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Exhibit 10.15
SALES AND MARKETING AGREEMENT FOR UHTS PRODUCTS
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This is an Agreement, effective this 21st day of February, 2000, between Xxxx
Zeiss Jena GmbH, Xxxx-Xxxxx-Xxxxxxxxx 00, 00000 Xxxx, Xxxxxxx (hereinafter
ZEISS) and Cellomics, Inc., 000 Xxxxxxx Xxxx Xxx, Xxxxxxxxxx, XX 00000, XXX
(hereinafter CELLOMICS);
WHEREAS, ZEISS has expertise and intellectual property in developing and
manufacturing of "HTS/UHTS Readers" and "HTS/UHTS Systems" for the market of
drug discovery.
WHEREAS, CELLOMICS has expertise in application and marketing of assays
and instrumentation in the area of High Content Screening which is a part of the
drug discovery process.
NOW, THEREFORE, in consideration of the covenants and conditions
contained herein, the parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
Specific Definitions. For purposes of this Agreement, the following
definitions shall apply:
1.1 "HTS" and "UHTS" shall mean [*]
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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1.2 "North America" shall mean the countries of: USA, Canada.
1.3 "Net Sales Value" shall mean the amount invoiced to the customer.
1.4 "Rule of Sixths" shall mean that method of calculation of
compensation for out-of-territory sales by either party as set forth on Exhibit
1.0.
ARTICLE II
MARKETING AND SALES
2.1 ZEISS hereby appoints CELLOMICS to be ZEISS' exclusive dealer and
distributor within North America for the items listed in Exhibit 2.0 and for
accessories for such items (such items and accessories being hereinafter
referred to as "Products"); and CELLOMICS hereby accepts such appointment.
2.2 ZEISS and CELLOMICS will use their best efforts to convince
customers to place orders with CELLOMICS for Products to be installed in North
America and with ZEISS for Products to be installed outside North America. [*]
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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2.3 [*]
2.4 Production of literature, production of advertising and
presentation materials for the Products shall be the sole responsibility of
ZEISS with input from CELLOMICS.
2.5 CELLOMICS shall have the sole responsibility for advertising
placements, shows, and other promotional activities regarding the Products in
North America. Therefore, CELLOMICS shall participate at shows such as but not
limited to LabAutomation, Drug Discovery, and SBS. In the case of advertising
placement and exhibitions which address the international community of the drug
development market (such as advertisements in the Journal of Biomolecular
Screening and presentations at exhibitions such as mentioned above) ZEISS will
provide a proposal which CELLOMICS shall not unreasonably refuse to implement.
In addition, ZEISS reimburses Cellomics a percentage of the total costs incurred
by CELLOMICS. Such percentage shall be negotiated prior to such activity. It is
understood that the ZEISS logo and name shall be shown at these activities.
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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2.6 Training of CELLOMICS personnel for Product application and
software support will be provided by ZEISS in Jena. Each party will bear its own
cost with respect to such training and support. If requested by CELLOMICS, ZEISS
will provide training for any new products added to Exhibit 2.0 by mutual
written agreement of the parties.
2.7 Leads for potential customers obtained by CELLOMICS for potential
sales outside North America will be passed directly to ZEISS. Leads for
potential customers obtained by ZEISS for potential sales in North America will
be passed directly to CELLOMICS. CELLOMICS agrees to provide ZEISS with
exhibition and conference reports. Additionally, CELLOMICS agrees to provide
ZEISS with the minutes of customer contacts with regard to the Products if they
relate to potential leads outside North America, on a timely basis. ZEISS agrees
to provide such reports of customer contacts with regard to the Products if they
relate to potential leads in North America on a timely basis.
