REDACTED VERSION
[CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED FOR PORTIONS OF
THIS EXHIBIT]
NYCOMED AMERSHAM PLC
MOLECULAR DYNAMICS, INC.
and
LIFECODES CORPORATION
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TECHNOLOGY ACCESS AGREEMENT
January 15, 1998
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TECHNOLOGY ACCESS AGREEMENT
This Technology Access Agreement ("Agreement") is entered into as of
January 15, 1998 by and among:
Nycomed Amersham p1c, a company organized under the laws of England
and Wales ("Amersham" such designation to include its subsidiaries as defined
in Section 736 of the UK Companies Xxx 0000 (as amended));
Molecular Dynamics Inc., a Delaware corporation ("MD"); and
Lifecodes Corporation, a Delaware corporation ("Customer").
Amersham, MD and Customer are also referred to individually as a
"Party" and collectively, as the "Parties."
RECITALS
1. MD owns, or has or is developing technology and instrumentation
useful in making and scanning microarrays of biological materials.
2. Amersham owns, or has, or is developing technology, reagents and
supplies that complement the technology and instrumentation of MD.
3. MD and Amersham have been providing early access to the above
technology, instrumentation, reagents and supplies to certain organizations in
exchange for a fee pursuant to a technology access program.
4. Both MD and Amersham wish to provide Customer with the
aforementioned technology, instrumentation, reagents, and supplies, and
Customer wishes to obtain same together with support and training services, in
which MD and Amersham have developed special expertise pursuant to their
development programs.
1. DEFINITIONS.
1.1 "Affiliate(s)" of a Party means any corporation, firm,
partnership, or other legal entity, in which [ ] percent [ ] or more of
the voting power and/or equity ownership is directly or indirectly owned by or
under common ownership of such Party; provided, however, that where local laws
require a minimum percentage of local ownership, the status of an Affiliate
will be established if such Party directly or indirectly owns or controls at
least [ ] percent [ ] of the maximum ownership percentage that may, under
such local laws, be owned or controlled by foreign interests; and provided
further, that in no circumstances may a Competing Entity be deemed to be an
Affiliate for the purposes of this Agreement, [ ] are Affiliates of the
Customer.
1.2 "Approved Collaborators" means any third party nominated by the
Customer and mutually agreed in writing with the other Parties during the
Technology Access Period, and thereafter any terms and conditions of this
Agreement that apply to Customer shall also apply to Approved Collaborators;
provided, however, that in no circumstances may a Competing Entity be an
Approved Collaborator. The Parties agree that [ ] and [ ] are
Approved Collaborators.
1.3 "Approved Site(s)" means the research facilities of Customer
located in Stamford, Connecticut in the U.S. and such other facilities of
Customer and Affiliates of Customer as mutually agreed to in writing by the
Parties.
1.4 "Array Scanner(s)" means an instrument, as detailed in Schedules
I and VI, as developed by MD, and the associated software, specifically having
the ability to rapidly and accurately detect and quantify
fluorescently-labeled probes hybridized or bound to the DNA and/or other
biological materials spotted by an Array Spotter on a glass slide or other
substrate.
1.5 "Array Spotter(s)" means an instrument, as detailed in Schedules
I and VI, as developed by MD, and the associated software, specifically having
the ability to spot DNA and other biological materials on a glass slide or
other substrate.
1.6 "Competing Entity" means any entity primarily engaged in the
development, manufacture, marketing and/or selling of (i) life science
laboratory instrumentation or devices, (ii) life science research reagents
and/or consumables and/or (iii) microarray technologies or services.
1.7 "Confidential Information" means any information disclosed during
the term of this Agreement by MD and/or Amersham to Customer or disclosed by
Customer to MD and/or Amersham which the disclosing Party regards as
confidential, or was similarly defined as such in any
confidentiality/non-disclosure agreements between MD and/or Amersham on the
one hand, and Customer on the other. Confidential Information includes but is
not limited to, information relating to Know-how and/or Products and
information of the Customer relating to drug targets, assays, reagents or
reagent preparative methods. Any such information disclosed during the term of
this Agreement which the disclosing Party regards as being confidential shall
be in writing and marked confidential. If such information is disclosed during
the term of this Agreement initially on an oral basis, it must be reduced to a
written summary, marked confidential and a copy given to the recipient within
thirty (30) days of the oral disclosure.
Confidential Information does not include:
1.7.1 information which at the time of disclosure is in the
public domain or otherwise is or becomes generally available to the public
other than through any act or omission on the part of the receiving Party;
1.7.2 information which was in the possession of the
recipient at the time of disclosure as evidenced by competent records and
which was not acquired directly or indirectly from the disclosing Party;
1.7.3 information acquired from a third party who has the
lawful right to make such disclosure without violation of any confidentiality
obligations to the disclosing Party; or
1.7.4 information which is independently developed by the
receiving Party without the use of Confidential Information as evidenced by
competent records.
1.8 "Effective Date" means the first date written above.
1.9 "Functional Installation" or "Functionally Installed" means the
unpacking and installation of Array Spotters and Array Scanners and the
demonstration of basic instrument functionality, as defined in Schedule IV.
1.10 "Generation [ ]" and/or "Gen [ ]" means Array Spotters and/or
Array Scanners meeting the specifications set forth in Schedules I and VI.
1.11 "Generation [ ]" and/or "Gen [ ]" means Array Spotters and/or
Array Scanners meeting the specifications set forth in Schedules I and VI and
which have been materially modified and/or materially improved as compared to
Generation [ ] Array Spotters and/or Array Scanners.
1.12 "Generation [ ]" and/or "Gen [ ] Microarray System" means a
system consisting of a Gen [ ] Array Spotter, a Gen [ ] Array Scanner, user
documentation and MD's [ ] software and related documentation.
1.13 "Generation[ ]" and/or "Gen [ ] Microarray System" means a
system consisting of a Gen [ ] Array Spotter, a Gen [ ] Array Scanner, user
documentation and MD's [ ] software and related documentation.
1.14 "Know-how" means certain knowledge, information, data and
experience of MD and Amersham relating to microarray assay technologies and
fluorescent DNA labeling including, but not necessarily limited to that which
is embodied in the Patents.
1.15 "Mechanical Fabrication methods" means any method for the
fabrication of Nucleic Acid Arrays on a solid support by placement of fully
synthesized nucleic acids (clonal polynucleotides, or other presynthesized
polynucleotides) having more than [ ] bases each, solely through mechanically
isolated deposition of such fully synthesized nucleic acids at specific
locations on the array. Without limiting the above, it is understood that the
synthesis of an array in which regions of an array are activated or prepared
for placement of materials by means of controlled direction of electromagnetic
energy at a portion of a support is not a Mechanical Fabrication Method.
1.16 "Nucleic Acid Arrays" means an array of diverse nucleic acids,
each having more than [ ] bases, at defined locations on a solid support and
fabricated by Mechanical Fabrication Methods, provided that in no part of such
solid support may such diverse nucleic adds be
arranged at a density of more than [ ] locations per square centimeter, and
all of the nucleic acids in any one Nucleic Acid Array may represent no more
than [ ] genes.
1.17 "Patents" means the patent applications and patents and any
substitutions, extensions, supplemental protection certificates, reissues,
renewals, reexaminations, divisionals, provisionals, continuations or
continuations-in-part thereof which are owned or controlled by MD or Amersham.
