EXHIBIT 10.66
*** Text Omitted and Filed Separately
Confidential Treatment Requested Under
17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
CONFIDENTIAL
STRATEGIC ALLIANCE AGREEMENT
This STRATEGIC ALLIANCE AGREEMENT (the "Agreement") effective as of May 3, 2000
(the "Effective Date") is made by and between Genaissance Pharmaceuticals, Inc.
(hereinafter referred to as "GENAISSANCE"), a Delaware corporation having its
principal place of business at Xxxx Xxxxxxx Xxxx, Xxx Xxxxx, Xxxxxxxxxxx 00000
and Sequenom, Inc. (hereinafter referred to as "SEQUENOM") a Delaware
corporation having its principal place of business at 00000 Xxxxxxxx Xxxxxx
Xxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
WHEREAS, SEQUENOM has expertise in the development and utilization of mass
spectrometry for biopolymer analysis, and expertise in biopolymer assay design
(MassARRAY(TM) Assays), and more specifically, has developed SEQUENOM's
proprietary MassARRAY(TM) technology for high-throughput DNA analysis
(hereinafter "MassARRAY") and whereas SEQUENOM is building a database of
variation in genes of commercial significance to the pharmaceutical industry;
WHEREAS, GENAISSANCE has expertise in discovering human genomic variation and in
correlating such variation with clinical endpoints, and more specifically is
building a database of such variation in genes of commercial significance to the
pharmaceutical industry (Isogenomics(TM) Database);
WHEREAS, GENAISSANCE desires to purchase certain MassARRAY Products (as
hereinafter defined) from SEQUENOM to be used for GENAISSANCE's Internal
Research Purposes (as hereinafter defined) and HAP(TM) Marker Genotyping
Collaborations (as hereinafter defined), and also desires that SEQUENOM design
MassARRAY Assays (as hereinafter defined) to be used in support of GENAISSANCE's
Internal Research Purposes and HAP(TM) Marker Genotyping Collaborations;
WHEREAS, SEQUENOM is willing to supply MassARRAY Products and to design
MassARRAY Assays for GENAISSANCE for its Internal Research Purposes and HAP(TM)
Marker Genotyping Collaborations in accordance with the terms and conditions set
forth in this Agreement;
WHEREAS, SEQUENOM AND GENAISSANCE wish to collaborate in developing MassARRAY
technology for use in clinical trials and clinical genetic tests and wish to
collaborate in marketing each others products and services;
NOW, THEREFORE, in consideration of the mutual covenants and promises contained
herein, GENAISSANCE and SEQUENOM (each a "party" or collectively the "parties")
agree as follows:
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ARTICLE 1. DEFINITIONS
1.1 "Affiliate" shall mean with respect to either party, a person or entity,
including without limiting the generality of the foregoing, organizations,
corporations, partnerships and joint ventures, that directly or indirectly
through one or more intermediaries, controls, is controlled by or is under
common control with such person or entity. "Control" (and, with correlative
meanings, the term "controlled by" and "under common control with") means
the possession of the power to direct or cause the direction of the
management and policies of such person or entity, whether through the
ownership of voting stock, by contract or otherwise. In the case of a
corporation, "control" shall mean, among other things, the direct or
indirect ownership of fifty percent (50%) or more of its outstanding voting
stock.
1.1 "Commercial Genotyping Services" shall mean performing genotyping services
in conjunction with a clinical diagnostic test to detect known disease
mutations or known prognostic polymorphisms or performing genotyping
services on a direct fee for service basis. For purposes of this Agreement,
the parties agree that performance of genotyping by GENAISSANCE for
Internal Research Purposes and for HAP(TM) Marker Genotyping Collaborations
is excepted and not considered Commercial Genotyping Services under this
definition.
1.3 DecoGen(TM) Software shall mean GENAISSANCE's software which is designed to
curate, collate and mine in silico gene variation data and which contains
algorithms for building haplotypes from SNPs and for identifying
associations between genetic polymorphisms and phenotypes.
1.4 "Element" shall mean the SpectroCHIP(TM) technology, and the Reaction
Components B, as set forth in Appendix B, required for the MassARRAY System
to produce a mass spectrum from the reaction products located at a single
defined area (a.k.a. "Position") located on the SpectroCHIP,***************
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By way of example, for the 96-D SpectroCHIP, each SpectroCHIP contains
ninety six (96) Positions, so that for the MassARRAY System processing a
SpectroCHIP that has a biopolymer sample ******************************,
ninety six (96) Elements are used and consumed under this definition.
1.5 "Field of Use" shall mean Internal Research Purposes and HAP(TM) Marker
Genotyping Collaborations. Commercial Genotyping Services are specifically
excluded from the Field of Use.
1.6 "GENAISSANCE Know-How" shall mean any and all proprietary data,
information, know-how, inventions, trade secrets, copyrights, regulatory
submissions or other intellectual property of any kind, other than Patent
Rights, owned or controlled by GENAISSANCE as of the Effective Date or
during the term of this Agreement.
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CONFIDENTIAL
1.1 "Genolyzer(TM) Software" or "SpectroTYPER(TM) Software" shall mean
SEQUENOM's software used in conjunction with the MassARRAY System to
generate and store genotyping data, including sequences of primers used to
detect SNPs, the nucleotides being detected, the mass spectrometry data
relating to extension of such primers, and the genotypes generated from
such data.
1.8 "HAP(TM) Marker Genotyping Collaborations" shall mean GENAISSANCE's in-
house genotyping of SNPs pursuant to an agreement or collaboration with a
third party, in which such genotyping is performed for the sole purposes
of discovering, testing, confirming, or validating a SNP Association,
including within the context of a clinical trial, and providing
information to the third party regarding such association.
1.9 "HAP(TM) Marker Genotyping Collaborator" shall mean a third party,
including but not limited to any pharmaceutical or biotechnology company,
or any academic or nonprofit institution, for which GENAISSANCE performs
genotyping for the purposes described in section 1.8.
1.10 "Internal Research Purposes" shall mean purposes and activities within
GENAISSANCE that are limited to research and development. Internal
Research Purposes includes SNP validation for GENAISSANCE's in-house
disease specific projects. Internal Research Purposes does not mean and is
not meant to include activities performed under grant money, funding, and
non-funding arrangements with third party companies, enterprises, or
institutions (for example, but not limited to pharmaceutical research or
manufacturing organizations) under which results, products, or information
from such activities are to be provided to the third party. Internal
Research Purposes does not mean and does not include HAP(TM) Marker
Genotyping Collaborations and does not mean and does not include
Commercial Genotyping Services.
1.11 "MassARRAY Assay" or "Assay" shall mean an assay designed by SEQUENOM at
the request of GENAISSANCE for the purpose of genotyping a particular
Proprietary SNP or Non-proprietary SNP and to be used with the multi-step
process described in Appendix C hereto, and such Assay shall include the
nucleotide sequences of the amplification and extension primers, as well
as allele-specific mass values, that are necessary for performing the
Assay. For purposes of this Agreement, the parties agree that "MassARRAY
Assays" shall mean all Assays which are designed by SEQUENOM at the
request of GENAISSANCE after the Effective Date of this Agreement, as well
as all Assays which were designed by SEQUENOM at the request of
GENAISSANCE prior to the Effective Date of this Agreement for the SNPs
listed in Appendix H hereto.
1.12 "MassARRAY Products" shall mean the MassARRAY System (as described and
defined in Appendix A hereto, and as developed pursuant to sections 2.9.1
and 2.9.2) and the MassARRAY Kit (as described and defined in Appendix B
hereto).
1.13 "MassEXTEND(TM) Methods and Processes" shall mean the MassEXTEND(TM)
Reaction as described and defined in Appendix C hereto and which is
claimed under Patent Rights
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including United States Patent Application Serial No. ********* and
foreign equivalents thereof.
1.14 "Non-proprietary SNP" shall mean a SNP that is not claimed under Patent
Rights of GENAISSANCE or a HAP(TM) Marker Genotyping Collaborator and that
is not Confidential Information of GENAISSANCE or a HAP(TM) Marker
Genotyping Collaborator.
1.15 "Patent Rights" shall mean ownership of or exclusive license rights to (i)
any United States or foreign patent application, (ii) any issued United
States patent or foreign patent and (iii) any continuation, continuation-
in-part, divisional, reissue, re-examination, renewal, substitution,
addition, extension, supplementary protection certificate or foreign
counterpart thereof of any of the foregoing.
1.16 **************************************************************************
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1.17 "Proprietary SNP" shall mean a SNP that is claimed under Patent Rights of
GENAISSANCE or a HAP(TM) Marker Genotyping Collaborator or that is
Confidential Information of GENAISSANCE or a HAP(TM) Marker Genotyping
Collaborator.
1.18 "SEQUENOM Know-How" shall mean any and all proprietary data, information,
know-how, inventions, trade secrets, copyrights, regulatory submissions or
other intellectual property of any kind, other than Patent Rights, owned
or controlled by SEQUENOM as of the Effective Date or during the term of
this Agreement.
1.19 "SNP" shall mean a single nucleotide polymorphism.
1.20 "SNP Association" shall mean an association between one or more SNPs and a
phenotype, including but not limited to the presence of, or susceptibility
for, any disease or condition in humans, or response to a drug, where such
association is discovered using MassARRAY Assays in the Field of Use.
