[ * ] = 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 10.66
COLLABORATION AND SUPPLY AGREEMENT
dated as of
January 9, 2004
among
CALIPER TECHNOLOGIES CORP.,
ZYMARK CORPORATION
and
AFFYMETRIX, INC.
TABLE OF CONTENTS
Page
----
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions....................................................................... 2
ARTICLE 2
SCOPE OF COLLABORATION
Section 2.01 Project Planning.................................................................. 8
Section 2.02 Steering Committee................................................................ 11
Section 2.03 Ownership of Intellectual Property................................................ 14
Section 2.04 Licenses.......................................................................... 15
ARTICLE 3
PROJECT FEES AND EXPENSES
Section 3.01 Project Fees and Expenses......................................................... 17
ARTICLE 4
ACCEPTANCE
Section 4.01 Delivery of Prototype............................................................. 17
Section 4.02 Prototype Evaluation and Acceptance............................................... 17
ARTICLE 5
SUPPLY ARRANGEMENT
Section 5.01 Effectiveness..................................................................... 19
Section 5.02 Supply Obligation................................................................. 19
Section 5.03 Branding and Packaging............................................................ 20
Section 5.04 Manufacturing and Distribution Rights and Licenses................................ 20
Section 5.05 Enhancements...................................................................... 21
Section 5.06 [ * ] ........................................................................... 21
Section 5.07 Shipping and Delivery; Invoicing and Payment Terms................................ 21
Section 5.08 [ * ] ........................................................................... 22
Section 5.09 Pricing........................................................................... 22
Section 5.10 Interest on Late Payments......................................................... 23
Section 5.11 Purchase Orders................................................................... 23
Section 5.12 Forecasts......................................................................... 24
Section 5.13 Cancellations..................................................................... 24
Section 5.14 Failure to Release[ * ] .......................................................... 25
Section 5.15 Delivery.......................................................................... 25
Section 5.16 Warranty.......................................................................... 25
Section 5.17 Return Material Authorization..................................................... 25
Section 5.18 Installation Training and Technical Support; Service and Repair................... 26
i
Page
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Section 5.19 Discontinuation (Service & Spares)................................................ 28
Section 5.20 [ * ] ............................................................................ 28
Section 5.21 Quality and Reliability Requirements.............................................. 28
Section 5.22 Product / Process Changes & Discontinuance........................................ 29
Section 5.23 Quarterly Status Review........................................................... 30
Section 5.24 Lead Generation; Trademarks; Marketing Materials.................................. 30
ARTICLE 6
CONFIDENTIALITY
Section 6.01 Confidential Information.......................................................... 32
Section 6.02 Restricted Use.................................................................... 32
Section 6.03 Publicity......................................................................... 33
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations of the Parties.................................................... 33
ARTICLE 8
TERM AND TERMINATION
Section 8.01 Term.............................................................................. 35
Section 8.02 Termination....................................................................... 35
Section 8.03 Insolvency........................................................................ 35
Section 8.04 Remedies.......................................................................... 36
Section 8.05 Survival of Work Plans............................................................ 36
Section 8.06 Survival.......................................................................... 36
ARTICLE 9
INDEMNIFICATION
Section 9.01 Indemnification................................................................... 36
Section 9.02 Indemnification Procedures........................................................ 37
ARTICLE 10
MISCELLANEOUS
Section 10.01 LIMITATION OF LIABILITY.......................................................... 37
Section 10.02 Dispute Resolution............................................................... 38
Section 10.03 Non-solicitation................................................................. 39
Section 10.04 Assignment....................................................................... 40
Section 10.05 Independent Contractors.......................................................... 40
Section 10.06 Severability..................................................................... 41
Section 10.07 Entire Agreement................................................................. 41
Section 10.08 No Waiver........................................................................ 41
Section 10.09 Force Majeure.................................................................... 41
Section 10.10 Notices.......................................................................... 42
ii
Page
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Section 10.11 Counterparts..................................................................... 42
List of Exhibits
Exhibit A Work Plan for Project 1
Exhibit B .Work Plan for Project 2
Exhibit C Consumable Products
Exhibit D Installation
Exhibit E Pricing
Exhibit F Product Lead Times
Exhibit G Form of Forecast
Exhibit H Warranty Terms
Exhibit I Installation Training, Technical Support, Service and Repair
Exhibit J Industry Standards
Exhibit K Product/Process Changes and Discontinuances, Epidemic Failure
Exhibit L Marketing Materials
[ * ] = 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.
iii
[ * ] = 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.
COLLABORATION AND SUPPLY AGREEMENT
THIS COLLABORATION AND SUPPLY AGREEMENT (this "AGREEMENT") is made and
entered into as of January 9, 2004 (the "EFFECTIVE DATE") by and among ZYMARK
CORPORATION, a Delaware corporation ("ZYMARK") and CALIPER TECHNOLOGIES CORP., a
Delaware corporation (together with Zymark, "CALIPER") having its principal
offices located at Zymark Center, Hopkinton, MA 01748, and Affymetrix, Inc. a
Delaware corporation ("AFFYMETRIX") having its principal offices located at 3380
Central Expressway, Santa Clara, CA 95051.
WITNESSETH:
WHEREAS, Affymetrix is a leading supplier of microarray technology for
gene expression and genotyping applications and has a large installed base of
instruments and is actively developing new instruments with increased throughput
and functionality for current and new markets, including research and
diagnostics;
WHEREAS, Affymetrix has a goal of providing more complete system
solutions that leverage automation from automation partners to provide customers
with systems that produce higher quality data at a lower cost, that remove
bottlenecks from workflows based on new, higher-throughput Affymetrix platforms,
and that can readily be operated in new environments where operator skills may
not be as advanced;
WHEREAS, Caliper is a leading automation and fluidics company with a
business channel that broadly deploys its innovative and enabling technology
through complementary, value-added collaborations;
WHEREAS, Caliper has particular expertise in integration and automation
of processes on both a macrofluidic and microfluidic scale, and has an array of
products, technologies and capabilities that are suitable for automating
microarray target preparation and related microarray workflow processing
applications;
WHEREAS, the Parties hereto desire to collaborate in certain respects
to develop and market one or more integrated system solutions designed to
support the Affymetrix GeneChip(R) platform and related Affymetrix protocols
(the "COLLABORATION"), so that Caliper will become an Affymetrix approved
supplier of, and approved developer for, new automated target preparation and
related applications;
D-1
NOW, THEREFORE, in consideration of the promises and the respective
representations, warranties, covenants, and agreements set forth herein, the
Parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions.
(a) The following terms shall be used in this Agreement with the
following meanings:
"AFFYMETRIX TECHNOLOGY" means Affymetrix' Sole Inventions and
Background Technology.
"AREA OF RESPONSIBILITY" means each area of the Collaboration in which
one Party has primary responsibility for directing and carrying out research and
development.
"BACKGROUND TECHNOLOGY" means any inventions, discoveries, designs,
developments, methods, modifications, improvements, processes, algorithms,
databases, computer programs, formulae, techniques, trade secrets, graphics or
images, audio or visual works, and other works of authorship, whether or not
patentable or copyrightable, that are (a) necessary to perform the Parties'
obligations in the Collaboration according to a Work Plan; and (b) owned or
Controlled by a Party as of the Effective Date, or generated or acquired by a
Party independently of the work in the Collaboration under this Agreement.
"CALIPER TECHNOLOGY" means Caliper's Sole Inventions and Background
Technology.
"CONFIDENTIAL INFORMATION" means, subject to the exceptions set forth
in the following sentence, any information or data, regardless of whether it is
in tangible form, disclosed by either party (the "disclosing party") that the
disclosing party has either marked as confidential or proprietary, or has
identified in writing as confidential or proprietary within thirty (30) calendar
days of disclosure to the other party (the "receiving party"); provided,
however, that reports and/or information related to or regarding any work
performed under a Work Plan, and/or a disclosing party's business plans,
strategies, technology, research and development, current and prospective
customers, billing records, and products or services shall be deemed
Confidential Information of the disclosing party even if not so marked or
identified, unless such information is subject to any of exceptions set forth in
the following sentence. Information will not be deemed "Confidential
Information" hereunder if such information: (a) is known to the receiving party
prior to receipt from the disclosing party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
(b) becomes known (independently of disclosure by the
disclosing party) to the receiving party directly or indirectly from a source
other than one having an obligation of confidentiality to the disclosing party;
(c) becomes publicly known or otherwise ceases to be secret or confidential,
except through a breach of this Agreement by the receiving party; or (d) is
independently developed by the receiving party.
"CONTROL" or "CONTROLLED" shall mean possession of the ability to grant
a license or sublicense as provided for herein under valid and subsisting
Intellectual Property Rights without violating the terms of any agreement or
other arrangement with any Third Party or applicable law.
"DELIVERABLE" means work product, materials or other works or
deliverables of any type (in tangible and intangible form and including works in
process) to be developed or delivered by a Party during the course of a Project.
"DEVELOPED PRODUCT" means a Prototype that has been accepted by
Affymetrix pursuant to Section 4.02 of this Agreement, and any subsequent
commercially produced product based upon such accepted Prototype.
"END USERS" shall mean an existing or potential end user customer of a
Developed Product or an Affymetrix product configured for use with a Developed
Product.
"INITIAL DEVELOPED PRODUCTS" means (i) a Stacatto-based HTA system for
gene expression developed from Project 1 that has been accepted by Affymetrix as
a "Developed Product" pursuant to Section 4.02 of this Agreement; (ii) a
Sciclone-based automated target preparation system for gene expression that has
been developed from Project 2 that has been accepted by Affymetrix as a
"Developed Product" pursuant to Section 4.02 of this Agreement; and (iii) a
Sciclone-based automated target preparation system for genotyping that has been
developed from Project 3 that has been accepted by Affymetrix as a "Developed
Product" pursuant to Section 4.02 of this Agreement, in each case for clauses
(i) through (iii) above, together with any and all changes, modifications,
alterations, amendments, supplements or revisions that may be made to any such
Developed Product from time to time by the Steering Committee in accordance with
this Agreement.
"INTELLECTUAL PROPERTY RIGHTS" means, collectively, all rights in, to
and under Patents, trade secret rights, copyrights, trademarks, service marks,
trade dress and similar rights of any type under the laws of any governmental
authority, including without limitation, all applications and registrations
relating to the foregoing.
"INVENTION" means any inventions, discoveries, designs, developments,
methods, modifications, improvements, processes, algorithms, databases, computer
programs, formulae, techniques, trade secrets, graphics or images, audio or
visual works, and other works of authorship, whether or not patentable or
copyrightable, which is invented, discovered, generated, conceived or reduced to
practice by a Party, or by the Parties jointly, pursuant to a Work Plan.
"PARTY" means Caliper and Affymetrix respectively and the term
"PARTIES" shall have a corresponding meaning.
"PATENTS" mean all foreign and domestic patents and patent applications
(including, without limitation, all provisional, divisional, substitution,
continuation and continuation in-part applications, and all foreign counterparts
thereof).
"SOFTWARE" means any of the following, in both source and object code
form, constituting a component or other part of a Developed Product: computer
programs, instruction sequences, procedures, data, logic, and/or rules, scripts
and related materials, and any modifications to any of the foregoing, in any
form or media including, without limitation, magnetic tape, disc, semiconductor
device, firmware, or other memory device or system memory.
(i) [ * ]
"WORK PLAN" means a mutually agreed written schedule or supplement to
this Agreement setting forth a description of a Project to be performed under
this Agreement.