2.8 CELLOMICS shall purchase within the measurement periods described
in Exhibit 3.0 a minimum Deutsche Xxxx volume based on transfer prices equal to
the sum described in Exhibit 3.0. In the event CELLOMICS fails to purchase such
minimum volume in accordance with this Article and Exhibit 3.0, ZEISS shall
review with CELLOMICS in a management meeting the purchases, open orders, and
deliveries, within a period beginning at the end of such measurement period and
ending thirty (30) days thereafter. After this meeting, ZEISS shall be entitled
to terminate CELLOMICS exclusivity under Section 2.1 of this Agreement or, at
ZEISS's option, to terminate this Agreement in its entirety as a material breach
under Section 5.2 hereof. Any such election by ZEISS shall be by written notice
to CELLOMICS . In the event of such termination of the Agreement in its
entirety, CELLOMICS will receive compensation in the amount of 10% of the Net
Sales Value for sales occurring in North America within six (6) months of
termination and with regard to which CELLOMICS can prove the acquisition of the
sale by CELLOMICS (e.g. by proof that CELLOMICS has
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made an offer to such customer). Such compensation shall be due after full
payment by the customer to ZEISS.
The parties shall agree upon further annual measuring periods and
minimum volumes not later than six (6) months prior to the expiration of the
last measuring period according to Exhibit 3.0.
2.9 CELLOMICS will present its non binding sales projection for the
Products in North America for the next business year (October 1 - September 30)
6 months prior to such business year.
2.10 During the term of this Agreement CELLOMICS shall not sell within
North America any merchandise which is competitive with any of the Products.
CELLOMICS will promptly notify ZEISS whenever it sells any merchandise of a
business which is in competition with ZEISS. In the event CELLOMICS fails to
comply with Section 2.10, ZEISS shall be entitled to terminate CELLOMICS
exclusivity under Section 2.1 of this Agreement immediately. The ArrayScan II,
ArrayScan Kinetics Workstation, ArrayScan Kinetics Reader, CellChip system, and
any and all Cellomics reagents are acknowledged to be not competitive with any
of the Products.
2.11 ZEISS will deliver any Products FCA Frankfurt (Incoterms 1990).
The parties hereto agree that title to the Products ordered by CELLOMICS will
pass to CELLOMICS at Frankfurt, Germany.
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ARTICLE III
CUSTOMER SUPPORT
3.1 The parties recognize that the marketing and sales of the Products
will require certain support activities and agree to allocate those support
activities in accordance with this Article.
3.2 CELLOMICS will be responsible for providing Product support in
North America. Product support will include shipping, installation, warranty in
accordance with Exhibit 4.0 and service of the Products at its expense.
3.3 CELLOMICS shall inform ZEISS prior to the installation of Products
of the basic customer data enabling ZEISS to provide remote service support.
3.4 ZEISS will train a reasonable number of CELLOMICS' skilled service
personnel in order to be qualified to provide advice to customers in the
operation of the Products and to provide Product support. Each party will bear
its own costs with respect to such training and support.
3.5 CELLOMICS shall provide Product support to [*] by establishing a
service team consisting of at least two skilled service technicians. The service
requirements for the [*] are defined in Exhibit 5.0 and CELLOMICS agrees to
fulfill all obligations in accordance with Exhibit 5.0 except installation as
described in section 2 of Exhibit 5.0 and except that ZEISS shall retain
responsibility for replacement of defective parts as described in sections 3 and
4 in Exhibit 5.0 and that except that ZEISS retains responsibility for the terms
of section 5.0 and 10.0 of Exhibit 5.0. At least one service technician shall
take over the responsibility for [*] before the end of [*] and shall
participate in a systems training in Jena [*] to [*] by ZEISS in accordance with
Section 3.4. A second service technician shall be assigned to the [*] site
before the end of [*].
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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ZEISS shall pay to CELLOMICS the amount of [*] in two equal
installments. The first installment shall be due 30 days after the signing of
this Agreement. The second installment shall be due 30 days after CELLOMICS has
notified ZEISS in writing that it has named both service persons and assigned
him/her to the two tasks. If either [*] installations require more than [*]
of service time per year, including travel, ZEISS shall reimburse CELLOMICS for
service beyond [*] per system per year at a rate of $75.00 per hour,
plus travel expenses.
