EXHIBIT 10.33
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS,
HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
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LABCHIP SOLUTIONS AGREEMENT
This LABCHIP SOLUTIONS AGREEMENT ("Agreement"), dated as of September
21, 2001 (the "Effective Date"), is entered into by and between AMPHORA
DISCOVERY CORP., a Delaware corporation ("Amphora"), and CALIPER TECHNOLOGIES
CORP., a Delaware corporation ("Caliper"). Any capitalized terms used herein but
not defined shall have the meaning ascribed to them in the Intellectual Property
Agreement.
RECITALS
WHEREAS, Caliper has developed proprietary microfluidics and
miniaturization technology applicable to pharmaceutical candidate Screening
techniques; and
WHEREAS, Amphora is in the business of screening agents and compounds
using Caliper's technology and commercializing the data for use by third
parties; and
WHEREAS, Caliper and Amphora have entered into an Intellectual Property
Agreement of even date herewith which contains certain exclusivity, licensing
and other collaboration provisions; and
WHEREAS, Caliper and Amphora desire to establish a commercial
relationship for the purchase of Caliper's goods and services by Amphora.
NOW, THEREFORE, in consideration of the foregoing premises and the
mutual covenants contained in this Agreement, the parties agree as follows:
1. DEFINITIONS
1.1. "AFFILIATE" shall mean, with respect to any Person, any other
Person controlling, controlled by or under common control with,
such Person. For purposes of this definition, the term "control"
means the possession of the power to direct the management or
policies of a Person through ownership of fifty percent (50%) or
more of its voting securities entitled to
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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vote in the election of directors (or, in the case of a Person
that is not a corporation, for the election of the corresponding
managing authority).
1.2. "AMPHORA DEVELOPED PRODUCT" shall mean any product or component,
including software, that is used in or reasonably useful for
Screening and that is developed or made by or on behalf of
Amphora pursuant to the license granted in Section 6.1.1,
provided that the development, manufacture or use of such
product by or on behalf of Amphora would infringe one or more
claims of Patent Rights included in the Caliper Intellectual
Property absent such license and not merely trade secret rights.
1.3. "AMPHORA IMPROVEMENTS" shall mean all inventions (whether or not
patentable), discoveries, methods, compositions and other trade
secrets and know-how (collectively, "Improvements") that are
conceived or first reduced to practice by Caliper, solely or
jointly with others, during the Term and in the course of
performing services on behalf of Amphora hereunder, except as
otherwise mutually agreed in writing, or otherwise using Amphora
Materials, to the extent they are directed to [ * ] biological
targets or compounds provided by Amphora, [ * ]. Amphora
Improvements shall exclude all LabChip Improvements.
1.4. "CALENDAR QUARTER" shall mean a period of three consecutive
calendar months commencing with any of January, April, July, or
October.
1.5. "CALIPER INTELLECTUAL PROPERTY" shall have the meaning assigned
in the Intellectual Property Agreement.
1.6. "CHIP" shall mean a microfluidic chip offered for sale or
otherwise made available by Caliper to any Person, for use in a
system which is used in, or useful for, Target Assay Protocol
development or Screening, or otherwise generating data for a
Multi-Target Screening Database (as defined in the Intellectual
Property Agreement).
1.7. "CONFIDENTIAL INFORMATION" of a party shall mean all information
provided by such party to the other party either in connection
with the discussions and negotiations pertaining to this
Agreement or in the course of performing this Agreement, whether
in writing, orally or otherwise, provided that such information
is either (i) the type of information that is customarily
treated as confidential by the disclosing party, or (ii)
specifically designated as confidential, in writing orally or
otherwise, at the time of disclosure or reasonably promptly
thereafter.. Subject to the foregoing, Confidential Information
may include without
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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limitation, data; knowledge; practices; processes; ideas;
research plans; chemical compounds; engineering designs and
drawings; research data; manufacturing processes and techniques;
scientific, manufacturing, marketing and business plans; and
financial and personnel matters relating to the disclosing party
or to its present or future products, sales, suppliers,
customers, employees, investors or business. Notwithstanding the
foregoing, information shall not be deemed Confidential
Information for purposes of this Agreement if such information:
(a) was already known to the receiving party or its
Affiliates, other than under an obligation of
confidentiality, at the time of disclosure by
the disclosing party, as shown by the receiving
party's files and records immediately prior to
the time of disclosure;
(b) was generally available or known to the public
or otherwise part of the public domain at the
time of its disclosure to the receiving party;
(c) became generally available or known to the
public or otherwise part of the public domain
after its disclosure to the receiving party
through no fault of the receiving party;
(d) was disclosed to the receiving party or its
Affiliates, other than under an obligation of
confidentiality, by a third party who had no
obligation not to disclose such information to
others; or
(e) was independently discovered or developed by the
receiving party or its Affiliates without the
use of Confidential Information belonging to the
disclosing party.
1.8. "CONTRACT YEAR" shall mean a period of one year commencing on
the Effective Date or on any anniversary of the Effective Date.
1.9. "COST OF GOODS" shall mean the cost of goods sold for the
particular Product as calculated by Caliper in accordance with
GAAP as GAAP is applied by Caliper in generating its publicly
reported financial statements. As used herein, "GAAP" shall mean
the then-current applicable Generally Accepted Accounting
Principles in the United States consistently
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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applied as recognized or accepted by the United States
Securities and Exchange Commission and the Financial Accounting
Standards Board.
1.10. "DATAPOINT" shall mean [ * ] an Instrument introduces a sample
into a Chip through a sipper in order to perform a particular
LabChip Assay. As an example, on a standard Chip, a Datapoint is
acquired [ * ] a sipper introduces such a sample into the Chip
by dipping into a well.
1.11. "EFFECTIVE DATE" shall have the meaning stated in the
introductory paragraph of this Agreement.
1.12. "EFFECTIVE FILING DATE" shall mean the earliest effective
priority filing date to which the Patent Right is entitled in
the applicable country, as determined on a claim by claim basis,
in accordance with applicable law. By way of example, it is
understood that the Effective Filing Date for each claim in a
United States patent is the earlier of (i) the actual filing
date of the United States patent application which issued into
such patent, (ii) the priority date under 35 U.S.C. Section 119
for such claim, or (iii) the priority date under 35 U.S.C.
Section 120 for such claim.
1.13. "FORECAST" shall have the meaning set forth in Section 2.4.1.
1.14. "FTE" shall mean one or more Caliper full-time equivalent
person(s), whether employees, contractors or consultants,
engaged in activities on Amphora's behalf under this Agreement
for the equivalent of one full-time employee's time (assuming a
40-hour workweek).
1.15. "GENERAL ASSAY PROTOCOL" shall mean the protocol and set of
biochemical conditions for performing a Screening assay on an
Instrument System and Chip, which protocol and conditions are
generally applicable to assays for multiple different biological
targets.
1.16. "INSTRUMENT SYSTEM" shall mean the collection of hardware and
software for use with Chips in a Screening system offered for
sale or otherwise made available by Caliper to any Person, which
system is used in, or useful for, Target Assay Protocol
development or Screening, or otherwise generating data for a
Multi-Target Screening Database (as defined in the Intellectual
Property Agreement).
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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1.17. "INTELLECTUAL PROPERTY AGREEMENT" shall mean that certain
Intellectual Property Agreement by and between the parties
hereto of even date herewith.
1.18. "IP" shall mean any and all rights in, to or arising out of any
Patent Rights, trade secrets, know how or copyright rights.
1.19. "LABCHIP ASSAY" shall mean the complete protocol and set of
biochemical conditions selected by a party for performing a
Screening assay for a particular biological target on an
Instrument System and Chip, consisting of the Target Assay
Protocol plus the General Assay Protocol. LabChip(R) is a
registered Caliper trademark but is printed without the
registration xxxx in this Agreement for convenience.
1.20. "LABCHIP IMPROVEMENTS" shall mean all inventions (whether or not
patentable), discoveries, methods, compositions and other trade
secrets and know-how (collectively "Improvements") that are
conceived or first reduced to practice by Amphora, solely or
jointly with others, (i) during the Term, (ii) [ * ] and (iii) [
* ] directed to the design, development or manufacture of
microfluidic chips or chip interfaces. For purposes of (iii),
"directed to" means that the Improvement does [ * ] with regard
to microfluidic chips. "Chip interface" means the [ * ]
interface between a microfluidic chip and associated hardware.
"LabChip Improvements" specifically include, but are not limited
to, (a) chip designs and formats, (b) the chip cartridge design,
(c) how the actuation forces (e.g., pressure, electrical) are
applied to the chip, (d) physical or chemical methods for
measuring temperature in channels, (e) Improvements directed to
the Library Card System and (f) methods of controlling physical
conditions for reagents on the chip (e.g. control of evaporation
and temperature in on-chip reservoirs, or control of temperature
or pressure in chip channels). For purposes of (e), "directed
to" means that the Improvement does [ * ] with regard to Library
Card Systems. "LabChip Improvements" specifically exclude, among
other things, Target Assay Protocols.
1.21. "LIBRARY CARD SYSTEM" shall mean the system for low quantity,
high-density storage of compounds retrievable with sipper chips,
as further described in (i) Caliper's internal product lifecycle
documentation as of the Effective Date, and (ii) pending patent
applications filed by Caliper.
1.22. "LICENSABLE INTELLECTUAL PROPERTY" shall have the meaning
assigned in the Intellectual Property Agreement.
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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1.23. "MATERIALS" shall have the meaning specified in Section 7.4.
1.24. "NEW LAB-ON-A-CHIP PRODUCTS" shall mean any product or
component, including software, hardware, a microfluidic chip, a
reagent, a LabChip Assay, that (i) is, or is used in, a
chip-based system that utilizes Caliper's microfluidic chip
technologies, (ii) is used in or reasonably useful for Screening
and (iii) is not a Product as of the Effective Date. New
Lab-on-a-Chip Products shall not include anything that
constitutes a LabChip Improvement or Amphora Improvement.
1.25. "PATENT RIGHTS" shall have the meaning assigned in the
Intellectual Property Agreement.
1.26. "PERSON" shall mean an individual, partnership, firm,
corporation, limited liability company, joint venture,
association, trust, any governmental agency or political
subdivision thereof, or any other legal entity.
1.27. "PRODUCTION YEAR" shall mean a period of one year commencing on
the Validation Date or on any anniversary thereof.
1.28. "PRODUCTS" shall mean all Instrument Systems, Chips, and other
products and components, including hardware, Software and
reagents, that (i) Caliper offers for sale or otherwise makes
available during the Term to any Person and (ii) are used in, or
useful for, LabChip Assay development or Screening, or otherwise
generating data for a Multi-Target Screening Database (as
defined in the Intellectual Property Agreement). For avoidance
of doubt, Products shall include but not be limited to the
products set forth in Exhibit B.
1.29. "PROJECTED AVAILABILITY DATE" shall have the meaning specified
in Section 5.3.1.
1.30. "PURCHASE TERMS" shall mean the purchase terms and conditions
set forth in Exhibit A.
1.31. "SCHEDULED DELIVERY DATE" shall mean the date on which Amphora
has requested that a Product shall be shipped to Amphora,
subject to the ordering lead times set forth in Section 2.4.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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1.32. "SCREENING" shall have the meaning specified in the Intellectual
Property Agreement.
