and software and the provision of certain services different
from those described in the original Beta Test Agreement.
WHEREAS, BioNumerik and CRAY have therefore determined to amend and
restate the Beta Test Agreement with amended terms that will govern the
relationship between the parties with respect to such computer systems, software
and services.
WHEREAS, this Agreement is a contractual arrangement between CRAY and
BioNumerik in which CRAY will provide BioNumerik with the use of certain CRAY
products for the purposes of testing the products and BioNumerik will provide to
CRAY information and data pertaining to their testing which CRAY may use without
charge to modify, improve or market the products,
Now, therefore, the parties agree as follows:
1. Definitions. For purpose of this Agreement, the following words, terms
and phrases shall have the meanings set forth below:
1.1 "Beta Test Period" shall mean the period of time described in
Section 2.1 during which testing of and adjustments to the
products contemplated hereunder will be undertaken.
1.2 "Equipment" shall mean the computer system products described
in Exhibit A to this Agreement, together with any additions,
modifications or enhancements thereto provided by CRAY under
the terms of this Agreement.
1.3 "Software" shall mean the software products described in
Exhibit A to this Agreement, together with any additions,
modifications or enhancements thereto provided by CRAY under
the terms of this Agreement.
1.4 "Documentation" shall mean the user manuals and other
documentation with respect to the Equipment and Software that
are provided to BioNumerik during the term of this Agreement.
1.5 "Products" shall mean Equipment, Software and Documentation.
1.6 "Principal Contacts" shall mean the individuals designated by
the parties to act as principal points of contact regarding
matters related to this Agreement.
1.7 "Confidential Information" shal1 mean the Software, and all
other information that is (i) disclosed by either party in any
tangible form and clearly labeled or marked as confidential,
proprietary or its equivalent, or (ii) disclosed by either
party orally or visually, and designated confidential,
proprietary or its equivalent at the time of its disclosure
and summarized in writing and clearly marked or labeled as
confidential, proprietary or its equivalent within thirty (30)
days of disclosure.
2. Beta Test Period and Obligations.
2.1 Beta Test Period. BioNumerik agrees to act as a beta test site
for the Products for the Beta Test Period. The Beta Test
Period shall be the term of this Agreement.
2.2 Beta Test Site. The beta test site shall be the principal
offices of BioNumerik located at the address set forth above.
2.3 Beta Test Obligations. During the Beta Test Period, BioNumerik
and CRAY shall each undertake and perform their respective
obligations as set forth below.
2.4 Specifications. BioNumerik shall participate with CRAY in the
development of the specifications for the installation and
operation of the Products.
2.5 Testing. During the Beta Test Period BioNumerik agrees to run
such test suites and other test programs as may be provided by
CRAY. CRAY may request that BioNumerik use special and
non-standard operating procedures for the testing of the
Products; BioNumerik shall not unreasonably withhold its
consent to such a request.
2.6 Error Notice. BioNumerik's Principal Contact shall notify
CRAY's Principal Contact of any material failure, error or
other malfunction of any part of the Products.
BETA TEST AGREEMENT
PAGE 2
2.7 Access. During the Beta Test Period, BioNumerik will grant
CRAY access to the Products and allow CRAY to gain access to
the operational data contemplated under this Agreement at such
reasonable times as may be required by CRAY for the reasonable
purposes of CRAY with respect to the development and sale of
their equipment.
BETA TEST AGREEMENT
PAGE 3
2.8 Modifications. During the Beta Test Period, BioNumerik's
Principal Contact will consult with CRAY 's Principal Contact
regarding the performance of the Products and will evaluate
the test data and error reports provided by BioNumerik. Should
CRAY modify or improve the Products as a result of
BioNumerik's testing, CRAY will provide such modification or
improvement to BioNumerik at no cost.
2.9 Use. During the term of this Agreement, CRAY shall loan the
Products to BioNumerik. BioNumerik shall use the Products only
for the evaluation of the Products under this Agreement and
BioNumerik's internal business purposes. Subject to Section
12.6, BioNumerik will not offer for sale or otherwise offer or
deliver the Products to any third party. BioNumerik will at
all times cause the Products to be maintained and operated by
qualified personnel in accordance with applicable manuals,
will keep the Products in the environment specified in CRAY's
Site Planning Manual, and will comply with the requirements of
CRAY's insurers which are provided to BioNumerik in writing.