(b) Each of the following terms is defined in the Section set
forth opposite such term:
TERM SECTION
- ---- -------
Acceptance Date 4.02(a)
Affymetrix Preamble
Affymetrix Disqualified Assignee 10.04
Affymetrix Indemnitees 9.01(a)
Affymetrix Reevaluation Period 4.02(a)
Affymetrix Trademarks 5.24(b)(i)
[ * ] 5.08(d)
Agreement Preamble
Branding and Packaging Requirements 5.03
Caliper Preamble
TERM SECTION
- ---- -------
Caliper Deficiency Correction Period 4.02(a)
Caliper Disqualified Assignee 10.04
Caliper Indemnitees 9.01(b)
Caliper Trademarks 5.24(b)(iii)
Collaboration Preamble
Collaboration Records 2.02(e)(i)
Consumable Product 5.02(e)
Cure Period 8.02
Effective Date Preamble
[ * ] 5.22(c)
[ * ] 5.20(a)
[ * ] 5.20(a)
[ * ] 5.06
Final Acceptance Date 4.02(b)
Force Majeure Event 10.09
Forecast 5.12
Infringement 2.04(d)(i)
Initial Acceptance Date 4.02(b)
Initial Collaboration Period 2.01(e)
Initial Dispute Resolution Period 2.02(c)
Initial Term 8.01
Installation Services 5.07(b)(iii)
Installation Training and Technical Support Services 5.18(a)
Joint Inventions 2.03(c)
TERM SECTION
- ---- -------
Joint Patent 2.03(c)(iv)
Last Shipment Date 5.19
Level 1 Support 5.18(b)
Licensor Marks 5.24(b)(iii)
Manufacturing Materials 5.20(a)
[ * ] 5.08(a)
[ * ] 5.08(a)
[ * ] 5.08(a)
Production Report 5.02(c)
Project 2.01(b)
Project 1 2.01(b)
Project 2 2.01(b)
Project 3 2.01(b)
[ * ] 2.01(b)
[ * ] 2.01(b)
[ * ] 2.01(b)
Project Acceptance Date 4.02(b)
Project 1 Acceptance Date 4.02(b)
Project 2 Acceptance Date 4.02(b)
Project Fees 3.01
Project Manager 2.02(b)
Project Termination 4.02(a)
Prosecution Party 2.03(c)(iv)
Prototype 4.01
TERM SECTION
- ---- -------
Purchase Orders 5.11(a)(i)
Renewal Notice 8.01
Renewal Term 8.01
Repair Services 5.18(c)
Second Collaboration Commencement Date 2.01(b)
Second Collaboration Period 2.01(f)
Second Target Acceptance Date 5.08(a)
Sole Inventions 2.03(b)
Specifications 4.01
Steering Committee 2.02(a)
Steering Committee Dispute Resolution Period 2.02(c)
Term 8.01
Trademark Licensee 5.24(b)(iii)
Trademark Licensor 5.24(b)(iii)
Warranty Period 5.16(a)
[ * ] 5.08(b)(i)
[ * ] 5.08(b)(ii)
[ * ] 5.08(b)(iii)
Zymark Preamble
ARTICLE 2
SCOPE OF COLLABORATION
Section 2.01 Project Planning.
(a) Areas of Responsibility:
Caliper shall have principal engineering responsibility for target
preparation automation and microfluidics and Affymetrix shall have principal
engineering responsibility for array and assay methods development, software
integration with respect to scanning, and system validation. Subject to the
foregoing, the initial Areas of Responsibility shall be set forth in the Work
Plan for any Project. Further specification of the initial Affymetrix Areas of
Responsibility and Caliper Areas of Responsibility shall be agreed as necessary
during the Term by the Parties. Prior to the commencement of any additional Area
of Responsibility, the Parties shall amend or supplement the Work Plan for a
Project in a mutually agreed to writing that specifies, among other things,
whether such Area of Responsibility is an Affymetrix Area of Responsibility or a
Caliper Area of Responsibility or both, and the related research objectives,
work plans and budgets.
(b) Work Plans:
Subject to the next paragraph, the Parties shall execute a mutually
acceptable written Work Plan with respect to each distinct area of inquiry
(each, a "PROJECT") to be included in the Collaboration. Each such Work Plan
shall be binding, and shall deemed to be incorporated herein in its entirety. As
of the Effective Date, the initial Projects are the following (each of which
shall be documented with its own mutually acceptable Work Plan which shall be
attached to this Agreement when completed):
1. Stacatto-based HTA system for gene expression
("PROJECT 1");
2. Sciclone-based automated target preparation system
for gene expression ("PROJECT 2");
3. Sciclone-based automated target preparation system
for genotyping ("PROJECT 3");
4. [ * ] ;
5. [ * ] ; and
6. [ * ] .
The Work Plans for Project 1 and Project 2 are attached hereto as
Exhibits A and B, respectively. On or before March 31, 2004 (the "SECOND
COLLABORATION COMMENCEMENT DATE"), each Party shall notify the other Party in
writing as to whether it wishes to proceed with the development of Work Plans
for any of Project 3 [ * ] . In the event that both Parties wish to proceed with
Work Plans for any of Project 3 [ * ] , the Parties shall proceed in good faith
to negotiate, prepare and document Work Plans for such Projects on or prior to
April 1, 2004 in the case of both Project 3 [ * ] . Notwithstanding the
foregoing, neither Party shall be obligated to proceed with Project 3 [ * ]
unless both Parties agree in writing to the Work Plans for such Project or
Projects pursuant to the terms of this Agreement.
(c) Conflict.
In the event that the provisions of a Work Plan conflict with the
provisions of this Agreement with respect to a Project under such Work Plan, the
provisions of the Work Plan shall govern solely to the extent of any such
conflict and solely with respect to such Project.
(d) Content of Work Plan.
Each Work Plan shall contain at least the following information and
terms with respect to such Project, where applicable or where different from the
terms set forth in this Agreement:
(i) the identity of the Project Managers for the Project
and/or the manner in which they will be selected;
(ii) a description of the initial Areas of Responsibility
for each Party (which shall include any joint Areas of Responsibility);
(iii) a list of the Deliverables to be developed during the
Project, including the functional requirements, technical
documentation, specifications, protocols, standard operating procedures
and branding requirements for each Developed Product;
(iv) acceptance criteria for each Deliverable due during
the Project, and procedures for the delivery, testing, acceptance and
correction of any non-conformities for such Deliverables;
(v) a schedule or timetable with a description of all
Project milestones and/or Deliverable due dates;
(vi) a description of any performance, status and
operational reports to be generated during the Project;
(vii) quality criteria for assessing the performance of the
Parties during such Project including, but not limited to, performance
criteria for milestones, classifications of the severity of errors or
failures, and response processes for the correction of any such errors
or failures;
(viii) a resources plan setting forth the resources and
staffing required for such Project by each Party, and the extent, if
any, to which one Party will reimburse the other Party for the
personnel and other expenses incurred by such Party in connection with
such Project;
(ix) a plan setting forth [ * ] ; and
(x) any other terms and conditions agreed upon by the
Parties with respect to the Project.
(e) Termination of a Work Plan. Notwithstanding anything in this
Agreement to the contrary, either Party may elect at any time to cease
development work on any of Project 3 [ * ] pursuant to the approved applicable
Work Plan if (i) such Party reasonably determines, based on the written opinion
of independent patent counsel agreed to and retained by both Parties pursuant to
a joint defense agreement, that the product contemplated by such Project 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 product contemplated
by such Project in a manner reasonably acceptable to each Party) such that,
within a commercially reasonable time period thereafter, such independent patent
counsel is of the written opinion (as addressed to the Parties) that the product
contemplated by such Project no longer poses a substantial risk of infringing
third party Intellectual Property Rights. In addition to the foregoing, if at
any time a Party reasonably determines that the development of a product
contemplated by any of Project 3 [ * ] is no longer scientifically or
technically feasible, it shall promptly notify the other Party in writing
setting forth the basis for its determination in reasonable detail. The Steering
Committee shall promptly meet to discuss how to proceed with respect to such
Project taking into consideration the relative contributions and expectations of
the Parties with respect to the Project, but shall be under no obligation to
reach agreement with respect thereto. If the Parties are unable to agree on an
alternative course of action within thirty (30) calendar days (or such other
period as may be mutually agreed to by the Steering Committee) after the
consideration of such Project by the Steering Committee, the relevant Work Plan
shall be deemed to have been terminated.
(f) Duration of Initial Collaboration Period. The Parties agree
that the initial period of Collaboration (the "INITIAL COLLABORATION PERIOD")
shall begin on the Effective Date and end on the earlier of (i) the acceptance
by Affymetrix of Initial Developed Products from each of Project 1 and Project 2
pursuant to Section 4.02 of this Agreement, or (ii) the first anniversary of the
Effective Date. The Initial Collaboration Period may, however, be extended by
mutual written agreement of the Parties.
(g) Duration of the Second Collaboration Period. The Parties agree
that the second period of Collaboration (the "SECOND COLLABORATION PERIOD")
shall begin on the Second Collaboration Commencement Date and end on the earlier
of
(i) the acceptance by Affymetrix of Developed Products from each of Project 3 [
* ] pursuant to Section 4.02 of this Agreement, or (ii) the first anniversary of
the Second Collaboration Commencement Date. The Second Collaboration Period may,
however, be extended by mutual written agreement of the Parties.
Section 2.02 Steering Committee.
(a) Composition and Responsibilities.
There shall be a committee consisting of two (2) persons (each of which
shall be at Affymetrix' Vice President level or above) appointed by Affymetrix
and two (2) persons (each of which shall be at Caliper's Vice President level or
above) appointed by Caliper (the "STEERING COMMITTEE"). Affymetrix' initial
designees shall be [ * ] , and Caliper's initial designees shall be [ * ] . The
Steering Committee shall establish procedures to govern the conduct of its
meetings including the election of co-chairmen (one from each Party), the
frequency of regular meetings, the calling of special meetings, advance notice
of meeting agendas and the keeping of minutes of its meetings. Action by the
Steering Committee shall require the affirmative vote or agreement of a majority
of the total number of members of the committee. The Steering Committee shall
meet at least once in any consecutive six-month period in person or via
teleconference. Either Party may call a meeting of the Steering Committee with
thirty (30) calendar days prior written notice to the other Party. Either Party
may, in its sole discretion by providing prior written notice to the other
Party, (x) replace its Steering Committee members, or (y) designate a substitute
for a committee member to participate in the event one of the Party's regular
committee members is unable to be present at a meeting. The Steering Committee
may, as it sees fit, create other committees (e.g., a research and development
committee, an intellectual property committee and a commercialization committee)
to which it may delegate responsibilities. Any such other committee shall have
an equal number of representatives from each Party (who need not be members of
the Steering Committee). The Steering Committee shall be responsible for the
strategic direction, coordination and oversight of all research and development
programs with respect to a Project within the Collaboration including without
limitation the following:
(i) identification of the research goals and parameters
with respect to each Area of Responsibility;
(ii) specification of the research activities to be
undertaken by each Party with respect to each Area of Responsibility;
(iii) prioritization of research activities and allocation
of resources among each Area of Responsibility (subject to the
applicable Work Plan);
(iv) monitoring the results of each Area of
Responsibility;
(v) recommending to the Parties any material capital
expenditures required in connection with any Area of Responsibility;
(vi) recommending to the Parties budgeting and financial
controls with respect to each Area of Responsibility;
(vii) assessing the progress of each Work Plan in light of
the goals set forth therein, including marketing and other
commercialization efforts, and discussing and approving proposed
amendments to each outstanding Work Plan as necessary;
(viii) identifying future marketing and product
opportunities that might be addressed through collaboration between the
Parties; and
(ix) such other responsibilities as may be assigned to it
by the Parties.
(b) Project Managers.
The Steering Committee shall appoint one (1) person selected by
Affymetrix and one (1) person selected by Caliper to serve as Project managers
for each Project ("PROJECT MANAGER"). The Project Managers shall be reasonably
qualified to perform their responsibilities under the direction of the Steering
Committee and shall be reasonably acceptable to the other Party. The Project
Managers shall be responsible for the direction, coordination and execution of
the Project including but not limited to the following responsibilities (i)
administering and coordinating the technical aspects of each Project; (ii)
arranging meetings, visits and consultations relating to the technical aspects
of each Project; (iii) coordinating the submission of and testing of all
Deliverables, if any; (iv) coordinating the exchange of Confidential
Information; and (v) preparing reports to the Steering Committee regarding the
status of the Project.
(c) Disputes.
Disputes that arise in any committee established by the Steering
Committee pursuant to Section 2.02(a) or that arise between Project Managers
with respect to a particular Project, and that such committee or Project
Managers, as the case may be, are unable to resolve themselves within twenty-one
(21) calendar days of formal written notice to the other Party that a dispute
exists (the "INITIAL DISPUTE RESOLUTION PERIOD") will be referred to the
Steering Committee. The Steering Committee shall attempt to resolve any disputes
between the Parties in good faith within twenty-one (21) calendar days after the
expiration of the Initial Dispute Resolution Period (the "STEERING COMMITTEE
DISPUTE RESOLUTION PERIOD"), or if such dispute arises in the Steering
Committee, within twenty-one (21) calendar days after formal written notice by
any of the Parties that a dispute exists. If the Steering Committee is unable to
resolve a dispute regarding any issue presented to it (or arising within the
Steering Committee) during the Steering Committee Dispute Resolution Period,
such dispute will be referred to
designated officers of the Parties for good faith resolution, for a period of
thirty (30) calendar days following expiration of the Steering Committee Dispute
Resolution Period, pursuant to Section 10.02(a)(i) below. If such dispute is not
resolved by the end of such thirty (30) calendar day period, then either Party
shall be free to pursue any legal or equitable remedy available to it, in
accordance with Section 10.02(b) below.
(d) Mutual Support.
The Parties will provide reasonably sufficient resources to support the
development effort for each Project including without limitation: (i) close
coordination with Project Managers, developers, testers and customers on a
worldwide basis; (ii) conference calls; (iii) travel for workshops, training,
laboratory setup, integration testing, and field trials; (iv) deployment of
modern state-of-the-art development processes, tools and methodologies; and (v)
compliance with all applicable labor law requirements. Unless otherwise agreed
to by the Parties in writing, each Party will bear its own costs in respect of
the activities specified in this Section 2.01(d) and shall be responsible for
managing its own resources; provided, however, that Caliper may condition its
agreement to participate in any marketing or sales activities at the request of
Affymetrix on Affymetrix' agreement to reimburse Caliper for any out-of-pocket
costs incurred by Caliper in connection with such activities.
