REDACTED VERSION
EXHIBIT 10.27
TO
LIGHT SCIENCES ONCOLOGY, INC.'S
REGISTRATION STATEMENT ON FORM S-1
INITIALLY FILED
APRIL 21, 2006
REGISTRATION NO. 333-133474
"[ * ]" = omitted, confidential material, which material has been separately
filed with the Securities and Exchange Commission pursuant to a
request for confidential treatment.
COMPONENT DEVELOPMENT AND DELIVERABLES
SERVICES AGREEMENT
DATED AS OF DECEMBER 27, 2001
BETWEEN
LIGHT SCIENCES ONCOLOGY, INC.
AND
AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD.
(FORMERLY AGILENT TECHNOLOGIES MALAYSIA SDN BHD)
COMPONENT DEVELOPMENT AND DELIVERABLES SERVICES AGREEMENT
BETWEEN
LIGHT SCIENCES CORPORATION
("CUSTOMER")
AND
AGILENT TECHNOLOGIES MALAYSIA SDN BHD
("AGILENT")
TABLE OF CONTENTS
SECTIONS OF THE AGREEMENT
1. Definitions
2. AGILENT Obligations
3. CUSTOMER Obligations
4. Price and Payment
5. Change Orders
6. Acceptance
7. Warranties
8. Intellectual Property Rights/Licenses
9. Intellectual Property Indemnity
10. Confidential Information
11. Compliance
12. Regulatory Response; Inspections
13. Remedies and Liabilities
14. Term and Termination
15. General
EXHIBITS TO THE AGREEMENT
A. Statement of Work
B. Change Order Procedures
This Component Development and Deliverable Services Agreement ("Agreement") is
made between Light Sciences Corporation ("CUSTOMER") having its offices at 0000
00xx Xxx, XX, Xxxxx X-0, Xxxxxxxx, XX 00000, XXX, and AGILENT TECHNOLOGIES
MALAYSIA SDN BHD ("AGILENT") and having its registered address at
_____________________ --effective as of 27th December 2001 ("Effective Date").
The purpose of this Agreement is to set forth the mutually agreeable terms and
conditions under which AGILENT will perform Component Development and
Deliverable Services and provide Deliverables to CUSTOMER according to one or
more Statements of Work.
1. DEFINITIONS
1.1 "COMPONENT DEVELOPMENT AND DELIVERABLES SERVICES" (sometimes referred to as
"Work") refers to such activities as analysis, design, planning,
development, consulting, implementation, education, training and project
management as described in a Statement of Work. Component Development and
Deliverables Services may also include other types of services described
more specifically in a Statement of Work.
1.2 "CUSTOMER FIELD OF USE" means the use of the use of confidential and
proprietary devices for the photo-activation or illumination of human and
animal tissue, drugs and the combination of drug and tissue for
prophylactic, diagnostic and therapeutic uses, and for other biological
uses.
1.3 "DELIVERABLES" means the tangible results of the Component Development and
Deliverables Services provided by AGILENT to CUSTOMER as described in each
Statement of Work (specifically, for the further development of the Light
Sciences Corporation Light Bar). Unless otherwise agreed, the term
Deliverables does not include custom hardware.
1.4 "STATEMENT OF WORK" means a document attached to or referenced by and
incorporated into this Agreement which describes a specific project,
engagement or assignment ("Project") for which AGILENT will provide
Component Development and Deliverables Services to CUSTOMER. More than one
Statement of Work may be attached to this Agreement from time to time.
1.5 "REQUIREMENTS" means the CUSTOMER supplied design and technical
information, drawings, concepts, schematics, software and other related
material, which will be used by AGILENT in the development of the
Deliverables.
1.6 "PRODUCT SPECIFICATIONS" means the detailed documentation of the design
considerations, the theory of operations and the specifications of the
Deliverables.
2. AGILENT OBLIGATIONS
2.1 AGILENT will use commercially reasonable efforts to perform the Component
Development and Deliverables Services and provide the Deliverables
specifically described in one or more Statements of Work in accordance with
the terms and conditions of this Agreement. CUSTOMER and AGILENT will sign
a separate Statement of Work for each Project under this Agreement , which
will be incorporated by reference into this Agreement upon execution by the
parties. Each Statement of Work will: (i) be made in writing in the form
attached as Exhibit A, (ii) reference this Agreement, (iii) be numbered
consecutively on a chronological basis, and (iv) be executed by authorized
representatives of CUSTOMER and
AGILENT. Individual Statements of Work should address at least the
following areas:
Project description
Price, payment and delivery schedules
Scope of the Component Development and Deliverables Services
Acceptance criteria
Nature of Deliverables
Project coordination
Product Specifications
2.2 Unless otherwise agreed, Component Development and Deliverables Services
will be performed during AGILENT's normal business hours between 8.30am to
5.30pm, Mondays to Fridays (excluding Saturdays, Sundays and public
holidays).