CRAY may at any time during normal business hours inspect the
Products to ascertain compliance with this Section 2.9. Any
equipment which BioNumerik purchases from CRAY during or prior
to the period of this agreement, will be wholly owned by
BioNumerik and governed only by the term of the purchase
contract, but portions of such systems which are not
purchased, but provided by CRAY and added to the Products
list, will be covered under this agreement.
2.10 License. CRAY hereby grants a single, non-transferable and
non-exclusive license to use the Software during the term of
this Agreement. No rights to sublicense or distribute the
Software are granted. All rights not specifically granted to
BioNumerik by this license shall remain in CRAY. CRAY may
include features in the Software which restrict unlicensed use
or use of the Software or related data after license
expiration. The Software may be used by BioNumerik only on the
Equipment or on equipment purchased by BioNumerik from CRAY.
BioNumerik shall not modify, clone, reverse assemble, or
reverse compile any part of the Software or adopt any part of
the Software as its own. BioNumerik shall not translate the
Software into a computer language (e.g., FORTRAN or "C")
different from the language in which it was provided to
BioNumerik by CRAY. BioNumerik is licensed to use only the
binary format of the Software unless otherwise agreed in
writing by CRAY. The Software is not designed or licensed for
use in on-line control equipment in hazardous environments
such as operation of nuclear facilities, aircraft navigation
or control, life support systems or medical procedures.
BioNumerik assumes all risk for any such application and
agrees to indemnify CRAY and its suppliers for any and all
damages that may be incurred due to the use of Software in
such applications. BioNumerik acknowledges that the Software
is proprietary and shall remain the property of CRAY or its
suppliers. Notwithstanding the foregoing, BioNumerik shall
retain all ownership and rights to and may freely use
BioNumerik's own proprietary drug design and molecular
simulation software and no license is granted to CRAY with
respect to such software.
BETA TEST AGREEMENT
PAGE 4
2.11 Subject to CRAY 's business priorities and needs, CRAY shall
provide reasonable technical assistance to BioNumerik in the
use and operation of the Products.
3. Product Installation. BioNumerik will ensure that the site is
adequately prepared to receive the Products. CRAY will ship the
Products at no cost to BioNumerik, install them and run its tests to
verify proper installation. The Products shall be installed by CRAY at
the times described in Exhibit B hereto. BioNumerik shal1 cooperate and
assist with the installation of the Products as reasonably necessary.
Upon sixty (60) days notice to BioNumerik, CRAY shall also be permitted
to install any modifications to the Products CRAY deems necessary to
the proper function of the Products or to achieve the objectives of
this Agreement. During the term of this Agreement, the parties may
agree to the installation of other equipment or software that is
additional to the Equipment or Software, or a modification to the
Equipment or Software. All such additional equipment or modifications
shall be deemed Equipment or Software that is subject to the terms of
this Agreement. In addition to the use of the Products and to
facilitate BioNumerik's performance of its obligations hereunder,
during the term of this Agreement CRAY shall grant BioNumerik access to
the CRAY datacenter systems described in Exhibit A to this Agreement,
subject to the availability of such systems in CRAY 's datacenter and
CRAY s business priorities and needs.
4. Title and Risk of Loss. Title to all Products remains with CRAY.
BioNumerik shall not sell the Products or encumber their title. CRAY
assumes all risk of loss of or damage to Products throughout the Beta
Test Period, except that BioNumerik will be responsible for loss or
damage caused by negligence of BioNumerik or by environmental factors
at the installation site.
5. Obligations of BioNumerik. During the term of this Agreement,
BioNumerik shall evaluate the Products and provide the results of that
evaluation to CRAY as services described in Exhibit B to this
Agreement, and shall provide the other services described in that
Exhibit B in the times and in the manner described therein.