1.33. "SCREENING DATABASE BUSINESS" shall have the meaning specified
in the Intellectual Property Agreement.
1.34. "SPECIFICATIONS" shall mean the system specifications that
accompany a Product or that are provided by Caliper in
connection with the purchase of a Product.
1.35. "TARGET ASSAY PROTOCOL" shall mean the protocol and set of
biochemical conditions for performing a Screening assay on an
Instrument System and Chip, which protocol and conditions have
been selected by a party for assaying one particular biological
target. Target Assay Protocol shall not include any elements of
such protocol or biochemical conditions that are included in the
General Assay Protocol.
1.36. "TERM" shall have the meaning set forth in Section 12.1.
1.37. "TWELVE SIPPER SYSTEM" shall mean a system that contains (i) a
Chip that has twelve sippers, (ii) the instrument and software
on which such a Chip operates, and (iii) a standard LabChip
Assay that can be run on the foregoing Chip, Instrument System
and software.
1.38. "VALIDATION DATE" shall mean the date on which the initial
quantities of Chips mutually agreed upon by the parties have
been delivered to Amphora, and the initial shipment of
Instrument Systems in a quantity to be mutually agreed have been
installed by Caliper at Amphora's North Carolina offices (or as
otherwise mutually agreed), and demonstrated by Caliper to
function in accordance with the Specifications for such
Instrument Systems and in performing Caliper's standard
fluorogenic LabChip Assay. The parties expect such testing to be
completed by [ * ].
2. PRODUCTS
2.1. PRODUCT SALES. Throughout the Term, Caliper shall make available
to Amphora all Products that Caliper makes commercially
available to any customer. Caliper shall make all Products set
forth on Exhibit B available to Amphora in accordance with the
terms and conditions of this Agreement (including the Purchase
Terms), without additional terms or restrictions. Caliper shall
make available to Amphora other Products in accordance with
Caliper's standard terms, provided that such Products may be
subject to certain additional restrictions,
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limitations, or terms, provided that such restrictions, terms
and limitations shall be commercially reasonable and shall not
materially adversely affect Amphora's rights under this
Agreement or the Intellectual Property Agreement. In addition,
during the course of this Agreement, Caliper may offer Amphora
the opportunity to receive products other than Products. For
example, Amphora may receive products being commercialized
through Caliper's research collaboration with Agilent. Terms
related to such transactions will be agreed upon separately or
established for all customers by Caliper and Agilent, and are
not intended to be included under the scope of this Agreement
except as otherwise set forth herein. [ * ] ANY TERMS OR
CONDITIONS OF ANY PURCHASE ORDER, ACKNOWLEDGMENT, OR OTHER
DOCUMENT ISSUED BY EITHER PARTY FOR A PRODUCT SET FORT ON
EXHIBIT B WHICH ARE IN ADDITION TO OR INCONSISTENT WITH THIS
AGREEMENT OR THE INTELLECTUAL PROPERTY AGREEMENT SHALL HAVE NO
EFFECT AND SUCH TERMS AND CONDITIONS ARE HEREBY EXCLUDED, UNLESS
SUCH ADDITIONAL TERMS AND CONDITIONS ARE SET FORTH IN A WRITING
SIGNED BY BOTH PARTIES.
2.2. INITIAL SYSTEMS.
2.2.1. INITIAL PURCHASE ORDER. With respect to Products
purchased under the first purchase order submitted by
Amphora hereunder, Caliper shall resolve any performance
issues within five (5) business days of written notice
from Amphora.
2.2.2. PURCHASE COMMITMENT. Subject to the terms and conditions
of this Agreement, including the Purchase Terms, and
notwithstanding the lead times set forth in Section 2.4,
Amphora shall place orders for and take delivery of, at
least [ * ] Instrument Systems prior to [ * ] . Caliper
shall ship the foregoing Instrument Systems pursuant to
a schedule reasonably requested by Amphora. The
Instrument Systems ordered concurrently with the
execution of this Agreement shall be counted toward the
foregoing purchase commitment. Prior to [ * ] Amphora
shall purchase, and Caliper shall deliver to Amphora, at
least an additional [ * ] Instrument Systems, subject to
the terms and conditions of this Agreement, including
the Purchase Terms. Notwithstanding anything to the
contrary, Amphora shall have the right to suspend orders
and delivery of further Instrument Systems under this
Section 2.2 without breach in the event of ongoing,
material warranty or installation issues with at least [
* ] of delivered or installed Instrument Systems
purchased by Amphora, which issues are not resolved
within [ * ] days of written notice by Amphora. Upon
resolution of the
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warranty or installation issue, the schedule for delivery of
subsequent Instrument Systems will be reasonably adjusted in
light of any delay relating to such issue, if such an adjustment
is requested by Amphora.
2.3. [ * ] PRODUCTS. Notwithstanding Section 2.1, during the
Exclusivity Period, [ * ] any product reasonably useful for
Screening that is [ * ] and incorporates any Caliper
Intellectual Property, provided that Amphora may [ * ]
incorporate Caliper Intellectual Property. If [ * ]
incorporating Caliper Intellectual Property that Caliper [ * ]
during the Exclusivity Period, then, upon Amphora's request,
Caliper [ * ] to Amphora upon commercially reasonable terms.
2.4. FORECASTS AND ORDERS.
2.4.1. FORECASTS. Amphora shall provide to Caliper, within
thirty (30) days after the Effective Date and by the
fifth day of each subsequent Calendar Quarter during the
Term, Amphora's written, good-faith forecast of the
quantity of Chips and Instrument Systems that Amphora
anticipates it will order in each month during the
following twelve-month period (each, a "Forecast"),
provided that the number of Chips in the first six (6)
months of each Forecast may not be increased by more
than [ * ] the immediately preceding Forecast for the
same period without the written consent of Caliper. If a
new Chip or Instrument System is made available
hereunder, an initial Forecast shall be provided by
Amphora, which initial Forecast shall serve as the first
Forecast for such Chip and/or Instrument System under
this Section 2.4.1, with deliveries commencing at a date
mutually agreed upon by the parties, which Caliper shall
not require to be later than when Caliper first makes
such Chip or Instrument System available to any third
party Caliper shall supply to Amphora the quantities of
Chips and Instrument Systems set forth in each Forecast
to the extent set forth in Section 2.4.2.
Notwithstanding anything set forth in this Section 2.4,
if a Forecast for two (2) consecutive calendar months
exceeds by more than [ * ] the actual orders placed by
Amphora for such months, then Caliper shall be required
to supply, in the immediately following calendar month,
the lesser of (i) the percentage of Products required
under Section 2.4.2 below, or (ii) the percentage of
Products required under Section 2.4.2 minus the average
percentage by which the previous two months' Forecast
exceeded actual orders in such months. For example, if
the Forecast for two consecutive months exceeded actual
orders by [ * ] respectively, then Caliper shall only
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COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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be required to supply [ * ] of the Products that would
otherwise be required for the following month under
Section 2.4.2.
2.4.2. ORDERS. If Amphora provides to Caliper a purchase order
for Chips at least three (3) months prior to the
Scheduled Delivery Date for such Chips, then Caliper
shall supply such Chips by such date, provided that
Caliper shall not be required to timely supply that
number of Chips which is in excess of [ * ] forecast in
the immediately preceding Calendar Quarter, provided
that Caliper shall use commercially reasonable efforts
to fill orders for such quantities of Chips from
available supplies. If Amphora provides to Caliper a
purchase order for Instrument Systems at least six (6)
months prior to the Scheduled Delivery Date for such
Instrument Systems, then Caliper shall supply such
Instrument Systems by such date, provided that Caliper
shall not be required to timely deliver that number of
Instrument Systems which is in excess of [ * ] of the
Forecast provided to Caliper in the Calendar Quarter
prior to the immediately preceding Calendar Quarter,
provided that Caliper shall use commercially reasonable
efforts to fill orders for such excess quantities of
Instrument Systems from available supplies. Caliper
shall notify Amphora within fifteen (15) calendar days
from receipt of a purchase order of its ability to fill
any amounts of such order in excess of the quantities
that Caliper is obligated to supply. It is acknowledged
and agreed that the parties may mutually agree from time
to time to substitute new or improved Chips for existing
Chips set forth in Amphora's Forecasts. The appropriate
employees from each party shall meet on a monthly basis,
or as otherwise mutually agreed, to discuss the
Forecasts.
2.4.3. EARLY DELIVERY. For Chips delivered more than [ * ]
calendar days in advance of the Scheduled Delivery Date,
Amphora shall have the right to return such Chips to
Caliper freight collect (with risk of loss remaining on
Caliper) or accept such Chips with payment terms based
upon the Scheduled Delivery Date and not the date of
shipment by Caliper.
3. SERVICES
3.1. GENERAL. During the Term, Amphora shall have the right to
request that Caliper perform the services set forth herein, and
such services shall be provided by Caliper to Amphora, and
contractors working on Amphora's behalf, subject to the terms
set forth herein. Services to be provided by Caliper shall
include, without limitation, (i) LabChip Assay development for
targets selected by Amphora, (ii) installation, maintenance, and
support for Product and
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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training and support for Amphora personnel developing LabChip
Assays or using Products, (iii) custom development projects, and
(iv) instrument platform extensions.
3.2. PROJECT PLAN. Subject to Section 3.4, each year during the Term,
or as otherwise mutually agreed by the parties, Amphora and
Caliper shall agree upon the services to be provided by Caliper
to Amphora during such year or other time period (the "Project
Plan"), subject to Caliper's determination of commercial and
technical feasibility, and mutual agreement upon commercially
reasonable terms for such services. Amphora and Caliper will
jointly propose priorities and tasks to be accomplished by
Caliper to support the Project Plan. Caliper will determine the
necessary personnel resources and provide estimates (in writing,
if requested) of the projected time needed to perform relevant
tasks for, and the technical feasibility of various tasks
included in, the Project Plan. The parties may amend the Project
Plan at any time upon mutual agreement.
3.3. TYPES OF SERVICE.
3.3.1. LABCHIP ASSAY DEVELOPMENT. Throughout the Term, LabChip
Assays for Amphora's targets will be developed
collaboratively by the parties or solely by Amphora, as
determined by Amphora. In general, where Caliper is
developing a LabChip Assay for Amphora, Amphora will
develop the appropriate biochemical and/or cellular
reagents for the LabChip Assay and will provide the
necessary (as determined by Amphora) quantities of
reagents to Caliper. With respect to each Chip for use
in a LabChip Assay desired by Amphora, Caliper shall
supply such Chip to Amphora in accordance with the terms
and conditions in this Agreement, including the ordering
and forecasting terms set forth in Section 2.4. Caliper
shall use commercially reasonable efforts to make such
Chip available to Amphora as soon as possible after
Amphora's request.
3.3.2. TRAINING. As Amphora requests at any time during the
Term, one or more Caliper employees shall provide
training for Amphora employees in development of LabChip
Assays and use of Products, with the intended result of
making Amphora independent in its use of the Products
and in LabChip Assay development. The parties will
attempt to schedule such training at mutually convenient
times, provided that Caliper shall use commercially
reasonable efforts to meet the timing requested by
Amphora. Caliper shall also use commercially reasonable
efforts to provide the training at the locations
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requested by Amphora, including a number of visits to
Amphora's facilities in North Carolina to be mutually
agreed.