(e) Records; Exchange of Information.
(i) Records. During the Term of this Agreement, each
Party will maintain complete and accurate scientific records of all
work done and results achieved by that Party in the performance of
their obligations pursuant to this Agreement ("COLLABORATION RECORDS").
During the Term of this Agreement, each Party will grant the other
Party reasonable access to that Party's Collaboration Records during
ordinary business hours, the disclosure of which, without limiting the
generality of Article 6 of this Agreement, shall be subject to the
confidentiality restrictions provided therein.
(ii) Reports. Periodically during the Term of this
Agreement at the Steering Committee's request (but in any event at
least quarterly with respect to each of Project 1 and Project 2), the
Parties will provide the Steering Committee with written reports
summarizing the progress of the work performed pursuant to this
Agreement and any particular Project performed hereunder. Within thirty
(30) calendar days after the termination or expiration of any Work Plan
for a particular Project, each Party's Project Manager will provide a
final written report to the Steering Committee summarizing such Party's
activities and results during such Project.
Section 2.03 Ownership of Intellectual Property.
(a) Notification. Each Party shall promptly notify the other of
any Inventions invented, discovered, generated, conceived or reduced to practice
by such Party.
(b) Sole Inventions. Unless otherwise provided in a Work Plan with
respect to a particular Project, any Inventions invented, discovered, generated,
conceived or reduced to practice solely by one or more employees or agents of a
Party (the "SOLE INVENTIONS") shall be the sole property of such Party, subject
to the licenses granted in Section 2.04 below.
(c) Joint Inventions.
(i) Unless otherwise provided in a Work Plan with respect
to a particular Project, the Parties shall jointly own, without
obligation of accounting to each other, all Inventions that are
invented, discovered, generated, conceived or reduced to practice by
one or more employees or agents of a Party jointly with one or more
employees or agents of the other Party (the "JOINT INVENTIONS").
(ii) In furtherance of the foregoing, (A) Affymetrix
hereby assigns and shall assign to Caliper an undivided joint ownership
interest in and to the Joint Inventions, such interest to be without
any obligation to account to Affymetrix with respect thereto and
without any right to claim against Affymetrix for such accounting, and
(B) Caliper hereby assigns and shall assign to Affymetrix an undivided
joint ownership interest in and to the Joint Inventions, such interest
to be without any obligation to account to Caliper with respect thereto
and without any right to claim against Caliper for such accounting. For
the avoidance of doubt, each of Affymetrix and Caliper shall have
reserved for itself an undivided joint ownership interest in and to the
Joint Inventions.
(iii) Each Party shall execute and do all things reasonably
necessary to vest such joint rights, title and interest in, to and
under the Joint Inventions equally in both Parties. The Parties shall
reasonably cooperate with one another in connection with the
prosecution and defense of Patents with respect to Joint Inventions,
and except as provided below, 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 Invention, the declining Party
shall immediately, and hereby does and will assign all of its right,
title and interest in and to such Joint Invention to the other Party,
and shall provide such non-financial support as the other Party may
reasonably request in the prosecution of such Patent.
(iv) Prior to filing with any patent authority any
application for any Patent the subject matter of which is any Joint
Invention (each, a "JOINT PATENT"), the Parties shall mutually agree on
(A) which of the two parties will be primarily responsible for the
filing, prosecution, defense and maintenance, before any such patent
authorities, of such Joint Patent (such Party, the "PROSECUTION PARTY")
and (B) the law firm which shall be used for the filing, prosecution,
defense and maintenance of such Joint Patent, provided that unless the
Parties otherwise agree in writing, Caliper shall be the Prosecution
Party for any Joint Patent relating to liquid handling or microfluidics
and Affymetrix shall be the Prosecution Party for any Joint Patent
relating to arrays, reagents for target preparation, genotyping,
resequencing, gene expression, transcript and exon analysis or other
genomic system protocols, and scanning. The Party which is not the
Prosecution Party shall have the right to review and comment on the
filing, prosecution and defense by the Prosecution Party of the Joint
Patents. If the Prosecution Party determines in its sole discretion to
not file, prosecute, defend or maintain any Patent within the Joint
Patents in any country, then the Prosecution Party shall provide the
other Party with thirty (30) calendar days prior written notice of such
determination and shall provide the other Party with the right and
opportunity to file, prosecute, defend and maintain such Patent.
Subject to Section 2.03(c)(iii) above, all costs and expenses
associated with the filing, prosecution, defense and maintenance,
before any such patent authorities, of the Joint Patents shall be
shared equally by the Parties.
Section 2.04 Licenses.
(a) Limited Cross License to Perform the Collaboration. During the
Term of this Agreement and subject to the terms and conditions of this
Agreement, Affymetrix hereby grants to Caliper, under all of Affymetrix'
Intellectual Property Rights, a limited, nonexclusive, non-sublicensable,
non-transferable, fully paid, royalty free license to use the Affymetrix
Technology solely as necessary for Caliper to perform its obligations hereunder,
and Caliper hereby grants to Affymetrix, under all of Caliper's Intellectual
Property Rights, a limited, nonexclusive, non-sublicensable, non-transferable,
fully paid, royalty free license to use the Caliper Technology solely as
necessary for Affymetrix to perform its obligations hereunder.
(b) Cross License of Sole Inventions.
(i) Subject to any restrictions set forth in a Work Plan,
Caliper hereby grants to Affymetrix a perpetual, irrevocable, fully
paid-up, royalty-free, worldwide, non-exclusive, transferable and
sublicensable (directly or indirectly through multiple tiers) license
under all of Caliper's Intellectual Property Rights to make, have made,
use, sell, have sold, offer to sell, have offered for sale, import and
have imported Caliper's Sole Inventions, for the life of any such
Intellectual Property Rights.
(ii) Subject to any restrictions set forth in a Work Plan,
Affymetrix hereby grants to Caliper a perpetual, irrevocable, fully
paid-up, royalty-free, worldwide, non-exclusive, transferable and
sublicensable (directly or indirectly through multiple tiers) license
under all of Affymetrix' Intellectual Property Rights to make, have
made, use, sell, have sold, offer to sell, have offered for sale,
import and have imported Affymetrix' Sole Inventions, for the life of
any such Intellectual Property Rights.
(c) No Implied License to Background Technology. For the avoidance
of doubt, except as expressly set forth in this Agreement, each Party retains
sole ownership and control of its Background Technology and no license is
conveyed, by implication, estoppel or otherwise, under the Background Technology
of either Party.
(d) Patent Enforcement.
(i) Notification. If either Party learns of material
infringement, unauthorized use, misappropriation or ownership claim
(any of the foregoing, an "INFRINGEMENT") by a third party with respect
to any of the other Party's Inventions, such Party shall promptly
notify the other Party and shall provide such other Party with
available evidence of such Infringement.
(ii) Right to Bring Suit. Caliper shall have the exclusive
right, but not the obligation, to institute Patent or other
Intellectual Property Rights Infringement actions against third parties
based on any Caliper Technology. Affymetrix shall have the exclusive
right, but not the obligation, to institute Patent or other
Intellectual Property Rights infringement actions against third parties
based on any Affymetrix Technology.
(iii) Expenses. The costs and expenses of any such action
(including fees of attorneys and other professionals) shall be borne by
the Party instituting the action, or, if the Parties elect to cooperate
in instituting and maintaining such action, such costs and expenses
shall be borne by the Parties in such proportions as they may agree in
writing.
(iv) Standing and Cooperation. Each Party shall execute
all reasonably necessary and proper documents, take such actions as
shall be appropriate (at the other Party's reasonable expense) to allow
the other Party to institute and prosecute such infringement actions
and shall otherwise reasonably cooperate in the institution and
prosecution of such actions (including, without limitation, consenting
to being named as a nominal party thereto).
(v) Proceeds. Any award paid by third parties as a result
of such an infringement action (whether by way of settlement or
otherwise) shall be applied first to reimburse both Parties for all
costs and expenses incurred by the Parties with respect to such action
on a pro rata basis and, if after such reimbursement any funds shall
remain from such award, they shall be allocated as follows: (i) if
Caliper has instituted and maintained such action alone, Caliper shall
be entitled to retain such remaining funds; (ii) if Affymetrix has
instituted and maintained such action alone, Affymetrix shall be
entitled to retain such remaining funds; or (iii) if the Parties have
cooperated in instituting and maintaining such action, the Parties
shall allocate such remaining funds between themselves in the same
proportion as they have agreed to bear the expenses of instituting and
maintaining such action.
ARTICLE 3
PROJECT FEES AND EXPENSES
Section 3.01 Project Fees and Expenses.
[ * ]
ARTICLE 4
ACCEPTANCE
Section 4.01 Delivery of Prototype.
Upon Caliper's determination that it has completed a Project and that
the resulting Deliverable conforms with the applicable specifications and/or
documentation agreed upon by Affymetrix and set forth in or created under the
applicable Work Plan for such Deliverable ("SPECIFICATIONS"), Caliper shall
promptly deliver to Affymetrix for evaluation one prototype of such Deliverable
(a "PROTOTYPE") and a copy of the complete instructions and operational
documentation for the Prototype. Upon the acceptance of such Prototype by
Affymetrix pursuant to section 4.02, Affymetrix shall, as reasonably as
practicable, return such Prototype to Caliper for modification into an Initial
Developed Product, and, upon shipment to Affymetrix of such Initial Developed
Product, Caliper shall invoice Affymetrix and Affymetrix shall pay Caliper in
accordance with the terms of this Agreement. For purposes of clarification, the
shipment of such Initial Developed Product shall count towards Affymetrix'
Minimum Purchase Requirement.
Section 4.02 Prototype Evaluation and Acceptance.
(a) Affymetrix shall have a period of thirty (30) calendar days
(or such other period as may be mutually agreed to by the Steering Committee)
from
receipt of the Prototype in which to evaluate the Prototype in order to
determine whether or not it conforms to the Specifications and is commercially
satisfactory. In the event Affymetrix reasonably determines in the course of
such evaluation that the Prototype does not conform to the Specifications, or is
not commercially satisfactory, Affymetrix shall so notify Caliper in writing
specifying in reasonable detail the nature of the deficiencies discovered by
Affymetrix in the course of its evaluation. Caliper shall have a period of
thirty (30) calendar days (or such other period as may be mutually agreed to by
the Steering Committee) thereafter in which to use its best efforts to correct
any such deficiencies specified by Affymetrix and submit an appropriately
revised version of the Prototype to Affymetrix for further evaluation (a
"CALIPER DEFICIENCY CORRECTION PERIOD"). Affymetrix shall then have successive
thirty (30) calendar day (or such other period as may be mutually agreed to by
the Steering Committee) reevaluation periods (each, an "AFFYMETRIX REEVALUATION
PERIOD"), each such Affymetrix Reevaluation Period being followed by a Caliper
Deficiency Correction Period of thirty (30) calendar days (or such other period
as may be mutually agreed to by the Steering Committee), until the earlier of
such time as either (i) Affymetrix notifies Caliper in writing that Affymetrix'
evaluation of the latest version of the Prototype submitted by Caliper has not
revealed any nonconformities with the Specifications and that Affymetrix has
determined that the Prototype is commercially satisfactory ("ACCEPTANCE DATE"),
(ii) after Affymetrix has notified Caliper in writing that Caliper's third
attempt to correct the deficiencies specified by Affymetrix is not accepted,
Affymetrix also notifies Caliper in writing that it elects to terminate the
efforts to develop the applicable Developed Product, or (iii) after Caliper has
notified Affymetrix in writing of Caliper's conclusion that a fourth attempt by
Caliper is not reasonably likely to correct the deficiencies specified by
Affymetrix and is not reasonably likely to be accepted by Affymetrix, Caliper
also notifies Affymetrix in writing that it elects to terminate the efforts to
develop the applicable Developed Product (either of the events described in the
foregoing clause (ii) or clause (iii) being referred to herein as "PROJECT
TERMINATION").
(b) On the Acceptance Date of the Initial Developed Product from
Project 1, the provisions of Article 5 shall become effective with respect to
the Initial Developed Product from Project 1 (the "PROJECT 1 ACCEPTANCE DATE"),
on the Acceptance Date of the Initial Developed Product from Project 2, the
provisions of Article 5 shall become effective with respect to the Initial
Developed Product from Project 2 (the "PROJECT 2 ACCEPTANCE DATE"), and on the
Acceptance Date of the Initial Developed Product from Project 3, the provisions
of Article 5 shall become effective with respect to the Initial Developed
Product from Project 3. The earlier to occur of the Project 1 Acceptance Date
and the Project 2 Acceptance Date shall be referred to herein as the "INITIAL
ACCEPTANCE DATE" and the later to occur of the Project 1 Acceptance Date and the
Project 2 Acceptance Date shall be referred to herein as the "FINAL ACCEPTANCE
DATE". For purposes of this Agreement, "PROJECT ACCEPTANCE DATE" shall mean,
when used in reference to a particular Project, the Acceptance Date of the
Initial Developed Product from such Project.