ARTICLE 2. PURCHASING, ORDERS AND COLLABORATION
2.1 GENAISSANCE agrees to purchase MassARRAY Products as identified in
Appendices A and B, and SEQUENOM agrees to sell and deliver MassARRAY
Products to GENAISSANCE. Such purchase, sale, and delivery shall be under
the terms of this Agreement.
2.2 **************************************************************************
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2.3 GENAISSANCE agrees to use MassARRAY Products as its preferred genotyping
technology as long as MassARRAY Products remain competitive with
alternative genotyping technologies in terms of the following criteria:
(i) cost per assay; (ii) high-throughput capacity; (iii) accuracy; and (iv)
consistency with industry or regulatory standards. GENAISSANCE shall
notify SEQUENOM if it considers that MassARRAY Products are no longer
competitive with an alternative genotyping technology. In such a case,
GENAISSANCE agrees to inform SEQUENOM of the specific reasons why
GENAISSANCE believes the MassARRAY Products are not competitive and will,
in good faith, provide SEQUENOM with an opportunity to address these
reasons and an opportunity to better meet GENAISSANCE's needs.
2.4 This Agreement contains the exclusive terms and conditions which apply to
all purchases of MassARRAY Products, notwithstanding any acknowledgment or
other business forms ("forms" meaning and including GENAISSANCE purchase
orders) transmitted by SEQUENOM or GENAISSANCE. All orders for MassARRAY
Products must reference this Agreement and all SEQUENOM and GENAISSANCE
acknowledgments and transmittals will reference this Agreement and the
applicable GENAISSANCE purchase order.
2.5 All orders for MassARRAY Products must specify delivery within ninety (90)
days from the order date. All orders are subject to acceptance by SEQUENOM
and to product availability. All orders accepted by SEQUENOM are firm and
non-cancelable and SEQUENOM shall use its best efforts to fill such orders
within ninety (90) days from the order date.
2.6 This Agreement does not constitute a purchase order. Purchases hereunder
shall be made utilizing GENAISSANCE's written purchase orders issued by
GENAISSANCE.
2.7 GENAISSANCE will use its best efforts to supply SEQUENOM with a forecast of
its intended purchases on at least a quarterly basis, and SEQUENOM shall
advise GENAISSANCE within ten (10) business days of its ability to meet
such forecast. If SEQUENOM advises that it can meet such forecast and
SEQUENOM subsequently determines that it will be unable to meet such
forecast, SEQUENOM shall inform GENAISSANCE within five (5) business days
of its inability to meet such forecast and the parties will discuss
alternative solutions for meeting the forecast. SEQUENOM shall use its best
efforts to meet any forecast for which it advised GENAISSANCE that it would
meet.
2.8 When requested by GENAISSANCE, SEQUENOM agrees to design MassARRAY Assays
to be used by GENAISSANCE as set forth in Article 5 below. GENAISSANCE
shall request a group of MassARRAY Assays at a time, with the number of
assays in such group to be mutually agreed upon, and shall provide SEQUENOM
with the identity of, known alleles of, and local sequence information
surrounding the SNPs to be
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genotyped with the MassARRAY Assays. SEQUENOM agrees to advise
GENAISSANCE, within five (5) business days of receipt of such request, the
expected delivery date for the group of MassARRAY Assays and shall use its
best efforts to meet this date. Physical samples of primers in aliquot
form and/or validation of a MassARRAY Assay will only be provided by
SEQUENOM at GENAISSANCE's expense and subject to the agreement of and at a
price to be determined by the parties. GENAISSANCE will be responsible for
and bear all of the costs associated with purchasing and performing quality
control experiments on all MassARRAY Assays that it uses or plans to use.
2.8.1 SEQUENOM, at its option, shall have the right to terminate its
obligation to design MassARRAY Assays at any time starting six (6)
months after the Effective Date of this Agreement provided that
SEQUENOM shall provide GENAISSANCE with three (3) months advance
notice of such termination.
2.9 SEQUENOM is interested in providing its customers with MassARRAY Products
together with Standard Operating Procedures (hereinafter "SOPs") and
validation materials that would assist its customers in establishing that a
laboratory using such MassARRAY Products for performing high-throughput
genotyping of SNPs in pharmacogenetic-based clinical trials is compliant
with US regulatory standards as set forth in the Clinical Laboratory
Improvement Amendments of 1988 ("CLIA"), and possibly other governmental
regulatory standards. GENAISSANCE is also interested in using MassARRAY
Products in conjunction with its DecoGen(TM) Software in a high-throughput
genotyping facility that is compliant with all U.S. regulatory standards
and has expertise in obtaining certification of such compliance. As a
result, the parties agree as follows:
2.9.1 The parties agree to collaborate to define and develop a standard
configuration of a Moderate-Throughput MassARRAY System for use only
within the Field of Use, including but not limited to, clinical
molecular diagnostic laboratory uses within the Field of Use. This
Moderate-Throughput MassARRAY System will be designed to process
approximately ******************** assays per day. This Moderate-
Throughput System will be purchased and used by GENAISSANCE only in
the Field of Use after completion of satisfactory design,
implementation and testing by the parties, and contingent upon the
parties' mutual agreement on price and delivery schedule pursuant to
section 4.2.
2.9.2 The parties further agree to define and develop a standard
configuration of a High-Throughput MassARRAY Facility for use only
within the Field of Use, including but not limited to, clinical
molecular diagnostic laboratory uses within the Field of Use. This
High-Throughput MassARRAY Facility will be designed to process up to
************************** assays per day. The components of this
High-Throughput Facility will be purchased and used by GENAISSANCE
only in the Field of Use after completion of satisfactory design,
implementation and testing by the parties and contingent upon the
parties' mutual agreement on price and delivery schedule pursuant to
section 4.2.
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2.9.3 GENAISSANCE agrees to collaborate with SEQUENOM to define and
develop a standard set of molecular genetic reagents (hereinafter
"Reagents") and SOPs for use with the Reagents and each of the
standard MassARRAY configurations developed pursuant to this section
2.9. The Reagents and SOPs will be designed to functionally validate
the standard MassARRAY configurations as part of the process of
certifying that a laboratory performing genotyping assays using one
of the standard MassARRAY configurations defined herein is compliant
with CLIA regulations for operation of clinical molecular genetics
laboratories.
(a) The Reagents will include MassARRAY Assays for genotyping a set
of *** well characterized Non-proprietary SNPs in a set of
***************** DNA specimens. All of the DNA specimens will
be derived from unrelated *************** samples that are
available to research and diagnostic laboratories through the
American Type Culture Collection (ATCC). SEQUENOM will design
and retain ownership of the Assays provided that GENAISSANCE
shall receive a ************, non-exclusive license, without
the right to transfer or sublicense, to use such Assays in the
Field of Use. GENAISSANCE will not provide any of these
Reagents to SEQUENOM or third party laboratories. SEQUENOM may,
at its discretion, choose to package any or all of these
materials as a kit for sale and distribution to its customers.
(b) The SOPs will include detailed instructions for performing the
Assays using the Reagents with either the Moderate-Throughput
MassARRAY System or the High-Throughput MassARRAY Facility in a
manner consistent with CLIA regulations for operation of
clinical molecular genetics laboratories. GENAISSANCE shall
design and retain ownership of these SOPs, provided that
SEQUENOM shall receive a ************, non-exclusive license to
use and sell the SOPs, and shall have the right to sublicense
the SOPs to customers of SEQUENOM for use in conjunction with
one of the standard MassARRAY configurations designed pursuant
to this Agreement. GENAISSANCE shall, at its sole discretion,
have the right to modify the Reagents and SOPs for its internal
use and such modifications will remain the Confidential
Information of GENAISSANCE.
(c) The parties agree that neither party shall guarantee or warrant
performance of the Reagents and/or SOPs for use in obtaining
certification that a laboratory is in compliance with CLIA
regulations for operation of clinical molecular genetics
laboratories or for any other purpose.
2.9.4 SEQUENOM agrees to provide GENAISSANCE with clear, understandable
documentation regarding ************************************
*********** to the extent necessary to allow GENAISSANCE to define
and produce data retrieval tools (hereinafter "Data Tools") for use
with GENAISSANCE's DecoGen(TM) Software, electronic notebooks and
any
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laboratory information management system selected by GENAISSANCE.
GENAISSANCE agrees that such documentation shall only be used to
develop the Data Tools. GENAISSANCE shall retain complete title and
ownership to such Data Tools with the right to license or transfer
such Data Tools only to those HAP(TM) Marker Genotyping
Collaborators that have a license from GENAISSANCE to use
DecoGen(TM) Software and, under a separate license agreement with
SEQUENOM, have a license to Genolyzer(TM) Software.
2.9.5 During the term of this Agreement, the parties agree to negotiate
in good faith to extend the collaborations described in this
section 2.9 to other configurations of MassARRAY technology and
other SEQUENOM products that are currently under development or
that may be developed in the future by SEQUENOM as well as to
future versions of the DecoGen(TM) Software or other software
developed by GENAISSANCE.
2.9.6 In the unlikely event that the parties can not agree on the
definition of a standard MassARRAY configuration pursuant to
section 2.9.1 or section 2.9.2, or specifications therefor, then
SEQUENOM will use its best efforts to support alternative
MassARRAY-based configurations and specifications installed at
GENAISSANCE.