3.3.3. INSTALLATION. It is acknowledged and agreed that, if the
parties have not previously agreed upon an installation
date for an Instrument System or component thereof, then
within thirty (30) calendar days after Amphora's request
for installation, Caliper shall install such Instrument
System at the location specified by Amphora. There shall
be no charge by Caliper for such installation of each
such Instrument System at one initial location, it being
understood that the fees for such services are included
in Amphora's purchase price for such Instrument System.
The parties shall mutually agree upon the installation,
testing and acceptance criteria and processes for
Instrument Systems.
3.3.4. MAINTENANCE AND SUPPORT. Caliper shall provide software
and equipment upgrades at Caliper's option, and
technical telephone support of Products, pursuant to the
Purchase Terms set forth in Exhibit A at no charge, it
being understood that the fees for such upgrades and
support are included in Amphora's purchase price for the
applicable Product. Additional upgrades, maintenance and
support services shall be available at an additional
charge.
3.4. FIRST YEAR FTES. Subject to the terms and conditions of this
Agreement, during the first Contract Year, Caliper shall provide
to Amphora, and Amphora shall request, the assistance and
support of [ * ] FTEs. Amphora shall have the right to use FTEs
under this Section 3.4 for the performance of any services set
forth herein, including the services set forth in this Article
3, subject to the terms of a Project Plan. Caliper and Amphora
shall agree upon a Project Plan for such [ * ] FTEs. The parties
may mutually agree in writing to adjust the foregoing FTE
commitment.
3.5. QUALIFICATIONS. All services performed hereunder will be
performed in a high quality, professional, and workmanlike
manner consistent with industry practices and standards
applicable to services of the type being provided. Caliper will
use commercially reasonable efforts at all times to assign only
individuals with the skills, experience, training and
qualifications reasonably sufficient to perform services in
accordance with this Agreement. Amphora shall have the right to
require Caliper to replace, within sixty (60) days following
Amphora's written request, any individual performing services
who Amphora determines does not meet the criteria set forth
above. If Caliper fails to comply with its obligations this
Section 3.5, then at Amphora's request and at no cost or expense
to Amphora, Caliper shall
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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promptly re-perform the relevant services. Caliper shall use
commercially reasonable efforts in order to minimize materially
disruptive changes in the Caliper personnel that provide Amphora
support during a project.
3.6. AGREEMENTS WITH EMPLOYEES AND CONSULTANTS. Caliper shall have
and maintain an agreement with each employee, consultant, and
other individual performing services for Amphora under this
Agreement such that, as between Caliper and such individual, all
technology and IP invented or developed by such individual in
the course of performing the services is assigned to and owned
solely by Caliper. As between Caliper and Amphora, ownership
shall be determined in accordance with the terms and conditions
of this Agreement or a Related Agreement unless otherwise agreed
in a writing signed by both parties.
3.7. FACILITY RULES. All individuals provided by Caliper to perform
services, while on Amphora's premises, shall comply with all
applicable rules and regulations of Amphora. No such individual
shall stop, delay or interfere with Amphora's day-to-day
operations without the prior written consent of Amphora. Caliper
shall be solely responsible for compliance with the laws, rules,
and regulations of any government entity with respect to all
such individuals, including employment of labor, hours of labor,
payment of wages, payment of taxes, unemployment, social
security and other payroll taxes, and obtaining applicable
contributions from such individuals when so required by law.
3.8. THIRD PARTY TECHNOLOGY. Caliper shall not use any IP or
technology owned by a third party in connection with any
services hereunder, or disclose any such third party IP or
technology to Amphora, unless Caliper obtains Amphora's prior
written consent and provides Amphora with all information
reasonably requested by Amphora regarding such IP and
technology, in each case, if Caliper's use of such third party
technology in connection with the provision of services to
Amphora, or Amphora's exploitation of the results of Caliper's
services, would violate any agreement with or proprietary right
of the third party.
3.9. DEVELOPMENT RECORDS. Caliper shall make commercially reasonable
efforts to maintain reasonable records relating to services
provided under this Agreement.
3.10. REPORTING. Caliper shall deliver written reports to Amphora
within the first ten (10) days of each Calendar Quarter
describing the actual time applied by Caliper's employees and
designees to Amphora support tasks in the preceding Calendar
Quarter. Such reports shall
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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include a reasonable description of the project, the name of
each individual performing the work, and the time spent by such
individual to perform the project on a daily basis.
4. PRICING AND PAYMENTS
4.1. INSTRUMENT SYSTEM PRICING. Instrument Systems identified on
Exhibit C (and materially similar Instrument Systems with minor
modifications or improvements) (collectively, "Current
Instrument Systems") and all Instrument Systems other than
Current Instrument Systems ("Future Instrument Systems")
purchased during the first [ * ] Contract Years shall be offered
to Amphora at the discounts set forth in Exhibit C. The discount
rate for Class I Products shall be based upon the total
aggregate number of Class I Products purchased in the then
current Contract Year. The discount rate for Class II Products
shall be based upon the total aggregate number of Class II
Products purchased in the then current Contract Year. Future
Instrument System purchases in each Contract Year shall be
aggregated with Amphora's total purchases of Current Instrument
Systems during such Contract Year within each Instrument System
class set forth on Exhibit C for the purpose of determining
Amphora's discount rate for such Future Instrument Systems. For
purposes of Exhibit C, "Class I" Instrument Systems are Current
Instrument Systems and Future Instrument Systems for Screening
that have environmental controls and plate handling capability,
and "Class II" Instrument Systems are Current Instrument Systems
and Future Instrument Systems that do not include environmental
controls and plate handling capability.
4.2. CHIP AND DATAPOINT PRICING. Until the end of [ * ] the pricing
for each Chip and Datapoint derived from a Chip shall be as set
forth in this Section 4.2.
4.2.1. CHIPS. Subject to the terms and conditions of this
Agreement, Caliper will sell Chips to Amphora at [ * ]
the then-current list price for the volumes purchased by
Amphora (the current list price for a 4-sipper Chip is
$250), or [ * ] for the applicable Chip.
4.2.2. DATAPOINTS.
4.2.2.1.[ * ] YEAR. Subject to the terms and conditions
of this Agreement, Amphora shall pay to Caliper
[ * ] Datapoints generated prior to the end of
the [ * ].
4.2.2.2.[ * ] YEAR. Subject to the terms and conditions
of this Agreement, Amphora shall pay to Caliper
[ * ] Datapoints produced during the [ * ]. If
Amphora produces
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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[ * ] Datapoints during [ * ] then Amphora shall
pay Caliper [ * ] produced by Amphora during [ *
] up to a maximum total price of [ * ].
4.2.2.3.VALID DATAPOINTS. If Amphora submits a service
or warranty claim for a defective Chip or
Instrument System, then the Datapoints generated
by such Chip or Instrument System during the
period in which Amphora claims that such Chip or
Instrument System was defective shall not count
towards the total number of Datapoints generated
by Amphora for purposes of invoicing Amphora for
Datapoint fees under Section 4.2.2.2 above,
provided that (i) Amphora shall have in place
sufficient quality control procedures to, and
shall in the event of a warranty claim, cease
use of, the allegedly defective Chip or
Instrument System within one (1) day of Amphora
becoming aware of the defect; (ii) Amphora shall
report such defective Product and, in the event
of a defective Chip, return the Chip to Caliper,
within five (5) calendar days of Amphora
becoming aware of the defect, and (iii) the
claim was subsequently verified or accepted by
Caliper, such review by Caliper to occur within
thirty (30) days after the claim is submitted by
Amphora. The parties shall cooperate to
establish further procedures to administer this
Section 4.2.2.3.
4.2.2.4.FAILURE OF CHIP SUPPLY. Notwithstanding
Sections 4.2.2.1 and 4.2.2.2, if, in any
Calendar Quarter during [ * ], Caliper fails to
supply to Amphora by the Scheduled Delivery Date
at least [ * ] of the Chips that Caliper is
required to supply pursuant to Section 2.4, then
a percentage of the quarterly Datapoint fees
that were paid by Amphora at the beginning of
such Calendar Quarter shall be reimbursed by
Caliper to Amphora as a credit or refund in
accordance with Section 4.2.2.6 below. The
percentage of such Datapoint fees to be
reimbursed shall equal [ * ] during such
Calendar Quarter.
4.2.2.5.CHIP WARRANTY ISSUES. Notwithstanding Sections
4.2.2.1 and 4.2.2.2, if, in any Calendar Quarter
during [ * ] of Chips delivered in any Calendar
Quarter are returned by Amphora due to a
warranty claim, and Caliper's warranty or
service organization agrees to provide any
accommodation to Amphora in view of such
warranty claim (applying the same standards
Caliper applies to warranty claims from its
other customers), then a percentage of the
quarterly Datapoint fees that were paid by
Amphora at the beginning of such Calendar
Quarter shall be reimbursed by Caliper to
Amphora as a credit or refund in accordance with
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Section 4.2.2.6 below. The percentage of
Datapoint fees to be reimbursed shall equal [ *
] that were not the subject of an acknowledged
warranty claim as set forth above.
4.2.2.6.REIMBURSEMENT PROCEDURE. Each reimbursement
accruing in a Calendar Quarter pursuant to this
Section 4.2.2 shall be provided by Caliper to
Amphora as a credit against Datapoint fees due
at the beginning of the immediately following
Calendar Quarter; provided that if the
applicable failure or delay occurs during the
last Calendar Quarter for which a quarterly
payment is made under Sections 4.2.2.1 and
4.2.2.2, then reimbursement shall be provided as
refund paid by Caliper to Amphora within thirty
(30) days after the end of such Calendar
Quarter. Any reimbursements or reductions of
quarterly Datapoint fees pursuant to this
Section 4.2.2 shall be cumulative, provided that
reimbursements by Caliper shall not exceed the
total amount of Datapoint fees due to Caliper in
any Calendar Quarter.
4.3. SERVICES PRICING. From the Effective Date until [ * ] services
provided hereunder shall be invoiced at a rate of [ * ]
(excluding travel expenses for which Amphora is responsible as
set forth below). Thereafter, such services shall be provided by
Caliper at rate that is no greater than Caliper's then-current
list price for comparable services. Amphora will reimburse
Caliper for Caliper's out of pocket costs of airfare, hotel
accommodations, and meals reasonably necessary in connection
with the applicable service pursuant to a reimbursement policy
mutually agreed by the parties.
4.4. [ * ] From the beginning of [ * ] until the end of the Term,
when Amphora enters into negotiations with Caliper [ * ] of
Datapoints and/or Products [ * ].