1.18 "Permitted Purposes" means use of Know-how and/or the Products
for the sole purpose of developing and subsequently performing assay
methodologies and applications within the laboratories at the Approved Sites
of the Customer, Affiliate(s) thereof, and Approved Collaborators for the
purposes of life science research within the field of [ ] for [ ] and
[ ] for [ ] and [ ] only. In addition, the Customer shall be
permitted to perform research and development of [ ] on a noncommercial
basis during the Technology Access Period. The Parties agree to discuss at a
future date terms under which [ ] may be commercialized. For the avoidance
of doubt, [ ] for sale or transfer to third parties (except to Approved
Collaborators) or [ ] whether paid or unpaid, [ ] (except to Approved
Collaborators) is not a Permitted Purpose. The [ ] or [ ] or [ ]
Approved Collaborators shall be a Permitted Purpose [ ] only from the
Effective Date through September 30, 1998 and shall be a Permitted Purpose
[ ] after October 1, 1998, subject to terms and conditions to be agreed
between Amersham and die Customer. For the avoidance of doubt, use of Know-how
and/or the Products for the sole purpose of [ ] and [ ] within the
laboratories of Approved Sites of the Customer, Affiliate(s) thereof and
Approved Collaborators for the purpose of [ ] and the [ ] during the
Technology Access Period are not Permitted Purposes.
1.19 "Product(s)" means the products of MD and Amersham set forth in
Schedules I and II.
1.20 "Strategic Collaborator(s)"means a limited number of companies
and institutions selected solely by MD and Amersham who are granted access to
all or some of the Products in exchange for technology that adds substantial
tangible value to the microarray technologies under development by Amersham
and MD.
1.21 "Technology Access Customers(s)" means the Customer and any
third party granted access to the Products by MD and Amersham, in their sole
discretion, through such third party's participation in MD and Amersham's
microarray technology access program. MD and Amersham agree that prior to the
expiration or termination of this Agreement [ ].
1.22 "Technology Access Fee" means the payments set forth in
Section 6.1
1.23 "Technology Access Period" means the time period beginning on
the Effective Date and ending exactly [ ] thereafter. During the Technology
Access Period, the Products detailed in Schedules I and II will be
preferentially available to the Customer, other Technology Access Customers
and Strategic Collaborators. The Products detailed in Schedules I
and II will not be commercially available to third parties outside of the
Technology Access Program prior to January 1, 1999 with the sole exception
that the technology embodied in the Array Scanner may be commercially
available after July 1, 1998.
2. TERM.
The term of this Agreement shall commence as of the Effective Date
and shall continue throughout the Technology Access Period unless modified by
mutual written agreement of the Parties or terminated earlier as provided for
in Section 12.
3. SUPPLY OF PRODUCTS.
3.1 MD agrees to supply the Customer with one [ ] Generation [
Microarray System when available. Orders for delivery of additional Gen [ ]
or Gen [ ] Microarray Systems may be placed by the Customer at any time
during the Technology Access Period, pursuant to the pricing terms of Schedule
III hereto. It is currently anticipated that GEN [ ] Microarray Systems will
be available for delivery during the period from [ ]. The delivery date for
the GEN [ ] Microarray System provided for in this Section 3.1 will be
assigned a priority level based on the Effective Date. MD further agrees that a
qualified representative of MD will be sent to the Customer's facilities at
Stamford, Connecticut to begin Functional Installation within two (2) weeks
following Customer's notification to MD of arrival of the GEN [ ] Microarray
[ ] at its facility.
3.2 Amersham agrees to make available for purchase by the Customer
the Products specified in Schedule II within one (1) week of the Functional
Installation of the Gen [ ] Microarray System provided for in Section 3.1
above.
3.3 During the Technology Access Period, the Customer may place
purchase orders with MD for any of the Products listed in Schedule I and with
Amersham for any of the Products listed in Schedule II of this Agreement. MD
and Amersham shall use reasonable commercial efforts to supply the Customer
with such Products on the dates and in the quantities as are specified in the
purchase order, subject to availability during the Technology Access Period.
Pricing of such Products will be pursuant to Schedule III. MD and Amersham
may have such orders placed with and invoiced by each of them or any
Affiliate, subsidiary or sales office thereof.
3.4 The Customer agrees to place purchase orders for additional Array
Spotters and Array Scanners [ ] in advance of the requested delivery dates.
3.5 The Customer agrees to provide Amersham at the end of each
calendar month With a nonbinding forecast of the likely order it will place
for Schedule II Products for the [ ] thereafter.
3.6 Customer acknowledges and agrees that the License granted
pursuant to Section 9.1.2 herein below extends to a maximum of [ ]
Gen [ ] and/or Gen [ ] Array Spotters
purchased by Customer pursuant to the terms and conditions of this Agreement,
and that additional Array Spotters beyond [ ] may be subject to separate
pricing terms and/or [ ] due to [ ] pursuant to the [ ] more fully
set forth in Section 9.1.2.
4. DELIVERY, RISK AND TITLE.
All Products delivered pursuant to the terms of this Agreement shall
be suitably packed for shipment in accordance with MD's and/or Amersham's
standard practices, marked for shipment to one of Customer's designated
Approved Site(s) as specified in the applicable purchase order (subject to the
terms of Section 3 herein above) and delivered to a carrier or forwarding
agent by the date set forth on the purchase order. The point of delivery for
Products shall be at the designated Approved Site(s) as specified in the
applicable purchase order. The Customer shall notify MD and Amersham if
Products do not arrive within seven (7) days of anticipated arrival. Except as
otherwise specified in this Agreement, MD and Amersham "Standard Terms and
Conditions of Sale" attached as Schedule VII shall apply. The Parties hereby
acknowledge and agree, however, that if there are any conflicts, differences
or inconsistencies between the terms and conditions of this Agreement and the
"Standard Terms and Conditions of Sale" of MD and/or Amersham, the terms and
conditions of this Agreement shall prevail. All freight, insurance and other
shipping expenses and risks, as well as any special packing expenses not
included in the original price quotation for the Products will be paid by
Customer, provided however, that in connection with the [ ] Generation [ ]
Microarray [ ] provided for in Section 3.1 above, all freight, insurance and
other shipping expenses and risks, as well as any special packing expense,
will be paid by MD. The Customer will be responsible for import formalities of
Products, including the payment of import duties.
5. TRAINING AND TECHNICAL SUPPORT SERVICES.
MD shall provide the Customer at an Approved Site with the initial
training described in Schedule IV during the Technology Access Period and
Amersham shall provide the Customer at an Approved Site with the training and
technical support services described in Schedule V during the Technology
Access Period.
6. PAYMENT.
6.1 The Customer will pay the Technology Access Fee of US$[ ]
(comprised of US[ ] for [ ] and US[ ] for the [ ] to be provided
pursuant to Section 3.1) to MD as follows:
US[ ] within [ ] of [ ] to be provided pursuant
to Section 3.1 above;
US[ ] within [ ] of the Effective Date.
6.2 Payments for additional Generation [ ] or Generation [ ]
Array Scanners or Array Spotters shall be made to MD within [ ] days of
invoice.
6.3 Payments shall be made to Amersham for the Products ordered from
Schedule II within [ ] of invoice.
6.4 All payments for Products, services or other costs to be paid by
Customer hereunder are exclusive of all applicable federal, state and local
excise, sales, use and similar taxes, charges and other duties, and Customer
hereby agrees that sales, use or other similar taxes, or VAT, customs charges
and duties or other similar charges that may be imposed pursuant to this
Agreement associated with the sale and delivery of Products and any payments
made pursuant to this Agreement shall be the responsibility of the Customer.
Customer agrees that it will self-assess such taxes and/or charges, if any.
The Parties agree to cooperate in good faith in the preparation of any
relevant shipping documents associated with such transfer. Nothing in this
Agreement shall be deemed to mean that Customer shall be responsible for
income taxes or similar taxes that may be imposed on Amersham or MD.
6.5 Customer's billing address and contact information is set forth
completely in Schedule VIII hereto.
7. ADDITIONAL APPROVED SITES.
Additional Approved Sites (including without limitation sites of the
Customer's Affiliates) may be added by the Customer if mutually agreed in
writing by the Parties hereto without payment of an additional Technology
Access Fee. For each Approved Site, the Customer must purchase a minimum of [ ]
Array [ ] and [ ] Array [ ] at the prices set forth in Schedule III
within thirty (30) days of such site being confirmed as an additional Approved
Site. Additional training and technical support service charges by MD and
Amersham will be applicable for deliveries to additional Approved Sites.