6. Principal Contacts. Each party shall designate an individual to act as
the primary point of contact with the other party with respect to
issues related to the use of the Products, the obligations of
BioNumerik and other matters related to this Agreement. The initial
Principal Contacts are designated in Exhibit D to this Agreement. A
party may change its Principal Contact by giving notice to the other
party.
7. Warranty. THE PRODUCTS PROVIDED TO BIONUMERIK UNDER THIS AGREEMENT ARE
PROVIDED "AS IS", AND CRAY MAKES NO WARRANTY OF ANY KIND WITH RESPECT
TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FREEDOM FROM
VIOLATION OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, WHICH ARE HEREBY
SPECIFICALLY EXCLUDED.
BETA TEST AGREEMENT
PAGE 5
8. Indemnification.
8.1 Cray shall indemnify BioNumerik and hold BioNumerik harmless
from all damages and all reasonable expenditures incurred by
BioNumerik as the result of any charge or claim of copyright
infringement or violation of proprietary rights asserted
against BioNumerik by third parties as a result of
BioNumerik's use of the Products hereunder, provided that CRAY
is given prompt notice of any such claim and BioNumerik
provides reasonable assistance to CRAY in connection with such
claims.
8.2 Should the Products become, or in CRAY's opinion be likely to
become, the subject of a claim of infringement of a copyright
or violation of proprietary rights of another, CRAY may either
(i) procure for BioNumerik the right to continue to use the
Products as contemplated hereunder, or (ii) replace or modify
the Products to make the use and distribution of the Licensed
Products hereunder non-infringing. If neither option is
reasonably available to CRAY, this Agreement may be terminated
by either party at any time upon written notice subject to the
obligation of indemnification set forth above.
8.3 CRAY shall have no liability for any claim of copyright
infringement or violation of proprietary rights to the extent
such claim is based on the use of the Products in a manner
other than is permitted under this Agreement or is based on a
modification of the Products by or for BioNumerik or a third
party, or any failure to implement any modification to the
Products supplied by CRAY.
8.4 BioNumerik shall indemnify CRAY and hold CRAY harmless from
all damages and all reasonable expenditures incurred by CRAY
as the result of any charge or claim asserted against CRAY by
third parties resulting from BioNumerik's use of the results
of the use of the Products, other than any charge or claim of
copyright infringement or violation of proprietary rights, as
a result of BioNumerik's use of the Products hereunder,
provided that BioNumerik is given prompt notice of any such
claim and CRAY provides reasonable assistance to BioNumerik in
connection with such claims.
9. Limitation of Liability.
9.1 NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY
DELAY IN FURNISHING THE PRODUCTS OR SERVICES UNDER THIS
AGREEMENT, OR BY DELAY IN ANY OTHER PERFORMANCE UNDER OR
PURSUANT TO THIS AGREEMENT.
9.2 IN NO EVENT WILL EITHER PARTY'S LIABILITY OF ANY KIND INCLUDE
ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR
DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL
LOSS OR DAMAGE
BETA TEST AGREEMENT
PAGE 6
10. Term and Termination.
10.1 This Agreement shall take effect as of the date first written
above and, unless earlier terminated as provided in Section
10.2 below, shall remain in effect for the initial Beta Test
Period of three (3) years after March 1, 2001. Thereafter,
this Agreement shall be automatically renewed for up to two
additional periods of one (1) year each, unless either party
shall have given notice to the other of its intention not to
renew not later than the date ninety (90) days prior to the
beginning of any renewal term of this Agreement.
10.2 This Agreement may be terminated in accordance with the
following provisions:
(a) Either party may terminate this Agreement by giving
notice in writing to the other party in the event the
other party is in breach of this Agreement and shall
have failed to cure such breach within thirty (30)
days of receipt of written notice thereof from the
first party.
(b) Either party hereto may terminate this Agreement at
any time by giving notice in writing to the other
party, which notice shall be effective upon dispatch,
should the other party file a petition of any type as
to its bankruptcy, be declared bankrupt, become
insolvent, make an assignment for the benefit of
creditors, go into liquidation or receivership, or
otherwise lose legal control of its business, or
should the other party or a substantial part of its
business come under the control of a third party.