The parties agree that CELLOMICS shall have no further claims against
ZEISS resulting from the fulfillment of CELLOMICS' obligations according to
Exhibit 5.0. CELLOMICS shall not xxxx any services according to Exhibit 5.0 to
[*] except for the services described in Section 6 of Exhibit 5.0. In the event
CELLOMICS fails to fulfill its obligations under Exhibit 5.0, ZEISS will notify
CELLOMICS of such failure in writing and CELLOMICS will be given reasonable
opportunity to remedy the notification of failure. CELLOMICS shall reimburse
ZEISS for any costs incurred at ZEISS resulting from such failure at a rate of
$75.00 per hour, plus travel expenses up to a maximum of USD 100,000. Any
obligation resulting from Section 3.5 becomes only effective if confirmed in
writing by ZEISS within 60 days separately from this Agreement.
ARTICLE IV
PRICING
4.1 The prices for the Products sold by ZEISS to CELLOMICS are the
transfer prices listed on Exhibit 2.0. CELLOMICS understands that prices set
forth in Exhibit 2.0 will be recalculated by ZEISS at the beginning of each
measurement period after the first measurement period. Recalculated prices will
be limited to a maximum of 110% of the previous year's price. The invoices will
be issued in the currency of Deutsche Xxxx.
4.2 It is understood that CELLOMICS is free to set its own sales price
in the marketplace.
4.3 All revenues from sales of the Products by CELLOMICS in North
America will be retained by CELLOMICS.
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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4.4 The payment terms are: forty-five (45) days net for the "HTS/UHTS
Reader" and for a "HTS/UHTS System" 70% of its transfer price within forty-five
(45) days net after the date of shipment to either CELLOMICS or the customer and
30% forty five (45) days net after installation at the customer.
4.5 ZEISS shall provide demonstration equipment at the request of
CELLOMICS and after mutual agreement as to the choice of equipment and
accessories. ZEISS will issue a quarterly invoice for the loaned equipment based
on a monthly rate of one percent (1%) of the transfer price. After 12 months
CELLOMICS shall either return the equipment to ZEISS or purchase it at the
transfer price minus all amounts paid pursuant to the terms of the preceding
sentence including an extra discount of five percent (5%) on the transfer price.
ZEISS will send the loan equipment DDP whereas CELLOMICS will return the
equipment DDP (Incoterms 1990).
CELLOMICS shall accept the loan at any time during this Agreement for at least
two (2) "UHTS/HTS" Readers for demonstration purposes.
ARTICLE V
TERM AND TERMINATION
5.1 The parties agree that this Agreement shall, unless sooner
terminated, continue in effect until December 31, 2005. Notwithstanding the
foregoing, the parties agree that this Agreement may be terminated by either
party on not less than twelve months written prior notice to the other.
5.2 Either party may terminate this Agreement upon material breach by
the other party. The party intending to terminate shall give the other party
written notice, and the party receiving the notice shall have thirty (30) days
from the date such notice is received to cure any breach.
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In the event such breach is not cured, termination of this Agreement shall
become effective one hundred twenty (120) days after the date of the receipt of
the termination notice. Failure by CELLOMICS to purchase minimum volumes as
described in Section 2.8 and Exhibit 3.0 shall constitute a material breach
unless such failure is a result of ZEISS inability to fulfill orders submitted
by CELLOMICS and, provided that, in order to exercise its right of termination
pursuant to this sentence, ZEISS must give CELLOMICS written notice of such
election within a thirty (30) day period immediately following the close of the
measurement period according to Exhibit 3.0 in which CELLOMICS shall have failed
to meet such minimum volumes. Either party may terminate this Agreement with
immediate effect in the event the other party comes under control of a
competitor of the terminating party.
5.3 After termination, the parties agree to continue cooperating with
each other and to carry out an orderly termination of their relations. After
termination, the parties shall account to each other for all revenues and
expenses realized, due or owing pursuant to the terms of this Agreement.
5.4 After termination of this Agreement, CELLOMICS shall cease to
market the Products in North America in any way, except for inventory on hand,
and the parties shall deliver to each other all materials and documents
belonging to the other which have come into their possession as a result of this
Agreement, and CELLOMICS shall cease all and any use of the commercial
trademarks and/or names of ZEISS, except as permitted under other contracts.