2.10 The parties each agree to recommend the other party's products and
services to potential customers in the pharmaceutical,
biotechnology, and agricultural markets, and refer publicly to one
another as Strategic Partners. SEQUENOM will refer to GENAISSANCE as
a provider of technology that connects genomic variation with
clinical outcomes and GENAISSANCE will refer to SEQUENOM as its
provider of high-throughput genotyping technology for use in genomic
variation and clinical association studies. Each party will make
available to the other party marketing and technical material,
including non-proprietary data, to be incorporated into public
lectures where appropriate. Each party will also make available a
representative to present its respective technology in private
meetings with third party potential customers, where it is
determined that this will support the execution of a sale.
2.11 Within six months of executing this Agreement, the parties will
mutually agree upon a collaborative marketing scheme, which shall
include at least: (a) details of joint marketing tools (e.g. joint
events, web site cross-linking); (b) a procedure to establish which
party shall serve as `primary lead' when both parties independently
enter into discussions with the same potential customer; and (c)
financial incentives (e.g. royalties or `finder's fees'), if any, to
be provided when one party secures new business for the other party.
2.12 Throughout the term of this Agreement, each party will designate a
dedicated staff member as its Strategic Alliance Manager whose
primary responsibility will be the successful implementation of this
Agreement. SEQUENOM designates Xxxxxx X. Xxxxxx, Ph.D. as its
initial Strategic Alliance Manager and GENAISSANCE designates Xxxx
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Xxxxx, Ph.D. as its initial Strategic Alliance Manager. Each party
agrees to notify the other party within ten (10) business days of a
change in its Strategic Alliance Manager.
ARTICLE 3. DELIVERY, SHIPMENT AND RISK OF LOSS
3.1 Delivery of MassARRAY Products is subject to acceptance of the order
by SEQUENOM and to product availability, and to SEQUENOM's lead times
which may change from time to time.
3.2 SEQUENOM will ship according to SEQUENOM's standard commercial
practice as described in Appendix D. Special packing or shipping
instructions requested by GENAISSANCE must be agreed to by SEQUENOM
in writing, and any charges will be billed to GENAISSANCE.
3.3 All shipments by SEQUENOM shall be FOB SEQUENOM's point of
manufacture in the United States, provided that if SEQUENOM has a
point of manufacture in Europe, then any shipments by SEQUENOM to
GENAISSANCE's facilities in Europe shall be FOB SEQUENOM's point of
manufacture in Europe. Title to and risk of loss for the MassARRAY
Products shall pass to GENAISSANCE upon delivery by SEQUENOM to a
carrier designated by GENAISSANCE or selected by SEQUENOM if
GENAISSANCE does not designate a carrier.
ARTICLE 4. PRICE AND PAYMENT TERMS
4.1 MassARRAY System Price. SEQUENOM has delivered one MassARRAY System
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to GENAISSANCE which consisted of the items listed on GENAISSANCE's
Purchase Order No. *****, which is attached as Appendix G hereto, and
for which GENAISSANCE has agreed to**********************************
*******************************
4.2 GENAISSANCE agrees to purchase at ************* additional
SpectroSCAN(TM) array mass spectrometers, as well as the accompanying
components comprising one or both of the MassARRAY standard
configurations developed pursuant to sections 2.9.1 and 2.9.2, the
configuration, price, and delivery schedule of which to be mutually
agreed upon by the parties, with the understanding that the price and
delivery schedule shall reflect the ************************* of
GENAISSANCE.
4.3 SEQUENOM agrees to upgrade, ************ to GENAISSANCE, the
MassARRAY Systems purchased by GENAISSANCE pursuant to sections 4.1
and 4.2 to provide a capacity for simultaneously processing three
hundred eighty-four (384) samples through all steps in the Assay
described in Appendix C. SEQUENOM agrees to perform such upgrade
within ten (10) business days that such upgrade becomes commercially
available and agrees that such upgrade shall include replacement of
components of the MassARRAY Systems installed at GENAISSANCE if
necessary to achieve such capacity.
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4.4 MassARRAY Kit Price. Except as otherwise provided in this section 4.4
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and section 4.5, the price of a MassARRAY Kit
**************************************** *******. This price for the
MassARRAY Kit is based upon a fee ***************** *********** per
Element. This price is for the MassARRAY Kit set forth in Appendix B,
each Kit including a ten (10) chip 384-D SpectroCHIP(TM) pack,
wherein each SpectroCHIP(TM) chip contains three-hundred eighty four
(384) Positions. Until the 384-D SpectroCHIP becomes available,
SEQUENOM will sell GENAISSANCE MassARRAY Kits that include a ten (10)
chip 96-D SpectroCHIP(TM) pack, wherein each SpectroCHIP(TM) chip
contains ninety six (96) Positions, for a price *****************
****************************. This price for MassARRAY Kits having
the ten (10) chip 96-D SpectroCHIP(TM) pack is based upon the same
fee ********************** ****** per Element. The parties agree that
the price per Element set forth in this section 4.4 shall be reviewed
every six months and shall be reduced if necessary to assure that
GENAISSANCE receives ************************* as set forth in
section 2.2. Should the parties agree to extend this Agreement beyond
its three (3) year duration, SEQUENOM reserves the right to adjust
the price for its MassARRAY Kits at its option, provided that the
adjusted price shall reflect GENAISSANCE's **************** ***** as
set forth in section 2.2. Payments for the MassARRAY Kits will be due
thirty (30) days from the date of shipment. Upon shipment of
MassARRAY Kits, SEQUENOM will submit an invoice reflecting an invoice
number, date, remit to address, purchase order number, quantity
ordered, unit price, and any applicable tax and shipping and handling
charges. The configuration of the MassARRAY Kit may change and/or be
improved from time to time and may or may not be accompanied by a
change in purchase price, although the fees per Element agreed to
will not increase during the three (3) year duration of this
Agreement.
4.5 Discounted MassARRAY Kit Pricing Based Upon Increased Consumption.
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SEQUENOM agrees to charge GENAISSANCE a reduced Element fee other
than that set forth under section 4.4 above, in the event and upon
the condition that GENAISSANCE, during a twelve month calendar year,
achieves Element consumption milestones as set forth below, according
to a scale where the Element fee is reduced as consumption increases.
For example, as shown in the table below, should GENAISSANCE consume
between ****************************************** ******************
Elements in a given calendar year, GENAISSANCE will be charged an
Element fee of ******************************* per Element rather
than ************************** per Element as set forth under
section 4.4. In such a case, GENAISSANCE will receive****************
***********************, upon reaching such milestones, and *********
******************************************.
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ELEMENTS CONSUMED ***************
************ ************
PER CALENDAR YEAR *******
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ELEMENT FEE **** **** ****
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4.6 Manner of Payment. Payments to be made by GENAISSANCE to SEQUENOM under
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this Agreement shall be payable in United States dollars.
ARTICLE 5. INTELLECTUAL PROPERTY AND LIMITED RIGHT TO USE
5.1 By this Agreement, and subject to the terms and conditions set forth under
section 5.1.1 of this Article 5, with the purchase of MassARRAY Kits,
SEQUENOM grants GENAISSANCE a world-wide, non-exclusive, limited right, to
use, without the right to permit third parties to use, the MassARRAY Kits,
in conjunction with the MassARRAY System, for the defined Field of Use.
5.1.1 The MassARRAY Kits provided under this Agreement may be used in
performing SEQUENOM's proprietary MassEXTEND(TM) Methods and
Processes claimed under Patent Rights including United States Patent
Application Serial No. ********* and foreign equivalent Patent
Rights. The pricing of the MassARRAY Kit set forth in sections 4.4
and 4.5 includes a prepaid royalty in consideration for which
SEQUENOM grants GENAISSANCE a non-exclusive right without transfer
or sublicense rights, under United States Patent Application Serial
No. *********, foreign equivalent Patent Rights and SEQUENOM Know-
How to use the MassARRAY Kits to perform SEQUENOM's proprietary
MassEXTEND(TM) Methods and Processes, such right granted being
limited to the number of Elements provided per MassARRAY Kit
purchased, and such right granted being limited to use by
GENAISSANCE for the defined Field of Use.
5.2 The purchase price and royalty terms agreed to under Article 4 and this
Article 5 of this Agreement, are based upon the parties' mutual
understanding of the limited rights and the limited Field of Use placed on
GENAISSANCE's use of MassARRAY Products provided for under this Article.
Any other uses of the MassARRAY Products, and any terms and conditions
related thereto, must be agreed to, in writing, by the parties. With the
exception of the rights granted under this Article 5, no other right or
license is granted to GENAISSANCE either directly, indirectly, by
implication, estoppel, or otherwise by SEQUENOM under this limited grant.
5.3 All MassARRAY Assays for Proprietary SNPs are hereby designated GENAISSANCE
Confidential Information and SEQUENOM's use of such assays shall be limited
as set forth in this section 5.3 and Article 11.
5.3.1 For the avoidance of doubt, SEQUENOM may make, use, offer to sell
and sell MassARRAY Assays for genotyping Proprietary SNPs provided
that SEQUENOM validates such Assays independently of any GENAISSANCE
Confidential Information as defined in section 11.1, provided that
such Proprietary SNPs have lost their status as Confidential
Information or never were Confidential Information and that such
Assays do not infringe any issued claim under Patent Rights of
GENAISSANCE or a HAP(TM) Marker Genotyping Collaborator.