4.5. PAYMENT TERMS.
4.5.1. GENERAL. All amounts set forth in this Agreement are in
U.S. dollars. Caliper shall invoice Amphora on the date
of shipping of a Product. Amphora shall pay all invoices
within thirty (30) calendar days of receipt. Except as
expressly set forth herein, Caliper shall bear all
direct and other costs associated with its personnel
performing services. Except as set forth in the Purchase
Terms, each party shall be solely responsible for and
shall pay all taxes based on amounts it receives in the
connection with this Agreement and will fully indemnify
the other party for any failure to pay such taxes. If
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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a party does not pay an amount payable to the other
party under this Agreement on or prior to the due date,
late fees shall accrue and become immediately due and
payable on the outstanding unpaid balance at a rate of
the lower of one and one-half percent (1.5%) per month
or the highest amount permitted by law. Caliper shall
have the right, at its option, to discontinue the
provision of services hereunder upon ten (10) days
notice (with a right to cure) if Amphora has not paid an
undisputed invoice within ninety (90) days of receipt of
proper invoice.
4.5.2. SERVICES. Caliper shall invoice Amphora quarterly in
advance for services provided pursuant to a Project
Plan. During the first Contract Year, such invoices
shall be for a minimum of [ * ] provided that Caliper
has made such FTEs reasonably available to Amphora. The
fees for each quarter in subsequent years shall be based
on the number of hours of support scheduled to be
provided for such quarter pursuant to a Project Plan.
Requests at any time for Caliper support for a program
in excess of the amounts set forth in the Project Plan
or otherwise previously agreed upon shall be subject to
mutual agreement. The parties shall reconcile any
discrepancy between funding and actual Caliper time
provided for each quarter within thirty (30) days after
the final report for the preceding Calendar Quarter has
been delivered to Amphora. Amphora shall not be
responsible for any FTE costs or other fees for service
except to the extent that the cost and fees have been
approved in advance in a further writing signed by
Amphora, (not including Amphora's obligation with
respect to [ * ] for the first Contract Year as set
forth in Section 3.4 above) and Caliper shall not be
obligated to perform any activities unless such
activities have been approved by Amphora in writing.
4.5.3. VARIABLE DATAPOINT FEES. The Datapoint fees set forth in
Sections 4.2.2.1 and 4.2.2.2 shall be payable on a
quarterly basis in four equal installments, subject to
applicable reductions as set forth in Section 4.2.2
after the beginning of each of the four Calendar
Quarters consecutively following the beginning of [ * ]
as applicable. In the event that Amphora generates
Datapoints in excess of [ * ] the parties shall agree on
the process for reporting and payment for such
Datapoints, including the timing of such payments.
4.5.4. RECORDS AND INSPECTION. In addition to the development
records required under Section 3.9, each party shall
keep complete, true and accurate books of account and
records sufficient to determine and establish the
applicable party's compliance with its obligations under
Sections 2.1, 3.6, 4.2.1, 4.2.2 and 4.4. Such books and
records shall
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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be kept reasonably accessible for three (3) years
following the end of the Calendar Quarter to which they
pertain. All such records maintained by a party shall be
made available for inspection by the other party
throughout such three (3) year period by an independent
third party auditor selected by mutual agreement of the
parties. Such inspections may be made at any time during
a party's normal business hours upon five (5) days
advance notice. The requesting party shall bear the
costs and expenses of inspections conducted under this
Section 4.5.4, unless a material non-compliance with
this Agreement is identified, whereupon all costs of the
audit paid to third parties will be paid by the audited
party. In the event that an audit demonstrates that
payment from one party to another party is required
hereunder, the paying party shall make such payment
within thirty (30) days after completion of the audit,
together with interest on such overpayment at the rate
specified in Section 4.5.1.
5. COLLABORATION AND DEVELOPMENT.
5.1. CUSTOM DEVELOPMENT. If Amphora would like to have Caliper
develop new products or modify existing Caliper products to
customize them to Amphora's specifications, then Caliper shall
negotiate with Amphora in good faith regarding an agreement
under which Caliper is obligated to provide such custom
development services. Custom development projects may be
conducted pursuant to the following general terms (the specific
terms of which shall be negotiated later by the parties):
(a) Amphora may fund all Caliper FTEs at a
rate to be mutually agreed.
(b) Amphora controls the project's
objectives and budget, subject to
Caliper's discretion as to technical
feasibility and potential infringement
of third party IP. The parties mutually
agree on how to achieve the objectives,
reasonable timelines and milestones,
roles and responsibilities, etc. The
parties may also agree on incentives to
spur the development process.
(c) Caliper may have rights to commercialize
resulting products. However, Amphora may
have a period of exclusivity or other
competitive advantage with respect to
use of such products in a Screening
Database Business.
(d) Depending on the scale of the project
and other factors, the parties may
negotiate some form of royalty.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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5.2 ACCELERATED DEVELOPMENT. Amphora and Caliper may mutually agree
to accelerate a product in the Caliper product development
lifecycle, and the following general terms may apply: (i)
Caliper may control the project's objectives, (ii) Amphora may
fund less than 100% of Caliper's FTEs, and (iii) an exclusivity
period may or may not apply. The parties have agreed that,
subject to agreement on terms, Amphora may accelerate the
development of [ * ] under this Section 5.2 (not as a custom
project under Section 5.1) once such systems have entered the
Laboratory Phase pursuant to terms mutually agreed by the
parties. If Amphora would like to have Caliper accelerate
development of any system or product, then Caliper shall
negotiate with Amphora in good faith regarding an agreement
under which Caliper is obligated to provide such services.
5.3 [ * ] AND [ * ] SYSTEMS.
5.3.1 AVAILABILITY. Caliper currently expects that the [ * ]
System will enter the laboratory prototype phase of its
product lifecycle (the "Laboratory Phase") by [ * ] and
currently expects that the [ * ] System will enter the
Laboratory Phase by [ * ] (each, the "Projected
Availability Date"). Caliper shall keep Amphora fully
informed regarding Caliper's progress toward each of the
Projected Availability Dates and shall notify Amphora
promptly in writing in the event of any potential delay
in either Projected Availability Date, describing in
such notice Caliper's best estimate of the revised
Projected Availability Date.
5.3.2 INCENTIVE AND LATE FEES. If the [ * ] System enters the
Laboratory Phase by [ * ] then Amphora shall pay to
Caliper a one-time incentive fee of [ * ]. If the [ * ]
System enters the Laboratory Phase on or after [ * ]
then Caliper shall pay to Amphora a one-time late fee of
[ * ]. If the [ * ] System enters the Laboratory Phase
by [ * ] then Amphora shall pay to Caliper a one-time
incentive fee of [ * ]. If the [ * ] System enters the
Laboratory Phase on or after [ * ] then Caliper shall
pay to Amphora a one-time late fee of [ * ]. Any
incentive payments paid by Amphora under this Section
shall not be counted towards Amphora's Minimums as set
forth in Section 3.4 of the Intellectual Property
Agreement.
6. LICENSE FOR AMPHORA DEVELOPED PRODUCTS
6.1. LICENSE GRANT.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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6.1.1. LICENSE FOR SCREENING DATABASE BUSINESS. Subject to the
terms and conditions of this Agreement, Caliper hereby
grants to Amphora a worldwide, non-exclusive, [ * ]
right and license, under the Licensable Intellectual
Property having an Effective Filing Date or generated
prior to the [ * ] of the Effective Date to [ * ]
excluding all microfluidic chips and chip cartridges and
any products which are substantially the same as a
Product, for use for any purpose and any application
(including use to practice any method or process)
related or reasonably ancillary to (i) its Screening
Database Business, or (ii) providing contract Screening
services. Notwithstanding the foregoing, Amphora agrees
that it will not exercise the license in this Section
6.1 to use a product for Screening to provide contract
Screening services without obtaining Caliper's prior
written consent to such development, which consent shall
not be unreasonably withheld. The foregoing license
grant is subject to all the terms and conditions set
forth in Sections 2.3 through 2.7 of the Intellectual
Property Agreement regarding license rights to Screening
Products, as well as the terms and conditions set forth
below in this Article 6. The rights set forth in this
Article 6 may not be sublicensed, shared or transferred
in any manner without the prior written consent of
Caliper, except as otherwise provided in Section 6.8
below and in Section 14.5 . If Caliper releases a
Product after Amphora has already begun development of
an Amphora Developed Product that is substantially the
same as such Product, then the license set forth in this
Section 6.1 shall apply to such Amphora Developed
Product.
6.1.2. LICENSE TO SELL TARGET ASSAY PROTOCOLS. Subject to the
terms and conditions of this Agreement, Caliper hereby
grants to Amphora a worldwide, non-exclusive, [ * ]
right and license, under the Licensable Intellectual
Property having an Effective Filing Date or generated
prior to the [ * ] of the Effective Date to sell and
disclose Target Assay Protocols for use with Instrument
Systems and Chips offered for sale by Caliper or any
Caliper Partner.
6.2. MODIFICATIONS OF PRODUCTS. The license set forth in Section 6.1
above includes the right to modify in any way any hardware or
software included in a Product purchased by Amphora from
Caliper. However, if any such modification is made, all warranty
and other service commitments made by Caliper in connection with
the sale of the particular Product unit that has been modified
will be voided, and Caliper will not be obligated to support or
provide upgrades for such modified Product unit unless the
parties have otherwise agreed in writing. Upon request by
Amphora, Caliper will provide [ * ] provided with a Product
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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purchased by Amphora. If Amphora desires any further assistance
from Caliper to modify [ * ] such assistance shall be the
subject of negotiations of a collaborative development project
as discussed in Section 6.4 below. In addition, Amphora may
reproduce the software provided with a Product for development
purposes in accordance with this Article 6, provided that such
reproduced software shall not be installed on any Product unit
for which software was not previously purchased from Caliper.
6.3. DEVELOPMENT OF MICROFLUIDIC CHIPS AND CHIP CARTRIDGES. Caliper
reserves all rights to design and otherwise develop the
microfluidic chip or chip cartridge for use with any Amphora
Developed Product. In response to any request from Amphora for
Caliper to perform such activities, Caliper agrees to offer
Amphora terms for providing such services that are no less
favorable to Amphora than those terms Caliper generally offers
to third parties for similar development. In all cases Caliper
shall have the right to require that the specifications for each
microfluidic chip and chip cartridge be consistent with then
current Caliper design standards and chip manufacturing
processes.
6.4. DEVELOPMENT OF OTHER COMPONENTS. With regard to all components
other than the microfluidic chip and chip cartridge to be used
with any Amphora Developed Product, Caliper shall have a [ * ]
as described below to provide any development services which
Amphora may elect to have provided on its behalf by a third
party. Before discussing any such project with any third party,
Amphora shall notify Caliper in writing of the project. Amphora
shall provide Caliper with relevant, non-confidential
information and negotiate in good faith with Caliper for [ * ]
regarding Caliper providing such development services. After
such period, Amphora shall be free to discuss such project with
any third party and [ * ].
6.5. MANUFACTURE AND SUPPLY OF MICROFLUIDIC CHIPS AND CHIP
CARTRIDGES. Caliper reserves all rights to manufacture and
supply each microfluidic chip and each chip cartridge for use
with any Amphora Developed Product, on terms to be negotiated or
established in the future.