5.5 CELLOMICS shall have the right to liquidate its stock of software
and hardware, and any promotional material relating thereto, in the event of
termination. In the event CELLOMICS terminates this Agreement without cause or
ZEISS terminates this Agreement due to a material breach by CELLOMICS then ZEISS
may accept but shall not be obligated to repurchase spare parts purchased by
CELLOMICS. In the event ZEISS terminates this Agreement without cause or
CELLOMICS terminates this Agreement due to a material breach by ZEISS then
CELLOMICS may return any spare parts within thirty (30) days after
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termination to ZEISS in the original packing. ZEISS shall then pay to CELLOMICS
an amount equivalent to the price paid by CELLOMICS before minus 15% restocking
fee.
5.6 In the event of termination, all CELLOMICS' held customer related
information will remain the sole property of CELLOMICS except as specified in
Section 3.3.
ARTICLE VI
CONFIDENTIALITY
6.1 Prior to and during the term of this Agreement, the parties will
disclose to each other certain confidential or proprietary information
("INFORMATION"), the disclosure of which to third parties could be commercially
injurious to the owner of the INFORMATION.
6.2 The disclosure of the INFORMATION is solely for the purpose of the
furtherance of the marketing and sale of the Products and services described
herein.
6.3 Each party understands that the disclosing party considers the
INFORMATION to be confidential and a trade secret.
6.4 Each party will not disclose to any third party, or utilize for its
own or another's benefit, the INFORMATION obtained from the disclosing party.
6.5 The term "INFORMATION" shall not include, and the parties shall not
have any obligations of confidence or non-disclosure with respect to:
6.5.1 information that is in the public domain at the time of
its transmittal or which subsequently comes into the public
domain without violation of any obligation of confidence
assumed hereunder; or
6.5.2 information received from a third party without
violation of an obligation of confidence to the transmitting
party; or
6.5.3 information which the recipient party can show to have
been in its possession at the time of transmittal; or
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6.5.4 information which the recipient party can show to have
been independently developed by employees of the recipient
party who have not had access to proprietary information
received hereunder; or
6.5.5 information which the recipient party is compelled to
disclose pursuant to judicial action or the legal and
enforceable request of a U.S. government agency, provided that
the transmitting party is notified at the time such action or
request is initiated, and further provided that the recipient
party cooperates with the transmitting party in the event that
the transmitting party seeks a protective order or other
appropriate remedy to prevent disclosure of such information.
6.6 If either party believes it essential to disclose any INFORMATION
to a third party, the party wishing to disclose will first advise the other
party what INFORMATION is to be disclosed, to whom it is to be disclosed and the
purpose therefore. The party wishing to disclose will first obtain the other
party's written permission to make the disclosure before making such disclosure,
which permission may be withheld for any reason. The requesting party also
agrees to require the third party recipient of the INFORMATION to acknowledge
that such INFORMATION is confidential, to hold the INFORMATION confidential for
the benefit of the disclosing party, and to sign a copy of a protective
agreement, naming the disclosing party as a third-party beneficiary having the
right to enforce the Agreement against the third party.
6.7 All INFORMATION, where possible, shall be transferred from each
party to the other in written form, and shall bear a conspicuous xxxx
designating such INFORMATION to be confidential. Additionally, any INFORMATION
transferred from each party to the other in an oral or other non-permanent or
non-readable form, such as in a computer communication, shall be summarized in a
brief memorandum which shall also bear a conspicuous xxxx designating such
INFORMATION to be confidential. Furthermore, all INFORMATION transferred in
tangible form shall be returned to the disclosing party upon request and/or at
the termination of this Agreement.
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6.8 It is understood that this Agreement will neither obligate either
party, nor grant to either party or any employees thereof, any rights in the
INFORMATION, or any protectable interest stemming therefrom, during the term of
the Agreement, except as specifically provided herein.
6.9 Each party agrees that if it or any of its employees breaches any
condition of this Agreement relating to the protection of proprietary or
confidential rights or information, the owner of such right or information will
be entitled to, in addition to all other remedies available, an immediate
injunction prohibiting the party in breach of its obligations, or its employees,
partners or other business associates, from committing any further breach of the
Agreement.
ARTICLE VII
WARRANTIES AND DISCLAIMERS
7.1 Each party represents and warrants to the other party that it has
no pre-existing contractual or other obligations to any third party which
preclude it from entering into this Agreement and meeting its obligations
hereunder, or which conflict with any Provision of this Agreement.