8. CUSTOMER OBLIGATIONS.
8.1 Customer agrees that it shall provide to MD and to Amersham, as
applicable:
8.1.1 Continuous, timely and confidential feedback, on the
Products, including without limitation its suggestions for improvements to Gen
[ ] and/or Gen [ ] Microarray Systems, including improvements to the
hardware, chemistry and software components.
8.1.2 Recognition of MD and Amersham and their respective
Products in research publications, scientific talks, or any public forum for
work where the Products and/or Know-how were contributing factors.
8.2 The Customer agrees to promptly disclose to Amersham and IUD any
improvements to Know-how or to the Products and hereby grants a non-exclusive
royalty-free license to MD and Amersham with the right to grant sub-licenses
to use any such improvements and to make, use and sell products embodying any
such improvements.
8.3 The Customer agrees to purchase from Amersham and use during the
Technology Access Period, as its needs dictate, the Products set forth in
Schedule II, so that its results using the Products with the Gen [ ] and/or
Gen [ ] Microarray Systems delivered pursuant to this Agreement may be
compared with the results of experiments being conducted by MD and Amersham.
The Customer agrees that it shall not resell, transfer or otherwise dispose of
such Products or the Gen [ ] and/or Gen [ ] Microarray Systems to any
third party without the express prior written consent of Amersham and MD
during the Technology Access Period. This Section 8.3, however, shall in no
way limit or impede the Customer's right to experiment with and develop
alternate chemistries.
8.4 The Customer agrees that it shall not reverse engineer nor make
any unauthorized modifications to any Gen [ ] or Gen [ ] Microarray
System delivered pursuant to this Agreement, nor shall it decompile, reverse
engineer, modify or make any other unauthorized use of software delivered by
MD pursuant to this Agreement.
9. REPRESENTATIONS AND WARRANTIES; LIMITATION OF LIABILITY.
9.1 MD represents and warrants that:
9.1.1 The technology embodied in the Gen [ ] and Gen [ ]
Microarray systems does not infringe any valid claims in issued U.S. or
granted European third party patents existing as of the Effective Date. The
Customer hereby agrees to notify MD immediately of any claim it receives for
alleged patent infringement regarding the technology embodied in the Gen [ ]
and Gen [ ] Microarray Systems.
9.1.2 MD has entered into [ ] pursuant to which [ ] in
connection with certain [ ] and proprietary technical information. The
[ ] is considered to [ ] during the Technology Access Period, provided
that Customer complies with the [ ] set forth in Schedule IX hereto.
Customer acknowledges and agrees that [ ] are subject to, and shall continue
only so long as, Customer [ ].
9.2 Amersham represents and warrants that use of Amersham's Know-how
and Products in accordance with Amersham's training and technical support
services as referenced in Schedule V and the terms of this Agreement do not
infringe any valid claims in issued U.S. or granted European third party
patents existing as of the Effective Date. The foregoing representation and
warranty does not extend to microarrays comprised of[ ]. The Customer hereby
agrees to notify Amersham immediately of any claim it receives for alleged
patent infringement through use of Amersham's Know-how or Products.
9.3 Notwithstanding anything to the contrary contained in this
Agreement, neither MD nor Amersham shall incur any liability to Customer under
this Agreement to the extent that such alleged infringement results from
Customer's modification of the Products or use of the Products not in
accordance with the Permitted Purposes.
9.4 Subject to the qualifications set forth in this Section 9, MD and
Amersham hereby warrant that all Products will at the time of receipt by the
Customer be free from defects and conform to the relevant minimum performance
specifications. The minimum performance specifications agreed to by the
Customer and MD for the Generation [ ] and Generation [ ] Array Spotter
and Array Scanner are set forth herein in Schedule VI. As of the date hereof,
Gen [ ] minimum performance specifications have been developed by MD and
[ ] changes are anticipated in connection with such specifications between
the Effective Date and the date of delivery of the Gen [ ] Microarray
Systems. The Customer further acknowledges and agrees that the Products to be
purchased by the Customer pursuant to this Agreement are not finished products
ready for commercial release, but rather they represent collaborative
prototypes for use in the Customer's internal research and development
activities. The Customer fully understands and agrees that significant changes
are expected to be made in the Products during the Technology Access Period.
MD shall inform the Customer of any significant changes to Schedule VI
promptly in writing. Amersham's sole liability for breach of this warranty
shall be at its option to give credit for, replace or repair any Products
described in Schedule II, provided that Amersham is informed in writing of any
breach promptly after any quality control testing on the said Products by the
Customer, and in any event before the expiration date on the pack overlabel,
and the breach is shown to be due to Amersham's defective design, workmanship,
material or packaging. No guarantee can be given that the Customer's own
applications can be made to perform with the levels of sensitivity,
specificity or robustness demonstrated in model systems.
9.5 Each Party hereto represents and warrants that it has full power
and legal authority to execute and deliver this Agreement and to perform its
obligations hereunder, and that such Party's execution and delivery of any
Products hereunder and its performance of the terms and conditions of this
Agreement will not contravene, result in any breach of or constitute a default
under any order, judgment, decree or award of any court or other governmental
body, or any agreement or instrument by which such Party is bound.
9.6 EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9,
NEITHER MD NOR AMERSHAM MAKES WARRANTIES AS TO ANY OTHER MATTER, INCLUDING
WITHOUT LIMITATION ANY WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
9.7 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
EXCEPT AS SET FORTH IN SECTION 10, NONE OF THE PARTIES OR THEIR RESPECTIVE
AGENT(S), REPRESENTATIVE(S) OR EMPLOYEE(S) SHALL BE LIABLE TO THE OTHER
PARTIES PURSUANT TO THIS AGREEMENT FOR AMOUNTS REPRESENTING LOSS OF REVENUES,
LOSS OF PROFITS, LOSS OF BUSINESS OR INDIRECT, CONSEQUENTIAL, SPECIAL OR
PUNITIVE DAMAGES OF ANY OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES.
10. INDEMNITY.
10.1 The Customer agrees to defend, indemnify and hold harmless MD
and Amersham against any liability, other claim of a third party, including
Customer's Affiliates and Approved Collaborators, for damages, suits, judgment
or costs (including attorneys' fees and costs) arising out of injury, death or
property damage or other loss resulting from use by the Customer of the
Know-how, the Confidential Information, provision by MD and Amersham of
training and technical support services or the supply of the Products, except
to the extent any such claims or losses are caused by the intentional
misconduct, recklessness or gross negligence of MD and Amersham.
10.2 MD and Amersham agree to defend, indemnify and hold harmless the
Customer, its affiliates and Approved Collaborators against any liability,
other claim, damages, suits, judgments or costs (including attorneys' fees and
costs) arising out of injury, death or property damage or other loss resulting
from activities of MD and Amersham in association with performance of the
terms of this Agreement including the use of Confidential Information of
Customer and provision of training and technical support services and the
supply of Products, except to the extent any such claims or losses are caused
by the intentional misconduct or breaches, recklessness or gross negligence of
Customer.
11. CONFIDENTIALITY.
During the Technology Access Period and for ten (10) years
thereafter, each Party agrees that it will make no public announcement or
other disclosure of the Confidential Information of another Party or the
terms of this Agreement, either directly or indirectly, without first
obtaining the written approval of the disclosing Party in the case of
Confidential Information, or the other Parties in the case of disclosure of
the terms of this Agreement, and agreement upon the nature and text of such
announcement or disclosure. The Party desiring to make any such public
announcement or other disclosure shall inform the other Parties of the
proposed announcement or disclosure in sufficient time prior to public
release, and shall provide the other Parties with a written copy thereof, in
order to allow such other Party to comment upon such announcement or
disclosure. The restrictions set forth in the preceding two sentences shall
not be applicable to disclosures required by a governmental agency or court
of law or for recording purposes.