(c) CRAY may terminate this Agreement upon sixty (60)
days notice if Dr. Hausheer terminates his
relationship with BioNumerik.
10.3 Upon the termination of this Agreement, the parties shall have
the following rights and obligations:
(a) The licenses granted to BioNumerik in this Agreement
shall terminate immediately, and BioNumerik shall
make the Products available to CRAY for
deinstallation and return and shall assist CRAY with
such deinstallation to the extent reasonably
necessary.
(b) Each party shall promptly return to the other all
copies then in its possession of Confidential
Information provided by the other party.
(c) The provisions of Sections 4, 7, 8, 9 and 11 of this
Agreement shall survive.
BETA TEST AGREEMENT
PAGE 7
11. Confidentiality.
11.1 A party receiving Confidential Information shall restrict the
use of the Confidential Information to those purposes
necessary for the exercise of the receiving party's rights, or
performance of the receiving party's obligations under this
Agreement. During the term of this Agreement and thereafter,
each party shall safeguard against disclosure of the
Confidential Information to third parties using the same
degree of care to prevent disclosure as it uses to protect its
own information of like importance, but at least reasonable
care. A party may make only the minimum number of copies of
any Confidential Information required to carry out the purpose
of this Agreement. All proprietary and copyright notices in
the original must be affixed to copies or partial copies.
11.2 Neither party shall be obligated to maintain any information
in confidence or refrain from use if, (i) the information was
in the receiving party's possession or was known to it prior
to its receipt from the disclosing party, (ii) the information
is independently developed by the receiving party without the
utilization of Confidential Information of the disclosing
party, (iii) the information is or becomes public knowledge
without fault of the receiving party, (iv) the information is
or becomes available on an a nonconfidential basis to the
receiving party from a source other than the disclosing party,
(v) the information becomes available on a non-confidential
basis to a third party from the disclosing party or from
someone acting under its control, or (vi) the information is
publicly disclosed (i.e. not under adequate protective order)
by the receiving party under an order of a court or government
agency, provided that the receiving party provides prior
written notification to the disclosing party of such
obligation and the opportunity to oppose such order.
12. General.
12.1 This Agreement does not make either party the agent or legal
representative of the other for any purpose whatsoever.
Neither party is granted any right or authority to assume or
to create any obligation or responsibility, express or
implied, on behalf of or in the name of the other party. In
fulfilling its obligations pursuant to this Agreement, each
party shall be acting as an independent contractor.
12.2 Neither party shall have the right to assign or otherwise
transfer its rights and obligations under this Agreement
except with the prior written consent of the other party. Any
prohibited assignment shall be null and void. Notwithstanding
the foregoing, subject to the provisions of Section 10.2(b)
either party may assign this Agreement without approval to an
entity that succeeds to all or substantially all of the
party's business or assets (by acquisition, merger or
BETA TEST AGREEMENT
PAGE 8
otherwise), so long as Dr. Frederick Hausheer remains in a
similar capacity with BioNumerik, its successors or assigns.
12.3 Notices permitted or required to be given hereunder shall be
deemed sufficient if given by registered or certified mail,
postage prepaid, return receipt requested, addressed to the
respective addresses of each party as first above written or
at such other addresses as the respective parties may
designate by like notice from time to time. Notices shal1 be
effective upon the earlier to occur of (i) receipt by the
party to which notice is given, or (ii) the third (3rd)
business day following the date such notice was posted.
12.4 This Agreement constitutes the entire agreement between the
parties with respect to the testing, evaluation and loan of
the Products and supersedes all previous agreements by and
between the parties related thereto, as well as all proposals,
oral or written, and all negotiations, conversations or
discussions held between the parties related to this
Agreement.
12.5 This Agreement shall not be deemed or construed to be
modified, amended, rescinded or waived, in whole or in part,
except by written amendment signed by both parties.