7.2 Each party represents and warrants to the other party that it shall
use any commercially reasonable efforts to achieve the objectives of the
Agreement.
ARTICLE VIII
TRADEMARKS, SERVICE MARKS AND TRADE NAMES
8.1 CELLOMICS must obtain ZEISS's prior written approval for the design
of CELLOMICS's sales materials, letterheads forms, etc. bearing the name or the
trademarks of
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ZEISS. CELLOMICS shall have the right to use the ZEISS's name and trademarks
solely in the manner for which it has obtained ZEISS's approval and only during
the term of this Agreement and such approvals will be made in a timely manner
and not unreasonably withheld, except as provided in other contracts.
ARTICLE IX
MISCELLANEOUS
9.1 Governing Law
This Agreement shall be construed in accordance with the laws of the
State of New York applicable to contracts made and performed in New York.
9.2 Actions Survive
All causes of action accruing to either party under this Agreement
shall survive termination for any reason, as shall provisions which expressly
state such survival unless such survival is conditional and the requisite
condition(s) has been fulfilled prior to or on such termination.
9.3 Entire Agreement; Superseder; Section Headings, Construction
This Agreement constitutes the only and entire understanding between
the parties concerning its subject matter and all other prior negotiations,
representations, agreements and understandings are superseded hereby. No
agreements altering or supplementing the terms hereof may be made except by
means of a written document signed by the duly authorized representatives of the
parties. The headings of Sections in this Agreement are provided for convenience
only and will not affect its construction or interpretation.
9.4 Amendments
This Agreement may be amended or modified only in writing, signed by
both parties.
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9.5 Independent Contractor
Each party shall have the status of an independent contractor without
the authority to bind the other to any obligation.
9.6 Arbitration
All disputes which arise out of this Agreement shall be settled by
arbitration in Westchester County, New York in accordance with the conciliation
and arbitration rules and regulations of the American Arbitration Association,
to which the parties hereto submit including the AAA Optional Rules for
Emergency Measures of Protection to preserve the status quo ante of the parties.
The arbitrator shall have background and expertise relating to the issue(s)
involved. The arbitration shall be in English. The arbitration hearing shall be
held within sixty days of an arbitration demand. The arbitrator's decision shall
be submitted within thirty (30) days of the conclusion of the arbitration
hearing. The arbitrator's decision shall be binding, final and non-appealable.
The parties shall share equally the cost of such arbitration. Any and all
actions necessary to compel arbitration or to enforce the decision of the
arbitrator or any aspect thereof shall be brought in the state or federal courts
of Westchester County, New York and the parties specifically agree that the
state and federal courts of or pertaining to Westchester County, New York shall
have and the parties submit to the exclusive jurisdiction and venue of such
courts.
9.7 Force Majeure
If either party is prevented from performing any obligation hereunder
by reason of fire, explosion, strike, labor dispute, casualty, accident, lack or
failure of transportation facilities, flood, war, civil commotion, acts of God,
or any law, order or decree of any government or subdivision thereof, then such
party shall be excused from performance hereunder to the extent
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and for the duration of such prevention, provided that such party notifies the
other party in writing of such prevention in a manner which is timely under the
circumstances.
9.8 Publicity
Except as required by law or applicable stock exchange rule, no public
statements shall be made by either party concerning this Agreement, its subject
matter or its existence without prior consultation with and the approval of the
other party, which approval shall not be unreasonably withheld. In the event
CELLOMICS undertakes an initial or subsequent public offering of its stock,
ZEISS agrees to review and give its approval to necessary statements regarding
the existence and/or subject matter of this Agreement within twenty four (24)
hours (but not less than one business day) of its receipt of a draft of the
proposed language regarding this Agreement and ZEISS shall not unreasonably
withhold such approval.
9.9 Severability
In the event that any Provision of this Agreement shall be found to be
illegal, invalid or unenforceable for any reason, such shall not affect the
validity of the remainder of this Agreement, which shall be construed and
interpreted as though such Provision was not present.