6.6. MANUFACTURE AND SUPPLY OF INSTRUMENTS AND OTHER COMPONENTS. With
regard to instruments and other hardware for use with any
Amphora Developed Product (not including prototypes or other
development-stage systems), Caliper shall have a [ * ] as
described below to manufacture and supply such hardware to
Amphora. Caliper shall have [ * ] with respect to manufacture
and supply of software or reagents for use with any
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Amphora Developed Product. Before discussing any manufacturing
and supply project with any third party, Amphora shall notify
Caliper in writing of the project. Amphora shall provide Caliper
with relevant, non-confidential information and negotiate in
good faith with Caliper for [ * ] regarding Caliper providing
such manufacturing services. If Amphora and Caliper do not agree
during such time period, Amphora shall [ * ] Amphora may require
that information disclosed to Caliper under this Section 6.6
shall be treated as Amphora Confidential Information and shall
not be subject to the license rights granted to Caliper under
Article 7.
6.7. NO SALES OF AMPHORA DEVELOPED PRODUCTS. Amphora shall not sell
or otherwise provide to any third party any Amphora Developed
Product, except to subcontractors for use on Amphora's behalf
pursuant to Section 6.8 below or as otherwise set forth in
Section 6.1.2.
6.8. SUBLICENSING AND THIRD PARTIES. Amphora shall have the right to
have Amphora Developed Products developed, made or used on its
behalf pursuant to the license granted in Section 6.1.1 above by
any third party (a "Subcontractor"), provided Amphora has
complied with all the other provisions of this Article 6 in
doing so, and subject to subsections 6.8.1 and 6.8.2.
6.8.1. INFRINGING SUBCONTRACTORS. Amphora may not engage any
third party in any such activities if such third party
is otherwise engaged in activities that infringe Caliper
Intellectual Property. So that Caliper may monitor this
provision, Amphora shall disclose the name of each such
third party to Caliper prior to engaging the third party
and permit Caliper a reasonable time, not to exceed
fifteen (15) days, to investigate and object to such
third party on these grounds.
6.8.2. SUBCONTRACTOR ACKNOWLEDGEMENT. Amphora shall require any
third party engaged as a Subcontractor to enter into a
written agreement with Amphora expressly agreeing to all
of the same restrictions and obligations applicable to
Amphora under Section 2.3 of the Intellectual Property
Agreement and Sections 6.3, 6.5 and 6.7 above. Amphora
shall make Caliper a third party beneficiary of such
provisions and shall provide Caliper with a copy of such
provisions promptly following their execution. Caliper
shall have the right to enforce such contractual
provisions if Amphora fails to take reasonable actions
to address any breach of such provisions within a
reasonable time after notice of the breach.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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7. INTELLECTUAL PROPERTY AND RIGHTS TO NEW DEVELOPMENTS
7.1. GENERAL RULES ON OWNERSHIP OF INVENTIONS. Except as otherwise
provided in this Article 7, (i) each party shall solely own all
inventions, works of authorship, other technology, and IP,
whether patentable or not, created or invented solely by its
employees and/or consultants and (ii) Caliper and Amphora shall
jointly own inventions, works of authorship, other technology,
and IP created or invented jointly by employees and/or
consultants of both parties, and neither party shall have any
obligation to obtain the consent of the other party in order to
exploit or license such inventions, works of authorship,
technology, or IP, or any duty to account to the other party for
profits obtained therefrom. Each party shall execute all
documents and take all actions reasonably necessary to perfect
ownership rights of the other party as provided in this Article
7 and to enable the filing of patent applications for assigned
inventions. Inventorship of all inventions covered by this
Agreement shall be determined under U.S. patent laws.
7.2. LABCHIP IMPROVEMENTS.
7.2.1. PATENTED LABCHIP IMPROVEMENTS. Amphora hereby assigns to
Caliper all of Amphora's right, title and interest in
and to all Patent Rights to the extent claiming any
LabChip Improvements. Caliper shall have the sole right
to determine whether to file for any Patent Rights
claiming a LabChip Improvement disclosed to Caliper
pursuant to Section 7.2.2. below, and to control the
prosecution and defense of any Patent Rights with
respect thereto. If requested by Caliper, Amphora shall
cooperate in patenting activities for such LabChip
Improvements, at Caliper's expense, and shall execute
any documents necessary to effect such assignment. In
exchange for this assignment, Caliper hereby grants to
Amphora a royalty-free, non-exclusive, non-transferable
(except as provided in Section 14.5), perpetual license
under such Patent Rights to use such LabChip
Improvements, and have them used by others on Amphora's
behalf, in Amphora's Screening Database Business,
provided that no rights in any other Caliper
Intellectual Property (e.g. background patents) are
granted pursuant to this Section 7.2.1.
7.2.2. UNPATENTED LABCHIP IMPROVEMENTS. For any LabChip
Improvement that is not claimed in any patent
application or patent, Amphora may elect either to
disclose information regarding such LabChip Improvement
to Caliper or to retain such information as confidential
to Amphora. Caliper may use or disclose freely, without
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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restriction under Article 8 below, any such information
that Amphora discloses to Caliper. Such use or
disclosure may include, without limitation, inclusion of
such information in any patent application filed by
Caliper.
7.2.3. SOFTWARE PATENTS. The parties recognize that Amphora may
make software inventions [ * ] Amphora shall grant
Caliper a royalty-free non-exclusive license under any
Amphora Patent Rights claiming such inventions for use
for all applications outside the Screening Database
Business.
7.3. AMPHORA IMPROVEMENTS
7.3.1. PATENTED AMPHORA IMPROVEMENTS. Caliper hereby assigns to
Amphora all of Caliper's right, title and interest in
and to all Patent Rights to the extent claiming any
Amphora Improvements. Amphora shall have the sole right
to determine whether to file for any Patent Rights
claiming an Amphora Improvement disclosed to Amphora
pursuant to Section 7.3.2. below, and to control the
prosecution and defense of any Patent Rights with
respect thereto. If requested by Amphora, Caliper shall
cooperate in patenting activities for such Amphora
Improvements, at Amphora's expense, and shall execute
any documents necessary to effect such assignment. In
exchange for this assignment, Amphora hereby grants to
Caliper a royalty-free, non-exclusive, non-transferable
(except as provided in Section 14.5), perpetual license
under any such Patent Rights applicable to Target Assay
Protocols to use Target Assay Protocols included in
Amphora Improvements, and have them used by others on
Caliper's behalf, generally in Caliper's business, but
not to sell or otherwise provide such Target Assay
Protocols or materially the same Target Assay Protocol
to third parties; provided that no rights in any other
Amphora IP (e.g. background patents) are granted
pursuant to this Section 7.3.1.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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7.3.2. UNPATENTED AMPHORA IMPROVEMENTS. For any Amphora
Improvement that is not claimed in any patent
application or patent, Caliper may elect either to
disclose information regarding such Amphora Improvement
to Amphora or to retain such information as confidential
to Caliper. Amphora may use or disclose freely, without
restriction under Article 8 below, any such information
that Amphora discloses to Caliper. Such use or
disclosure may include, without limitation, inclusion of
such information in any patent application filed by
Amphora.
7.4. USE OF AMPHORA MATERIALS. Amphora and/or its Affiliates may
provide to Caliper pursuant to this Agreement certain compounds,
substrates, reagents and other materials (collectively, the
"Materials"), which are and shall remain the sole property of
Amphora. Any information provided in connection with the
Materials shall be treated as Confidential Information of
Amphora, except as otherwise provided in this Agreement. The
provision of Materials to Caliper under this Agreement does not
grant Caliper any license or other right to such Materials,
except the limited right to use the Materials for the sole
purpose of satisfying its obligations to Amphora under this
Agreement and for no other purpose, except as otherwise provided
in this Agreement. Caliper understands that some Materials may
have unpredictable or unknown biological and/or chemical
properties and that they should be used with caution. Upon
request by Amphora, Caliper shall promptly return to Amphora or
destroy any remaining Materials.
7.5. NEW LAB-ON-A-CHIP PRODUCTS. The parties recognize that they have
mutual interests in the development of New Lab-on-a-Chip
Products; Caliper primarily for purposes of commercializing such
products and Amphora primarily for purposes of using them in
connection with its Screening Database Business. Caliper is
granting rights under Caliper Intellectual Property in Article 6
in order to enable Amphora, not just Caliper, to pursue these
types of developments. The parties also wish to encourage a
spirit of open communication and collaboration between them in
the early investigation of such product opportunities, while
preserving the freedom in later development stages to either
collaborate or pursue independent efforts. The parties expect
that it may be in their mutual interests to pursue such
opportunities collaboratively. However, they may review and
discuss such matters on a case by case basis in the future.
Accordingly, they agree as follows:
7.5.1. DISCLOSURE AND DEVELOPMENT OF NEW LAB-ON-A-CHIP
PRODUCTS. If either party is interested in pursuing
development of a New Lab-on-a-Chip Product, it may do so
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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independently or seek a collaborative development
agreement with the other party on the terms contemplated
in Sections 5.1 and 5.2 or other terms. Either party may
choose, in its sole discretion, whether to disclose or
not disclose to the other party any or all information
concerning an internal project to develop a New
Lab-on-a-Chip, and if so, to what extent. Any such
information disclosed to the other party, whether in
writing, orally or otherwise in the course of the
parties' work together ("Disclosed New Lab-on-a-Chip
Product Information"), shall be subject to the license
granted to the other party in this Section 7.5. However,
even if a party elects not to disclose such information
with regard to a particular project, such party
acknowledges that any Patent Rights arising out of the
undisclosed project will nevertheless be included in the
following license grant. The parties expressly agree to
this provision in order to encourage collaborative
efforts and to avoid having either party be "blocked"
from developing and exploiting New Lab-on-a-Chip
Products by Patent Rights generated by the other party.
7.5.2. GRANT TO CALIPER. Amphora hereby grants to Caliper a
worldwide, [ * ] non-exclusive, non-transferable (except
as provided in this Section and Section 14.5), right and
license, under (i) all Patent Rights owned or licensable
by Amphora during the Term having an Effective Filing
Date between the Effective Date and the expiration or
termination of this Agreement, other than Patent Rights
acquired by Amphora from third parties, and (ii) all
Amphora trade secret and other know-how rights
pertaining to Disclosed New Lab-on-a-Chip Product
Information, in each case to [ * ]. However, New
Lab-on-a-Chip Products developed pursuant to this
license shall be subject to the same terms applicable to
Screening Products under Article 3 of the Intellectual
Property Agreement (Exclusivity for Screening Database
Business) except that such terms shall apply for twenty
(20) years from the Effective Date, irrespective of
expiration or termination of the Intellectual Property
Agreement. Caliper may sublicense such rights, subject
to the foregoing exclusivity, only to third parties
engaged with Caliper in the development, manufacture or
sale of New Lab-on-a-Chip Products, and only if (i) such
third parties expressly agree to the preceding terms,
and (ii) Caliper manufactures and supplies the chip for
use in such New Lab-on-a-Chip Product.