ARTICLE 5
SUPPLY ARRANGEMENT
Section 5.01 Effectiveness.
The provisions of this Article 5 shall become effective with respect to
Initial Developed Products from Project 1 on the Project 1 Acceptance Date and
with respect to Initial Developed Products from Project 2 on the Project 2
Acceptance Date and shall remain effective until the expiration of the Term in
accordance with Section 8.01.
Section 5.02 Supply Obligation.
(a) From time to time Affymetrix may request Caliper to sell the
Initial Developed Products to Affymetrix, and Caliper agrees to sell such
Initial Developed Products to Affymetrix. The sale of Initial Developed Products
by Caliper and the purchase of Initial Developed Products by Affymetrix shall be
in accordance with the terms of this Agreement and Exhibits thereto and the
Purchase Orders. To the extent that the Parties [ * ] , the Parties shall
discuss implementing supply arrangements similar in nature and scope to those
set forth in this Article 5 with respect to the Developed Products resulting
from any such Project(s).
(b) Caliper shall [ * ] . Caliper shall [ * ] . Caliper shall not
be in breach of its obligations hereunder if it is unable [ * ] .
(c) During the term of this Agreement, Caliper shall provide
Affymetrix with a periodic production and shipping report for a specified period
(with the frequency of such report and the covered period to be mutually agreed
to by the Parties), which contains the destination, Purchase Order date,
quantity, product date code, and product delivery date and such other
information as the parties agree should be included in such report (the
"PRODUCTION REPORT"). Each Production Report shall be sent to Affymetrix within
three (3) business days of request, to the members of the Steering Committee
designated by Affymetrix. Upon request by Affymetrix on an exception basis, not
more than one time quarterly, Caliper shall provide to Affymetrix the results of
a physical inventory of all finished Initial Developed Products, within
twenty-four (24) hours or upon a mutually agreed upon time.
(d) Caliper will purchase all materials used in the production of
Initial Developed Products, or shall cause its vendors to maintain such
inventories sufficient to meet Caliper's supply obligations hereunder. To the
extent provided in the Work Plan, [ * ] .
(e) Caliper shall [ * ] . For purposes of this Section 5.02(e),
"CONSUMABLE PRODUCTS" shall mean those products set forth on Exhibit C, as such
Exhibit may be amended in writing by the Steering Committee from time to time.
Section 5.03 Branding and Packaging.
The Initial Developed Products, including Software, and all product
literature and marketing materials will comply with Affymetrix' and Caliper's
branding and packaging requirements (the "BRANDING AND PACKAGING REQUIREMENTS"),
in accordance with the Specifications for such Initial Developed Products as
specified in the relevant Work Plan, to include, as mutually agreed and without
limitation: (a) Affymetrix' and Caliper's names, trademarks, and logotype, in
substantially equal prominence; (b) Affymetrix' color scheme or visual
differentiator consistent with the look and feel of Affymetrix' products; (c)
Affymetrix' part number as per Specifications; (d) Affymetrix' bar-codes; (e)
Initial Developed Product packages with Affymetrix' box bar coding, applicable
to each shipment; (f) outer packaging for each Initial Developed Product; and
(g) Initial Developed Product literature.
Section 5.04 Manufacturing and Distribution Rights and Licenses.
(a) Affymetrix hereby grants to Caliper, under all of Affymetrix'
Intellectual Property Rights, a fully paid-up, royalty-free, worldwide,
non-exclusive, non-transferable license, with no right to grant sublicenses, to
use the Affymetrix Technology solely for the purpose of making and having made
Initial Developed Products for distribution to Affymetrix' End Users in
accordance with the terms hereof.
(b) Caliper hereby grants to Affymetrix, under all of Caliper's
Intellectual Property Rights, a fully paid-up, royalty-free, worldwide,
exclusive, non-transferable and sublicensable (directly or indirectly through
multiple tiers) right and license
(i) To use, sell, have sold, offer to sell, have offered
for sale, rent, lease, import and have imported Developed Products
(except for any Software included therewith) purchased under this
Agreement, directly or indirectly; and
(ii) except as otherwise set forth in a Work Plan, to use,
distribute and sublicense to End Users, solely for the purpose of
operating the applicable Initial Developed Product, any Software
included with any Initial Developed Product purchased under this
Agreement. Any such sublicensing of such Software by Affymetrix shall
be pursuant to terms and conditions of an end user license agreement
consistent with terms and conditions which normally govern the
licensing of Affymetrix' software used for the operation of Affymetrix'
products, provided that such terms and conditions provide protection
for Caliper's interests in the Initial Developed Products and
protection against liability to an extent that is reasonably
satisfactory to Caliper.
Section 5.05 Enhancements.
Affymetrix and Caliper may from time to time, by mutual agreement,
modify the Specifications of the Initial Developed Products and the Work Plans
relating to the Initial developed Products, to incorporate enhancements or new
features introduced by either Party in its products which are similar to Initial
Developed Products. Each Party shall offer to the other, and make available for
incorporation in this Agreement, any Initial Developed Product enhancement or
new feature that such Party makes generally available. Such notification shall
be made by the developing Party to the other Party at scheduled product
marketing reviews. If the Parties agree, the actual incorporation in this
Agreement of any such Initial Developed Product enhancement or new feature will
take place only after it complies with acceptance requirements agreed to by the
Parties. At the time any Initial Developed Product enhancement or new feature is
incorporated in this Agreement, the Parties shall agree in writing on the prices
and the availability date and the acceptance program applicable to such Initial
Developed Product enhancement or new feature.
Section 5.06 [ * ]
[ * ]
Section 5.07 Shipping and Delivery; Invoicing and Payment Terms.
(a) Shipping.
(i) Initial Developed Product(s) shall be shipped by
Caliper, FOB Caliper's facility, in suitable packing containers, to the
Affymetrix ship-to destination, unless otherwise instructed.
(ii) At Affymetrix' request and expense, Caliper will
arrange for shipment of Initial Developed Product(s) by preferred
carrier(s) specified from time to time in writing by Affymetrix, to
designated ship-to destinations specified by Affymetrix.
(iii) Upon Affymetrix' written request, Caliper will
provide shipping confirmation to Affymetrix within twenty-four (24)
hours of a particular shipment, listing all pertinent information to
enable Affymetrix to invoice Affymetrix' customers for such shipments
or to prepare for reception of such Initial Developed Products,
including without limitation for each shipment, quantity shipped,
description and serial numbers of the Initial Developed Product(s),
date of shipment, and customer and ship-to destination.
(b) Delivery and Installation.
(i) No change in the scheduled delivery date or
performance will be permitted without Affymetrix' prior written
consent. No
acceptance of goods or services after the scheduled delivery date will
be deemed a waiver of future compliance with the terms hereof.
(ii) Delivery will occur, and risk of loss or damage to
Initial Developed Product(s) will pass from Caliper to Affymetrix, upon
delivery to the designated carrier for shipment to the End User.
Delivery of any developed Product by Caliper to an End User or to
Affymetrix shall constitute a certification by Caliper that the
Developed Product has been tested and complies with the Specifications
and other terms and conditions of the applicable Purchase Order.
(iii) Caliper agrees to install the Initial Delivered
Products at the End User sites ("INSTALLATION SERVICES"). The initial
schedule of Installation Services and associated costs for such
services are set forth in Exhibit D attached hereto. [ * ] shall be
mutually agreed to in writing by the Parties or set forth in the
applicable Work Plan. [ * ]
(c) Invoicing and Payment Terms.
(i) Caliper shall issue an invoice (by means of same day
electronic transmission) to Affymetrix upon shipment of any Initial
Developed Product pursuant to Section 5.07(a). Such invoice shall be
due and payable by Affymetrix, in United States Dollars, [ * ] ;
provided, however, that (X) if an End User notifies Caliper in writing
that [ * ] . Any such notice shall specify in reasonable detail [ * ] .
(ii) Caliper shall issue an invoice (by means of same day
electronic transmission) to Affymetrix for any units of Initial
Developed Products that are ordered by Affymetrix pursuant to Section
5.08(g) and/or that are placed in storage by Caliper for Affymetrix
pursuant to Section 5.14, and any such invoices shall be due and
payable by Affymetrix [ * ] after the date of such invoice.
Section 5.08 [ * ]
[ * ]
Section 5.09 Pricing.
(a) Affymetrix will pay the price set forth in Exhibit E for the
Initial Developed Products. Exhibit E may be modified from time to time during
the Term by mutual written agreement of the Parties [ * ] . Notwithstanding the
foregoing, in the event that [ * ] . Affymetrix will not be obligated to pay
Caliper for any costs or expenses other than as specifically set forth in this
Agreement, Exhibit E or any Purchase Order.
(b) Caliper shall in the course of business use commercially
reasonable efforts to suggest design changes that reduce costs of the Initial
Developed
Products. Any cost savings resulting from the implementation of such design
changes, if accepted by Affymetrix in writing, will be taken into account by the
Parties in modifying the price schedule in Exhibit E under Section 5.09(a).
(c) Affymetrix may in the course of business make recommendations
for design changes that reduce costs of the Initial Developed Products. Any cost
savings resulting from the implementation of such design changes, if accepted by
Caliper in writing, will be taken into account by the Parties in modifying the
price schedule in Exhibit E under Section 5.09(a).
(d) Taxes and Duties. The prices determined under Section 5.09(a)
shall be exclusive of all foreign, federal, state or local sales, use, excise,
duty, or similar taxes, which, if applicable, shall be paid by Affymetrix.
Section 5.10 Interest on Late Payments.
Any payments not made when due hereunder shall be subject to interest
at a rate equal to [ * ] per annum in excess of the prime rate as quoted from
time to time in the Wall Street Journal, or an appropriate successor prime rate
if said prime rate is no longer published, but not greater than the highest rate
permitted by applicable law.
Section 5.11 Purchase Orders.
(a) Purchase and Release Orders.
(i) From time to time, Affymetrix will issue written
blanket purchase orders for Initial Developed Products, Installation
Services and Repair Services ("PURCHASE ORDERS"). Cancellations and
rescheduling under such Purchase Orders will be in accordance with the
applicable provisions of this Section 5.11. All Purchase Orders issued
shall contain the following information:
(A) Affymetrix' part/service number, description
and revision level of Initial Developed Product(s) ordered,
and unit price.
(B) Caliper's part/service number.
(C) Quantity of units ordered and requested
delivery schedule or type of service ordered and requested
service date. Purchase Orders may specify overall delivery
quantities by week or month. Actual shipping dates and
destinations within the delivery month may be pursuant to
individual release orders provided by Affymetrix.
(b) If not provided on the Purchase Order(s), prior to the
requested shipment dates, Affymetrix will provide Caliper with one or more
individual
release orders under such Purchase Order(s) with specific quantities to be
shipped and specified ship-to locations.
(c) All currently outstanding Purchase Orders, when taken together
in the aggregate, shall be for a quantity of Initial Developed Products that is
not less than the aggregate quantities set forth in months 1, 2 and 3 of the
Forecasts provided under Section 5.12. Shipping dates shall be requested
reasonably in advance in accordance with the lead times set forth in Exhibit F.
Subject to the terms of this Agreement, Caliper shall deliver the quantity of
Initial Developed Products requested by Affymetrix by the Purchase Orders on the
delivery dates specified therein.
(d) Advance copies of Purchase Orders and releases can be
submitted by facsimile (fax) or email, followed by signed original documents
within five (5) business days. The delivery schedule and quantities set forth in
such Purchase Orders shall be deemed accepted by Caliper unless Caliper objects
within five (5) business days of receipt of the signed order; provided, however,
that Caliper shall be deemed to have accepted all Purchase Orders submitted by
Affymetrix that represent quantities of Initial Developed Products set forth in
months one (1) through three (3) of the Forecast.
Section 5.12 Forecasts.
Within thirty (30) calendar days before the first day of each calendar
quarter, Affymetrix shall provide to Caliper a rolling twelve (12) month
forecast, of which months one (1) through three (3) shall specify on a monthly
basis Affymetrix' Initial Developed Product requirements and of which the
remaining nine (9) months shall specify on a quarterly basis Affymetrix' Initial
Developed Product requirements (each, a "FORECAST"). Each Forecast shall be in
the format attached to this Agreement as Exhibit G. [ * ] Notwithstanding
anything in this Agreement to the contrary, without Caliper's prior written
consent, no Forecast shall [ * ] .
Section 5.13 Cancellations.
In the event Caliper fails to meet a delivery date for one or more
Initial Developed Products specified in an accepted Purchase Order by a period
of more than [ * ] , through no fault of Affymetrix and not due to a Force
Majeure Event as described in Section 10.09, and as a result Affymetrix'
customer cancels its order for such Initial Developed Products, without
prejudice to any other remedies available to Affymetrix, Affymetrix shall have
the right to cancel, without any charge or liability, the Initial Developed
Products ordered for such customer under the cancelled order(s). [ * ] .
Section 5.14 Failure to Release[ * ] .
If at the end of any month Affymetrix has not released all Initial
Developed Products included in [ * ]
Section 5.15 Delivery.