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5.3.2 Except as explicitly provided by section 5.3.1, the parties agree
that section 5.3.1 does not grant to SEQUENOM any license to make,
use, offer to sell or sell the MassARRAY Assays referenced in
section 5.3.1 under any Patent Rights claiming such Assays and does
not grant to SEQUENOM an exemption for liability for any damages
provided under any patent protection associated with such Patent
Rights.
5.3.3 The parties agree that nothing in this Agreement, including any and
all of the language in this Article 5, is intended to grant
GENAISSANCE a license to perform SEQUENOM's proprietary
MassEXTEND(TM) Methods and Processes, or to grant to GENAISSANCE a
license to any Patent Rights of SEQUENOM, based solely upon the
designation of MassARRAY Assays for Proprietary SNPs as "GENAISSANCE
Confidential Information" (as set forth under section 5.3) or
otherwise by implication under this Agreement. For the avoidance of
doubt, and by way of example only, should this Agreement terminate
or expire, while GENAISSANCE possesses and own the rights to the
MassARRAY Assays (as defined in section 1.11) for Proprietary SNPs,
GENAISSANCE does not possess, control, or own any interest in any
Patent Rights of SEQUENOM, including any and all Patent Rights to
SEQUENOM's proprietary MassEXTEND(TM) Methods and Processes. If
MassARRAY Assays for Proprietary SNPs have utility outside the scope
of SEQUENOM's Patent Rights, then GENAISSANCE is free to exploit
such utility, however, MassARRAY Assays for Proprietary SNPs may not
be used within the scope of any of SEQUENOM's Patent Rights unless,
and only upon the condition that MassARRAY Assays for Proprietary
SNPs are used with MassARRAY Products purchased from SEQUENOM and
the written license agreement provisions of sections 5.1 and 5.1.1
are in effect between the parties and are complied with by
GENAISSANCE.
5.4 All MassARRAY Assays for Non-proprietary SNPs are hereby designated
SEQUENOM Confidential Information and GENAISSANCE's use of such Assays
shall be limited as set forth in this section 5.4 and Article 11.
5.4.1 By this Agreement, SEQUENOM grants to GENAISSANCE a world-wide,
**********, non-exclusive license right, without the right to
sublicense or transfer, to make and use MassARRAY Assays for Non-
proprietary SNPs, only in the defined Field of Use and only with
MassARRAY Products purchased from SEQUENOM.
5.4.2 For the avoidance of doubt, the parties agree that GENAISSANCE is
free to make, use, offer to sell and sell assays for genotyping Non-
proprietary SNPs when GENAISSANCE designs and validates such assays
independently of any SEQUENOM Confidential Information as defined in
sections 5.4 and 11.1, provided that such assays do not infringe any
issued claim under Patent Rights of SEQUENOM.
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5.4.3 Except as explicitly provided by section 5.4.2, the parties agree
that section 5.4.2 does not grant to GENAISSANCE any license to
make, use, offer to sell or sell the assays referenced in section
5.4.2 under any Patent Rights claiming such assays and does not
grant to GENAISSANCE an exemption for liability for any damages
provided under any patent protection associated with such Patent
Rights.
5.5 GENAISSANCE shall have sole ownership of all right, title and interest in
all SNP Associations that are discovered by GENAISSANCE, or codiscovered by
GENAISSANCE and a HAP(TM) Marker Genotyping Collaborator, using a MassARRAY
Assay.
5.6 SEQUENOM represents and agrees that all employees or others acting on its
behalf pursuant to this Agreement shall be obligated under a binding
written agreement to assign to SEQUENOM all inventions made or conceived by
such employee or other person.
5.7 GENAISSANCE represents and agrees that all employees or others acting on
its behalf pursuant to this Agreement shall be obligated under a binding
written agreement to assign to GENAISSANCE all inventions made or conceived
by such employee or other person.
5.8 Except as provided under section 5.3.1, SEQUENOM agrees that it shall
require a license or prior written permission from GENAISSANCE to use,
market or sell MassARRAY Assays for Proprietary SNPs.
5.9 Except as otherwise expressly provided in this Agreement, under no
circumstances shall a party hereto, as a result of this Agreement, obtain
any ownership interest in or other right to any technology, know-how,
patents, patent applications, data, products, or biological materials of
the other party, including items owned, controlled or developed by the
other party, or transferred by the other party to said party, at any time
pursuant to this Agreement. Any compounds, technology or know-how derived,
developed or acquired by either party independent of this Agreement or
Confidential Information derived from this Agreement shall be the property
of such party.
5.10 SEQUENOM recognizes that GENAISSANCE would like HAP(TM) Marker Genotyping
Collaborators to have access to the MassARRAY Products that GENAISSANCE is
provided with under this Agreement. SEQUENOM agrees that it will grant
licenses to MassARRAY Products to HAP(TM) Marker Genotyping Collaborators
on commercially reasonable terms. In addition, SEQUENOM agrees that it will
grant to HAP(TM) Marker Genotyping Collaborators a ********** non-exclusive
license to make and use MassARRAY Assays designed for GENAISSANCE by
SEQUENOM for Non-proprietary SNPs, provided that such licenses shall be
limited to the Field of Use defined herein and shall only be granted to
those HAP(TM) Marker Genotyping Collaborators who have a license under a
separate agreement with SEQUENOM to use MassARRAY Products. While the
license grants referred to in this section 5.11 will not be unreasonably
withheld by SEQUENOM, SEQUENOM does reserve the right to abstain from
granting a license to any HAP(TM) Marker Genotyping Collaborator that is a
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competitor of SEQUENOM or that is otherwise not appropriate for a license
grant in the sound and reasonable business judgment of SEQUENOM.
5.11 The parties agree that a HAP(TM) Marker Genotyping Collaborator is a third-
party beneficiary of the provisions of section 5.11 and shall have the
right to enforce such provisions against SEQUENOM.
ARTICLE 6. INSPECTION/AUDIT RIGHTS
6.1 Upon the written request of SEQUENOM, GENAISSANCE shall permit an
independent certified public accountant selected by SEQUENOM and acceptable
to GENAISSANCE, which acceptance shall not be unreasonably withheld, to
have access during normal business hours to such records of GENAISSANCE as
may be reasonably necessary to verify GENAISSANCE's compliance with the
terms of this Agreement, in respect of any fiscal year ending not more than
twenty-four (24) months prior to the date of such request. SEQUENOM and
GENAISSANCE shall use commercially reasonable efforts to schedule all such
verifications within forty-five (45) days after SEQUENOM makes its written
request. All such verifications shall be conducted not more than once in
each calendar year. SEQUENOM agrees that all information subject to review
under this section 6.1 or under any agreement with a HAP(TM) Marker
Genotyping Collaborator is confidential and that SEQUENOM shall cause its
independent certified public accountant to retain all such information in
confidence and to execute a written agreement indicating the same.
SEQUENOM's independent certified public accountant shall only report to
SEQUENOM that information directly relating to compliance with the terms of
this Agreement and shall not disclose to SEQUENOM any other information of
GENAISSANCE or its HAP(TM) Marker Genotyping Collaborators.
6.2 Upon the written request of GENAISSANCE, SEQUENOM shall permit an
independent certified public accountant selected by GENAISSANCE and
acceptable to SEQUENOM, which acceptance shall not be unreasonably
withheld, to have access during normal business hours to such records of
SEQUENOM as may be reasonably necessary to verify SEQUENOM's compliance
with the terms of this Agreement, in respect of any fiscal year ending not
more than twenty-four (24) months prior to the date of such request.
SEQUENOM and GENAISSANCE shall use commercially reasonable efforts to
schedule all such verifications within forty-five (45) days after
GENAISSANCE makes its written request. All such verifications shall be
conducted not more than once in each calendar year. GENAISSANCE agrees that
all information subject to review under this section 6.2 is confidential
and that GENAISSANCE shall cause its independent certified public
accountant to retain all such information in confidence and to execute a
written agreement indicating the same. GENAISSANCE's independent certified
public accountant shall only report to GENAISSANCE that information
directly relating to compliance with the terms of this Agreement and shall
not disclose to GENAISSANCE any other information of SEQUENOM.
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ARTICLE 7. TERM AND TERMINATION
7.1. The term of this Agreement will be from the Effective Date and will
continue for a period of three (3) years, unless terminated by a party or
the parties under one of the provisions of this Article 7.
7.2. This Agreement shall terminate upon written notice by one party to the
other party in the event the other party shall become insolvent, asks its
creditors for a moratorium, files a bankruptcy petition, or suffers
appointment of a temporary or permanent receiver, trustee, or custodian,
for all or a substantial portion of its assets.
7.3. Either party may terminate this Agreement for default by the other party in
performing any of its material obligations under this Agreement by
notifying the other party in writing of such default and allowing the other
party thirty (30) days within which to cure such default, unless the
default is the failure to pay money, in which case the defaulting party
shall have only ten (10) business days to cure such default after receiving
written notice of non-payment. If such default is not cured within thirty
(30) days from receipt of such notice of default (or ten (10) business days
in the case of non-payment of money owed), the non-defaulting party may
terminate this Agreement by written notice to the defaulting party.
7.4. GENAISSANCE may terminate this Agreement if, in its sole judgement,
SEQUENOM has failed to make MassARRAY Products competitive pursuant to
section 2.3, by providing SEQUENOM thirty (30) days written notice of such
termination.