12. TERMINATION AND RENEWAL.
12.1 The Customer shall be entitled to terminate this Agreement:
12.1.1 Sixty (60) days after written notice to MD and
Amersham of a material breach of this Agreement by MD and/or Amersham and the
nature of such breach, and such material breach is not remedied within such
60-day period; or
12.1.2 immediately upon written notice in the event MD
and/or Amersham shall cease to trade, become insolvent, file for bankruptcy,
has a receiver or administrator appointed or if an order shall be made or a
resolution passed for its winding up unless such order or resolution is part
of a scheme for its amalgamation, reconstruction or as part of a merger.
12.2 MD or Amersham shall be entitled to terminate this Agreement:
12.2.1 Sixty (60) days after written notice to the Customer
of a material breach of this Agreement by the Customer and the nature of such
breach, if such material breach is not remedied within such 60-day period; or
12.2.2 immediately upon written notice in the event Customer
shall cease to trade, becomes insolvent, files for bankruptcy, has a receiver
or administrator appointed or if an order shall be made or a resolution passed
for its winding up unless such order or resolution is part of a scheme for its
amalgamation, reconstruction or as part of a merger.
12.3 In the event of termination of this Agreement as specified in
Section 12.1 or 12.2, MD and Amersham shall return to the Customer, and the
Customer shall return to MD and Amersham, all Confidential Information
received from such Parties and copies thereof except for one copy for archival
purposes. Any unused stocks of Products shall only be returned to MD and/or
Amersham on request by MD or Amersham with an appropriate refund. Termination
of this Agreement and of any licenses hereunder shall be without prejudice to
the rights and obligation of either Party which may have accrued up to the
date of termination. Amersham and MD reserve the right to take back the Gen
[ ] and/or Gen [ ] Microarray Systems or any Products in the event of
a breach of the Customer's obligations with respect to Confidential Information
or use of the Gen [ ] and/or Gen [ ] Microarray Systems or any Products
not in accordance with Permitted Purposes.
12.4 Upon any termination or expiration of this Agreement the
following provisions will not terminate, but will continue in full force and
effect: Sections 1.7, 1.18, 8.1.2, 8.3, 8.4, 9.6, 9.7, 10, 11, 12.3, 13, 14,
15. In addition, (i) any licenses in effect pursuant to Section 8.2 as of the
termination or expiration of this Agreement shall continue in full force and
effect; and (ii) Amersham's sole liability for breach of the warranty set
forth in Section 9.4 shall continue to be at its option to give credit for,
replace or repair any Products described in Schedule II, provided that
Amersham is informed in writing of any breach promptly after any quality
control testing on the said Products by the Customer, and in any event before
the expiration date on the pack overlabel, and the breach is shown to be due
to Amersham's defective design, workmanship, material or packaging.
12.5 By the end of the Technology Access Period, the Customer will be
offered the optional opportunity to enlist in an annual Technology Access
Renewal Program. It is anticipated that such renewal program may include
continuation of technical support services and training, preferential access
to new microarray technologies and applications, instrumentation warranties,
continuation of preferential pricing and continuation of end-user rights
granted under the Affymetrix license in exchange for an annual fee to be
determined and mutually agreed by the Parties.
12.6 MD and Amersham agree to offer, to the extent that they are
legally able, the Customer access to products and technologies developed after
the Effective Date of this Agreement as may be required for the Customer's
applications under terms and conditions
substantially similar to those terms and conditions offered to other
Technology Access Customers. Such terms and conditions may require the
purchase of a Technology Access Renewal Program.
13. FORCE.
No one Party shall be liable for failure to perform hereunder (other
than the obligation to pay amounts due) as a result of any event of force
majeure beyond the Party's reasonable control. The Party affected shall advise
the others in writing of such event and the term of this Agreement shall then
be suspended for a period of time equal to the total period of delay in
performance. If the period lasts more than six (6) months the Parties whose
performance has not been affected by such event shall be entitled to terminate
this Agreement by at least one (1) month's prior written notice.
14. MISCELLANEOUS.
14.1 No one Party shall assign or sub-contract the whole or any part
of its rights and obligations under this Agreement without the prior written
consent of the other Parties (not to be unreasonably withheld or delayed)
except that any Party may assign the benefit of this Agreement to the
purchaser of the entire part of its business to which the subject matter of
this Agreement relates without the prior written consent of the other Parties.
Any assignment in violation of the preceding sentence shall be void.
14.2 This Agreement grants a non-exclusive license to the Customer
with respect to the Know-how solely for its use in accordance with the
Permitted Purposes. No rights or licenses for commercialization or any other
use are granted.
14.3 Should any part or provision of this Agreement be unenforceable
or otherwise in violation of the law of any jurisdiction, the remainder of
this Agreement shall remain binding upon the Parties.
14.4 Failure of any Party to enforce rights hereunder at any time for
any period shall not be construed as a waiver of such rights.
14.5 This Agreement, including the Schedules hereto, constitutes the
entire Agreement of the Parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, oral and
written, among the Parties hereto with respect to the subject matter hereto.
14.6 No modification of any provision of this Agreement shall be
binding upon the Parties unless made in writing by a duly authorized
representative of each of the Parties.
14.7 This Agreement shall be construed in accordance with the laws of
the State of New York without regard to choice of law provisions and the
Parties hereby agree to the jurisdiction of the courts of the State of New
York.
14.8 This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which taken together shall constitute
one and the same instrument.
15. NOTICES.
Any notice in connection with this Agreement must be in writing, in
English, marked for the attention of the signatories to this Agreement and
left at the address of the Party to be notified or sent to its facsimile
number as set out below. A facsimile shall be deemed received on production of
a transmission report by the machine from which the facsimile was sent
indicating that the facsimile was sent in its entirety to the facsimile number
of the recipient.
Signature Page Follows
Signed for and on behalf of:
NYCOMED AMERSHAM PLC
Sign: _____________________________________
Title: Vice President, Molecular Biology
Name: Dr. Xxxxxxx Xxxxx
Address: Xxxxxxxx Xxxxx
Xxxxxx Xxxxxxxx
Xxxxxxxxxxxxxxx, Xxxxxxx XX0 0XX
Fax: 00-0000-000000
MOLECULAR DYNAMICS, INC.
Sign: _____________________________________
Title: President and CEO
Name: Xxx Xxxxxxx
Address: 000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 XXX
Fax: 000-000-0000
LIFECODES CORPORATION
Sign: _____________________________________
Title: Vice President
Name: Xxxxxxx Xxxxxxxx
Address: 000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Schedule I
MOLECULAR DYNAMICS PRODUCTS
The following products are available for purchase from Molecular
Dynamics during the Technology Access Period:
o Generation [ ] Microarray System consisting of:
o Gen [ ] Array Spotter with Pentium Computer and Control Software
o Gen [ ]Array Scanner with Embedded Controller and Software
o Pentium NT Workstation running [ ] Image Analysis Software
o Gen [ ] Systems are currently available for delivery
o Generation [ ] Microarray System consisting of:
o Gen [ ] Array Spotter with [ ] and Pentium Computer & Control
Software
o Gen [ ] Array Scanner with Embedded Controller and Software
o Pentium NT Workstation with Automated Image Analysis Software
o Currently anticipated to be available for shipment from [ ] onward
o Note: The above Products will not be CE-marked
Schedule II
AMERSHAM PRODUCTS
The following products or improvements thereof, will be available for purchase
from Amersham during the Technology Access Period. Due to the ongoing
development program the exact nature, format, pack sizes and product codes are
likely to change during the Technology Access Period:
Product Code Product Name Pack Size
------------ ------------ ---------
TBA Cy-3 phosphoramidite To be advised
TBA Cy-5 phosphoramidite To be advised
PA53023 Cy-3dCTP 25nmol (sufficient for 40-200
hybridizations)
PA55023 Cy-5dCTP 25nmol (sufficient for 40-200
hybridizations)
RPK0140 CyDye(TM) First strand cDNA labeling system for 100x1ug mRNA labeling reactions
Microarrays, version 1
RPK0150 Microarray hybridization solution, version 1 10mls (sufficient for more than 100
hybridizations in xxxxxxxx)
RPK0188 Microarray crosslinking reagent D 5 x 10 mls
RPK0163 Microarray slides Type 4 48 slides
RPK0180 Coverslips for Microarrays 100 cover slips
RPK0175 Hybridization xxxxxxxx and covers for Microarrays 100 xxxxxxxx and 100 lids
RPN53N Hybond(TM)membrane for Microarray system 5 rolls
RPK0196 Microarray cover slip auto sealant 1ml (sufficient for 40 slides)
Schedule III
PRICING OF TBE PRODUCTS
MOLECULAR DYNAMICS Price
Generation [ ] Microarray System (not CE-marked) US[ ]
Generation [ ] Microarray System (not CE-marked) US[ ]
Price for each system beyond the [ ] Gen [ ]
Microarray [ ] included in the Technology Access
Fee. Array Spotters or Array Scanners may be
purchased separately for US[ ] each.