(a) Delivery Schedules. Without prejudice to Affymetrix' remedies
under [ * ] of this Agreement, Caliper shall exercise [ * ] to deliver Initial
Developed Products to the End Users in accordance with the requested delivery
dates as specified on the Affymetrix Purchase Orders or release orders and
accepted by Caliper; provided, however, that Caliper shall deliver the Initial
Delivered Products to End Users no later than [ * ] after receiving a Purchase
Order from Affymetrix with respect to such Initial Delivered Products. For
purposes of this Agreement, on-time delivery shall be defined as up to [ * ] .
(b) Notice of Delays. Upon learning of any potential delays,
Caliper shall immediately notify Affymetrix in writing as to cause and extent of
such delay and Caliper's plan to remedy or reduce such delay.
Section 5.16 Warranty.
The Initial Developed Products sold hereunder will be subject to a
warranty provided by Caliper to the End User that such Initial Developed
Products will be free from defects in material and workmanship for a period of [
* ] ("WARRANTY PERIOD"), provided that the defective Initial Developed Product
is returned to Caliper in accordance with the Return Material Authorization
process set forth in Section 5.17 below, no longer than thirty (30) calendar
days following the last calendar day of the Warranty Period. The warranty
provided by Caliper to the End User for the Initial Developed Products shall
otherwise be on the terms and conditions set forth in Exhibit H attached to this
Agreement. To the extent that any of the terms and conditions set forth in
Exhibit H are inconsistent in any manner with any of the terms and conditions
set forth elsewhere in this Agreement, the terms and conditions set forth
elsewhere in this Agreement shall govern.
Section 5.17 Return Material Authorization.
On a case by case basis, Caliper will provide an RMA number for
Affymetrix' use in returning any allegedly defective Initial Developed Products
under warranty hereunder. Affymetrix will provide a reasonable detailed defect
or failure description associated with each returned Initial Developed Product.
Affymetrix shall forward or have forwarded from the End User each defective
Initial Developed Product to Caliper, and Caliper will return such product
within [ * ] from the date Caliper receives the defective Initial Developed
Product under warranty. Caliper shall be responsible for the cost of freight,
insurance and related charges on all such shipments of defective Initial
Developed Products to Caliper, unless Caliper reasonably determines in good
faith that the Initial
Developed Product is not in fact defective. Caliper shall be responsible for the
cost of freight, insurance and related charges on all such shipments of repaired
or replacement Initial Developed Products under warranty back to Affymetrix'
ship-to destination within [ * ] , together with a reasonably detailed
root-cause analysis and explanation of Caliper's solution to remedy the relevant
defect.
Section 5.18 Installation Training and Technical Support; Service and
Repair.
(a) Installation Training and Technical Support. Caliper agrees to
provide installation training and technical support to the End Users on a
subcontract basis ("INSTALLATION TRAINING AND TECHNICAL SUPPORT SERVICES"). The
schedule of Installation Training and Technical Support Services and initial
associated costs and procedures for such services are set forth in Exhibit I
(which Exhibit shall be agreed to by the parties in writing and attached hereto
not more than five (5) business days immediately following the Effective Date),
but shall include (i) provision of installation and technical training on such
products for End Users at initial time of sale and (ii) on-going telephone,
email, and direct support for such products. The cost of providing Installation
Training and Technical Support Services shall be [ * ] .
(b) Technical Support Standards. Affymetrix shall have the
exclusive right as between the Parties to provide Level 1 Support. For purposes
of this Agreement, "LEVEL 1 SUPPORT" means the initial response (and any
follow-up response as appropriate) to an End User initiated support request and
includes initial information gathering and may include, without limitation, some
or all of the following: answering product installation, configuration or usage
questions; initial problem and failure information gathering; problem isolation,
identification, and/or providing standard fixes and workarounds to known
problems; and escalating unresolved problems to the next level of technical
support. Affymetrix shall coordinate with Caliper to the extent necessary to
permit Caliper to fulfill its technical support and repair obligations under
this Agreement. Caliper shall use [ * ] to provide the highest level of
technical support for the Initial Developed Products and shall make
appropriately qualified personnel available for providing such services on
behalf of Caliper. Caliper shall maintain the technical support standards as set
forth in Exhibit I during the Term of the Agreement which shall include (i) a
level of commercially reasonable minimum ratios of competent technical support
personnel to the number of installations of Initial Developed Products in the
field; (ii) minimum response times and other commercially reasonable support
metrics; (iii) the hiring, training and retention by Caliper of a "minimum
number" of technical marketing personnel to support Caliper's obligations of
this Agreement in the areas of technical support; and (iv) any other technical
support standards agreed to by the Parties. Notwithstanding the foregoing, [ * ]
..
(c) Repair Services. Caliper agrees to provide repair service for
out-of-warranty Initial Developed Products manufactured by Caliper at the End
User's
location and to provide spares for such Initial Developed Products ("REPAIR
SERVICES"). The list of Repair Services and initial associated costs and
procedures for such services are set forth in Exhibit I attached hereto. Caliper
shall not be responsible for the cost of freight, insurance and related charges
on all such shipments of Initial Developed Products to Caliper for repair and
all shipments of repaired or replaced Initial Developed Products from Caliper.
Initial Developed Products so repaired at Affymetrix' or the End User's expense
will have a [ * ] warranty period on repaired defects, which period will begin
on the date such repaired Initial Developed Products are received by the
relevant End User. [ * ]
(d) Notice of Delays. Upon learning of any potential delays in
performing service or repairs hereunder, Caliper shall immediately notify
Affymetrix in writing as to cause and extent of such delay and Caliper's plan to
remedy or reduce such delay.
(e) Repair Invoice. Once Initial Developed Products have been
repaired or replaced by Caliper, Caliper shall issue to Affymetrix an invoice
for such repaired or replacement Initial Developed Products and the charges
applicable to the providing of Repair Services. Caliper's invoice shall contain
the following:
(i) Affymetrix' Purchase Order number for the Repair
Services;
(ii) a detailed description of the Repair Services
provided by Caliper and the need therefor;
(iii) quantities and model numbers of Initial Developed
Products and repaired and associated repair charges;
(iv) applicable sales or excise taxes and freight and
insurance charges;
(v) total amount payable; and
(vi) address to which payment should be made.
Affymetrix may issue a blanket Purchase Order for Repair Services and
issue releases against it.
(f) Delivery of Repaired Products. The repaired or replacement
Initial Developed Products shall be delivered by Caliper to the destination
specified by Affymetrix, freight prepaid and properly insured. At Affymetrix'
request and expense, Caliper shall prepare proper export documentation as per
Affymetrix' instructions, evidencing Affymetrix' ownership of the repaired or
replacement Initial Developed Products and shall comply with the requirements
set forth in Exhibit I.
(g) Products Beyond Repair. Caliper shall promptly notify
Affymetrix of returned Initial Developed Products which are found by Caliper to
be beyond repair, and provide Affymetrix an explanation of the reason(s) for
such determination. The time period to complete repairs under this Section
5.18(g)
shall not commence until the Initial Developed Product is determined to be
reparable, which determination will be made as soon as commercially reasonable
after Caliper's receipt of the Initial Developed Product.
(h) Repairs by Third Parties. Nothing in this Agreement shall be
construed as giving Caliper an exclusive privilege to repair any Initial
Developed Products covered under this Agreement; provided, however, that the
Parties acknowledge that the repair of any Initial Developed Products during the
Warranty Period by any third party who is not authorized by Caliper to perform
service work may have the effect of voiding Caliper's warranty obligations with
respect to such Initial Developed Product.
Section 5.19 Discontinuation (Service & Spares).
Following expiration of the Term, Caliper shall make available to
Affymetrix replacement parts and Repair Services for the Initial Developed
Product(s) for a period of [ * ] from the date of the last shipment of an
Initial Developed Product under the terms of this Agreement (the "LAST SHIPMENT
DATE"). For the [ * ] . Delivery schedules for such parts and/or Repair Services
during such [ * ] period shall not materially differ from those in existence
during the six (6) months immediately prior to the Last Shipment Date.
Section 5.20 [ * ]
(a) [ * ]
Section 5.21 Quality and Reliability Requirements.
(a) General Quality Assurance.
Caliper hereby agrees to comply with the requirements attendant to the
workmanship and integrity of Initial Developed Products covered by this
Agreement.
(b) Industry Standards.
Caliper shall comply with the industry standards referenced in Exhibit
J as applicable with regard to the Initial Developed Products and Repair
Services being provided to Affymetrix.
Caliper undertakes to ensure that it and any of its material component
manufacturers and suppliers shall maintain ISO 9001:2000 certification in effect
throughout the Term, and Caliper's failure to ensure that any such party
maintains ISO 9001:2000 certification shall constitute a material breach by
Caliper of its obligations hereunder.
In the event that Caliper or any of Caliper's material component
manufacturers and suppliers receive any notice of major non-conformance to ISO
from the ISO registrars, Caliper shall immediately advise Affymetrix and
forthwith provide Affymetrix with (i) the list and details of such
non-conformance and (ii) the detailed plan submitted to the ISO registrars by
such party including timelines and goals to promptly achieve compliance with ISO
9001:2000.
(c) [ * ]
Section 5.22 Product / Process Changes & Discontinuance.
(a) Affymetrix Initiated Changes. It is recognized that from time
to time, Caliper will be asked to implement Feature Request "Bug Fixes" and/or
Engineering Change Orders (ECOs). The implementation of Product/Process Change
notification process will comply with the requirements set forth in Exhibit K
(which Exhibit shall be agreed to by the parties in writing and attached hereto
not more than five (5) business days immediately following the Effective Date).
The following delineates the general requirements.
(i) Affymetrix will notify Caliper in writing of proposed
ECO activity. This notification should include the documentation of the
change to effectively support Caliper's investigation of the impact of
this proposal.
(ii) Upon notice of change, Caliper will make commercially
reasonable efforts to review all costs and production delays impacted
within [ * ] . The Parties will review in good faith all cost impacts
and material availability issues prior to implementation.
(iii) Emergency ECOs will be implemented as soon as
practicable, given the nature of the issue and the severity of the
problem. The Parties will negotiate in good faith and develop an
implementation plan.
(iv) Affymetrix originated ECOs may increase or decrease
unit price; provided, however, under no circumstances will Affymetrix
be responsible for costs directly related to compliance with the
specifications agreed in the relevant Work Plan that applies to such
Initial Developed Product. The revised unit price will be used for the
remainder of the current pricing period, subject to price adjustments
as provided in this Agreement.
(b) Caliper Initiated Changes. Caliper must notify Affymetrix in
writing within [ * ] of any changes (product and/or process) that will/may
affect Initial Developed Product fit, form, function, performance, safety,
reliability, or workmanship of any Initial Developed Product qualified and
accepted as part of this Agreement. Such notification must take place prior to
the change and shipment of any Initial Developed Product, and with as much
notice as reasonably possible. Affymetrix reserves the right to reevaluate and
submit to acceptance testing as specified above in Article 4 any Initial
Developed Product affected by a
change to ensure there has been no degradation in the performance or quality of
the Initial Developed Product.
(c) [ * ]
(d) Use of Remanufactured Parts. Caliper must obtain Affymetrix'
prior written approval to use of any remanufactured components and/or
sub-assemblies in any Initial Developed Product purchased under this Agreement.
Section 5.23 Quarterly Status Review.
A quarterly status review shall be held during the first half of the
first month of each calendar quarter at Affymetrix' or Caliper's site on a
rotational basis for the purpose of exchanging information between Parties
regarding:
(i) organizational changes;
(ii) product/production review;
(iii) outstanding requests for quotations (RFQ);
(iv) quality review;
(v) backlog and delivery status;
(vi) raw and finished goods inventory status; and
(vii) other matters pertinent to this Agreement.
Section 5.24 Lead Generation; Trademarks; Marketing Materials.
(a) Lead Generation. Affymetrix shall use [ * ] to identify
potential prospects for Initial Developed Products, and Caliper shall use
commercially reasonable efforts to notify and refer to Affymetrix any sales
prospects for Initial Developed Products identified by Caliper.
(b) Trademarks.
(i) Affymetrix hereby grants to Caliper a nonexclusive,
royalty-free license to use and display any of its corporate names,
service marks, logos or trademarks (whether or not registered) (the
"AFFYMETRIX TRADEMARKS") solely for the purpose of displaying, in the
manner agreed upon by Affymetrix, the Affymetrix Trademarks on
Caliper's web site in connection with the promotion of the Initial
Developed Products and the provision of one or more hyperlinks to the
mutually agreed upon page or pages of any of Affymetrix web sites.
(ii) Caliper hereby grants to Affymetrix a nonexclusive,
royalty-free license to use and display any of its corporate names,
service marks, logos or trademarks (whether or not registered) (the
"CALIPER TRADEMARKS") in connection with the marketing and promotion of
Initial Developed Products solely in compliance with the terms and
conditions of the marketing and sales program developed pursuant to
this Section 5.24.