7.5. In addition to the other grounds set forth in this Article 7, GENAISSANCE
may terminate this Agreement by providing SEQUENOM thirty (30) days written
notice if GENAISSANCE reasonably believes that this Agreement is no longer
consistent with GENAISSANCE's overall business strategy.
7.6. Effect of Expiration or Termination of Agreement. Within thirty (30) days
-------------------------------------------------
after expiration or termination under this Article 7, each party shall
return to the other party or destroy any and all Confidential Information
provided by the other party pursuant to this Agreement according to section
11.3. GENAISSANCE shall have the right to use all MassARRAY Kits for which
GENAISSANCE has paid and are in GENAISSANCE's possession at the time of
termination, and the licenses granted GENAISSANCE pursuant to sections 5.1
and 5.1.1 shall continue until all such MassARRAY Kits are used. Except to
the extent expressly provided to the contrary, the rights and obligations
of the parties pursuant to Articles 6, 7, 11, and 12 and sections 5.3,
5.3.1, 5.3.2, 5.3.3, 5.4, 5.4.1, 5.4.2, 5.4.3, 5.5, 5.6, 5.7, 5.8, 5.9,
14.3, 14.5, 14.6 and 14.15 shall survive the expiration or termination of
this Agreement. Any and all rights of SEQUENOM to payments accrued through
expiration or termination as well as obligations of the parties under firm
orders for purchase and delivery of MassARRAY Products at the time of such
expiration or termination shall remain in effect, except that SEQUENOM will
have no obligation to sell and deliver MassARRAY Products that have
delivery dates more than three (3) months after the date of termination,
and in the case of termination under sections 7.2 or
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7.3, the terminating party has discretion in electing whether obligations
under firm orders will remain in effect.
ARTICLE 8. INSTALLATION AND ACCEPTANCE
8.1 Installation of each MassARRAY System by SEQUENOM at a location designated
by GENAISSANCE is included in the price under sections 4.1 and 4.2.
SEQUENOM shall install each MassARRAY System in accordance with SEQUENOM's
standard installation practice as defined in Appendices D and E hereto, or
as amended in the future by mutual written agreement of the parties, and
SEQUENOM will use commercially reasonable efforts to schedule and complete
installation in a timely fashion. GENAISSANCE and SEQUENOM will cooperate
with each other to coordinate the installation effort.
8.2 Installation shall be complete, and acceptance by GENAISSANCE shall occur,
when the MassARRAY System passes SEQUENOM's standard installation and test
procedures as defined in Appendices D and E hereto, or as amended in the
future by mutual written agreement of the parties. In the event the
MassARRAY System delivered will not pass SEQUENOM's standard installation
and test procedures, SEQUENOM will use reasonable commercial efforts to
make the necessary adjustments and/or to replace the MassARRAY System in
whole or in part until the MassARRAY System performs as intended and passes
such tests.
ARTICLE 9. TRAINING
9.1 Included in the price under sections 4.1 and 4.2, SEQUENOM will train
designated GENAISSANCE employees in the installation, use, and routine
maintenance of the MassARRAY Products in accord with SEQUENOM's standard
training program as described in Appendices E and F hereto, or as amended
in the future by mutual written agreement of the parties, and at a mutually
convenient time for the parties. GENAISSANCE may request from time to
time, due to additional instrument purchases, employee changes, increased
use, or otherwise, additional training as the need arises. SEQUENOM will
provide additional training according to a mutually convenient schedule and
at a price to be mutually agreed that will reflect GENAISSANCE's
*********************.
ARTICLE 10. REPRESENTATIONS AND WARRANTY
10.1 Representations, Warranties and Covenants of GENAISSANCE. GENAISSANCE
---------------------------------------------------------
represents and warrants to and covenants with SEQUENOM that:
(a) GENAISSANCE is a corporation duly organized, validly existing and
in corporate good standing under the laws of Delaware;
(b) GENAISSANCE has the legal right, authority and power to enter
into this Agreement;
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(c) GENAISSANCE has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(d) upon the execution and delivery of this Agreement, this Agreement
shall constitute a valid and binding obligation of GENAISSANCE
enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except
as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(e) the performance of its obligations under this Agreement will not
conflict with its charter documents or result in a breach of any
agreements, contracts or other arrangements to which it is a
party; and
(f) GENAISSANCE will not during the term of this Agreement enter into
any agreements, contracts or other arrangements that would be
inconsistent with its obligations under this Agreement.
10.2 Representations, Warranties and Covenants of SEQUENOM. SEQUENOM represents
------------------------------------------------------
and warrants to and covenants with GENAISSANCE that:
(a) SEQUENOM is a corporation duly organized, validly existing and in
corporate good standing under the laws of Delaware;
(b) SEQUENOM has the legal right, authority and power to enter into
this Agreement;
(c) SEQUENOM has taken all necessary action to authorize the
execution, delivery and performance of this Agreement;
(d) upon the execution and delivery of this Agreement, this Agreement
shall constitute a valid and binding obligation of SEQUENOM
enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' and contracting parties' rights generally and except
as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law);
(e) the performance of its obligations under this Agreement will not
conflict with its charter documents or result in a breach of any
agreements, contracts or other arrangements to which it is a
party;
(f) to the best of SEQUENOM'S knowledge, GENAISSANCE's use of
MassARRAY Products and practice of MassEXTEND(TM) Methods and
Processes in accordance with the product information, notices,
and instructions for use provided therewith, do not and will not
infringe any issued patent or valid copyright of any third party
that is issued or registered prior to the effective date of this
Agreement, respectively; and
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(g) SEQUENOM will not during the term of this Agreement enter into
any agreements, contracts or other arrangements that would be
inconsistent with its obligations under this Agreement.
10.3 Limited Warranty Relating to MassARRAY Products. SEQUENOM warrants that
------------------------------------------------
the MassARRAY System will be free from defects in materials and workmanship
and will conform to SEQUENOM's current specifications, or as amended in the
future by mutual written agreement of the parties, and perform accordingly,
from the time of installation and for a period of at least one (1) year
thereafter, so long as the MassARRAY System remains unchanged and in the
original condition supplied by SEQUENOM. SEQUENOM warrants that the
MassARRAY Kits will be free from defects in materials and workmanship and
will conform to SEQUENOM's specifications as defined in Appendix C hereto,
or as amended in the future by mutual written agreement of the parties, and
perform accordingly, for a period of at least two (2) months from the date
of shipment, so long as the MassARRAY Kits are stored according to
specifications as defined in Appendix C hereto, or as amended in the future
by mutual written agreement of the parties, and remain unchanged and in the
original condition supplied by SEQUENOM. The foregoing warranty does not
include periodic maintenance or calibration recommended for some MassARRAY
Products. This warranty does not apply to defects resulting from improper
or inadequate maintenance or calibration by GENAISSANCE; defects resulting
from hardware, software, interfacing, or supplies provided by parties other
than SEQUENOM; defects resulting from unauthorized modification,
maintenance, or repair, or improper use or operation outside of SEQUENOM's
specifications for the MassARRAY Products or by personnel not authorized by
SEQUENOM, and; defects resulting from abuse, negligence, accident, loss or
damage in transit. In addition, this warranty does not apply to damage due
to (1) environmental conditions at the site of installation; (2) operator
failure to perform standard operating procedures and routine maintenance as
prescribed in the operator manuals; (3) moving (by other than SEQUENOM
authorized personnel) the MassARRAY System from its installed location; (4)
exposure of the MassARRAY Products to Bio-Safety Level 3 or 4 (as defined
by the United States Occupational Health and Safety Administration) agents;
or (5) exposure to radioactivity.
10.3.1 SEQUENOM's sole obligation and liability for any breach of the
limited warranty set forth in section 10.3 shall be at SEQUENOM's
sole discretion and option: (1) to replace the MassARRAY Products,
in whole or in part, provided that GENAISSANCE notifies SEQUENOM of
the defects, SEQUENOM directs GENAISSANCE to return the defective
MassARRAY Products to SEQUENOM and GENAISSANCE returns the
MassARRAY Products as directed, at SEQUENOM's expense or (2) to
repair (and recalibrate as necessitated by repair) the MassARRAY
Products in whole or in part. MassARRAY Products may not be
returned to SEQUENOM under any circumstances without SEQUENOM's
prior authorization. Except as provided in Article 12, SEQUENOM
shall not be liable, to any extent whatsoever, for any damages
resulting from or arising out of the use or performance of the
MassARRAY Products provided under this Agreement, regardless of
foreseeability or the form of the cause of action,
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whether in contract, breach of warranty, tort (including
negligence, strict liability, or otherwise), and including but not
limited to damages resulting from loss of data, loss of
anticipated profits or revenue, or any special, direct, indirect,
incidental or consequential damages.
10.3.2 The limited warranty set forth in section 10.3 states GENAISSANCE's
sole and exclusive remedy and SEQUENOM's sole and exclusive
responsibility with respect to any alleged breach of this limited
warranty. Except as provided in section 10.3, the MassARRAY
Products are provided without warranty of any kind or nature.