AMERSHAM
Product Code Product Name Pack Size Standard Price US$ Customer Price US$
------------ ------------ --------- ------------------ ------------------
TBA Cy-3 phophoramidite To be advised [ ] [ ]
TBA Cy-5 phophoramidite To be advised [ ] [ ]
PA53023 Cy-3 dCTP 25nmol (sufficient for [ ] [ ]
40-200 hybridizations)
PA55023 Cy-5 dCTP 25nmol (sufficient for [ ] [ ]
40-200 hybridizations)
RPK0140 CyDye(TM) First strand cDNA 100x1ug mRNA labeling [ ] [ ]
labeling system for reactions
Microarrays version 1
RPK0150 Microarray hybridization 10mls (sufficient for more [ ] [ ]
solution, version 1 than 100 hybrid-izations
in xxxxxxxx)
RPK0188 Microarray cross linking 5 x 10 mls [ ] [ ]
reagent D
RPK1063 Microarray slides Type 4 48 slides [ ] [ ]
RPK0180 Cover slips for Microarrays 100 cover slips [ ] [ ]
RPK0175 Hybridization xxxxxxxx and 100 xxxxxxxx and 100 lids [ ] [ ]
covers for Microarrays
RPN53N Hybond(TM)membrane for 5 rolls [ ] [ ]
Microarray system
RPK0196 Microarray cover slip auto 1ml (sufficient for 40 [ ] [ ]
sealant slides)
Due to the ongoing development program, the exact nature, format, pack sizes,
product codes and prices are likely to change during the Technology Access
Period.
Schedule IV
INITIAL INSTALLATION AND TRAINING
TO BE PROVIDED BY MOLECULAR DYNAMICS
As part of the Technology Access Fee, Molecular Dynamics will provide
the Customer with the following:
o For Functional Installation: Prior to shipment of the first Microarray
System, MD will provide the Customer with a customer planning guide
that outlines the minimum facility specifications required at the
Approved Site for the Functional Installation of the Microarray
Systems. A qualified representative of MD will unpack the Microarray
System(s) and install it/them at an Approved Site. The MD
representative shall then confirm the basic functionality of the
system by using the Array Spotter to spot dye solution provided by MD
from [ ] microplates onto [ ] glass slides. All [ ] slides shall
then be scanned using the Array Scanner to confirm that substantially
all of the samples have been successfully deposited and detected.
Functional Installation specifically excludes meeting specific
hybridization levels or using Customer's own samples to assess
performance.
o Initial training on the basic operation of the Array Spotter and Array
Scanner will be provided for up to three (3) staff selected by the
Customer. Initial training will cover both the Array Spotter and Array
Scanner instrument control software and the Molecular Dynamics image
analysis software provided with each system. This does not include
connection to the Customer's network or support of networking
requirements.
o A limited twelve (12) month warranty, from the date of Functional
Installation of each instrument, covering parts, service labor, and
service travel to an "Approved Site" with service labor to be carried
out by a qualified representative of MD. This warranty does not cover
consumables or portions of the instrumentation modified or damaged by
the Customer.
o Service contracts extending beyond the initial twelve (12) month
warranty may be purchased by the Customer and/or Approved
Collaborator(s) from MD at rates quoted by the MD Service Department.
o Relocation of the Array Spotter and Array Scanner instrumentation to
another Approved Site or training of additional staff is available
from MD. Rates will be quoted upon request.
Schedule V
TRAINING AND TECIINICAL SUPPORT SERVICES PROVIDED BY AMERSHAM
Included in the Technology Access Fee (except for additional training as
specifically noted below), Amersham will provide the Customer with:
o A choice of one-week training courses on gene expression application
(excluding oligonucleotide arrays) at an Approved Site for the first
Microarray System delivered to an Approved Site designated by the
Customer, for up to three (3) staff selected by the Customer. A typical
training course will cover methods for attachment of DNA to derivatized
slides, labeling of probes, hybridization protocols, and detection and
analysis of the data.
o Reasonable follow-on technical support services via telephone, fax and
e-mail during the Technology Access Period to individuals who have
previously completed the above training course.
o Visits to the Approved Site by Amersham project scientists as mutually
agreed during the Technology Access Period.
o Consultancy in the adaptation of current Amersham methods to the
Customer's specific gene expression applications as mutually agreed
between Amersham and the Customer.
o No guarantee can be given that the Customer's own applications can be
made to perform with the levels of sensitivity, specificity or robustness
demonstrated in model systems.
o Additional one week training courses as requested by the Customer are
available and will be charged at US[ ] per course at a time and location
to be mutually agreed by the Customer and Amersham.
Schedule VI
PERFORMANCE SPECIFICATIONS
Generation [ ] Microarray System
Array Scanner:
Sample: Standard-size microscope slide with
[ ] cover glass(25.0 - 25.5 mm) x
(75.5 - 76.0 mm) x (0.95 - 1.15 mm)
Detected area single swath: [ ] cm x [ ] cm
Number of independent swaths: [ ]
Accuracy of swath position: [ ]
Pixel size (xy): [ ]
Emission filters: [ ] excitation ([ ] bandpass,
[ ] longpass)
[ ] excitation ([ ] bandpass,
[ ] longpass)
Dynamic range: [ ]
Excitation: [ ] lasers automatically
selectable through software:
[ ] mW and [ ] mW
Scan speed (for one [ ] cm swath) [ ] minutes
Repeatability:[ ] [ ] for spots, measured above
the photon limit
Linearity: [ ] RMS over [ ] orders
Environmental handling requirements: To be defined
Array Spotter:
Number of microplates [ ]
Number of slides [ ]
Number of pens [ ]
Microplate type [ ] well [ ]
Spot deposition density [ ] plate per column; [ ] spots
per mm in x-axis
Spot diameter [ ] - [ ] um
Spotting speed [ ] hrs for [ ] microplates
Spot deposition repeatability [ ] RMS [ ]
Spot deposition reliability [ ] over [ ] of [ ] unique
spots in [ ]
Wash efficiency [ ] part carryover in [ ]
Number of manual interventions [ ]
Enviromnental handling requirements To be defined
Generation [ ] Microarray System
Array Scanner
Sample Standard-size microscope slide with
[ ] cover glass (25.0 - 25.5 mm) x
(75.5 - 76.0 mm) x (0.95 - 1.15 mm)
Detected area single swath: [ ] cm x [ ] cm
Number of independent swaths: [ ]
Accuracy of swath position [ ] um
Pixel size (x,y): [ ] um
Emission filters: [ ] excitation ([ ])
([ ]) excitation ([ ])
Dynamic range [ ]
Excitation: [ ] lasers automatically
selectable through software: [ ]
mW and [ ] mW
Scan speed (for one 5.4 cm swath) [ ] minutes
Repeatability: static [ ] for spots, measured above
the photon limit
Linearity: [ ] RMS over [ ] orders
Environmental handling requirements To be defined
Sample tracking [ ] capability
Database software [ ]
Array Spotter
Number of microplates without manual At least [ ] handling
intervention
Number of slides [ ]
Number of pens [ ] or more
Microplate type [ ] well / TBD
Spot deposition density [ ] plate per column; [ ]
spots per mm in x-axis
Spot diameter [ ] um
Spotting speed [ ] hours for [ ] microplates
Spot deposition repeatability [ ] RMS [ ]
Spot deposition reliability [ ] over [ ] run of [ ]
unique spots in [ ]
Wash efficiency [ ] part carryover in [ ]
Number of manual interventions [ ]
Evaporation during spotting cycle [ ]
Sample tracking [ ] capability
Database software [ ]
Schedule VII
STANDARD TERMS AND CONDITIONS OF SALE
FOR MOLECULAR DYNAMICS
GENERAL: INTERPRETATION AND COMPLETENESS: This contract is deemed made in the
State of California and shall be interpreted under the Uniform Commercial Code
and other laws of California in force at the date of the contract. The final,
entire agreement pertaining to the sale to Buyer of the Goods described herein
by Molecular Dynamics ("Seller") is set forth on the face and reverse sides
hereof; any prior understandings, agreements and representations, oral or
written, shall be deemed superseded and merged in this contract. Agents and
salesmen of Seller have no authority to make any representations not included
herein. Seller hereby rejects any different or additional terms previously or
hereafter proposed by Buyer, none of which shall be effective unless embodied
in a writing signed by an authorized employee of Seller.