9.10 Notices
Notices may be given to an officer of a party by:
A. personal delivery,
B. telex or telecopy or
C. certified or registered mail addressed or
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D. overnight delivery by an internationally recognized courier
service as follows:
If to ZEISS: Xx. Xxxxxxx Xxxxx and Xx. Xxxxxx X. Grub
Xxxx Zeiss Jena, GmbH Microscopy Division
Xxxx-Zeiss-Promenade 10 Xxxx Xxxxx Xxxx, GmbH
07740 Jena, Germany 07740 Jena, Germany
with a copy to: Xxxx Zeiss Inc.
Xxxxx Xxxxx
Xxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
If to CELLOMICS: D. Lansing Xxxxxx, Ph.D.
President & Chief Executive Officer
000 Xxxxxxx Xxxx Xxx
Xxxxxxxxxx, XX 00000
with a copy to: Xxxxxxx Xxxx Xxx McGrann & Xxxxxxxx
Xxx Xxxxxxxxxxxx Xxxxxxxx - 00xx Xxxxx
00 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
9.11 Binding Effect
This Agreement shall inure to the benefit of and be binding on each
party's successors in interest and assigns.
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9.12 Assignment
The parties understand and agree that as soon as practicable after
execution of this Agreement CELLOMICS will assign all benefits, rights,
responsibilities and obligations of this Agreement to a soon to be formed wholly
owned subsidiary of CELLOMICS, which the parties anticipate will be incorporated
in the Cayman Islands, the European Economic Community or other jurisdiction
outside of the United States of America; such assignment shall be specifically
required and permitted. Except as provided in the preceding sentence, either
party may assign this Agreement only in connection with the sale or disposition
of the entire business of such party or that portion to which this Agreement
pertains. Either party may assign this Agreement to an Affiliate(s) without
permission of the other party. Affiliate shall mean an entity controlling,
controlled by, or under common control with a party to this Agreement. ZEISS
shall be entitled to refuse ist consent to an assignment in the event the
Affiliate of CELLOMICS is a competitor of ZEISS.
9.13 Exhibits
The following Exhibits form an integral part of this Agreement:
Exhibit 1.0: Rule of Sixths
Exhibit 2.0: Products and Transfer Prices
Exhibit 3.0: Minimum Volumes.
Exhibit 4.0: Limited Warranty
Exhibit 5.0: Service Requirements for [*]
IN WITNESS WHEREOF, this Agreement has been executed in multiple
counterparts, each of which shall constitute an original Agreement, on behalf of
the parties by their authorized officers as of the date first written above.
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"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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XXXX ZEISS JENA GMBH
By [ILLEGIBLE] [ILLEGIBLE]
-------------------- ---------------------
Its EVP Microscopy VP Molecular M?????
------------------- ---------------------
Date February 29, 2000 February 28, 2000
------------------ ---------------------
CELLOMICS , INC.
By D. LANSING XXXXXX
--------------------
Its President & CEO
-------------------
Date February 21, 2000
------------------
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Exhibit 1.0
Rule of Sixths
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Exhibit 2.0
1. Products and Transfer Price Products [*]
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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Exhibit 3.0
Two Year [*] Minimum Volume Purchase
Measurement Periods: Total (DM)
Oct. 2000 -- Sept. 2001 7.5 Mio
Oct. 2001 -- Sept. 2002 12 Mio
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Exhibit 4.0
LIMITED WARRANTY
ZEISS warrants to CELLOMICS that the Products are free from defects in material
and workmanship. If CELLOMICS reports any failure of the Products to ZEISS
within the warranty period, ZEISS will supply replacement parts without charge
DDP (Incoterms 1990) in exchange for those defective parts which are sent to
ZEISS DDP (Incoterms 1990) together with a written description of the defect
In no event will ZEISS provide a cash refund. CELLOMICS will pay all other
costs incurred in connection with correcting the defect (including the cost of
labor, travel and lodging). ZEISS' liability, and the exclusive remedy of
CELLOMICS for defective Products shall be limited to replacement parts or to
repaired parts.
This limited warranty shall (i) not apply if the Products have been subjected
to abuse, misuse, accident, or neglect, (ii) this warranty shall inure to
CELLOMICS its successors and assigns and those who purchase or use each Product
from CELLOMICS and (iii) this limited warranty shall remain in effect for one
year from the date that the Product is installed at the end user's location,
but not more than 15 months after shipment (FCA Jena according to Incoterms
1990) from ZEISS' factory.