SEQUENOM does not warrant, guarantee, or make any representations
regarding the use or the results of the use, of the MassARRAY
Products in terms of correctness, accuracy, reliability, or
otherwise. GENAISSANCE assumes the entire risk as to the results
and performance of the MassARRAY Products. The foregoing warranty
is exclusive and is made in lieu of and to the exclusion of any
other warranties, whether oral or written, express or implied,
direct, indirect, by estoppel or otherwise, or created by the
Uniform Commercial Code or the usage in the industry or the course
of dealings of the parties, as to any matter whatsoever, including
but not limited to those concerning merchantability or fitness for
a particular purpose.
ARTICLE 11. CONFIDENTIALITY
11.1 For the purpose of this Agreement, Confidential Information means all
information, data, and material, labeled or otherwise designated or
identified as confidential by SEQUENOM or by GENAISSANCE or their
Affiliates.
11.1.1 All information relating to SEQUENOM's MassARRAY Products including
but not limited to, price, quantity, discount, delivery schedule,
improvements, standard operating procedure documents, operation
manuals, schematics, design specifications, manufacturing and
related specifications, is hereby designated as SEQUENOM's
Confidential Information. SEQUENOM agrees that it will, in writing,
clearly identify as confidential, any and all information that it
provides to GENAISSANCE that it considers to be the Confidential
Information of SEQUENOM.
11.1.2 Any and all data generated by GENAISSANCE's use of MassARRAY
Products is hereby designated as GENAISSANCE's Confidential
Information. All information that GENAISSANCE has received from a
third party under an obligation of confidentiality to the third
party is also hereby designated as GENAISSANCE's Confidential
Information. GENAISSANCE agrees that it will, in writing, clearly
identify as confidential, any and all SNPs and any other
information that it provides to SEQUENOM and that it considers to
be the Confidential Information of GENAISSANCE.
11.3 Each party may use the other party's Confidential Information only for the
purpose of performing under this Agreement. For the avoidance of doubt, the
parties agree that
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neither party shall include in its database of gene variation any
information relating to a SNP that is the Confidential Information of the
other party unless such information is derived independently of such
Confidential Information. All Confidential Information remains the sole
property of the disclosing party. Upon termination or expiration of this
Agreement, all materials and all copies of all materials containing
Confidential Information, including but not limited to papers, books, logs,
correspondence and records, in any form, whether written, typed,
electronic, videotape, audiotape, etc., shall be returned to the disclosing
party within thirty (30) days of the termination or expiration of this
Agreement, except that each party may retain a single copy of the other
party's Confidential Information solely for the purpose of ensuring
compliance under this Agreement and GENAISSANCE may retain and use a copy
of Genolyzer(TM) Software for a period of ************** after termination
of this Agreement solely for the purpose of providing genotyping data that
has been created under this Agreement while this Agreement was in effect,
to a regulatory agency or to a HAP(TM) Marker Genotyping Collaborator.
GENAISSANCE shall have the right to capture in any and all digital forms
any type of data generated from its use of MassARRAY Products and
Genolyzer(TM) Software during the term of this Agreement.
11.4 Except as expressly provided herein, SEQUENOM and GENAISSANCE Affiliates,
officers, employees, agents, consultants, and authorized representatives
(a) shall hold in strict confidence all Confidential Information from the
other party or any of its Affiliates, officers, employees, agents or
representatives and (b) shall not distribute, disclose or disseminate such
Confidential Information to any third party without the prior written
approval of the other party (that is, the original disclosing party),
provided, however, that such approval will not be unreasonably withheld
where the receiving party reasonably believes that disclosure of the other
party's Confidential Information is reasonably necessary to obtain patents,
authorization to conduct clinical trials, or regulatory approval, and
provided that GENAISSANCE may, at its sole option and discretion, disclose
to its HAP(TM) Marker Genotyping Collaborators only that SEQUENOM
Confidential Information directly relating to MassARRAY Assays for Non-
proprietary SNPs on condition that such Collaborators agree in writing to
keep such information confidential to the same extent as GENAISSANCE is
required to keep the Confidential Information confidential.
11.5 For purposes of this section, information will not be considered to be
Confidential Information of a party if the information:
(i) was lawfully in the receiving party's possession prior to disclosure
under this Agreement and was not acquired directly or indirectly from
the disclosing party; or
(ii) was, at the date of disclosure by the disclosing party, public
knowledge; or subsequently becomes public knowledge other than through
the failure of the receiving party to comply with its obligations of
confidentiality under the terms of this Agreement; or
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(iii) was or is acquired by the receiving party from any third party
lawfully having possession of such information and who is not under
an obligation of confidentiality to the disclosing party; or
(iv) was or becomes independently known by the receiving party without
utilizing information provided by the disclosing party and wherein
such independent knowledge is supported in contemporaneously written
and dated documentation of the receiving party; or
(v) is required to be disclosed, retained, or maintained by either party,
or by a HAP(TM) Marker Genotyping Collaborator, by applicable law or
regulation or under the rules of any regulatory or governmental
authority, provided however that each party shall immediately notify
the other party in writing of such required disclosure and must
provide such notice at least thirty (30) days prior to the date when
disclosure is proposed to take place, and provided that the party or
third party required to make disclosure shall use its best efforts to
secure confidential treatment of any such information required to be
disclosed.
11.6 The parties hereto understand and agree that remedies at law may be
inadequate to protect against any breach of any of the provisions of this
Article 11 by either party or their employees, agents, officers or
directors or any other person acting in concert with it or on its behalf.
Accordingly, each party shall be entitled to the granting of injunctive
relief by a court of competent jurisdiction against any action that
constitutes any such breach of this Article 11.
11.7 Either party may publish or present data and/or results generated under
this Agreement, provided that, the proposed disclosure shall be subject to
the prior review by the other party solely to determine (i) whether the
proposed disclosure contains the Confidential Information of the other
party, (ii) whether the information contained in the proposed disclosure
should be the subject of a patent application prior to such disclosure or
(iii) whether the disclosure would be adverse to the business interests of
the other party. Each party shall provide the other party with the
opportunity to review any proposed abstract, manuscript or presentation by
delivering a copy thereof to the other party no less than thirty (30) days
before its intended submission for publication or presentation. The other
party shall have thirty (30) days from its receipt of any such abstract,
manuscript or presentation in which to notify the party in writing of any
specific objections to the disclosure. In the event a party objects to the
disclosure, the other party agrees not to submit the publication or make
the presentation containing the objected-to information until the party is
given a reasonable additional period of time (not to exceed an additional
thirty (30) days) to seek patent protection for any material in the
disclosure which it believes is patentable or, in the case of Confidential
Information, to allow the party to delete any Confidential Information of
the other party from the proposed disclosure. Each party agrees to delete
from the proposed disclosure any Confidential Information or information
that would be adverse to the business interests of the other party upon
request.
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11.8 Except as provided in section 11.3, the provisions of Article 11 shall
survive any termination or expiration of this Agreement and continue in
force for a period of ten (10) years following the effective date of any
such termination or expiration.
ARTICLE 12. INDEMNIFICATION
12.1 In the event of an accusation, claim or lawsuit brought by a third party
for infringement of a patent, copyright, or other proprietary right of a
third party, based upon GENAISSANCE's use of the MassARRAY Products and
performance of MassEXTEND(TM) Methods and Processes in accordance with the
product information, notices, and instructions for use provided therewith,
SEQUENOM shall use its best efforts to procure for GENAISSANCE the right to
continue such use, or if unable to procure such continued use, then
SEQUENOM shall use its best efforts to provide a substitute, non-infringing
product which provides substantially the same results. In any event,
SEQUENOM shall defend the accusation, claim or lawsuit and indemnify
GENAISSANCE for any damages which may be awarded, provided that GENAISSANCE
(1) provide prompt written notice of the accusation, claim or lawsuit to
SEQUENOM; (2) authorize and provide SEQUENOM with complete control of the
defense of the accusation, claim or lawsuit and any and all settlements,
negotiations, compromises, and discussions thereof; (3) cooperate fully
with SEQUENOM and provide SEQUENOM with such reasonable assistance, as
SEQUENOM may request in the defense of such accusation, claim or lawsuit;
and (4) make no statements or admissions directly or indirectly related to
the MassARRAY Products or intellectual property related to the accusation,
claim, or lawsuit, or the merits or lack of merit of any accusation, claim,
or lawsuit, without the express written permission of SEQUENOM. Nothing in
this provision shall be construed to prevent GENAISSANCE from participating
in (but not controlling) the defense of any such action, with its counsel
and at its own expense.
12.2 GENAISSANCE IS HEREBY PUT ON NOTICE THAT SEQUENOM'S MASSARRAY PRODUCTS
HAVE NOT BEEN SUBJECTED TO REGULATORY REVIEW OR APPROVED BY THE FEDERAL
FOOD AND DRUG ADMINISTRATION OR ANY OTHER UNITED STATES GOVERNMENTAL AGENCY
OR ENTITY, UNDER ANY STATUTE, FOR ANY PURPOSE, RESEARCH, COMMERCIAL, OR
OTHERWISE.
ARTICLE 13. NOTICES
13.1 All notices and requests required or authorized hereunder shall be given in
writing either by personal delivery; by registered or certified mail,
return receipt requested; or by confirmed facsimile followed by first class
mail or express delivery. Such notice shall be deemed to have been given
upon such date that it is so personally delivered; the date three (3) days
after it is deposited in the mail; or the date the same is received by the
receiving party's fax machine, irrespective of the date appearing therein.