2.3 AGILENT will use commercially reasonable efforts to provide the
Deliverables and perform the Component Development and Deliverables
Services in accordance with the delivery schedule specified in each
Statement of Work.
2.4 AGILENT may utilize qualified and reputable subcontractors which are
obligated under applicable terms and conditions to the same extent as
AGILENT is obligated under this Agreement and which are pre-approved by
CUSTOMER in writing to perform Component Development and Deliverables
Services and/or provide Deliverables.
2.5 AGILENT will appoint a representative to supervise and coordinate AGILENT's
performance of Component Development and Deliverables Services. AGILENT may
change its representative at any time upon written notice and approval of
CUSTOMER.
2.6 Unless otherwise agreed in a Statement of Work, AGILENT is not responsible
for providing support for any Deliverables.
3. CUSTOMER OBLIGATIONS
3.1 CUSTOMER will comply with the general obligations specified below together
with any specific CUSTOMER obligations described in a Statement of Work, in
a timely manner.
3.2 CUSTOMER acknowledges that AGILENT's ability to deliver the Component
Development and Deliverables Services may be dependent upon CUSTOMER's full
and timely cooperation with AGILENT, as well as the accuracy and
completeness of any information and data CUSTOMER provides to AGILENT.
Therefore, CUSTOMER will:
3.2.1 Provide AGILENT limited access to, and use of, certain information,
data, and documentation, only for and to the extent such access and
use is necessary for AGILENT to complete the Component Development and
Deliverables Services under this Agreement and applicable Statement of
Work.
3.2.2 Appoint a representative who will provide professional and prompt
liaison with AGILENT, have the necessary expertise and authority to
commit CUSTOMER, be available at all times when AGILENT's personnel
are at the CUSTOMER's site (or designate an alternate with the same
level
of authority in the event of unavailability caused by illness or other
valid reasons), and meet with the AGILENT representative at regular
intervals to be agreed upon to review progress and resolve any issues
relating to the Component Development and Deliverables Services or
Deliverables.
3.3 CUSTOMER will be responsible for maintaining an external procedure for
reconstruction of lost or altered files, data or programs to the extent
deemed necessary by CUSTOMER, and for actually reconstructing any such
materials to the extent such loss or alteration is caused by CUSTOMER.
3.4 CUSTOMER will be liable for any delays to the delivery schedule specified
in each Statement of Work caused by CUSTOMER or resulting from CUSTOMER's
failure to fulfill any of its obligations. AGILENT may charge Customer for
commercially reasonable additional charges incurred by AGILENT directly
related to the Project as a result of such delays, and may reasonably
adjust the affected delivery schedule accordingly.
3.5 Upon AGILENT'S receipt of written acceptance set forth in Section 6.1,
CUSTOMER will be responsible at all times for the supervision, management
and control of the Deliverables and any results obtained from the
Deliverables, including without limitation all responsibility for
maintenance of proper machine configuration, audit controls, operating
methods, error detection and recovery procedures, back-up plans, security,
insurance, maintenance and all other activities necessary to enable
Customer to use the Deliverables.
4. PRICE AND PAYMENT
4.1 Prices for Component Development and Deliverables Services and Deliverables
will be specified in each Statement of Work.. Prices include all materials
and labor expenses, but do not include withholding, sales, use, service,
value added or like taxes, or customs duties. AGILENT will state separately
on its invoices any sales or other taxes or custom duties that (i) are owed
by CUSTOMER solely as a result of entering into this Agreement and the
payment of the fees hereunder, (ii) are required to be collected from
CUSTOMER by AGILENT under applicable law, and (iii) are based solely upon
the amounts payable under this Agreement. CUSTOMER will remit such taxes to
AGILENT with its payment of the respective invoice, whereupon AGILENT will
provide CUSTOMER with official tax receipts indicating that such taxes have
been paid by AGILENT. However, CUSTOMER may provide AGILENT with an
exemption certificate (including, without limitation, a resale
certificate), in which case AGILENT will not collect the taxes covered by
such certificate.