THIS LIMITED WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES; EXPRESS
OR IMPLIED; BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE SOLE AND EXCLUSIVE
REMEDY AGAINST ZEISS WITH RESPECT TO ANY CLAIMED DEFECT IN THE PRODUCT SHALL BE
AS PROVIDED HEREIN AND SHALL IN NO CASE EXCEED THE COST OF REPLACEMENT. ZEISS
SHALL NOT BE LIABLE IN CONTRACT OR IN TORT TO CELLOMICS OR ANY END USER OF THE
PRODUCT FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO THE
PRODUCT OR WITH RESPECT TO ZEISS' OBLIGATIONS WITH RESPECT TO THE PRODUCT
SHALL AS, BUT NOT LIMITED TO DAMAGE TO; LOSS OF OR LOSS OF THE USE OF
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OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUES OR CLAIMS OF CELLOMICS
OR ANY END USER FOR LOSSES OF ANY KIND, UNLESS CAUSED BY ZEISS' INTENT OR GROSS
NEGLIGENCE.
ZEISS gives no warranty whatsoever with respect to parts with a limited
technical lifetime such as data disks or cassettes. Components or Products
produced by other manufacturers are warranted by ZEISS only to the extent that
such components are warranted by the manufacturer supplying such components and
to the extent that such warranties may be assignable by ZEISS. ZEISS' limited
warranty with respect to any software included in the sale of the Products is
limited to a warranty that such software, when properly installed, will not
fail to execute its programming instructions due to defects in materials and
workmanship. If ZEISS receives notice of a software defect during the
applicable warranty period, ZEISS will replace software media which do not
execute programming instructions due to any defect. ZEISS does not warrant
that the operation of software will be uninterrupted or error-free.
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EXHIBIT 5.0
SERVICE REQUIREMENTS FOR [*] INSTALLATION
1 TECHNICAL SUPPORT
CELLOMICS is responsible for technical support of the two systems installed at
[*] and [*] after finalizing the acceptance procedure (SITE FACT TEST) and
until the [*] warranty expires and until expiration of optional maintenance
contract paid by [*] to CELLOMICS at rates described in section 6 of this
Exhibit 5.0. of the installed systems expire. A service technician from
CELLOMICS will by physically present when the system is being installed and
until the SITE FACT test is successfully completed. Furthermore, he will
support and coordinate the after sales service as requested for optimization of
the system.
2 INSTALLATION
The installation will be carried out by the ZEISS service engineer, assisted by
a sufficient manpower from the [*]. ZEISS will provide written information,
that consists of an Installation manual containing drawings of the main units,
their associated components and interconnections and space required for setup
and operation. Recommendations referring to storage prior to installation,
unpacking and assembly will also be part of the Installation manual. A full
technical support until the successful SITE FACT TEST will be carried out by
the ZEISS engineers and the ZEISS Headquarter's service organization. Because
the ZEISS engineer will be continuously present during installation, frequent
meetings during the acceptance period are easy to arrange.
3 LIMITED WARRANTY
The equipment installed is guaranteed by ZEISS for [*] from the date of the
successful SITE FACT TEST at [*] site against any defects arising from
defective design, materials, or construction as well as functionality to the
specifications given. Warranty covers parts, labor, travel, hotel and
subsistence expenses. Parts supplied under warranty shall be delivered by ZEISS
free of all charges, including freight and duty. ZEISS will grant the same
warranty on all spare parts as that provided with the original equipment. Spare
parts can be ordered at the central spare parts stock at ZEISS in Jena for 5
days a week/8 hours per day. ZEISS will provide spare parts for eight years
following the successful SITE FACT TEST of the equipment. The coverage period
of the CELLOMICS service engineer is from Mo-Fr, 08:00 am to 05:00 pm, with
4hrs telephone response. During warranty, CELLOMICS will furnish a telephone
support, in order to provides expert assistance in the identification and
correction of the equipment faults. This telephone support is available within
two hours from Mo-Fr, 08:00 am to 06:00 pm. Preventive maintenance, repair and
upgrades (including software and firmware) affecting the use of the equipment
will be communicated by CELLOMICS to the site [*] PROJECT MANAGER.