PRICE: The Goods and other items or services covered by this contract shall be
sold and invoiced at Seller's prices and charges in effect at the time of each
shipment of Goods under this contract. Seller reserves the right to change
without notice the published list prices referenced on the face of this
contract. Prices do not include sales, excise, use or other taxes (other than
taxes based on income) not in effect or hereafter levied by reason of this
transaction. Buyer shall pay all such taxes.
PAYMENT TERMS:
A. Payment terms are net 30 days from date of invoice. Seller reserves
the right to require alternative payment terms, including, without
limitation, Sight Draft, Letter of Credit or Payment in Advance. If
shipments are delayed by Buyer, payment shall be made based on
contract price and percent of completion. Buyer shall be liable for
the price of all products substantially conforming to the contract,
notwithstanding that Buyer may not have accepted, or may have revoked
acceptance of same.
B. If payment is not received by the due date, a service charge will be
added at the rate of 1 1/2 % per month (18% per year) or the maximum
legal rate, whichever is less, to unpaid invoices from the due date
thereof.
C. Remittances will be received by a bank simply as clearing agency. The
receiving bank has no authority to determine whether or not the
amount admitted constitutes payment in full. Remittances marked to
indicate payment in full will be deposited by the bank
notwithstanding such markings and such deposit shall not indicate our
acceptance of the remittance as payment in full unless the remittance
actually constitutes payment of all sums owed.
CREDIT: Seller may, at any time and in its sole discretion, limit or cancel
the credit of Buyer as to time and amount, and as a consequence, may demand
payment in cash before delivery of any unfilled portion of this contract, and
may demand assurance of Buyer's due performance. Upon
making such demand, Seller may suspend production, shipment and/or deliveries.
If, within the period stated in such demand, but in no event longer than 30
days, Buyer fails to agree and comply with such different terms of payment,
and/or fails to give adequate assurance of due performance, Seller may (1) by
notice to Buyer, treat such failure or refusal as a repudiation by Buyer of
the portion of the contract not then fully performed, whereupon Seller may
cancel all further deliveries and any amounts unpaid hereunder shall
immediately become due and payable or, (2) make shipments under reservation of
a security interest and demand payment against tender of documents of title.
If Seller retains a collection agency and/or attorney to collect overdue
amounts, all collection costs, including attorney's fees, shall be payable by
Buyer. Buyer hereby represents to Seller that Buyer is now solvent and agrees
that each acceptance of delivery of the Goods sold hereunder shall constitute
reaffirmation of this presentation at such time.
SEVERAL SHIPMENTS: Seller may deliver in installments and may render a
separate invoice for each installment, which invoice shall be paid when due,
without regard to subsequent deliveries. Each installment shall be deemed a
separate sale. Delay in delivery of any installment shall not relieve Buyer of
its obligation to accept delivery of remaining installments. Any delivery not
in dispute shall be paid for on the due date, as provided in this contract,
without offset, defense or counterclaim and regardless of controversies
relating to other delivery or undelivered products.
TITLE, RISK OF LOSS, INSURANCE: Title to each shipment of the Goods sold
hereunder and risk of loss thereon shall pass to Buyer when Seller or its
agent delivers such shipment to a common carrier or licensed trucker consigned
to Buyer, or his agent, but such shipment shall remain subject to Seller's
rights of stoppage in transit and of reclamation. If a strike, embargo,
governmental action, or any other cause beyond Seller's control prevents
shipment or delivery to Buyer or his agent, or if shipping instructions for
any shipment are not received before shipment date, or if payment is to be
made on or before delivery, title and risk of loss shall pass to Buyer as soon
as the shipment has been set aside by Seller and invoiced to Buyer (subject to
Seller's rights as an unpaid Seller) and payment shall be made in accordance
with invoice as though the Goods had been shipped and accepted by Buyer and
Seller shall be under no duty to carry insurance thereafter.
SECURITY INTEREST: Seller retains a purchase (money) security interest in all
equipment sold and the proceeds thereof until payment in full is received by
Seller. Failure to pay the purchase price of equipment when due shall give
Seller the right to repossess the equipment and to avail itself of any other
legal remedy. Buyer agrees to execute appropriate financing statements upon
request by Seller and to pay all expenses for recording thereof.
CONSIGNED GOODS: Buyer acknowledges that certain Goods provided by Seller may
be supplied on a consignment basis. In the event any Goods are designated on
the face of this form as consigned Goods, then Buyer agrees to execute all
documents provided by Seller necessary to effectuate the consignor-consignee
relationship and, in addition to any terms and conditions of consignment,
specifically agrees that Seller shall retain title to all consigned Goods
until such time as Buyer sells such goods to its customers, at which time
title shall pass directly from Seller to the respective customers. Buyer shall
keep a current and accurate inventory and record of all
consigned goods and shall permit Seller or Seller's representative to inspect
said Goods at any reasonable time upon demand.
ACCEPTANCE: (1) Buyer or Buyer's agent may inspect the Goods at the place of
manufacture. Buyer shall accept any tender of the Goods by Seller which
substantially conform to the description of the Goods set forth herein. (2)
Buyer shall be deemed to have accepted any product and Buyer's right to
cancel, reject or claim any damages for breach of warranty or breach of
Seller's obligation under this contract shall cease, unless Buyer gives Seller
notice in writing of Seller's breach: (a) in the case of defects discoverable
through inspection, 14 days after arrival of the shipment or (b) in the case
of defects not discoverable through inspection, 30 days after invoice date.
(3) In the case of non-conforming goods, Buyer shall immediately notify Seller
whether or not Buyer will continue to accept similarly non-conforming Goods
and acceptance of any non-conforming Goods shall constitute a waiver by Buyer
of specification requirements for said Goods. (4) In any event, when the
product shall have been altered from its original state, Buyer shall be deemed
to have accepted the product. Buyer's acceptance of Goods tendered under this
contract shall be final and irrevocable.
DELIVERY: Seller will use every reasonable effort to effect shipment on or
before the date indicated. Seller shall not be liable, directly or indirectly,
for any delay or failure in performance or delivery or inability to perform or
deliver where such delay, failure or inability arises or results from any
cause beyond Seller's control or beyond the control of Seller's suppliers or
contractors, including, but not limited to, strike, boycott or other labor
disputes, embargo, governmental regulation, inability or delay in obtaining
materials. In no event shall Seller, in the event of delays or otherwise be
liable to Buyer or any third party for any consequential, special, or
contingent damages. In the event of any such delay or failure in performance,
Seller shall have such additional time within which to perform its obligations
hereunder as may reasonably be necessary under the circumstances; and Seller
shall also have the right, to the extent necessary in Seller's reasonable
judgment, to apportion fairly among its various customers in such manner as
Seller may consider equitable, the goods then available for delivery. If, as a
result of any such contingency, Seller is unable to perform this contract in
whole or in part, then to the extent that it is unable to perform, the
contract shall be deemed terminated without liability to either party, but
shall remain in effect as to the unaffected portion of the contract, if any.