4.2 AGILENT will issue invoices in accordance with the payment schedule
specified in each Statement of Work. Charges for travel expenses which have
been pre-authorized by CUSTOMER in writing may be invoiced separately.
CUSTOMER will pay all invoices within [ * ] days from the receipt of
invoice. AGILENT may change credit terms upon reasonable notice at any time
when CUSTOMER's financial condition, previous payment record, or the nature
of CUSTOMER's relationship with AGILENT so warrants.
4.3 Should any sum due to AGILENT remain unpaid after [ * ] days from the date
of invoice receipt, AGILENT may terminate this Agreement pursuant to
Section 14.2.2 and discontinue performance under any other agreement with
CUSTOMER.
----------
[ * ] Confidential Treatment Requested
5. CHANGE ORDERS
5.1 "Change Order" means an agreed upon change or modification to the
Deliverables, Component Development and Deliverables Services or other
material aspect of a Statement of Work that complies with the requirements
of Exhibit B. Requests by CUSTOMER and recommendations by AGILENT for
Change Orders are subject to the procedures set forth in Exhibit B, and
will be made in writing in the form attached to Exhibit B and will be
attached and incorporated into this Agreement as an Attachment to this
Agreement.
5.2 All Change Orders must be mutually agreed by the parties and comply with
Section 5.1. Pending such agreement, AGILENT will continue to perform and
be paid as if such Change Order had not been requested or recommended,
provided that if either party proposes a Change Order which, in AGILENT's
judgment, represents a material change in the Component Development and
Deliverables Services or Deliverables and such Change Order remains
outstanding for [ * ] days or is rejected by CUSTOMER, AGILENT will have
the right to terminate the affected Statement of Work pursuant to Section
14.2.2 below.
6. ACCEPTANCE
6.1 AGILENT will provide notice to CUSTOMER when the Deliverables are ready for
acceptance. Acceptance of Deliverables will occur upon the earlier of: a)
the date AGILENT demonstrates to CUSTOMER, by the successful completion of
acceptance tests, or that the Deliverables substantially conform to the
acceptance criteria specified in the applicable Statement of Work; or b)
the date that CUSTOMER uses any substantial part of the Deliverables for
any purpose other than performing acceptance tests. Acceptance of Component
Development and Deliverables Services will occur upon AGILENT's performance
of such Component Development and Deliverables Services and CUSTOMER's
acknowledging of its acceptance of such performance in writing.
6.2 In the event that any Deliverable fails to conform to the acceptance
criteria specified in the applicable Statement of Work or Product
Specifications, or otherwise do not comply with other provisions of this
Agreement, AGILENT will have a reasonable time to remedy such substantial
non-conformance, following AGILENT's receipt of written notice from
CUSTOMER specifying in reasonable detail the nature of such
non-conformance. In the event that AGILENT is unable to remedy the
non-conformance: a) CUSTOMER may accept the Deliverable without warranty,
on an "AS IS" basis, subject to an agreed upon price adjustment; or b)
CUSTOMER may return the Deliverable to AGILENT and receive a refund of
amounts paid to AGILENT for the Deliverable. All non-conforming
Deliverables returned by CUSTOMER to AGILENT and all replacements shipped
by AGILENT to CUSTOMER therefore will be at AGILENT'S risk and expense.
6.3 If acceptance testing is delayed for reasons attributable to CUSTOMER,
acceptance will be deemed to occur on the [ * ] day after notice by AGILENT
that the Deliverable is ready for acceptance testing.
7. WARRANTIES
7.1 AGILENT warrants that it will perform Component Development and
Deliverables Services in
----------
[ * ] Confidential Treatment Requested
accordance with generally recognized commercially reasonable practices and
standards and all Deliverables will comply with the Specifications provided
by CUSTOMER and all other mutually-agreed requirements. Upon CUSTOMER's
request, AGILENT will re-perform any Component Development and Deliverables
Services not performed in accordance with the foregoing warranty, provided
that AGILENT receives notice from CUSTOMER within [ * ] days after such
Component Development and Deliverables Services were performed in
accordance with Section 6.2.