7.5.3. GRANT TO AMPHORA. Caliper hereby grants to Amphora a
worldwide, [ * ] non-exclusive, non-transferable (except
as provided in this Section and Section 14.5), right and
license, under (i) all Patent Rights owned or licensable
by Caliper during the Term having an Effective Filing
Date between the Effective Date and the expiration or
termination of this Agreement, other than Patent Rights
acquired by Caliper from third
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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parties, and (ii) all Caliper trade secret and other
know-how rights pertaining to Disclosed New
Lab-on-a-Chip Product Information, in each case (a) to [
* ] on the same terms and conditions applicable to
Amphora Developed Products under Article 6 of this
Agreement and, in addition, (b) with respect to General
Assay Protocols and LabChip Assays, and any portion
thereof, that have been developed and made pursuant to
(a) above and designed to run on instruments and
microfluidic chips sold commercially by Caliper or a
Caliper Partner, to [ * ] that include Target Assay
Protocols developed by Amphora (and tangible embodiments
thereof other than microfluidic chips and instruments)
to Amphora's Screening Database Business customers.
Amphora may sublicense such rights only to third parties
engaged with Amphora in the above activities, and only
if such third parties expressly agree to the preceding
terms.
8. CONFIDENTIALITY; PUBLICITY
8.1. CONFIDENTIAL INFORMATION. During the Term, and for a period of
three (3) years following the expiration or termination of this
Agreement, each party shall maintain in confidence any and all
Confidential Information received from the other party. Each
party further agrees that it shall not use for any purpose not
authorized under this Agreement or the Intellectual Property
Agreement or disclose to any third party the Confidential
Information of the other party, except that either party may
disclose Confidential Information of the other party on a
need-to-know basis for such purposes to its directors, officers,
employees, consultants, agents and Affiliates if it shall have
first required such recipients to undertake an obligation of
confidentiality and non-use materially as protective as this
Section 8.1. For avoidance of doubt and except as otherwise set
forth herein, Caliper is authorized to use and disclose the
Confidential Information of Amphora under this Section 8.1
solely as necessary to supply Products to, and perform services
for, Amphora under this Agreement. Notwithstanding the
provisions of this Section, each party may disclose the other
party's Confidential Information to the extent such disclosure
is reasonably necessary to comply with applicable governmental
laws, regulations, or orders; provided that if a party is
required to make any such disclosure of the other party's
Confidential Information, it will, to the extent it may legally
do so, give reasonable advance notice to such other party of
such disclosure and will use its reasonable efforts to secure
confidential treatment of such information prior to its
disclosure (whether through protective orders or otherwise).
Notwithstanding this Section 8.1, the obligations of
confidentiality and non-use set forth above shall not apply to
the extent that the provisions of Articles 6 or 7 grant the
receiving party rights to disclose or use Confidential
Information.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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8.2. PUBLICITY. Neither party shall originate any news release or
other public announcement (except with regard to SEC or other
financial reporting obligations) relating to this Agreement
without providing the other party with the opportunity to review
and provide comments regarding the contents of such
announcement. With regard to SEC or other financial reporting
obligations relating to this Agreement, each party shall make
commercially reasonable efforts to consult with the other party
prior to any public announcements.
8.3. CONFIDENTIAL TERMS. The terms of this Agreement shall be
Confidential Information. Notwithstanding the foregoing, either
party may disclose this Agreement, under reasonable obligations
of confidentiality and non-use on a need-to-know basis, to
investors and their representatives in a private or public
financing transaction, to potential acquirers or targets and
their representatives in a corporate change of control
transaction, otherwise in connection with a merger, acquisition
of stock or assets, proposed merger or acquisition, or the like,
as advisable or required by law (including but not limited to
the filing of this Agreement as an exhibit to a document filed
with the Securities and Exchange Commission), order or
regulation of a governmental agency, to legal counsel of such
parties, or in connection with the enforcement of this Agreement
or rights under this Agreement. The disclosing party shall
provide written notice to the other party of any such disclosure
advisable or required by law, order or regulation of a
governmental agency, reasonably in advance if practical. If
either party intends to file this Agreement with the Securities
and Exchange Commission, such party agrees to provide the other
party with a copy of the proposed filing for review and comment
at least ten days in advance of the filing date. The disclosing
party shall not unreasonably withhold its acceptance of any
comments made by the other party within such period.
9. REPRESENTATIONS AND WARRANTIES
9.1. GENERAL WARRANTIES. Each Party hereby represents and warrants to
the other that the statements made in this Section 9.1 are true
and correct as of the Effective Date:
9.1.1. AUTHORIZATION; ENFORCEABILITY. The execution and
delivery of this Agreement by such Party and the
performance of its obligations hereunder and its
consummation of the transactions contemplated herein
have been duly and validly authorized by all necessary
corporate action on the part of such party in accordance
with applicable law.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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This Agreement, when executed and delivered by such
party, will constitute a valid and legally binding
obligation of such party, enforceable in accordance with
its terms.
9.1.2. NO DEFAULT. The execution and delivery of this Agreement
does not, and the consummation of the transactions and
performance of the obligations by such party under this
Agreement, including the disclosure of any information
to the other party, will not: (i) result in any
violation of any statute, law, rule, regulation,
judgment, order, decree, or ordinance, in each case as
in effect as of the Effective Date, applicable to such
party, its Affiliates, or an IP owned or licensed to
such party or its Affiliates; (ii) conflict with any
provision of the bylaws or articles of incorporation of
such party or its Affiliates; (iii) result in any breach
or default (with or without notice or lapse of time, or
both) under any agreement, contract, or other instrument
to which such party or its Affiliate is a party; or (iv)
result in the creation of any liens, pledges, charges,
claims, security interests or other encumbrances of any
sort ("Liens") on any IP owned or licensed to such party
or its Affiliates.
9.1.3. CONSENTS. No consent, approval, order or authorization
of, or registration, declaration or filing with, any
court, administrative agency, commission, regulatory
authority or other governmental authority or
instrumentality, domestic or foreign (a "Governmental
Entity") or any other person or entity, is required by
or with respect to such party or its Affiliates in
connection with the execution or delivery of this
Agreement or the consummation of the transactions or
performance of the obligations by Caliper or its
Affiliates under this Agreement.
9.2. ADDITIONAL WARRANTIES BY CALIPER. Caliper hereby represents and
warrants to Amphora that the statements made in this Section 9.2
are true and correct as of the Effective Date:
9.2.1. NO NOTICE OF INFRINGEMENT. Caliper has not received
notice from any person or entity claiming that the
manufacture, use, sale, offer for sale, importation, or
other exploitation of any Product infringes or
misappropriates the IP of any Person (nor has Caliper
determined that there is any reasonable basis therefor),
nor has Caliper received notice from any Person claiming
that the exploitation of any Product constitutes unfair
competition or trade practices under the laws of any
jurisdiction. Without limiting the foregoing, no claims
with respect to any Product have been communicated to
Caliper challenging the ownership or validity of
Caliper's rights in or to the Products.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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9.2.2. LITIGATION. There is no action, suit, proceeding, claim
or governmental investigation pending or, to Caliper's
knowledge, threatened, against Caliper related to any
Product.
10. DISCLAIMERS; LIMITATION OF LIABILITY
10.1. CALIPER DISCLAIMER. EXCEPT AS SET FORTH IN THIS AGREEMENT,
INCLUDING THE PURCHASE TERMS OR THE INTELLECTUAL PROPERTY
AGREEMENT, THE PROVISIONS OF THIS AGREEMENT SHALL NOT BE
CONSTRUED AS A PRODUCT WARRANTY BY CALIPER OF ANY KIND, EITHER
EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO ANY CALIPER TECHNOLOGY, PRODUCT OR OTHER PRODUCTS
DEVELOPED OR PROVIDED PURSUANT TO THIS AGREEMENT. Caliper shall
not be liable to Amphora for any personal injury or property
damage resulting from use of any Product in a manner that is not
recommended by Caliper and is not reasonably contemplated or
intended, except in the case of gross negligence by Caliper, its
Affiliate or the designee of Caliper or its Affiliate.
10.2. AMPHORA DISCLAIMER. AMPHORA MAKES NO REPRESENTATIONS OR
WARRANTIES OF ANY KIND IN CONNECTION WITH THIS AGREEMENT, AND
AMPHORA HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS,
WARRANTIES AND CONDITIONS, EITHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. Caliper acknowledges that some of the
targets and/or Materials to be provided to Caliper pursuant to
this Agreement are for research purposes. Caliper acknowledges
that such targets and/or Materials can carry risks and must be
handled appropriately. Amphora shall not be liable to Caliper
for any personal injury or property damage resulting from the
use or handling of such targets and/or Materials, except in the
case of gross negligence by Amphora or its Affiliate.
10.3. NO RELIANCE. Neither party has relied upon any representations
or warranties of the other party in entering into this Agreement
except as set forth in this Agreement or the Intellectual
Property Agreement.
10.4. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO A BREACH OF
SECTION
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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8, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION,
LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF. Each party acknowledges that the foregoing
limitations are an essential element of the Agreement between
the parties and that in the absence of such limitations the
pricing and other terms set forth in this Agreement would be
substantially different.
11. INDEMNIFICATION
11.1. INDEMNIFICATION. Each party (the "Indemnitor") agrees to
indemnify, defend and hold harmless each of the other party and
its Affiliates, and the directors, officers, employees, agents,
and contractors, of each of such party and its Affiliates, and
the successors and assigns of any of the foregoing (the
"Indemnitees"), from and against any and all liabilities,
damages, settlements, claims, actions, suits, proceedings,
penalties, fines, costs and expenses (including, without
limitation, reasonable attorneys' fees and other expenses of
litigation) (any of the foregoing, a "Claim") incurred by any
Indemnitee, based upon a claim of a third party arising from or
occurring as a result of (i) a breach by the Indemnitor of any
representation, warranty, or covenant under this Agreement; (ii)
where Caliper is the Indemnitor, the infringement of a third
party's IP as a result of the purchase or use of any Product or
deliverable provided by Caliper or its Affiliate or designee; or
(iii) the negligence or willful misconduct of the Indemnitor,
its Affiliates, or its designees that perform services
hereunder.
11.2. PROCEDURE. If a party intends to claim indemnification under
this Section 11, it shall promptly notify the Indemnitor in
writing of any claim, action, or proceeding (each an "Action")
in respect of which an Indemnitee intends to claim such
indemnification, and the Indemnitor shall have sole control of
the defense and/or settlement thereof; provided that the
Indemnitee shall have the right to participate, at its own
expense, with counsel of its own choosing in the defense and/or
settlement of such Action. The indemnification under this
Article 11 shall not apply to amounts paid with respect to
settlement of any Claim if such settlement is effected without
the consent of the Indemnitee, which consent will not be
unreasonably withheld or delayed. The failure to deliver written
notice to the Indemnitor within a reasonable period of time
after the commencement of any Action, if prejudicial to the
Indemnitor's ability to defend such Action, shall relieve the
Indemnitor of any liability to the Indemnitee under this Article
11 with respect to such Action, but the omission to so
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BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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deliver written notice to the Indemnitor shall not relieve the
Indemnitor of any liability to any Indemnitee otherwise than
under this Article 11. Without limiting the foregoing, the
Indemnitee shall keep the Indemnitor reasonably informed of the
progress of any Action for which the Indemnitee intends to claim
indemnification under this Article 11. The Indemnitor shall not
be responsible for any costs or expenses incurred by an
Indemnitee without the Indemnitor's prior written consent, which
consent will not be unreasonably withheld or delayed.