(iii) Each Party (the "TRADEMARK LICENSEE") acknowledges
that the Party licensing its trademarks (the "TRADEMARK LICENSOR")
exclusively owns the Trademark Licensor's licensed names, service
marks, logos and trademarks referenced above (the "LICENSOR MARKS") and
that use of any of any such Licensor Marks by Trademark Licensee shall
inure to the sole benefit of Trademark Licensor. Trademark Licensee
shall not do or suffer to be done any act or thing inconsistent with
such ownership and shall not acquire or claim or assist third parties
in acquiring or claiming any title in or to any Licensor Mark by virtue
of this Agreement or through Trademark Licensee's use of any Licensor
Mark.
(iv) Trademark Licensee shall use the Licensor Marks only
in a manner and form: (A) designed to maintain the high quality and
reputation of the Licensor Marks; (B) consistent with the use of the
Licensor Marks by the Trademark Licensor; (C) that protects Trademark
Licensor's ownership interest therein; and (D) that complies with all
applicable federal, state, local and foreign laws, rules and
regulations, including without limitation all applicable trademark
laws, rules and regulations.
(v) Trademark Licensee agrees that it shall not use any
of the Licensor Marks in combination with any word, name, mark, symbol,
other designation or trade style so as to create a composite mark,
unless such use is explicitly authorized in writing by Trademark
Licensor.
(vi) Each Party shall have the right to audit and inspect,
upon advance written notice and during regular business hours, the
other Party's use of such Party's trademarks.
(c) Marketing Materials. Each Party shall provide the other with
all relevant information required for the marketing and sales of the Initial
Developed Products, including appropriate technical and marketing materials, in
a timely and cooperative manner consistent with the schedule set forth on
Exhibit L and in any event not less favorable than the manner in which each
Party provides its own marketing and sales personnel with similar information.
Each Party will bear the full cost for the development and production of the
technical and marketing materials relating to its own product(s) and both
Parties agree to label such technical and marketing materials relating to the
interrelationship between the Initial Developed Products and Affymetrix products
with appropriate branding and trademarks of each other's Party as mutually
agreed by the Parties pursuant to this Agreement; in the event of co-branded
literature relating equally to both
Party's products, the Parties shall share the cost for development and
production of such materials as determined by the Steering Committee.
ARTICLE 6
CONFIDENTIALITY
Section 6.01 Confidential Information.
Each Party shall retain the other Party's Confidential Information in
the strictest confidence (on a need to know basis) and shall not disclose such
Confidential Information to any person without the other Party's express written
consent, other than to an employee, agent or professional advisor of the
receiving Party under a duty of confidentiality not less than that required of
the Parties herein. Notwithstanding anything to the contrary in this Agreement,
the obligation to maintain the confidentiality of Confidential Information shall
not apply to the extent that the receiving Party is required to disclose such
Confidential Information pursuant to law or legally enforceable order of a court
or judicial body; provided that the receiving Party provides notice to the
disclosing Party as soon as possible to enable the disclosing Party to seek a
protective order or an injunction.
Section 6.02 Restricted Use.
With respect to the Confidential Information of the other Party, each
Party agrees:
(a) to use the Confidential Information only for the purposes of
this Agreement and as expressly permitted by this Agreement;
(b) not to make copies of or store Confidential Information or any
part thereof except as expressly permitted by this Agreement;
(c) to reproduce and maintain on any copies of any Confidential
Information such proprietary legends or notices (whether of disclosing Party or
a third party) as are contained in or on the original or as the disclosing Party
may otherwise reasonably request;
(d) not to modify or prepare derivative works from, or decompile,
disassemble or reverse engineer, or sell, publish, make available, compile,
display or transfer any Confidential Information; and
(e) to treat the terms and conditions of this Agreement as
Confidential Information; provided, however, that each Party may disclose the
terms and conditions of this Agreement: (i) in confidence, to its accountants,
banks and financing sources and their advisors; (ii) in connection with the
enforcement of this Agreement or rights under this Agreement; (iii) in
confidence, in connection
with an actual or proposed merger, acquisition or similar transaction involving
such Party; (iv) in confidence, to its affiliates; (v) in confidence, to its
third party contractors who have a need to know, solely in connection with their
provision of services to such Party; (vi) as required by applicable securities
laws (including but not limited to the filing of this Agreement (or any
amendment or supplement hereto) as an exhibit to a document filed with the
Securities and Exchange Commission) or the rules of any stock exchange on which
securities of such Party are traded or any other applicable regulatory rule or
regulation or governmental agency directive; provided, however, that prior to
making any such disclosure, the receiving Party shall provide notice to the
other Party regarding the nature and extent of the disclosure to enable the
other Party to seek to obtain confidential treatment, to the extent available,
for such Confidential Information; and provided further, however, that with
respect to the filing of this Agreement (or any amendment or supplement hereto)
as an exhibit to a document filed with the Securities and Exchange Commission,
the Parties shall agree in advance as to the proper scope of confidential
treatment to be sought with respect thereto; or (vii) as mutually agreed upon by
the Parties.
Section 6.03 Publicity
The Parties anticipate that upon execution of this Agreement, each
Party will issue a press release, or may issue a joint press release, regarding
the collaboration established pursuant to this Agreement. Notwithstanding the
foregoing, neither Party shall issue any press release relating to the
announcement of the execution of this Agreement by the Parties without the prior
written approval of the other Party, which approval shall not be unreasonably
withheld, or delayed for longer than three (3) business days.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES
Section 7.01 Representations of the Parties.
(a) Each Party represents and warrants to the other Party that as
of the Effective Date:
(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 taken all corporate action necessary
to authorize the execution and delivery of this Agreement and the
fulfilling of its obligations under this Agreement;
(iii) the performance of its obligations under this
Agreement shall not result in a violation or breach of, and shall not
constitute a default under its Certificate of Incorporation or Bylaws
(or similar organizational documents) or any agreement, contract,
commitment or obligation to which such party or any of its subsidiaries
is a party or by which it is bound;
(iv) such Party has the right to grant the other Party the
rights and licenses hereby granted under this Agreement;
(v) such Party's Background Technology and Sole
Inventions, and all portions thereof, do not constitute infringement or
misappropriation of any Intellectual Property Rights of a third party,
other than Patents, and, when used in accordance with the terms and
conditions of this Agreement, will not give rise to a claim of
infringement or misappropriation of any Intellectual Property Right of
a third party, other than Patents; and (ii) to the best knowledge of
such Party, such Party's Background Technology and Sole Inventions, and
all portions thereof, do not constitute infringement or
misappropriation of any Patent of a third party and, when used in
accordance with the terms and conditions of this Agreement, will not
give rise to a claim of infringement or misappropriation of any Patent
of a third party; and
(vi) no consents or approvals of, or filings or
registrations with, any governmental authorities, regulatory agencies,
or government sponsored agencies or corporations, and no consents or
approvals of any third parties are required to be obtained by such
party in connection with the execution and delivery of this Agreement
and the consummation of the transaction contemplated hereby.
(b) Caliper represents to Affymetrix that [ * ] . Caliper
represents to Affymetrix that Caliper Technologies Corp. owns directly or
indirectly all of the issued and outstanding equity securities of Zymark and
there are no existing agreements, arrangements or understandings pursuant to
which Zymark would be obligated to issue any other equity securities of Zymark.
The foregoing clause [ * ]
(c) EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7.01 AND IN
SECTION 5.16(a), EACH PARTY EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES,
INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
ARTICLE 8
TERM AND TERMINATION
Section 8.01 Term.
This Agreement shall commence as of the Effective Date and shall
continue in force for a period of [ * ] after the Final Acceptance Date (the
"INITIAL TERM"). Affymetrix may elect to renew this Agreement for an additional
[ * ] renewal term ("RENEWAL TERM") by providing Caliper with written notice
("RENEWAL NOTICE") of such election at least [ * ] prior to expiration of the
Initial Term (the Initial Term and Renewal Terms being, collectively, the
"TERM"). The Renewal Notice shall include Affymetrix' twelve (12) month rolling
forecast of Initial Developed Product requirements for the first [ * ] of the
Renewal Term. Such forecast will specify the quantity of each Initial Developed
Product by month that Affymetrix expects to order during the Renewal Term and
shall [ * ] . Except as otherwise provided in the Work Plan with respect to a
Project, the Term hereof shall constitute the Term with respect to such Work
Plan.
Section 8.02 Termination.
Either Party may terminate this Agreement and all Work Plans hereunder
in the event that the other Party is in default or breach of any material
provision of this Agreement and such default or breach continues unremedied for
a period of [ * ] after written notice thereof, or such reasonable period in
excess of [ * ] provided the breaching party promptly commences to cure and
continues thereafter to diligently prosecute the cure ("CURE PERIOD"). Either
Party may terminate any Work Plan at any time in the event that the other Party
is in default or breach of any material provision of such Work Plan, and such
default or breach continues unremedied, beyond the Cure Period, after written
notice thereof. Notwithstanding the foregoing, [ * ] , and (2) this Agreement
shall [ * ] .
Section 8.03 Insolvency.
Each Party has the right to terminate this Agreement immediately upon
written notice to the other Party if any proceeding is instituted by or against
the other Party and is not dismissed in ninety (90) calendar days, where the
proceeding is seeking to adjudicate it bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, rearrangement, 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. All rights and licenses
granted under this Agreement are deemed to be, for purposes of Section 365(n) of
the United States Bankruptcy Code, license or rights to "intellectual property"
as defined by Section 101(56) of the United States Bankruptcy Code, and the
Parties will retain and may fully
exercise all of their rights and licenses under this Agreement. The Parties
agree to relief from automatic stay provisions under Section 362 of the
Bankruptcy Code.
Section 8.04 Remedies.
The right of either Party to terminate under the provisions of this
Section 8 will not be an exclusive remedy, and either Party will be entitled, if
the circumstances warrant, alternatively or cumulatively, to seek damages for
breach of this Agreement, to seek an order requiring performance of the
obligations of this Agreement, or to seek any other remedy available in law or
equity including but not limited to injunctive relief.
Section 8.05 Survival of Work Plans.
Upon the expiration or termination of this Agreement, the duties and
obligations of the Parties hereunder under any Work Plan for a particular
Project shall likewise expire or terminate, unless (i) such Work Plan by its
express terms survives the expiration or termination of this Agreement or (ii)
the Parties mutually agree that such Work Plan shall survive such expiration or
termination of this Agreement in certain respects.
Section 8.06 Survival.
The following provisions shall survive termination or expiration of
this Agreement and, in the case of the expiration or termination of any Work
Plan prior to the termination of this Agreement, shall survive with respect to
any such expired or terminated Work Plan: Articles 1, 3, 6, 7, 8, 9 and 10,
Sections 2.03 and 2.04 and, to the extent that [ * ]
ARTICLE 9
INDEMNIFICATION
Section 9.01 Indemnification.
(a) Caliper hereby agrees to indemnify, defend and hold harmless
Affymetrix and its affiliates, agents, directors, officers and employees (the
"AFFYMETRIX INDEMNITEES") from and against any and all liabilities, costs, fees,
expenses and/or losses, including without limitation reasonable legal costs,
expenses and attorneys' fees for outside counsel (collectively, "LOSSES")
resulting from any third party claims, suits, actions or demands arising out of
(i) any of Caliper's representations and warranties set forth in this Agreement
being untrue in any material respect when made; (ii) any material breach or
material default by Caliper of its covenants and obligations under this
Agreement; and/or (iii) a claim by such third party that any Caliper Technology,
or any portion thereof, when used in accordance with the terms and conditions of
this Agreement, infringes on
or constitutes a misappropriation of any Intellectual Property Rights of a third
party.
(b) Affymetrix hereby agrees to indemnify, defend and hold
harmless Caliper and its Affiliates, agents, directors, officers and employees
(the "CALIPER INDEMNITEES") from and against any and all Losses resulting from
any third party claims, suits, actions or demands arising out of (i) any of
Affymetrix' representations and warranties set forth in this Agreement being
untrue in any material respect when made; (ii) any material breach or material
default by Affymetrix of its covenants and obligations under this Agreement;
and/or (iii) a claim by such third party that any Affymetrix Technology, or any
portion thereof, when used in accordance with the terms and conditions of this
Agreement, infringes on or constitutes a misappropriation of any Intellectual
Property Rights of a third party.
Section 9.02 Indemnification Procedures.
To be eligible to be so indemnified as described in Section 9.01, the
indemnified Party shall provide the indemnifying Party with prompt notice of any
claims, suits, actions or demands (with a description of the claim and the
nature and amount of any such Loss) giving rise to the indemnification
obligation pursuant to Section 9.01 and the exclusive ability to defend such
claims, suits, actions or demands (with the reasonable cooperation of
indemnified Party). The indemnified Party shall have the right to retain its own
counsel, at its own expense, if representation of the counsel of the
indemnifying Party would be inappropriate due to actual or potential differing
interests between the Parties. Neither Party shall settle or consent to the
entry of any judgment with respect to any claim for Loss for which
indemnification is sought, without the prior written consent of the other Party
(not to be unreasonably withheld).