SELLER'S LIABILITY: If Buyer notifies Seller under the terms hereof (which
notice, shall be in writing sent by registered mail) of a claimed defect,
Buyer shall concurrently in writing offer Seller opportunity to investigate
the claim and to inspect allegedly defective Goods. If Seller determines that
Buyer's claim is valid, Seller may repair the defective Goods or replace the
defective Goods with conforming Goods at the F.O.B. point specified in this
contract. Failure to offer Seller such opportunity shall constitute acceptance
by Buyer and waiver of all claims for defects. Seller's liability for damages
on account of a claimed defect in any product delivered by Seller shall in no
event exceed the purchase price of the product on which the claim is based.
Replacement of defective Goods or repayment of the purchase price for any such
product will be made only upon return of the defective product. Specifically,
and without limiting the generality of the foregoing, Seller shall not be
responsible or liable to Buyer or to any third party for any lost profits, or
incidental, consequential, indirect, special or contingent damages for any
breach of
warranty or other breach of Seller's obligations under this contract. Seller
shall not be liable for damages relating to any instrument, equipment, or
apparatus with which the product sold under this agreement is used.
SELLER'S REMEDIES: If Buyer fails, with or without cause, to furnish Seller
with specifications and/or instructions, for, or refuses to accept deliveries
of, any of the products sold under this contract, or is otherwise in default
under or repudiates this contract or any other contract with Seller or fails
to pay when due any invoice under this contract, then in addition to any and
all remedies allowed by law, Seller without notice (1) may xxxx and declare
due and payable all undelivered products under this or any other contract
between Seller and Buyer and/or (2) may defer shipment under this or any other
contract between Buyer and Seller until such default, breach or repudiation is
removed and/or (3) may cancel any undelivered portion of this and/or any other
contract in whole or in part (Buyer remaining liable for damages).
PACKING: All products shall be suitably packed for air shipment, unless
otherwise requested by Buyer and agreed to in writing by Seller.
WARRANTY: Seller specifically excludes all express warranties and makes no
implied warranty that the goods sold under this agreement are merchantable or
are at for any particular purpose, except such warranties expressly identified
as warranties as are set forth in Seller's current operating manual, catalog
or written guarantee covering such product. Seller also makes no warranty that
the goods sold under this agreement are delivered free of the rightful claim
of any third party by way of patent infringement or the like. If Buyer
furnishes specifications to Seller, Buyer agrees to hold Seller harmless
against any claim which arises out of compliance with the specifications. Any
description of the Goods contained in this contract is for the sole purpose of
identifying them, and any such description is not part of the basis of the
bargain, and does not constitute a warranty that the goods shall conform to
that description. Any sample or model used in connection with this contract is
for illustrative purposes only, is not part of the basis of the bargain, and
is not to be construed as a warranty that the goods will conform to the sample
or model. No affirmation of fact or promise made by Seller, whether or not in
this contract, shall constitute a warranty that the goods will conform to the
affirmation or promise.
ASSIGNMENT: This contract and Buyer's rights thereunder may not be assigned by
Buyer except with the prior written approval of Seller.
WAIVER: Waiver by Seller of any provision of this contract or of a breach by
Buyer of any provision of this contract shall not be deemed a waiver of future
compliance with this contract, and such provision, as well as all other
provisions of this contract, shall remain in full force and effect.
STANDARD TERMS AND CONDITIONS OF SALE FOR AMERSHAM
1. DEFINITIONS
1.1. The "COMPANY" shall mean AMERSHAM PHARMACIA BIOTECH INC., its
parent corporations, subsidiaries and affiliates.
1.2. The "CUSTOMER" shall mean the person, firm, company or other
organization entering into the CONTRACT as defined in subsection 1.7. below.
1.3. The "EQUIPMENT" shall mean all items of tangible property
supplied by the COMPANY which are of a capital nature.
1.4. The "GOODS" shall mean all items manufactured or supplied by the
COMPANY other than the EQUIPMENT.
1.5. The "PRODUCTS" shall mean the GOODS or EQUIPMENT.
1.6. The "SERVICES" shall mean all advice given and services
performed by the COMPANY.
1.7. The "CONTRACT" shall mean the agreement arising between the
COMPANY and the CUSTOMER following receipt of the CUSTOMER'S order for the
PRODUCTS and/or SERVICES, comprised in the COMPANY'S quotation or, if no
quotation has been given, the agreement arising on dispatch by the COMPANY of
a written acceptance of the CUSTOMERS order or shipment of the PRODUCTS,
whichever first occurs.
2. GENERAL
All CONTRACTS entered into by the COMPANY are subject to and governed
solely by these terms and conditions of sales which may only be varied by the
COMPANY in writing. Acceptance of any purchase order by the COMPANY is
expressly made conditional on assent by the CUSTOMER to any additional or
different terms or conditions set forth herein.
3. PAYMENT
3. 1. Unless otherwise agreed in writing, payment of all invoices
shall be made to the COMPANY in full in U.S. dollars no later than thirty (30)
days from the date of invoice.
3.2. In the event of delay in payment, the COMPANY reserves the right
to:
3.2.1. suspend deliveries and/or cancel any of its outstanding
obligations under the CONTRACT; and
3.2.2. levy a service charge to cover administrative and other
associated costs in relation to overdue account at the
rate of the lesser of 2% per month of all unpaid amounts
or the maximum percentage permitted by applicable law.
3.3. The CUSTOMER shall have no right to set off any amounts owing to
or alleged to be owing to it by the COMPANY against unpaid invoices due to the
COMPANY.
3.4. The COMPANY shall have the right for reasonable cause to
withdraw or refuse credit facilities or to require from the CUSTOMER cash on
or before delivery or security for payment and to withhold delivery until such
requirement is complied with.
3.5. Any claim or inquiry by the CUSTOMER in respect to the invoiced
price of the PRODUCTS or SERVICES must be submitted in writing to the COMPANY
within the credit period referred to in subsection 3.1.
3.6. Any and all taxes or charges of any nature, imposed by any
federal, state or local government authority, which shall become payable by
reason of the sale, delivery and/or use of the goods hereunder shall be deemed
for CUSTOMER'S account, and the COMPANY may either xxxx the same to the
CUSTOMER separately, or add the same to the price of the good shipped
hereunder. The COMPANY will notify CUSTOMER in writing of the nature of any
such tax or charge and of the law imposing same.
4. DELIVERY
4.1. Unless otherwise agreed, PRODUCTS shall be delivered F.O.B.
Arlington Heights, Illinois, in Canada all shipments are X.X.X. Xxxxxxx
Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx, Xxxxxx.
4.2. Unless otherwise agreed in writing, delivery shall take place
when the PRODUCTS are passed to the carrier or shipping agent or to the
CUSTOMER'S representative, whichever shall first occur.
4.3. The CUSTOMER shall ensure that adequate and safe facilities and
procedures exist for receipt of the PRODUCTS at its premises at the time of
delivery by the COMPANY or its agent or carrier, and warrant to the COMPANY
that the site where it intends to use the PRODUCTS is suitable in all respect
for their intended use and is licensed in accordance with any relevant local,
state and federal regulations.