22
CONFIDENTIAL
If to GENAISSANCE: If to SEQUENOM:
GENAISSANCE PHARMACEUTICALS, Inc. SEQUENOM, Inc.
Attention: Xxxxxx X. Xxxxx, Ph.D. Attention: President and CEO
Five Science Park 00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000-0000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
and a copy to: and a copy to:
GENAISSANCE PHARMACEUTICALS, Inc. SEQUENOM, Inc.
Attention: Xxxxxxx X. Xxxxxxxxx Attention: Corporate Counsel
Five Science Park 00000 Xxxxxxxx Xxxxxx Xxxx
Xxx Xxxxx, XX 00000 Xxx Xxxxx, XX 00000-0000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
ARTICLE 14. GENERAL
14.1 Force Majeure. Except with respect to the payment of money, neither party
--------------
shall be liable for any failure or delay in its performance under this
Agreement due to causes, including, but not limited to, acts of God, acts
of civil or military authority, fires, epidemics, floods, earthquakes,
riots, wars, sabotage, labor shortages or disputes, and governmental
actions, which are beyond its reasonable control; provided that the delayed
party: (i) gives the other party written notice of such cause and (ii) uses
its reasonable efforts to correct such failure or delay in its performance.
The delayed party's time for performance or cure under this section 14.1
shall be extended for a period equal to the duration of the cause.
14.2 Relationship of Parties. The parties to this Agreement are independent
------------------------
contractors. Neither party nor their respective Affiliates, employees,
consultants, contractors or agents, are Affiliates, agents, employees,
joint ventures of the other, nor do they have any authority to bind the
other by contract or otherwise to any obligation. Neither party will
represent anything to the contrary, either expressly, implicitly, by
appearance or otherwise.
14.3 Assignment. The parties may not assign this Agreement in whole or in part
-----------
without the consent of the other, except if such assignment occurs in
connection with the sale or transfer of all or substantially all of the
assets of a party to which the subject matter of this Agreement pertains.
Notwithstanding the foregoing, any party may assign its rights (but not its
obligations) pursuant to this Agreement in whole or in part to an Affiliate
of such party.
14.4 Successors in Interest. Subject to section 14.3, the rights and liabilities
-----------------------
of the parties hereto will bind and inure to the benefit of their
respective successors, executors and administrators, as the case may be.
23
CONFIDENTIAL
14.5 Applicable Law. This Agreement shall be governed by and construed in
---------------
accordance with the laws of Delaware, U.S.A., exclusive of its conflicts
of law rules. Any litigation between the parties relating to this
Agreement shall take place in Delaware and the parties consent to the
personal jurisdiction of and venue in the state and federal courts within
Delaware.
14.6 Dispute Resolution. The parties hereby agree that they will attempt in
-------------------
good faith to resolve any controversy or claim arising out of or relating
to this Agreement promptly by negotiations. If a controversy or claim
should arise hereunder, the matter shall be referred to an individual
designated by the Chief Executive Officer (or the equivalent position) of
GENAISSANCE and an individual designated by the President (or the
equivalent position) of SEQUENOM (the "Representatives"). If the matter
has not been resolved within thirty (30) days of the first meeting of the
Representatives of the parties (which period may be extended by mutual
agreement) concerning such matter, either party may bring suit in an
appropriate state or federal court. Nothing herein shall preclude the
parties from agreeing to binding arbitration at a location and under rules
agreed to by each party.
14.7 Severability. If for any reason a court of competent jurisdiction finds
-------------
any provision of this Agreement, or portion thereof, to be unenforceable,
that provision of the Agreement shall be enforced to the maximum extent
permissible so as to effect the intent of the parties, and the remainder
of this Agreement shall continue in full force and effect.
14.8 No Waiver. Failure by either party to enforce any term, provision, or
----------
condition of this Agreement shall not be deemed a waiver of future
enforcement of that or any other term, provision, or condition. No waiver
of a term, provision, or condition of this Agreement in any one or more
instances, whether by context, implication, express, or otherwise, shall
be construed to be a further or continuing waiver of such term, provision,
or condition.
14.9 Counterparts. This Agreement may be executed in one or more counterparts,
-------------
each of which will be deemed an original, but all of which will constitute
but one and the same instrument.
14.10 Facsimile Copies. For purposes of this Agreement, a signed facsimile
-----------------
copy shall have the same force and effect as an original signed Agreement.
14.11 Complete Agreement. This Agreement, including all Appendices,
-------------------
constitutes the entire agreement between the parties with respect to the
subject matter hereof, and supersedes and replaces all prior or
contemporaneous understandings or agreements, written or oral, regarding
such subject matter. No amendment to or modification of this Agreement
shall be binding unless in writing and signed by a duly authorized
representative of both parties.
24
CONFIDENTIAL
14.12 Third Party Beneficiaries. Except as specifically set forth herein, no
--------------------------
third party beneficiary rights are conferred or are intended to be
conferred by this Agreement.
14.13 Headings. Headings in this Agreement are for convenience only, and shall
---------
not be used to and shall not affect the meaning or interpretation of this
Agreement.
14.14 Construction. This Agreement shall not be strictly construed against any
-------------
party hereto, regardless of which party, or how much a party, contributed
to the drafting of the Agreement.
14.15 Public Announcements. Any announcements or similar publicity with respect
---------------------
to the execution of this Agreement shall be agreed upon among the parties
in advance of such announcement. The parties understand that this
Agreement is likely to be of significant interest to investors, analysts
and others, and that any of the parties therefore may make such public
announcements with respect thereto, provided that the disclosing party
has complied with the conditions of this section 14.15. The parties agree
that any such announcement will not contain confidential business or
technical information and, if disclosure of confidential business or
technical information is required by law or regulation, the disclosing
party will use its best efforts to minimize such disclosure and obtain
confidential treatment for any such information which is disclosed to a
governmental agency or group. Each party agrees to provide to the other
party a copy of any public announcement as soon as reasonably practicable
under the circumstances prior to its scheduled release. Each party shall
provide the other with an advance copy of any press release at least ten
(10) business days prior to the scheduled disclosure. Each party shall
have the right to expeditiously review and recommend changes to any
announcement regarding this Agreement or the subject matter of this
Agreement. Except as otherwise required by law, the party whose press
release has been reviewed shall remove any information the reviewing
party reasonably deems to be inappropriate for disclosure.
14.16 Conflicts. In the event that a conflict arises between this Agreement
----------
and any work order, purchase order, billing statement, or invoice related
to the purchase of and right to use MassARRAY(TM) Products, this
Agreement will govern and the conflicting terms, provisions, and
conditions of any such other documents shall be deemed nonexistent, and
shall not be binding upon either party.
25
CONFIDENTIAL
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first indicated above.
GENAISSANCE SEQUENOM, Inc.
PHARMACEUTICALS, Inc.
By: /s/ Xxxxxx X. Xxxxx By: /s/ Xxxx Xxxxx
---------------------------------- -------------------------------
Name: Xxxxxx X. Xxxxx, Ph.D. Name: Xxxx Xxxxx
Title: Senior Vice-President of Genomics Title: Executive Vice-President
Date: 3 May 2000 Date: 4 May 2000
-------------------------------- -----------------------------
26
CONFIDENTIAL
APPENDIX A
MassARRAY(TM) System
High-speed SpectroSCAN(TM) array mass spectrometer for separation, detection and
characterization of the analyte molecules from a miniaturized array; configured
with:
. a 10-chip SCOUT MALDI target
. high precision x/y positioning stage (4 m/step)
. low maintenance N\\2\\ UV laser (10Hz) for sample ionization
. gridless pulsed ion extraction
. 125 cm linear TOF analyzer with gated detector
. fuzzy logic feedback control
. 2 GHz digitizer for high-accuracy data acquisition
. Workstation, post processing software
SpectroJET(TM), 4-Channel, v1.1, dispenser for nanoliter sample transfer,
equipped with:
. SPIP Micropump with 800 nl chamber volume
. droplet volume range of 0.5-2 nl
. CV(less than)2% dispensing precision of the pump
. 0.1 mm precision of x/y positioning stage
. maximum speed of 41.9 cm/sec
. PC, controller software
Automated Multipipettor including:
. 96-channel automated pipettor
. pipetting volume range of 2-200 l
. magnetic lifter for bead separation
. six position workdeck
. PC, controller software
Biomass Workstation for data management and interpretation
. Workstation (hardware)
. Genolyzer/(TM)/ software
. Oracle database
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APPENDIX B
MassARRAY(TM) Kit
----------------------------------------------------------------------------------------------------------
Kit Package Storage Components Quantity Dilutions
Temp.