ARTICLE 10
MISCELLANEOUS
Section 10.01 LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT THAT LIABILITY ARISES FROM A BREACH BY EITHER
PARTY OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6, IN NO EVENT
SHALL EITHER PARTY BE LIABLE HEREUNDER (WHETHER IN AN ACTION IN NEGLIGENCE,
CONTRACT OR TORT OR BASED ON A WARRANTY OR OTHERWISE) FOR LOSS OF PROFITS,
REVENUE, OR LOSS OR INACCURACY OF DATA, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR
CONSEQUENTIAL DAMAGES INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY, EVEN IF
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Section 10.02 Dispute Resolution.
(a) Informal Resolution.
(i) The Parties recognize that disputes as to certain
matters may from time to time arise during the term of this Agreement
which relate to either Party's rights and or obligations. It is the
objective of the Parties to establish procedures to facilitate the
resolution of disputes arising under this Agreement in an expedient
manner by mutual cooperation and without resort to litigation, if
possible. To accomplish this objective, the Parties agree to follow the
procedures set forth in Section 2.02(b) above and this Section 10.02 if
and when an issue or dispute arises under this Agreement.
(ii) If the Steering Committee is unable to resolve any
issue or dispute arising within its authority (or referred to it
pursuant to Section 2.02(b) above) under the terms of this Agreement
within thirty (30) calendar days thereof, or upon any other dispute or
issue regarding a Party's rights or obligations under this Agreement,
any Party may, by written notice to the other, have such dispute or
issue referred to their respective chief executive officers, for
attempted resolution by good faith negotiations.
(iii) Upon such referral of an issue or dispute for
resolution, such designated officers shall meet promptly thereafter and
shall use good faith efforts to attempt to resolve such dispute or
issue.
(b) Formal Resolution.
(i) Any unresolved dispute or issue shall be resolved by
binding arbitration under 35 U.S.C. 294. The Parties agree that under
35 U.S.C. 294(c), in the event a patent which is the subject of an
arbitration award is subsequently determined to be invalid or
unenforceable by a court or governmental body of competent jurisdiction
from which no appeal can or has been taken such arbitration award may
be modified by any court of competent jurisdiction upon application by
a party to the arbitration. Whenever a Party shall decide to institute
arbitration proceedings, it shall give written notice to that effect to
the other Party. The Party giving such notice shall refrain from
instituting the arbitration proceedings for a period of ten (10)
calendar days following such notice to allow the Parties to attempt to
resolve the dispute between themselves. If the Parties are still unable
to resolve the dispute, the Party giving notice may institute the
arbitration proceeding before JAMS or its successor pursuant to the
United States Arbitration Act 9 U.S.C. Section 1 et seq. Arbitration
shall be held in the San Francisco Bay Area of California. The
arbitration shall be conducted in accordance with the provisions of
JAMS Comprehensive Arbitration Rules and Procedures before a single
arbitrator
mutually chosen by the Parties, but if the Parties have not agreed upon
a single arbitrator within fifteen (15) calendar days after notice of
the institution of the arbitration, then a single arbitrator shall be
chosen under JAMS rules from neutrals who have experience trying
complex commercial dispute cases. All arbitrator(s) eligible to conduct
the arbitration must undertake in writing as a condition of service to
render their opinion(s) promptly after the final arbitration hearing
and to provide a reasoned written opinion setting forth the findings of
fact and conclusions of law. No arbitrator shall have the power to
award punitive damages or any award of multiple damages under this
Agreement and such awards are expressly prohibited. Judgment on the
award of the arbitrator(s) may be entered in any court in the County of
Santa Clara, California. Except to the extent entry of judgment and any
subsequent enforcement may require disclosure, or except as required by
law, all matters relating to the arbitration, including the award,
shall be held in confidence by the Parties.
(ii) This Agreement shall be governed, construed and
enforced in accordance with the laws of the State of California,
without reference to conflict of laws principles. Each of the Parties
hereto consents to submit to the exclusive personal jurisdiction of the
U.S. District Court for the Northern District of California and to any
state court located in such district in the event that any dispute
arises out of this Agreement, agrees that such Party will not attempt
to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court, and agrees that such Party will not
bring any action relating to this Agreement in any court other than the
U.S. District Court for the Northern District of California or a state
court located in such district.
(c) Notwithstanding anything to the contrary contained in this
Agreement, the Parties may seek an injunction or injunctions to prevent breaches
of this Agreement and to enforce specifically the terms thereof in any court of
the United States or any state thereof having jurisdiction, this being in
addition to any other remedy to which they may be entitled at law or equity.
Section 10.03 Non-solicitation.
The Parties acknowledge and agree that each Party's employees and
consultants are a valuable asset and are difficult to replace. Accordingly, each
Party agrees that, during the Term and for a period of [ * ] thereafter, it will
not knowingly offer employment as an employee, independent contractor, or
consultant to the other Party's employees, independent contractors, or
consultants. The Parties agree that the foregoing shall not be deemed to
prohibit either Party from making a general, public solicitation of employment
in the ordinary course of such Party's business, provided that such solicitation
is not directed specifically to employees of the other Party.
Section 10.04 Assignment.
Except as otherwise expressly provided in this Agreement, neither this
Agreement nor any rights under this Agreement may be assigned or otherwise
transferred by either Party, in whole or in part, whether voluntarily or by
operation of law, including by way of sale of assets, merger or consolidation or
other similar transaction, without the prior written consent of the other Party,
which consent will not be unreasonably withheld; provided, however, that (i)
Affymetrix may, without Caliper's consent, assign this Agreement or any of its
rights or obligations hereunder to (a) an affiliate of Affymetrix or (b) a
person, other than an Affymetrix Disqualified Assignee, that is a successor to
substantially all of the assets of Affymetrix (whether by way of sale of assets,
merger or consolidation or other similar transaction), in each case who executes
a written agreement of assumption by which it agrees to be bound hereby,
provided that Affymetrix shall not be relieved of its obligations hereunder in
connection with any such assignment, and (ii) Caliper may, without Affymetrix'
consent, assign this Agreement or any of its rights or obligations hereunder to
a person, other than a Caliper Disqualified Assignee, that is a successor to
substantially all of the assets of Caliper (whether by way of sale of assets,
merger or consolidation or other similar transaction) who executes a written
agreement of assumption by which it agrees to be bound hereby, provided that
Caliper shall not be relieved of its obligations hereunder in connection with
any such assignment. Subject to the foregoing, this Agreement will be binding
upon and will inure to the benefit of the Parties and their respective
successors and assigns; and provided further, however, that in connection with
any assignment by Affymetrix of this Agreement or any of its rights or
obligations hereunder without Caliper's consent, Caliper shall have the right to
terminate any Work Plan for any Project with respect to which the Project
Acceptance Date shall not have occurred on or prior to the date of such
assignment (for purposes of clarification, Caliper shall, under such
circumstances, have no right to terminate any of its obligations under this
Agreement relating to the manufacture and sale of any Initial Developed Product,
under Article 5 or otherwise, with respect to which the Acceptance Date shall
have occurred on or prior to the date of such assignment). For purposes of this
Section 10.04, (i) an "AFFYMETRIX DISQUALIFIED ASSIGNEE" shall be any person or
entity that [ * ] , and (ii) a "CALIPER DISQUALIFIED ASSIGNEE" shall be any
person or entity that [ * ] .
Section 10.05 Independent Contractors.
The relationship of the Parties established by this Agreement is that
of independent contractors, and nothing contained in this Agreement shall be
construed or implied to give either Party the power to direct or control the
day-to-day activities of the other, nor shall any Party 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
except as expressly set forth in this Agreement.
Section 10.06 Severability.
In the event that any provision of this Agreement conflicts with
governing law or if any provision is held to be null, void or otherwise
ineffective or invalid by a court of competent jurisdiction, (a) such provision
shall be deemed to be restated to reflect as nearly as possible the original
intentions of the Parties in accordance with applicable law, and (b) the
remaining terms, provisions, covenants and restrictions of this Agreement shall
remain in full force and effect. This Agreement has been negotiated by the
Parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against either Party.
Section 10.07 Entire Agreement.
This Agreement is an integrated document and all attachments hereto and
incorporated herein constitute the entire, final, complete and exclusive
agreement between the Parties and supersede all previous agreements, intentions,
or representations, oral or written, relating to this Agreement. This Agreement
may not be modified or amended except in a writing signed by a duly authorized
representative of each Party. Both Parties acknowledge having read the terms and
conditions set forth in this Agreement and all attachments hereto, understand
all terms and conditions, and agree to be bound hereby.
Section 10.08 No Waiver.
The failure of either Party to enforce at any time any of the
provisions of this Agreement shall not be deemed to be a waiver of the right of
either Party thereafter to enforce any such provisions.
Section 10.09 Force Majeure.
If either Party is prevented from performing any of its obligations
hereunder due to strike, fire, flood, governmental act or order or restriction,
or act of God, or any other reason where failure to perform is beyond the
control and not caused by the negligence of the non-performing Party (a "FORCE
MAJEURE EVENT"), such non-performing Party shall not be liable for breach of
this Agreement with respect to such non-performance to the extent any such
non-performance is due to a Force Majeure Event. Such non-performance shall be
excused until the termination of such Force Majeure Event, provided that the
non-performing Party gives immediate written notice to the other Party of the
Force Majeure Event. Such non-performing Party shall exercise all reasonable
efforts to eliminate the Force Majeure Event and to resume performance of its
affected obligations as soon as practicable. Neither Caliper nor Affymetrix
shall be entitled to rely on a Force Majeure Event to relieve it from an
obligation to pay money (including any interest for delayed payment) that would
otherwise be due and payable under this Agreement (save to the extent that
payment of the same cannot be made by reason of bank strike or similar
occurrence).
Section 10.10 Notices.
Any notice required or permitted under the terms of this Agreement or
required by law must be in writing and must be (a) delivered in person; (b) sent
by first class registered mail, or air mail, as appropriate; or (c) sent by
overnight air courier, in each case properly posted to the appropriate address
set forth in the introduction paragraph to this Agreement. Either Party may
change its address for notice by notice to the other Party given in accordance
with this Section 10.10. All such notices shall be deemed received on the date
of receipt thereof if received prior to 5 p.m. in the place of receipt and such
day is a business day in the place of receipt. Otherwise, any such notice shall
be deemed not to have been received until the next succeeding business day in
the place of receipt. Except as explicitly provided in this Agreement, notices
may not be sent by email.
Section 10.11 Counterparts.
This Agreement may be executed in counterparts, each of which so
executed will be deemed to be an original and such counterparts together will
constitute one and the same agreement.
EACH PARTY AND EVERY INDIVIDUAL SIGNING THIS AGREEMENT REPRESENTS AND WARRANTS
THAT SUCH PERSON IS FULLY AUTHORIZED AND EMPOWERED TO ENTER INTO THIS AGREEMENT.
{Remainder of Page 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.
Accepted and agreed to:
Caliper Technologies Corp.
By: /s/ E. K. Hrusovsky
--------------------------------
Name: E. Kevin Hrusovsky
Title: President and Chief Executive Officer
Zymark Corporation
By: /s/ E. K. Hrusovsky
--------------------------------
Name: E. Kevin Hrusovsky
Title: President and Chief Executive Officer
Affymetrix, Inc.
By: /s/ T. J. Nicholls
--------------------------------
Name: Trevor J. Nicholls
Title: Chief Commercial Officer
[ * ] = 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 A AND EXHIBIT B
AFFYMETRIX/CALIPER COLLABORATION
[ * ]
INTRODUCTION
Affymetrix and Caliper will collaborate to [ * ]. These [ * ],
which are summarized below.