7.2 AGILENT further warrants that Deliverables will not be defective in
material or defective workmanship during the Term and will conform to the
acceptance criteria and within tolerances of all Product Specifications as
specified in the applicable Statements of Work for a period of [ * ] days
from the date of acceptance
7.3 AGILENT does not warrant that the operation of Deliverables will be
uninterrupted or error free or conform to any reliability or performance
standards beyond those specified in the applicable acceptance criteria or
applicable Product Specifications. AGILENT also does not warrant that
Deliverables will be compatible with future AGILENT products or those of
other vendors.
7.4 If AGILENT receives notice during the warranty period of any
non-conformance with the acceptance criteria or Specifications, that
materially impairs the functioning of a Deliverable, AGILENT will replace
the Deliverable without additional charge or, at CUSTOMER's request and
direction, correct such non-conformance or provide a remedy which
substantially corrects the non-conformance.
7.5 If AGILENT is unable within a reasonable time to comply with the foregoing
obligations, AGILENT will refund the paid price stated in the Statement of
Work upon prompt return of the affected Deliverable to AGILENT, and/or
delivery to AGILENT of proof of the destruction of the affected
Deliverable.
7.6 The warranties provided in this Section 7 will not apply in the event of
deemed acceptance under Sections 6.1, 6.2 or 6.3above, or to defects or
non-conformances resulting from:
7.6.1 Unauthorized, improper or inadequate maintenance or calibration by
CUSTOMER or any third party.
7.6.2 Software, hardware, interfacing, or supplies not supplied by AGILENT.
7.6.3 Unauthorized modification of Deliverables or any portion thereof.
7.6.4 Improper use or operation of Deliverables or any portion thereof or
CUSTOMER's failure to comply with the applicable environmental
specification.
7.6.5 Improper site preparation or maintenance by CUSTOMER or a third
party.
7.7 THE ABOVE WARRANTIES ARE EXCLUSIVE AND NO OTHER WARRANTY, WHETHER WRITTEN
OR ORAL, IS EXPRESSED OR IMPLIED. AGILENT SPECIFICALLY DISCLAIMS THE
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
----------
[ * ] Confidential Treatment Requested
8 INTELLECTUAL PROPERTY RIGHTS/LICENSES
8.1 All copyrights and other intellectual property rights existing prior to the
Effective Date ("Pre-Existing Intellectual Property") will belong to the
party that owned such rights immediately prior to the Effective Date.
8.2 Neither party will gain by virtue of this Agreement any rights of ownership
of copyrights, patents, trade secrets, trademarks or any other intellectual
property rights owned by the other.
8.3 The parties agree that ownership of any and all inventions, discoveries,
and original works of authorship (including, without limitation, ideas,
know-how, data, information, documentation, formulae, results, prototypes,
designs, methods and procedures), and all intellectual property rights in
the foregoing, whether or not patentable, which are expressed in a tangible
medium, conceived, and/or reduced to practice (hereinafter "INVENTIONS"),
by any of either party's employees or independent contractors or
sub-contractors in the course of performance of work in connection with
this Agreement or any applicable Statement of Work during the term of this
Agreement (hereinafter "INVENTORS") will be owned by the party whose
employees, or independent contractors or subcontractors expressed in a
tangible medium, conceived, and reduced to practice such Inventions. If
employees, or independent contractors or subcontractors of both parties
expressed in a tangible medium, conceived, and reduced to practice such
Inventions then the parties will jointly own the Inventions as joint
tenants.
8.4 Copyright/Work for Hire. To the extent any deliverables, including, but not
limited to, specifications, schematics, designs, prototypes, products,
software code, documentation, reports, memoranda, studies, plans, exhibits,
or other materials prepared by AGILENT in the performance of services under
this Agreement, include material subject to copyright protection, such
materials have been specially commissioned by CUSTOMER for use as a
contribution to a collective work and they shall be deemed "work for hire"
as such term is defined under U.S. copyright law. Provided AGILENT assigns
all right and title to CUSTOMER, [ * ].
8.5 AGILENT grants CUSTOMER an option to [ * ].
8.6 CUSTOMER grants AGILENT a limited non-exclusive, worldwide, royalty-free,
non-assignable, nontransferable license to use, copy, make derivative works
of, distribute, display, perform, and transmit CUSTOMER's pre-existing
copyrighted works, other Pre-Existing Intellectual Property rights and
materials as CUSTOMER may provide to AGILENT during the Term of this
Agreement solely to the extent necessary for AGILENT to perform its
obligations under this Agreement or any applicable Statement of Work.
AGILENT will not sublicense, reverse engineer, disassemble or decompile any
CUSTOMER Pre-Existing Intellectual Property or materials.