12. TERM AND TERMINATION
12.1. TERM. The term of this Agreement ("Term") shall begin on the
Effective Date and end at the end of the Exclusivity Period as
defined in the Intellectual Property Agreement, unless extended
or earlier terminated pursuant to this Article 12 or modified by
mutual written agreement of the parties pursuant to Section
14.5.
12.2. TERMINATION BY EITHER PARTY. This Agreement may be terminated
prior to the expiration of the Term only in accordance with one
of the following paragraphs:
12.2.1. Either party may terminate this Agreement upon written
notice to the other party in the event of a material
breach of this Agreement by such other party; provided,
however, that prior to any such termination, the
terminating party shall have provided the other party
with written notice of the circumstances constituting
such breach and such other party shall have failed to
cure such breach within a period of ninety (90) days
thereafter. The foregoing shall not limit a party's
right to seek any other remedies available to it, such
as monetary damages and specific performance, without
termination of this Agreement.
12.2.2. Either party may terminate this Agreement immediately
upon written notice to the other party if the other
party is dissolved.
12.3. SURVIVING OBLIGATIONS. No expiration or termination of this
Agreement shall relieve either party of any obligation accruing
prior to such expiration or termination. With respect to Article
6 and Section 7.5, the rights granted therein shall survive,
subject to the related terms and conditions in such sections,
only with respect to Amphora Developed Products and New
Lab-on-a-Chip Products for which development was initiated
during the Term. The provisions of Sections 3.9, 3.10, 4.5.1,
4.5.4, 8.1, 8.3, 10.4, and Articles 11, 12, 13 and
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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14, and the reconciliation and reimbursement obligations in
Section 4.5.2 together with any provisions required for their
interpretation or enforcement, shall survive the expiration or
termination of this Agreement.
13. DISPUTE RESOLUTION
13.1. ESCALATION. If the parties are unable to resolve any dispute
between them arising out of or in connection with this
Agreement, either party may, by written notice to the other,
have such dispute referred for attempted resolution by good
faith negotiations between an executive of Caliper and an
executive of Amphora (each at the vice president level or
higher). Such negotiations shall commence within thirty (30)
days after such notice is received by the other party, but
neither party shall be obligated to negotiate for more than
ninety (90) days. If the parties should resolve such dispute or
claim, a memorandum setting forth their agreement will be
prepared and signed by both parties if requested by either
Party.
13.2. ARBITRATION. Caliper and Amphora agree that any dispute arising
out of or related to this Agreement, or the validity,
enforceability, construction, performance or breach hereof,
which is not settled by the parties in accordance with Section
13.1 shall be settled by binding arbitration under the then
current rules of the American Arbitration Association. The venue
of such arbitration shall be Santa Xxxxx county, CA. The
arbitration shall be conducted by a panel of three (3)
arbitrators appointed in accordance with such rules. Unless the
decision involves the termination of or otherwise prejudices any
rights of Amphora arising out of this Agreement, the decision
and/or award rendered by the arbitrator(s) shall be written,
final and non-appealable and may be entered in any court of
competent jurisdiction. The parties agree that, any provision of
applicable law notwithstanding, they will not request, and the
arbitrator shall have no authority to award, punitive or
exemplary damages against any party. The costs of any
arbitration proceedings, including administrative fees and fees
of the arbitrator(s), shall be shared equally by the parties.
Each party shall bear the cost of its own attorneys' and expert
fees.
14 MISCELLANEOUS
14.1 ASSIGNMENT IN BANKRUPTCY. Notwithstanding anything to the
contrary, each party (the "First Party") hereby consents to the
assumption of this Agreement by the other party (the "Second
Party") in any case under chapter 11 of the United States
Bankruptcy Code to the extent that such consent is required
under 11 U.S.C.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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Section 365(c)(1), but only if the Second Party is otherwise
entitled to assume this Agreement under the requirements of the
Bankruptcy Code. The sole purpose of the foregoing consent is to
overcome any restriction imposed by 11 U.S.C. Section 365(c)(1)
on the Second Party's assumption of this Agreement in a chapter
11 case concerning the Second Party. It is not intended to limit
any other rights of the First Party under this Agreement or any
provision of the Bankruptcy Code, including, without limitation,
11 U.S.C. Section 365(c)(1). The foregoing consent applies only
to the assumption of the Agreement by the Second Party and does
not apply to the Second Party's assignment of this Agreement or
any rights hereunder to a third party, which shall remain
subject to all of the terms and conditions of Section 14.5 of
this Agreement.
14.2 ARTICLE AND SECTION HEADINGS, LANGUAGE AND CONSTRUCTION. The
article and section headings contained in this Agreement are for
reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. All references in
this Agreement to "Articles," "Sections" and "Exhibits" refer to
the articles, sections and exhibits of this Agreement. The words
"hereof," "herein" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any
subdivision contained in this Agreement. The words "include" and
"including" when used herein are not exclusive and mean
"include, without limitation" and "including, without
limitation," respectively. This Agreement has been negotiated by
the parties and their respective counsel. Accordingly, this
Agreement will be interpreted fairly in accordance with its
terms and without any strict construction in favor of or against
either Party.
14.3 GOVERNING LAW. THIS AGREEMENT, AND ALL DISPUTES ARISING OUT OF
OR RELATING TO THIS AGREEMENT, SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES OF CALIFORNIA OR ANY OTHER JURISDICTION.
14.4 INDEPENDENT CONTRACTORS. The relationship of Caliper and Amphora
established by this Agreement is that of independent
contractors. Nothing in this Agreement shall be construed to
create any relationship other than independent contractors.
Neither Party shall have any right, power or authority to
assume, create or incur any expense, liability or obligation,
express or implied, on behalf of the other.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
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14.5 ASSIGNMENT. Neither Party may assign or otherwise transfer this
Agreement or any of its rights or licenses hereunder without the
prior written consent of the other Party hereto, except to a
party that succeeds to all or substantially all of such Party's
business or assets, whether by sale of stock or assets, merger,
operation of law or otherwise; provided that such assignee or
transferee agrees in writing to be bound by the terms and
conditions of this Agreement and to continue for one year after
the date of the transfer to actively pursue the business of, in
the case of Amphora, using Screening Products for performing
Screening Database Business and, in the case of Caliper,
development, manufacture and sale of microfluidic products. Any
other attempt by a Party to assign or otherwise transfer this
Agreement shall be null and void without the prior written
consent of the other Party. Subject to the foregoing, this
Agreement will be binding upon and inure to the benefit of the
Parties and their successors and permitted assigns.
14.6 MODIFICATION. No amendment or modification of any provision of
this Agreement shall be effective unless in writing signed by
both parties. No provision of this Agreement shall be varied,
contradicted or explained by any oral agreement, course of
dealing or performance or any other matter not set forth in an
agreement in writing and signed by both parties.
14.7 SEVERABILITY. If any provision hereof should be held invalid,
illegal or unenforceable in any jurisdiction, the parties shall
negotiate in good faith a valid, legal and enforceable
substitute provision that most nearly reflects the original
intent of the parties and all other provisions hereof shall
remain in full force and effect in such jurisdiction and shall
be liberally construed in order to carry out the intentions of
the parties hereto as nearly as may be possible. Such
invalidity, illegality or unenforceability shall not affect the
validity, legality or enforceability of such provision in any
other jurisdiction.
14.8 FORCE MAJEURE. Neither Party shall be liable to the other for,
and non-performance shall be excused as a result of, delays or
failures in performance resulting from causes beyond its
reasonable control, including earthquakes, fires, riots or civil
disturbances, acts of war, acts of God, power disruptions,
inability to obtain products, materials or supplies, acts of
government or its agencies, including laws, regulations, or
judicial action, strikes or other labor disputes or
disturbances, or communication, utility or transportation
failures.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
-35-
14.9 NOTICES. Any notice or other communication required by this
Agreement shall be made in writing and given by (i) prepaid,
first class, certified mail, return receipt requested, (ii)
facsimile, or (iii) overnight courier; and shall be deemed to
have been served on the date received by the addressee at such
address as may from time to time be designated to the other
Party in writing:
If to: Caliper
Caliper Technologies Corp.
000 Xxxxxxxxx Xxxxx
Xxxxxxxx Xxxx XX 00000-0000
Attn: Senior Director, Legal Affairs and Corporate Development
Telefax: 650.623.0500
If to: Amphora
Amphora Discovery Corp.
000 Xxxxxx Xxxxx
Xxxxxx Xxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxx
Telefax: 919.933.6506
14.10 ENTIRE AGREEMENT. The parties acknowledge that this Agreement,
the Related Agreements, and the Exhibits of each such agreement,
set forth the entire agreement and understanding of the parties
with respect to the subject matter hereof, and supersede all
prior and contemporaneous discussions, agreements and writings
in respect hereto, including without limitation the term sheet.
14.11 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but both of which
together shall constitute one and the same instrument.
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
-36-
IN WITNESS WHEREOF, the parties have executed the Agreement as of the date
first set forth above.
CALIPER TECHNOLOGIES CORP. AMPHORA DISCOVERY CORP.
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxxxx Xxxxxxxxx
------------------------------- --------------------------------
Name: Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxxxxx
----------------------------- ------------------------------
Title: Pres./CEO Title: President & CEO
---------------------------- -----------------------------
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 24b-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
-37-
EXHIBIT A
PURCHASE TERMS
1. SOLUTIONS AGREEMENT. These Purchase Terms are hereby incorporated into and
shall be considered a part of this Agreement. All purchases by Amphora of
Products that are listed in Exhibit B of this Agreement ("Existing Products")
shall be subject only to the terms and conditions of this Agreement, including
these Purchase Terms.
2. DELIVERY. Unless otherwise specified in writing by Amphora, shipments shall
be F.O.B. place of shipment. Caliper shall ship all Existing Products prepaid,
properly insured. Title of Existing Products shipped and risk of loss or damage
shall pass from Caliper to Amphora upon Caliper's delivery of Existing Products
to the common carrier specified by Amphora or reasonably chosen by Caliper, if
not specified by Amphora. Caliper shall preserve, package, handle, and pack the
Existing Products so as to protect the Existing Products from loss or damage, in
conformance with good commercial practices, Amphora specifications (if any),
government regulations, and other applicable standards. Caliper shall be
responsible for any loss or damage due to its failure to properly preserve,
package, or handle the Existing Products. Each Existing Product delivered to
Amphora shall include a packing list which contains at least an Amphora Purchase
Order Number, Caliper's part number and description, quantity of Existing
Products shipped, and date of shipment. The purchase price for Existing Products
shall be as set forth in this Agreement. All applicable taxes, freight,
packaging, insurance, handling and other charges will be added to and separately
itemized in the invoice.
3. COMPLIANCE WITH LAW. Amphora will use the Existing Product(s) purchased
hereunder in compliance with all applicable laws and regulations.