[ * ]
A. [ * ]
Scope
[ * ]
B. [ * ]
C. [ * ]
D. [ * ]
E. [ * ]
F. [ * ]
[ * ] = 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 C - CONSUMABLES PRICING
PRODUCT
(PACKAGED 10 RACKS OF 96 TIPS
PER BOX, EXCEPT WHERE NOTED,
960 TOTAL TIPS) PART NUMBER [ * ] [ * ] [ * ] [ * ]
- ------------------------------------------------------------------------------------------------------------------
200UL 96 RACK TIPS 56362 [ * ] [ * ] [ * ] [ * ]
200UL STERILE 96 RACK TIPS 56977 [ * ] [ * ] [ * ] [ * ]
200UL BULK TIPS 57203 [ * ] [ * ] [ * ] [ * ]
200UL CARBON 96 RACK TIPS 65408 [ * ] [ * ] [ * ] [ * ]
200UL STERILE CARBON 96 RACK TIPS 68924 [ * ] [ * ] [ * ] [ * ]
150UL BARRIER STERILE 96 RACK TIPS 68921 [ * ] [ * ] [ * ] [ * ]
100UL 96 RACK TIPS 66670 [ * ] [ * ] [ * ] [ * ]
100UL STERILE 96 RACK TIPS 68036 [ * ] [ * ] [ * ] [ * ]
100UL BULK TIPS 68037 [ * ] [ * ] [ * ] [ * ]
(PACKAGED 1000 TIPS PER BAG)
100UL STERILE CARBON 96 RACK TIPS 68891 [ * ] [ * ] [ * ] [ * ]
100UL CARBON 96 RACK TIPS 68892 [ * ] [ * ] [ * ] [ * ]
80UL BARRIER STERILE 96 RACK TIPS 68759 [ * ] [ * ] [ * ] [ * ]
PRODUCT PART NUMBER [ * ] [ * ] [ * ] [ * ]
- ------------------------------------------------------------------------------------------------------------------
200UL TWISTER TRAY 96 TIPS 78641 [ * ] [ * ] [ * ] [ * ]
(PACKAGED 10 STACKS OF 10-96 TIP TRAYS,
9600 TOTAL TIPS)
200UL STERILETWISTER TRAY 96 TIPS 78642 [ * ] [ * ] [ * ] [ * ]
(PACKAGED 10 STACKS OF 10-96 TIP TRAYS,
9600 TOTAL TIPS)
100UL TWISTER TRAY 96 TIPS 78639 [ * ] [ * ] [ * ] [ * ]
(PACKAGED 10 STACKS OF 10-96 TIP TRAYS,
9600 TOTAL TIPS)
100UL STERILE TWISTER TRAY 96 TIPS 78640 [ * ] [ * ] [ * ] [ * ]
(PACKAGED 10 STACKS OF 10-96 TIP TRAYS,
9600 TOTAL TIPS)
[ * ] = 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 D
INSTALLATION SERVICES
The price for such installation services will be [ * ] . Standard
installation for Staccato (for the Project 1 HTA system) is [ * ] and
standard installation for Sciclone (for the Project 2 Automated Target
Preparation System) is [ * ]
[ * ] = 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 E
PRICING SCHEDULE
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
The List Price of the Initial Developed Product from Project II will be [ * ]
The List Price of the Initial Developed Product from Project I will be [ * ]
QTY PART # DESCRIPTION
- -------------------------------------------------------
1 [ * ] [ * ]
2 [ * ] [ * ]
2 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
2 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
1 [ * ] [ * ]
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.
EXHIBIT F
LEAD TIME SCHEDULE
[ * ]
Lead Time Schedule
Caliper Life Sciences Staccato System - [ * ] after receipt of order Caliper
Life Sciences Sciclone - [ * ] after receipt of order
[ * ] = 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.
I-1
EXHIBIT G
[ * ]
[ * ] = 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 H
ZYMARK SCICLONE PRODUCT FACTORY WARRANTY
Zymark warrants your Zymark manufactured equipment, including hardware,
software, and firmware, and the Zymark purchased controller (if applicable),
against defects in material and workmanship for a period of one (1) year from
the date of shipment.
WHAT IS INCLUDED
- - On site service is provided during normal business hours, your local
time from 8AM through 5PM, excluding holidays. A Zymark representative will
make his/her best effort to be on site within three business days.
- - Unlimited emergency on site repair services, parts, and software
corrections that affect original functional design specifications, and
their associated labor and travel expenses.
- - Unlimited access to Zymark's Technical Support Center during the
warranty period, which provides troubleshooting, repair instruction,
service dispatching, replacement part information, and shipment.
- - One pre-scheduled on site Preventive Maintenance and Diagnostic
Servicing (PM) performed by a Zymark Field Service Engineer. A PM visit
includes the replacement of Limited-Life parts exposed to fluidics, such as
syringes, valves, seals, and fittings. The Zymark Field Service Engineer
will perform a comprehensive analysis and testing to confirm the equipment
is left operating to factory specifications.
- - Scheduling of the PM within the warranty period is flexible and
determined by the customer after notification by the Zymark Field Service
Engineer. The servicing is typically scheduled six months after the
equipment installation, but equipment usage rate and availability may cause
the date to vary. A completed Zymark Field Service Report provides thorough
documentation of all maintenance and service work performed by the Zymark
Field Service Engineer during the on site visit. (Exception: Documentation
is not provided when Zymark provides service via telephone, fax, or modem.)
- - Limited-Life parts are covered for thirty (30) days after installation
and are replaced once during the PM. See description of Limited Life Parts
later in this warranty.
- - Cosmetic surfaces are warranted for thirty (30) days from date of
installation.
Customers MUST use the Zymark-purchased controller. If customers fail to use
Zymark's controller, field service charges incurred during the workstation
installation process will be charged at Zymark's current rates. These charges
include round-trip travel and on site installation time, transportation
expenses, and per them living expenses.
Any defects covered by this warranty shall be corrected by replacing or
repairing the affected item, at Zymark's option. Parts replaced during the
warranty period will be covered for the remaining term of the original warranty,
or for thirty (30) days from time of replacement, whichever is longer. Such
replacement parts may, at Zymark's option, be new or remanufactured. All parts
removed from war ranted equipment become the property of Zymark Corporation.
Zymark reserves the right to satisfy its warranty obligations in full by
refunding the purchase price minus any service, validation, or travel charges of
any defective product.
CUSTOMER RESPONSIBILITIES
- - The equipment must be used under normal installation and application
conditions as described in the User's Manual.
- - The equipment must be maintained as described in the User's Manual.
- - Reasonable precautions should be taken to keep caustic atmospheric
conditions, chemical spills, and biological and radioactive contamination
from rendering the equipment irreparable, which would void this warranty.
See the Hazardous Limitation Statement for further details.
- - Zymark Automation Certified Disposables are required for proper
operation of all applicable products.
- - The customer is responsible for making the equipment available for a PM
during the warranty period. Zymark will not be held liable for a missed PM
due to restricted access to the equipment during the coverage period.
- - When Zymark provides telephone, fax, or modem support, the customer is
responsible for completing any necessary documentation of the service.
- - If the customer maintains a change control/validation logbook as a
permanent record, then he/she is responsible for entering all service
documentation into this log.
- - Customers must perform the appropriate level of revalidation required
as a result of maintenance or service provided.
- - Data back up is the responsibility of the customer. Zymark will not be
held liable for loss of data due to failure of the PC (controller) hardware
or software.
- - Customer will make the equipment available for emergency and
preventative maintenance servicing upon arrival of a Zymark Field Service
Engineer.
EXCLUSIONS
ANY ALTERATION OF THE HARDWARE OR SOFTWARE ON ZYMARK PRODUCTS COVERED UNDER THIS
WARRANTY, THAT ARE NOT PERFORMED BY ZYMARK CORPORATION OR AN APPROVED ZYMARK
VENDOR, WILL VOID THIS WARRANTY.
- - Product that has been subject to misuse, accident, negligence or
improper transportation, handling, installation, storage, use, maintenance,
or application is not covered under this warranty.
- - The Sciclone 384-channel low volume head is warranted for one (1) year
or 750,000 aspirate or dispense movements, whichever comes first.
- - The Sciclone 100nL head is warranted for one (1) year or 600,000
aspirate or dispense movements, whichever comes first.
- - Zymark Automated Certified Disposables are required for proper
operation. Repair services required for inaccurate operation, accuracy, or
precision due to the use of non-Zymark Automated Certified Disposables will
void this warranty and be invoiced at Zymark's current field service rates.
- - This warranty is intended to cover equipment manufactured by Zymark.
Equipment purchased from other vendors is not covered by this warranty.
- - Zymark will provide service for Zymark supported software and hardware
platforms only. A Zymark representative has the right to remove any
unsupported software from the controller when troubleshooting to eliminate
any possible software conflicts it may have on Zymark equipment. Service
due to unsupported software loaded on the controller will be invoiced at
Zymark's current field service rates.
- - Limited-Life parts are covered for thirty (30) days after installation
and are replaced once during the PM. Beyond this replacement, these parts
are available at current list prices and are designed for replacement by
the customer. See the description of Limited-Life Parts below.
- - Damage to Limited-Life parts caused by insufficient maintenance or
cleaning practices, or abnormal applications are not covered under this
contract. If these situations are diagnosed, charges are at current list
prices for parts and current service rate structure for labor and travel.
- - Application and chemistry support is not included.
- - Software releases that contain new product features and functionality
are offered for sale by Zymark and are not included under this program.
- - This warranty applies only to the original users and delivery
locations. It is not transferable to other users or locations without
pre-approval from Zymark.
LIMITED-LIFE PARTS
Limited-Life Parts are any parts that are exposed to solvents, reagents, or
samples. Such parts include, but are not limited to: syringes, valves, seals,
and fittings. These parts are warranted to be functional at the time of
installation and are covered for thirty (30) days after installation. Limited
Life Parts are routinely replaced by Zymark Field Service Engineers during a PM
visit or during Zymark Repair Depot servicing. Otherwise, these parts are
available from Zymark at current list prices and are designed for replacement by
the customer.
REPAIR AUTHORIZATION
In servicing situations requiring the return of equipment to Zymark, equipment
must be returned to Hopkinton, MA, USA, or a facility designated by Zymark. The
customer shall prepay charges for equipment returned to Zymark, with Zymark
paying for equivalent return shipment to the customer.
A Returned Material Authorization (RMA) must be obtained for any equipment being
returned to Zymark. Contact the Zymark Technical Support Center by telephone at
(508) 435-9761 or via the Internet at techsupport@zymark.com or by fax at (508)
435-0950 before returning any equipment to Zymark. Additionally, customers are
required to complete a Zymark Chemical Questionnaire prior to the issuance of an
RMA. All equipment returned to Zymark must first be decontaminated to meet
Zymark and United States
Department of Transportation procedures and standards. These procedures provide
for the safety of Zymark receiving and repair personnel.
HAZARDOUS LIMITATION STATEMENT
AT NO TIME WILL ZYMARK PERSONNEL PERFORM SERVICE ON UNSAFE EQUIPMENT, PERFORM
SERVICE IN UNSAFE ENVIRONMENTS, OR DECONTAMINATE EQUIPMENT TO MAKE IT SAFE.
ZYMARK IS NOT LICENSED TO ACCEPT PRODUCTS THAT HAVE BEEN EXPOSED TO RADIOACTIVE
MATERIALS.
Prior to the performance of any service work, Zymark personnel will evaluate the
condition of the equipment and the environment in which the equipment is
located. After evaluation and discussion with the customer, Zymark commits to
the following:
- - When the environment and equipment are determined to be free of
chemical, radioactive and bio-hazardous materials by Zymark personnel,
servicing will be performed.
- - When the equipment and/or the environment are determined to be
hazardous by Zymark personnel, Zymark reserves the right to refuse
servicing the equipment. One of two situations will then occur:
1) The customer will decontaminate the equipment and/or the environment
in which the equipment is located to the satisfaction of Zymark
personnel, prior to Zymark servicing.
2) The customer decides not to decontaminate the equipment and/or the
environment, and takes responsibility to service the equipment
themselves through on site, verbal instruction from Zymark personnel.
PARTS AVAILABILITY AND ON-GOING SUPPORT
Zymark provides support for its products for a period of five (5) years after a
product is no longer available for purchase.
NO OTHER WARRANTIES
ZYMARK SPECIFICALLY DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS, AND
WARRANTIES, EXPRESSED OR IMPLIED. THIS INCLUDES, BUT IS NOT LIMITED TO, THE
PRODUCT'S CONDITION, ITS CONFORMITY TO ANY DESCRIPTION OR REPRESENTATION, THE
EXISTENCE OF ANY LATENT OR PATENT DEFECTS, IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ZYMARK BE LIABLE, WHETHER
ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
FOR ANY LOSS OF PROFIT OR ANY OTHER COMMERCIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER. IN NO EVENT SHALL
ZYMARK'S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCT.
EXHIBIT I
(There was no Exhibit I attached to the final signature document.)
EXHIBIT J
INDUSTRY STANDARDS
REGULATORY REQUIREMENTS
COMPLIANCE
The equipment shall comply with the following regulatory standards, or
applicable equivalents, for the United States, Canada, and the European
Union:
Product Safety for "Electrical Equipment for Measurement, Control, and
Laboratory Use", Pollution Degree 2, Overvoltage Category II:
Low Voltage Directive 73/23/EEC (European Union)
Applicable standard as of 2003: IEC 61010-1:2001
CAN/CSA-C22.2 No. 1010.1-92 or UL 61010A-1 Class OGTK7
(Canada)
UL 61010A-1 Class OGTK (USA)
Electromagnetic Conformity for "Industrial, Scientific and Medical" (ISM)
equipment, Group I, Class A:
EMC Directive 89/336/EEC (European Union)
Applicable standards as of 2003:
EN 61326-1:1997/A2:2001
EN 55011:1991
EN 61000-3-2:2001
EN 61000-3-3:1995
FCC Part 15 for Class A Equipment
EXHIBIT K
(There was no Exhibit K attached to the final signature document.)
EXHIBIT L
MARKETING MATERIALS
Affymetrix will develop a Marketing Plan and Launch Plan, each as further
described below:
1.0 A high level Marketing Plan will [ * ]
- 2. Affymetrix will also develop a Launch Plan which will [ * ]
[ * ] = 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.