8.7 AGILENT will promptly disclose in writing to CUSTOMER any Inventions and
all pertinent information related thereto within [ * ] of authoring,
conceiving, otherwise generating, and the actual reduction to practice such
Invention, and will provide CUSTOMER with copies of any patent application
fourteen [ * ] prior to the filing thereof in sufficient detail to
determine inventorship.
8.8 Subject to the ownership rights of the parties in Section 8.3, CUSTOMER
will own all right, title, and interest, , in and to CUSTOMER'S proprietary
materials, the prototypes, or other materials provided to or
----------
[ * ] Confidential Treatment Requested
developed by AGILENT under this Agreement,, and as well as the Deliverables
provided under this Agreement or applicable Statement of Work.
8.9 Co-operation. Each party will execute any necessary documents and otherwise
assist the other, at the other's expense, as reasonably requested by the
other, to protect the other's Intellectual Property Rights and rights
therein provided under this Section 8.
8.10 No Implied Rights Granted. No license under any patent or copyright now or
hereafter obtained is granted, agreed to be granted, or implied by this
Agreement, other than as expressly specified in the Section 8.
9. INTELLECTUAL PROPERTY INDEMNITY
9.1 AGILENT will defend or settle any claim against CUSTOMER regarding the
Component Development and Deliverable Services and Deliverables, which
alleges that AGILENT knowingly infringed a patent, utility model,
industrial design, copyright, trade secret, mask work or trademark in the
country where such Deliverables are used or such Component Development and
Deliverables Services are provided.
9.2 The indemnities provided in Section 9.1 above will apply provided CUSTOMER
promptly notifies AGILENT in writing of the claim, and CUSTOMER cooperates
with AGILENT in and grants AGILENT sole control of the defense or
settlement.
9.3 For infringement claims covered by this Section 9, AGILENT will pay
infringement claim defense costs, settlement amounts and court-awarded
damages. If such a claim regarding a Deliverable appears likely, AGILENT
may modify the Deliverable, procure any necessary license or replace it. If
AGILENT determines that none of these alternatives is reasonably available,
AGILENT will refund CUSTOMER's purchase price upon return of the
Deliverable if within one year of delivery, or CUSTOMER's net book value
thereafter.
9.4 AGILENT has no obligation for any claim of infringement arising from:
9.4.1 AGILENT's strict compliance with or use of CUSTOMER's information,
technology, designs, specifications or instructions, including those
incorporated into any Statement of Work.
9.4.2 Modification of a Deliverable by CUSTOMER or a third party.
9.4.3 Use of a Deliverable in a way not indicated in a Statement of Work.
9.4.4 Use of a Deliverable with products not supplied by AGILENT.
9.5 Sections 9.1-9.4 states AGILENT's entire indemnification liability for
claims of intellectual property infringement.
9.6 AGILENT's Intellectual Property indemnification obligations set forth in
Sections 9.1-9.3 shall not apply to Intellectual Property infringement
claims which arise from AGILENT's strict compliance with the Requirements.
9.7 CUSTOMER will defend or settle any claim against AGILENT regarding the
Requirements, which alleges that CUSTOMER knowingly infringed a patent,
utility model, industrial design, copyright, trade secret, mask work or
trademark in the country where such Requirements are used, as long as
AGILENT
exercises reasonable care in providing Component Development and
Deliverables Services under this Agreement so as not to infringe such
rights.
9.8 The indemnities provided in Section 9.7 above will apply provided AGILENT
promptly notifies CUSTOMER in writing of the claim, and AGILENT cooperates
with CUSTOMER in and grants CUSTOMER sole control of the defense or
settlement.
9.9 For infringement claims covered by Section 9.7, CUSTOMER will pay
infringement claim defense costs, settlement amounts and court-awarded
damages. If such a claim regarding a Requirement appears likely, CUSTOMER
may modify the Requirement, procure any necessary license or replace it.
9.10 CUSTOMER has no obligation for any claim of infringement arising from:
9.10.1 CUSTOMER 's strict compliance with or use of AGILENT 's information,
technology, or designs, including those incorporated into any
Statement of Work.
9.10.2 Modification of a Requirement by AGILENT or a third party.
9.10.3 Use of a Requirement in a way not indicated in a Statement of Work.
9.10.4 Use of a Requirement with products not supplied by CUSTOMER.
9.11 Sections 9.7-9.9 state CUSTOMER 's entire indemnification liability for
claims of intellectual property infringement.