Warranty service: [*]
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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Incl.: 5 days x 8 hrs coverage, best effort for 24 hrs on-site response,
excluding weekends/holidays (CELLOMICS)
Incl.: Spare parts stock in centralized location (in Jena), ordering 5 days x
8 hours (ZEISS)
Incl.: Hotline: Mon-Fri, 08:00 am to 06:00 pm (CELLOMICS)
4 SPARE PARTS
ZEISS will provide all spare parts to CELLOMICS including those needed for
preventive maintenance and all consumable spare parts. This will be done by a
central spare part stock at Xxxx ZEISS in Jena and at a logistics company with
24h/d, 7d/w delivery capabilities (MTC, Munich), where all parts for preventive
maintenance and consumables will be stored.
Spare parts for the reader and the system: to be specified (ZEISS)
Consumables for the complete system: to be specified (ZEISS)
5 ENVIRONMENTAL, HEALTH AND SAFETY
The material has been designed and manufactured to be operated and maintained
safely. This is well documented by XX, XXX0000 and CSA standard.
6 OPTIONAL MAINTENANCE CONTRACT AND OVERTIME RATES
Request of on-site service support:
Unless otherwise requested, the CELLOMICS service engineers, responsible for
the [*] sites, are in charge and all costs listed refer to their working time
and total travel expenses (time, travel cost).
USA: Technical Service Support [*]$ per working hour
Travel time [*]$ per travel hour
These rates exclude: Hotel and travel costs
The prices apply to the standard working time:
Mo. - Fri 08:00am. - 05:00pm.
Beyond the CELLOMICS ZEISS standard working time, an extra charge for working
hours but not traveling time may be charged by CELLOMICS to [*]
Monday to Friday 25%
Saturday 50%
Sunday 100%
Holidays 150%
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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7 [*]
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
27
8 MAINTENANCE DURING WARRANTY
This extended service is included in the warranty. The intent is to enable [*]
to provide an optimal on-site support for the equipment. Therefore, this
extended service includes 1st level training sessions on-site during and after
installation and preventive maintenance visits.
o 1/2-year maintenance by maintenance schedule
o [*] Escalation Plan
o Direct telephone line of [*] to CELLOMICS' service support and spare
parts stock
o CELLOMICS service engineer with priority for the HTS-System
9 PREVENTIVE MAINTENANCE
The half year maintenance will be done with a maintenance schedule where the
CELLOMICS service engineer will xxxx off the specified instructions. Scheduling
of each of the preventive maintenance visits will be arranged between the [*]
service technician, Project Manager and the service engineer two weeks in
advance.
The tasks include, but are not limited to:
- Lubrication of defined mechanical components
- Check of wear parts
- Check of sensors, motors, gear drives, etc.
- Alignment of the plate handling
- Quality check of reader performance
- Updates of hardware and software
10 TRAINING
ZEISS will offer a 1st level service training for [*] service personnel in the
[*] of warranty with a basic course immediately during and after system's
installation at each site and one advanced training course in Jena. In the [*]
of warranty ZEISS offers an other advanced training course in Jena.
In the advanced service training, the participants will get a refreshment to
keep in practice, software updates, and they will discuss questions and
problems in small groups together with the trainer by practical examples.
[*] service personnel which participated in at least one basic course is
certified to work on the system without voiding the guarantee.
1st level: [*] service personnel
Operation of the system: handling of application software
run of the system incl. MTP processing
various measurement modi of the reader
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
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Replacement of components: adjustment of the plate handling
initialization of components
handling of test software
Updates: firmware updates
software updates
hardware updates
Repair: Minor failures
ADDITIONAL SERVICE TRAINING PROVIDED BY ZEISS IF REQUESTED BY [*]
1st Level: [*]
1ST LEVEL BASIC SERVICE TRAINING
REQUIREMENTS
o Good knowledge and experiences in modern electronics and computer
controlled systems.
o Skills and experience for mechanical and optical adjustment work.
o Computer knowledge (Network, Win NT 4.0).
o Service experience.
"CONFIDENTIAL [*] 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 406 OF THE SECURITIES ACT
OF 1933, AS AMENDED."