----------------------------------------------------------------------------------------------------------
Reaction 2-8(degrees) C Beads 16 mL none
Components B Binding Buffer 60 mL 1:3 & undiluted
Denaturation Solution 60 mL 1:10
Wash & Conditioning Buffer 2 x 60 mL 1:10
Recovery Solution 60 mL 1:10
----------------------------------------------------------------------------------------------------------
SpectroCHIP(TM) 15-25(degrees) C 384-D SpectroCHIP(TM) (96-D 10 n / a
Pack Spectro CHIP(TM) will be supplied
until 384-D available)
----------------------------------------------------------------------------------------------------------
B-1
CONFIDENTIAL
kit composition
Inventory items Basic Kit Kit Composition Genomics R&D
--------------- --------- --------------- -------- ---
------------------------------------------------------------------------------------------------------------
Basic Kit Xxxxxxxxxxx (XXXXXX00000, R00)
------------------------------------------------------------------------------------------------------------
Components Quantity Formulation Shipping Storage Co
Conditions Conditions
------------------------------------------------------------------------------------------------------------
Probe Enzyme 3840 U Thermosequenase (32U/ul) Cold Frozen(-20C) 10u
20%
due
diffi
------------------------------------------------------------------------------------------------------------
PROBE Mix 1 2.0 ml 10X Buffer, 0.5mM ddATP, 0.5mM ddCTP, Cold Frozen (-20C)
0.5 mM dGTP, 0.5mM dTTP
------------------------------------------------------------------------------------------------------------
PROBE Mix 2 2.0 ml 10X Buffer, 0.5mM ddATP, 0.5mM ddGTP, Cold Frozen (-20C)
0.5mM dCTP, 0.5mM dTTP
------------------------------------------------------------------------------------------------------------
PROBE Mix 3 2.0 ml 10X Buffer, 0.5mM ddATP, 0.5mM ddTTP, Cold Frozen (-20C)
0.5mM dCTP, 0.5mM dGTP
------------------------------------------------------------------------------------------------------------
PROBE Mix 4 2.0 ml 10X Buffer, 0.5mM ddCTP, 0.5mM ddGTP, Cold Frozen (-20C)
0.5mM dATP, 0.5mM dTTP
------------------------------------------------------------------------------------------------------------
PROBE Mix 5 2.0 ml 10X Buffer, 0.5mM ddCTP, 0.5mM ddTTP, Cold Frozen (-20C)
0.5mM dATP, 0.5mM dGTP
------------------------------------------------------------------------------------------------------------
PROBE Mix 6 2.0 ml 10X Buffer, 0.5mM ddGTP, 0.5mM ddTTP, Cold Frozen (-20C)
0.5mM dATP, 0.5mM dCTP
------------------------------------------------------------------------------------------------------------
SpectroChips 10 XX0, 00xxxx, 0.8 um pad height Room Temp Room Temp
------------------------------------------------------------------------------------------------------------
Matrix pre- 70/10/10 3-HPA, Acetonitrile, Ammonium n/a n/a
applied Citrate
------------------------------------------------------------------------------------------------------------
Magnetic Beads 16 ml Dynal Beads, d=2.8um Room Temp Cold (2-8C)
------------------------------------------------------------------------------------------------------------
Binding Buffer 60 ml 3M NaC1, 15mM Tris-HCI pH7.5, 1.5mM Room Temp Cold (2-8C)
EDTA (3X)
------------------------------------------------------------------------------------------------------------
Denaturation 60 ml 1N NaOH (10x concentrate) Room Temp Cold (2-8C)
Buffer
------------------------------------------------------------------------------------------------------------
Wash & 2 x 60 ml 100mM Tris-HCI pH=8.0 (10x concentrate) Room Temp Cold (2-8C)
Conditioning
Buffer
------------------------------------------------------------------------------------------------------------
Recovery 60 ml 0.5M NH40H (10x concentrate) Room Temp Cold (2-8C)
Solution
------------------------------------------------------------------------------------------------------------
Positive 25 ul 25uM PCR Primer PC-F, 10uM PCR Primer Cold Frozen (-20C) 25r
Control - PCR PC-R-bio, 1X TE Buffer
Primers
------------------------------------------------------------------------------------------------------------
Positive 50 ul 10uM PROBE Primer PC-P, 1X TE Buffer Cold Frozen (-20C) 25
Control - 20p
PROBE Primer
------------------------------------------------------------------------------------------------------------
Calibrant 000 xx 0.0xX Xxxxx xxxxxxxx 00, 0.0xX Xxxxx Cold Frozen (-20C) 25
standard 28, 1.0uM Oligo standard 33 5ul/
------------------------------------------------------------------------------------------------------------
B-2
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APPENDIX C
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APPENDIX D
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APPENDIX E
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APPENDIX F
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CONFIDENTIAL
APPENDIX G
PURCHASE ORDER NO. 15975
-----
SHIP TO:
Genaissance Pharmaceuticals, Inc.
Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
(000) 000-0000
XXXX TO:
Finova Capital Corporation
Attn: Xxxxxxx Xxxxxxxx
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
000-000-0000
Req. By: K. Nandabalan
Date: 1/26/00 Approved By:_____________
-----------------------
To: Sequenom
-----------------------
Phone: (000) 000-0000 xxx 00 Xxxxxx Xxxxxx, Ph.D.
-----------------------
Fax: (000) 000-0000
-----------------------
Acct # Job Desc. Qty. Part # Description Unit Price Total
------------------------------------------------------------------------------------------------------------------------
* SYSTEM MassArray System ********** ********
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
ANY UPGRADES TO ANY OF THE COMPONENTS 0.00
-------------------------------------------------- ARE TO BE MADE ONSITE BY SEQUENOM AS --------------------------
SOON AS THESE UPGRADES ARE AVAILABLE 0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
0.00
------------------------------------------------------------------------------------------------------------------------
TOTAL ******
------------------------------------------------------------------------------------------------------------------------
Reference/Order No. Date: ___________________
With: ___________________
Expected Delivery: ___________________
------------------------------------------------------------------------------------------------------------------------
G-1
CONFIDENTIAL
[SEQUENOM LETTERHEAD]
January 24, 2000
Dr. Xxxxxxxx Xxxxxxxxxx
Genaissance Pharmaceuticals
Xxxx Xxxxxxx Xxxx
Xxx Xxxxx, XX 00000
(000) 000-0000 x0000
Dear Krishnan,
Please find to follow a proposal for a MassArray(TM) system for initial
experiments and assay validation at Genaissance. If the proposal is accepted by
the end of January we can guarantee the requested accelerated (4 weeks from
order placement) delivery.
We have included in this quotation the Spectroscan(TM) Biflex (developed
with our partner Bruker Daltonics) as the mass spectrometer. While we are
progressing on the development and validation of the Spectroscan Voyager
(developed with our partner Xxxxxx Xxxxx), we cannot offer this as part of a
validated system within the next month. We will of course introduce you to both
mass spectrometers preceding the establishment of the multi-system core
genotyping facility at Genaissance later this year. Likewise, we will in this
timeframe give demonstration of the high-throughput sample processing station
capable of processing more than 25 384-well microtiter plates per day, which is
a product of our collaboration with the lab automation division of Xxxxxxx
Instruments.
Please do not hesitate to contact me by phone, fax, or email if there are
any questions.
Best regards,
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, Ph.D.
Director, East Coast Operations
G-2
CONFIDENTIAL
Proposal
By and between
Sequenom Inc.
0-000 Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000-0000, XXX,
-Hereinafter referred to as SEQUENOM-
and
Genaissance
-Hereinafter referred to as GENAISSANCE-
PROPOSAL
SEQUENOM is pleased to provide the GENAISSANCE with a non-binding proposal for
a MassArray(TM) System ("SYSTEM") which incorporates the following components:
- High-speed SpectroSCAN Biflex array mass spectrometer for separation,
detection and characterization of the analyte molecules from a miniaturized
array; configured with:
. a 10-chip MALDI target
. high precision x/y positioning stage (4 um/step)
. low maintenance N\\2\\ UV laser (10Hz) for sample ionization
. High speed digitizer for high-accuracy data acquisition
. Data acquisition workstation
- SpectroJET, 4-Channel, v1.1, dispenser for nanoliter sample transfer (from
microtiter plate to Spectrochip); equipped with:
. Micropump
. droplet volume range of 0.5-2 nl
. CV *2% dispensing precision of the pump
. 0.1 mm precision of x/y positioning stage
. PC, controller software
- SpectroPREP Automated Multipipettor including:
. 96-channel automated pipettor
. pipetting volume range of 2-200 u
. magnetic lifter for solid support (bead) manipulation
. six position workdeck
. PC, controller software
* Less than
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CONFIDENTIAL
- Data management and interpretation tools
. Workstation (hardware)
. SpectroTYPER software
. Oracle database
TERMS AND CONDITIONS
1. Price for SYSTEM $********** (************************************ US
Dollars).
2. This is a non-binding quotation for the products and services printed above.
3. Proposal pricing valid for sixty (60) days after issue.
4. Upon acceptance of this Proposal, both parties will enter into an Agreement
outlining the terms and conditions as mutually agreed upon.
5. Terms of the strategic alliance agreement under discussion between
Genaissance and Sequenom will take precedence over those outlined here, upon
singing of said strategic alliance agreement.
6. All product and software licenses are valid only when used with authorized
SEQUENOM consumables.
7. Delivery Date: 4-weeks after the order is placed; order must be placed by
January 31, 2000 to guarantee the accelerated delivery schedule. Valid for
this proposal only.
SEQUENOM warrants that the SYSTEM conforms to specifications and performs as
specified for a period of six (6) months beginning on the date of the first test
result provided by SYSTEM after it is installed at GENAISSANCE by SEQUENOM.
Genaissance may, at its discretion, purchase an annual service and maintenance
agreement from SEQUENOM. The service and maintenance price will depend on the
system configuration GENAISSANCE purchases.
G-4
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Genaissance Pharmaceuticals
Confidential and Proprietary
APPENDIX H
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