10. CONFIDENTIAL INFORMATION
10.1 During the term of this Agreement, either party may receive or have access
to technical information, as well as information about product plans and
strategies, promotions, customers and related non-technical business
information which the disclosing party considers to be confidential
("Confidential Information"). In the event such Confidential Information is
disclosed, the parties shall first agree to disclose and receive such
information in confidence. If then disclosed, the Confidential Information
shall be marked as confidential at the time of disclosure, or if disclosed
orally but stated to be confidential, shall subsequently be designated as
confidential in writing by the disclosing party summarizing the
Confidential Information disclosed and sent to the receiving party within a
reasonable period of time.
10.2 Confidential Information may be used by the receiving party only with
respect to the performance of its obligations under this Agreement, and
only by those employees of the receiving party and its subcontractors who
have a need to know such information for purposes related to this
Agreement, provided that such subcontractors have signed separate
agreements containing substantially similar confidentiality provisions. The
receiving party shall protect the Confidential Information of the
disclosing party by using the same degree of care (but not less than a
reasonable degree of care) to prevent the unauthorized use, dissemination
or publication of such Confidential Information, as the receiving party
uses to protect its own confidential information of like nature. The
receiving party's obligation under this Section shall be for a period of
[ * ] after the date of disclosure.
10.3 The obligations stated in this Section shall not apply to any information
which is:
----------
[ * ] Confidential Treatment Requested
10.3.1 Already known by the receiving party prior to disclosure;
10.3.2 Publicly available through no fault of the receiving party;
10.3.3 Rightfully received from a third party without a duty of
confidentiality;
10.3.4 Disclosed by the disclosing party to a third party without a duty of
confidentiality on such third party;
10.3.5 Independently developed by the receiving party prior to or
independent of the disclosure;
10.3.6 Disclosed under operation of law;
10.3.7 Disclosed by the receiving party with the disclosing party's prior
written approval.
11. COMPLIANCE.
11.1 AGILENT Compliance. AGILENT agrees to comply with all federal, state,
local, and foreign laws, rules, requirements, and regulations applicable to
its performance of this Agreement pertaining to a manufacturer of
semiconductor products.
11.2 CUSTOMER Compliance. CUSTOMER understands that it is responsible for
compliance with all laws, rules, and regulatory requirements that
specifically apply to a manufacturer of medical devices
12. REGULATORY RESPONSE; INSPECTIONS.
12.1 Regulatory Response. In the event of Governmental Authority inquiry
concerning Component Development and Deliverables Services, AGILENT agrees
to cooperate with CUSTOMER in response thereto, including, but not limited
to, supplying information about the production, testing and assembly of all
Deliverables to CUSTOMER upon reasonable notice.
12.2 Audits. During the term of this Agreement, AGILENT will permit CUSTOMER's
representatives, or its designate, to examine or audit AGILENT's
performance of the Services and AGILENT's facilities at which the services
are conducted upon reasonable advance notice during regular business hours
to determine that the Services are being conducted in accordance with this
Agreement, including the applicable Statement(s) of Work, the facilities
are adequate, and the Services comply with all applicable laws and
regulations.
12.3 Records. AGILENT retain or provide to CUSTOMER hard copies for a period up
to [ * ] from the date of production of all Light Bars supplied by AGILENT
to CUSTOMER, or for any period less than [ * ] as otherwise instructed by
CUSTOMER.
13. REMEDIES AND LIABILITIES
13.1 The remedies in this Agreement are CUSTOMER's sole and exclusive remedies.
13.2 TO THE EXTENT AGILENT IS HELD LEGALLY LIABLE TO CUSTOMER, AGILENT'S
LIABILITY IS LIMITED TO:
13.2 1 [ * ].
----------
[ * ] Confidential Treatment Requested
13.2 2 DAMAGES FOR BODILY INJURY.
14.2 3 DIRECT DAMAGES TO TANGIBLE PROPERTY UP TO A LIMIT OF U.S. [ * ].
13.2.4 OTHER DIRECT DAMAGES FOR ANY CLAIM BASED ON A MATERIAL BREACH OF ANY
OTHER TERM OF THIS AGREEMENT, UP TO A MAXIMUM OF US [ * ] OR THE
AMOUNTS PAID TO AGILENT UNDER THIS AGREEMENT, WHICHEVER IS [ * ].