12.6 The terms of this Agreement are confidential and no party
shall issue press releases or engage in other types of
publicity of any nature dealing with the commercial and legal
details of this Agreement, or any information regarding the
performance of the products of the other party, without the
other party's prior written approval, which approval shall not
be unreasonably withheld. However, approval of such disclosure
shall be deemed to have been given to the extent such
disclosure is required to comply with governmental rules,
regulations or other governmental or legal requirements. In
such event, the publishing party shall furnish a copy of such
disclosure to the other party. Notwithstanding the foregoing,
BioNumerik shall retain the right to (i) demonstrate the
Products to third parties in accordance with the performance
of its obligations hereunder, and (ii) disclose the existence
of this Agreement in its informational material and the
material terms of this Agreement to its shareholders and
potential shareholders.
12.7 In the event that any of the terms of this Agreement are in
conflict with any rule of law or statutory provision or
otherwise unenforceable under the laws or regulations of any
government or subdivision thereof, such terms shall be deemed
stricken from this Agreement, but such invalidity or
unenforceability shall not invalidate any of the other terms
of this Agreement and this Agreement shall continue in force,
unless the invalidity or unenforceability of any such
provisions of this Agreement does substantial violence to, or
where the invalid or unenforceable provisions comprise an
integral part of, or are otherwise inseparable from, the
remainder of this Agreement.
BETA TEST AGREEMENT
PAGE 9
12.8 This Agreement may be executed in two or more counterparts and
each such counterpart shall be deemed an original of this
Agreement.
12.9 No failure by either party to take any action or assert any
right hereunder shall be deemed to be a waiver of such right
in the event of the continuation or repetition of the
circumstances giving rise to such right.
12.10 This Agreement shall be governed by, and interpreted and
construed in accordance with the laws of the State of
Washington.
BIONUMERIK PHARMACEUTICALS, INC. CRAY INC.
By: /s/ FREDERICK H. HAUSHEER, M.D. By: /s/ JIM ROTTSOLK
Name: Frederick H. Hausheer, M.D. Name: Jim Rottsolk
Title: Chief Executive Officer Title: Chief Executive Officer
Date: June 27, 2001 Date: June 27, 2001
BETA TEST AGREEMENT
PAGE 10
EXHIBIT A
EQUIPMENT AND SOFTWARE
[**]
[**] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
BETA TEST AGREEMENT
PAGE 11
EXHIBIT B
PRODUCTS
Software Product
[**]
Cray Datacenter Systems
[**]
For purposes of this agreement, an hour of CPU time is measured as one CPU hour
of [**] time. CPU time on other systems is measured relative to a Cray [**]
based on the theoretical peak performance (the number of CPUs or Processing
Elements (PE's) employed times the theoretical peak performance of a single CPU
or PE) of the other system.
[**]
BETA TEST AGREEMENT
PAGE 12
[**] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
BETA TEST AGREEMENT
PAGE 13
EXHIBIT C
I. Ongoing Obligations
BioNumerik shall provide specific feedback to Cray Inc. with respect to
[**]
II. Annual Obligations [**]
III. Additional Obligations [**]
BETA TEST AGREEMENT
PAGE 14
[**] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
BETA TEST AGREEMENT
PAGE 15
EXHIBIT D
PRINCIPAL CONTACTS
The BioNumerik Principal Contact shall be [**], and [**] and [**] shall act as
alternate Principal Contacts.
The Cray Inc. Principal Contact shall be:
1. With respect to the technical aspects of the relationship established
in this Agreement, [**] or his subsequent designee.
2. With respect to marketing aspects of the relationship established in
this Agreement, [**] or his subsequent designee.
3. With respect to the general terms of the relationship established in
this Agreement, [**].
Cray Inc. shall reimburse BioNumerik for all reasonable out-of-pocket expenses
of the BioNumerik Principal Contact in satisfying BioNumerik's obligations under
this Agreement, including, but not limited to travel, lodging, meals, and a
negotiated per diem. All services provided by the BioNumerik Point of Contact
under this Agreement will be subject to the obligations of the BioNumerik Point
of Contact to BioNumerik, and Cray Inc. will cooperate with the BioNumerik Point
of Contact to avoid any interference with the operation of BioNumerik.
BETA TEST AGREEMENT
PAGE 16
[**] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTIONS.
BETA TEST AGREEMENT
PAGE 17