4.5. The CUSTOMER shall not be entitled unreasonably to delay
delivery or refuse to accept delivery. However, if in the opinion of the
COMPANY the CUSTOMER:
4.5.1. is not ready to receive the PRODUCTS on the day
intended, or
4.5.2. fails to give the COMPANY adequate instructions, or
4.5.3. fails to pick up PRODUCTS intended for pick up, or
4.5.4. fails to comply with the provisions of subsection 4.3 in
whole or in part then the COMPANY shall be entitled to
store, dispose of or otherwise deal with the PRODUCTS in
any way it thinks fit without being liable in any way for
any resulting loss suffered by the CUSTOMER and to charge
for any costs incurred. In addition the COMPANY shall have
the right to cancel the CONTRACT. If the CUSTOMER
unreasonably delays delivery or refuses to accept
delivery, the COMPANY shall be entitled to the full
invoice price for the PRODUCTS plus, any costs of
disposal, less the amount, if any, received by the COMPANY
in disposing of or otherwise dealing with the PRODUCTS.
4.6. The CUSTOMER shall promptly notify the COMPANY in writing in the
event that PRODUCTS do not arrive within seven days of their anticipated
receipt.
5. WARRANTY
5.1. Certain items of EQUIPMENT manufactured and/or supplied by the
COMPANY benefit from a long term warranty, details of which will be made
available to the CUSTOMER in writing at the time of quotation or prior to
conclusion of the CONTRACT.
5.2. The COMPANY warrants that all other EQUIPMENT and all GOODS at
the time of receipt by the CUSTOMER will be free from defects and conform to
the relevant technical specification and that SERVICES will be carried out by
the COMPANY with reasonable care and skill. THIS WARRANTY EXTENDS TO THE
CUSTOMER ONLY AND NOT TO THE CUSTOMER'S CUSTOMERS OR TO OTHER THIRD PARTIES.
5.3. If the CUSTOMER claims the COMPANY has breached the warranty in
subsection 5.2. by tender of defective goods, the CUSTOMER shall, within seven
days of the failure or defect becoming apparent, notify the COMPANY in
writing, explaining in full detail the claimed defect, and the CUSTOMER shall
hold the PRODUCTS for 90 days from the date of notice for the COMPANY
inspection or, upon the COMPANY'S request, the CUSTOMER shall return the
PRODUCT to the COMPANY at the COMPANY'S expense. Failure to give notice to the
COMPANY or to hold or return the PRODUCTS in accordance with this provision
shall constitute a waiver of any claim and acceptance of such PRODUCTS by the
CUSTOMER.
5.4. The COMPANY'S sole liability for breach of this warranty shall
be at its option to give credit for, replace or repair any PRODUCTS or
reperform any SERVICES provided that the failure or defect is shown to the
COMPANY'S reasonable satisfaction to be due to its faulty design, workmanship,
material or packaging.
5.5. Except in the case of PRODUCTS sold by the COMPANY for use in
research (which PRODUCTS are warranted at date of receipt only), the warranty
in subsection 5.2 shall extend for a period of sixty (60) days from the date
of receipt of the PRODUCTS or completion of the SERVICES, provided that, if a
shorter warranty period is stated in the product literature, then such shorter
period shall govern.
6. EXCLUSIONS AND LIMITATIONS OF LIABILITY
6.1. THE WARRANTIES OF THE COMPANY IN SECTION 5 ARE EXPRESSLY IN
PLACE OF ANY OTIIER WARRANTIES, GUARANTEES, CONDITIONS, OBLIGATIONS OR
LIABIL1TIES WHICH MAY BE EXPRESSED OR IMPLIED BY THE COMPANY OR ITS
REPRESENTATIVES. ALL STATUTORY AND IMPLIED WARRANTIES OR CONDITIONS, INCLUDING
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND OTHER
THAN TITLE ARE HEREBY EXPRESSLY NEGATED AND EXCLUDED.
6.2. The COMPANY shall not be bound by any representations or
statement on the part of its employees or agents whether oral or in writing
except where such representations' or statement are expressly made part of the
CONTRACT.
6.3. The maximum liability for breach of warranty shall be the
invoice price of the PRODUCT.
6.4. Except for the warranties in Section 5 the COMPANY shall not be
liable to the CUSTOMER for any direct, indirect, consequential or economic
loss or damage relating to its
PRODUCTS or SERVICES except in so far as such liability relates to death or
personal injury resulting from the COMPANYS special skills.
6.5. The CUSTOMER shall ensure that the specification of the PRODUCTS
ordered is suitable and safe for the intended use of environment of use except
where it makes known details of such use to the COMPANY in writing prior to
conclusion of the CONTRACT in such a way as clearly to place reliance on the
COMPANY'S special skills.
6.6. The CUSTOMER shall handle the PRODUCTS in a suitable and safe
manner and shall comply with any instructions supplied to it by the COMPANY.
The CUSTOMER shall also pass on to users (including purchasers and users of
other goods and equipment into which the PRODUCTS are incorporated) all
relevant safety information, and shall use best efforts to cause such users to
exercise due care in the handling of the PRODUCTS.
6.7. WHERE THE COMPANY EXPERIENCES TECHNICAL DIFFICULTIES IN THE
PRODUCTION OF NON-STANDARD OR CUSTOM MADE PRODUCTS IT MAY CANCEL THE CONTRACT
WITHOUT BEING LIABLE TO THE CUSTOMER IN ANY WAY.
6.8. Where the CUSTOMER supplies designs, drawings and specifications
to the COMPANY to enable it to manufacture non-standard or custom made
PRODUCTS the CUSTOMER warrants that such manufacture will not infringe the
intellectual property rights of any third party.
7. INDEMNITIES
7.1. The CUSTOMER shall indemnify the COMPANY in respect of any claim
which may be made against the COMPANY:
7.1.1. that the use to which the PRODUCTS are put constitutes a
breach of the Occupational Safety and Health Act or
related regulations or any other relevant state, federal
or international safety legislation and regulations.
7.1.2. that the use to which the PRODUCTS are put infringes the
patent, copyright or other intellectual property rights of
any third party, and/or
7.1.3. arising out of the failure by the CUSTOMER to observe
the terms of the CONTRACT.
7.2. The provisions of subsection 7.1 shall not apply where the claim
arises directly as a result of the negligence of the COMPANY or use of the
PRODUCTS in accordance with the COMPANY'S written instructions.
8. STANDING ORDERS
8.1. Acceptance by the COMPANY of each standing and call off order
received from the CUSTOMER for the supply and delivery of fixed quantities of
GOODS at stated intervals or for the supply of fixed quantities of GOODS at
interval to be advised by the CUSTOMER shall constitute a single contract.
8.2. All such orders, once accepted, are subject to cancellation by
the COMPANY (without liability on the part of the COMPANY) on giving thirty
days' prior written notice to the CUSTOMER, provided that the COMPANY may
cancel without notice in the event that the CUSTOMER is in breach of
subsection 3.1.
8.3. The CUSTOMER shall only be entitled to cancel such orders on
giving one month's prior written notice to the COMPANY and after repayment to
the COMPANY of the amount of any discount or special price reduction from
which the CUSTOMER has benefited up to the date of cancellation.
9. FORCE MAJEURE
9.1. The COMPANY shall not be liable for any delay in delivery or
nondelivery, in whole of in party cause by the occurrence of any contingency
beyond the control of either of the COMPANY or suppliers of the COMPANY
including but not limited to war (whether declared or not), sabotage,
insurrection, rebellion, riot or other act of civil disobedience, act of a
public enemy, failure or delay in transportation, act of any government or any
agency or subdivision thereof, judicial action, labor dispute, fire, accident,
explosion, epidemic, quarantine, restrictions, storm, flood, earthquake, or
other act of God , shortage of labor, fuel, raw material or machinery or
technical failure, where the COMPANY has exercised ordinary care in the
prevention thereof. If any contingency occurs, the COMPANY may allocate
production and delivery among the COMPANY'S customers.
10. GOVERNING LAW
10.1. The CONTRACT shall be governed by and construed in accordance
with the laws of Illinois.
Schedule VIII
CUSTOMER BILLING INFORMATION
All invoices for Products sold, services performed, or questions of
payment arising under this Agreement should be sent to the Customer's address
set forth below:
Lifecodes Corporation
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Telephone #: 000-000-0000
Fax #: 000-000-0000
Schedule IX
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