4. RETURN MATERIAL AUTHORIZATION. Caliper warrants the Warranty Products (as
defined below) to be free from defects in material and workmanship for the
duration of the Warranty Period (as defined below). If any Warranty Product is
found to have such a defect, Amphora or its designee shall have the right to
return the Warranty Product to Caliper during the following timeframes: for
Warranty Products other than Instrument Systems, at any time during the Warranty
Period, and for Warranty Products that are Instrument Systems, prior to the
earlier of [ * ]. Upon return of a Warranty Product by Amphora pursuant to the
foregoing sentence, Caliper shall provide a replacement [ * ]. Subject to the
following, any Warranty Product returned to Caliper shall be accompanied by a
Return Material Authorization (RMA). Unless further verification is reasonably
required by Caliper, Caliper shall issue an RMA within [ * ] of Amphora's
request for return of a noncomplying Warranty Product. If further verification
is so required or if Caliper would like to attempt to repair the Warranty
Product, Caliper may come to Amphora's facility for such purposes provided that,
if desired by Amphora, an RMA shall be supplied by Caliper to Amphora within
[ * ] = 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
[ * ] of Amphora's request for return of the noncomplying Warranty Product if
Caliper has failed to repair the Warranty Product or establish that the Warranty
Product is not defective, by such time. [ * ] Amphora shall additionally have
the right, at its sole option and Caliper's sole cost, to require Caliper to
repair the nonconforming Warranty Product pursuant to the terms of Section 6
below. [ * ]
5. CHIP AND INSTRUMENT WARRANTIES. Caliper warrants that, (i) with respect to
Existing Products that are Instrument Systems, for a period until the earlier of
one year from the completion of installation testing or fifteen (15) months from
the date of delivery in good condition to Amphora in accordance with this
Agreement, and (ii) with respect to Existing Products that are Chips, for a
period until three (3) months from the date of delivery in good condition of a
Chip to Amphora in accordance with this Agreement (each, a "Warranty Period"),
the Existing Products that are Instrument System(s) or Chips (each, a "Warranty
Product") purchased by Amphora hereunder will be free from defects in material
and workmanship [ * ]. If the Warranty Product fails to comply with the warranty
in this Section 5 during the Warranty Period and the Warranty Product has not
been returned pursuant to Section 4, Caliper will (i) for Warranty Products that
are Instrument Systems, repair or replace them, at Caliper's option and at
Caliper's expense, within the time frames set forth in Section 6 below, and (ii)
for Warranty Products that are Chips, Caliper will replace them upon completion
of its review of the warranty claim as contemplated in Section 4.2.2.3 of this
Agreement, but in no event later than thirty (30) days after the claim has been
submitted by Amphora, provided that Caliper shall make commercially reasonable
efforts to replace defective Chips prior to the end of such thirty (30) day
period. If the Warranty Product has been returned pursuant to Section 4, the
remedy shall be as set forth therein. If the Warranty Product becomes damaged,
or the performance of the Warranty Product otherwise deteriorates due to
solvents and/or reagents other than those supplied or expressly recommended by
Caliper or otherwise materially similar to those supplied or expressly
recommended by Caliper, Caliper will repair or replace the Warranty Product, at
Amphora's option and at Amphora's expense. No such repairs or replacement will
extend the original Warranty Period. This Warranty does not apply to any
Warranty Product or part which has been (a) the subject of an accident, misuse,
or neglect after shipment to Amphora in accordance with this Agreement, (b)
modified or improperly repaired by a party other than Caliper or its authorized
representative, or (c) used in a manner which is not in accordance with the
instructions contained in the Warranty Product User's Manual; provided that such
use is not a reasonably contemplated use of the Warranty Product. This warranty
does not cover Amphora-installed accessories or Amphora-installed consumable
parts for the Warranty Product that are listed in the Warranty Product User's
manual; provided that such accessories and consumables are not themselves
Warranty Products. All claims under Caliper's warranty must be made within [ *
]. Except for Caliper's right to obtain a credit or refund as provided under
Section 4, Caliper's obligations under this warranty are limited to repair or
replacement as necessary to correct those defects in material and/or workmanship
[ * ] of which Caliper is notified within
[ * ] = 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
thirty (30) days after the expiration of the Warranty Period. All repairs and
replacements performed by Caliper under this warranty will be performed by
Caliper at Caliper's sole expense [ * ]. Except pursuant to written terms signed
by an officer of Caliper, no agent, employee, or representative of Caliper has
any authority to bind Caliper to any affirmation, representation, or warranty
concerning the Warranty Product that is not contained in Caliper's printed
product literature or the Specifications. Any such affirmation, representation,
or warranty made by any agent, employee, or representative of Caliper not
pursuant to written terms signed by an officer of Caliper will not be binding on
Caliper. Caliper makes no warranty whatsoever with regard to products or parts
furnished by third parties, unless such product or part is provided by Caliper
as part of a Warranty Product. This warranty is limited to the original location
of installation and is not transferable, except that (a) this warranty shall
apply in Mountain View and North Carolina to the initial Instrument Systems
purchase that will be first installed in Mountain View and then transferred to
North Carolina [ * ] which training and certification Caliper shall make
reasonably available to Amphora pursuant to the terms of Article 3 of this
Agreement. This warranty is the sole and exclusive warranty as to the Instrument
System and is in lieu of any other express or implied warranties, including,
without limitation, any implied warranty of merchantability or fitness for a
particular purpose and is in lieu of any other obligation on the part of
Caliper. THIS PARAGRAPH STATES AMPHORA'S SOLE AND EXCLUSIVE REMEDY FOR BREACH OF
WARRANTY. IN NO EVENT SHALL CALIPER BE LIABLE FOR ANY USE, OR INABILITY TO USE,
BY AMPHORA OF THE PRODUCT(S) EXCEPT THAT CALIPER SHALL BE OBLIGATED TO PERFORM
ITS RESPONSIBILITIES SET FORTH IN THESE PURCHASE TERMS; NOR SHALL CALIPER BE
LIABLE FOR ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES
ARISING FROM OR IN CONNECTION WITH ITS ACTIVITIES UNDER THESE PURCHASE TERMS,
INCLUDING WITHOUT LIMITATION ANY PUNITIVE, CONSEQUENTIAL, INCIDENTAL, INDIRECT
OR SPECIAL DAMAGES FOR LATE DELIVERY OF THE PRODUCT(S), EXCEPT AS OTHERWISE SET
FORTH IN THE SOLUTIONS AGREEMENT.
6. INSTRUMENT REPAIR AND MAINTENANCE. Caliper shall respond to Amphora's initial
call for service for an Instrument System with a telephone call to Amphora by a
qualified Caliper technical service representative within [ * ]. Caliper shall
have a qualified Caliper technical service representative at Amphora's site, if
Amphora is experiencing a warranty or maintenance issue with an Instrument
System, within [ * ] of Amphora's request for warranty or maintenance services
on an Instrument System, subject to any force majeure event as set forth in this
Agreement. Upon arrival, the service representative shall work diligently toward
resolution of the warranty or maintenance issue. Caliper shall make commercially
reasonable efforts to repair an Instrument System within [ * ] of Amphora's
request for warranty or maintenance services, it being acknowledged that what
constitutes reasonable efforts will take into account any force majeure event or
extraordinary damage. If not corrected within such time period, Caliper will
[ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED
continue to use commercially reasonable efforts to correct the problem as soon
as reasonably practicable. If the Existing Product is under warranty, Caliper
shall install a replacement product within [ * ] after Amphora's request for
warranty services if the defect has not been remedied by such time. The
foregoing warranty repairs shall be at no charge to Amphora during the Warranty
Period. Caliper shall provide to Amphora any additional support services for the
applicable Existing Products that Caliper provides generally to its customers
upon the terms generally provided to its customers. The Warranty Period for any
Warranty Product replaced under this warranty shall begin upon the installation
or delivery in good condition of the replaced Warranty Product, as provided in
Section 5.
[ * ] = 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
EXHIBIT B
CALIPER SCREENING PRODUCTS
HTS 250 PRODUCT CATALOG:
PRODUCT SYSTEM
CALIPER 250 CORE SYSTEM
MOBILITY SHIFT AND FLUOROGENIC
-2-CCD Detection SCREENING SYSTEM
-Blue and Red excitation lasers -Caliper 250 Core System
-16V+1P Power and Pressure -Option 1*: Environmental Control and
Controller Multi-Plate Handling
-Option 2*: Addition of UV Excitation and
-Computer System Detection
-X-Y-Z robot system w/controller -Fluorogenic Analysis Module
-Next Gen Instrument Control and -Off-Chip Mobility Shift Analysis Module
Data Acquisition Software
-Includes 3 Training Credits
OPTION 2*: ADDITION OF UV
EXCITATION AND DETECTION MOBILITY SHIFT SCREENING SYSTEM
-355nM Excitation and Detection -Caliper 250 Core System
-Option 1*: Environmental Control and
Multi-Plate Handling
-Off-Chip Mobility Shift Analysis Module
ANALYSIS SOFTWARE
-4-Sipper Fluorogenic Chip MOBILITY SHIFT AND FLUOROGENIC
-Fluorogenic Price/Datapoint DEVELOPMENT SYSTEM
-Caliper 250 Core System
-Option 2*: Addition of UV Excitation and
Detection
-Fluorogenic Analysis Module
-Off-Chip Mobility Shift Analysis Module
MOBILITY SHIFT DEVELOPMENT SYSTEM
-Caliper 250 Core System
-Off-Chip Mobility Shift Analysis Module
[ * ] = 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
EXHIBIT C
INSTRUMENT PRICING
TABLE A
# OF INSTRUMENT SYSTEMS* DISCOUNT [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
[ * ] [ * ]
BY WAY OF EXAMPLE, THE FIRST CLASS I INSTRUMENT SYSTEM PURCHASED BY AMPHORA
DURING THE FIRST CONTRACT YEAR [ * ]. THE [ * ] CLASS I INSTRUMENT SYSTEM
PURCHASED BY AMPHORA IN THE SAME CONTRACT YEAR SHALL BE PRICED AT [ * ] THE
DISCOUNT RATE FOR CLASS II INSTRUMENT SYSTEMS SHALL BE DETERMINED IN THE SAME
MANNER AS THE FOREGOING. THE RATE SCHEDULE SHALL RESET TO [ * ] DISCOUNT FOR
EACH CLASS AT THE BEGINNING OF THE SECOND CONTRACT YEAR.
TABLE B
CURRENT INSTRUMENT SYSTEMS
CLASS I
-- CALIPER 250 MOBILITY SHIFT AND FLUOROGENIC
SCREENING SYSTEM
-- CALIPER 250 MOBILITY SHIFT SCREENING SYSTEM
CLASS II
-- CALIPER 250 MOBILITY SHIFT AND FLUOROGENIC
DEVELOPMENT SYSTEM
-- CALIPER 250 MOBILITY SHIFT DEVELOPMENT SYSTEM
* THE AGGREGATE NUMBER OF CURRENT AND FUTURE INSTRUMENT SYSTEMS ORDERED WITHIN
EACH CLASS OF INSTRUMENT SYSTEMS AND WITHIN THE FIRST OR SECOND CONTRACT YEAR
** "CONTRACT PRICE" MEANS, FOR CURRENT INSTRUMENT SYSTEMS, THE [ * ], AND FOR
FUTURE INSTRUMENT SYSTEMS, CALIPER'S LIST PRICE AS OF THE DATE OF THE PURCHASE
ORDER SUBMITTED BY AMPHORA, [ * ]. CURRENT AND FUTURE INSTRUMENT SYSTEMS FOR
WHICH AMPHORA HAS PAID THE CONTRACT PRICE [ * ].
[ * ] = 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