13.3 Notwithstanding Section 13.2 above, in no event will AGILENT or its
affiliates, subcontractors and suppliers be liable for any of the
following:
13.3.1 Actual loss or direct damage that is not listed in Section 13.2
above.
13.3.2 Damages for loss of data, or Software restoration.
13.3.3 Damages relating to CUSTOMER's procurement of substitute products or
services (i.e., "cost of cover").
13.3.4 Incidental, special or consequential damages, including downtime
costs or lost profits but excluding damages for bodily injury and
payments described in Section 13.2 above.
13.4 The Deliverables are not specifically designed, manufactured or intended
for sale as parts, components or assemblies for the planning, construction,
maintenance, or direct operation of a nuclear facility. CUSTOMER will be
solely liable if any Deliverables purchased or licensed by CUSTOMER are
used for these applications. CUSTOMER will indemnify and hold AGILENT
harmless from all loss, damage, expense or liability in connection with
such use.
13.5 Sections 13.1-13.3 shall not apply to any liability or obligation under
Sections 9., 10. or 11.
14. TERM AND TERMINATION
14.1 This Agreement will commence on the Effective Date and will [ * ].
Individual Statements of Work will be effective upon execution by both
parties and will continue in force until both parties have fulfilled all of
their Project obligations, or until the earlier termination of such
Statement of Work according to the terms of this Agreement.
14.2 This Agreement or an individual Statement of Work may be terminated
immediately upon notice in writing:
14.2.1 By either party if the other party is in material breach of any of
its obligations hereunder and fails to remedy such breach within [ * ]
days of receipt of a written notice by the other party which specifies
the material breach.
14.2.2 By AGILENT, in the absence of mutual agreement regarding a Change
Order which represents a material change under Section 5.2, or if
CUSTOMER fails to pay any sums due under this Agreement within the
[ * ] day time period specified in Section 4.3.
----------
[ * ] Confidential Treatment Requested
14.2.3 By either party if the other party has a receiver appointed, or an
assignee for the benefit of creditors, or in the event of any
insolvency or inability to pay debts as they become due by the other
party, except as may be prohibited by applicable bankruptcy laws.
14.3 Either party may terminate this Agreement for convenience upon [ * ] months
prior written notice to the other party. Any termination of this Agreement
will not relieve either party of its obligations under any Statement of
Work in effect on the date of termination of this Agreement, unless
otherwise mutually agreed to in writing.
14.4 Upon termination of any Statement of Work, CUSTOMER will pay AGILENT for
all Work performed and charges and expenses incurred by AGILENT which have
been pre-approved by CUSTOMER up to the date of termination, and CUSTOMER
will receive all work in progress for which CUSTOMER has paid. Should the
sum of such amounts be less than any advance payment received by AGILENT,
AGILENT will refund the difference within [ * ] days of receipt of an
invoice from CUSTOMER.
14.5 Sections 4, 7, 8, 9, 10, 12 and 13 above, and Section 15 below, will
survive termination of this Agreement.
15. GENERAL
15.1 STANDARD PRODUCTS. This Agreement does not cover standard AGILENT hardware
and software products sold or licensed to CUSTOMER. Any such transactions
will be governed by the terms of CUSTOMER's AGILENT purchase agreement or,
in the absence of a signed purchase agreement, AGILENT's Terms and
Conditions of Sale and Service (Exhibit E16).
15.2 HEALTH AND SAFETY. AGILENT and any of its subcontractors will, when at the
CUSTOMER's site, conduct their activities so that their equipment, working
conditions and methods are safe and without risk to health for their own
and CUSTOMER's employees, agents or independent contractors as well as for
any other users of the CUSTOMER's site.
15.3 NON-RESTRICTIVE RELATIONSHIP. AGILENT may provide related or similar
Component Development and Deliverable Services and Deliverables to other
customers, except to the extent that such other customers conduct business
the same, similar or related Field of Use of CUSTOMER.
15.4 NO PUBLICITY. Neither party will publicize or disclose to any third party
without the consent of the other party, either the price or other terms of
this Agreement or the fact of its existence and execution, except as may be
necessary to comply with other obligations stated in this Agreement and
except to the extent that CUSTOMER may disclose the terms of this Agreement
to its legal counsel and to potential investors which have executed
appropriate Confidential Disclosure Agreements.
15.5 NO JOINT VENTURE. Nothing contained in this Agreement will be construed as
creating a joint venture, partnership or employment relationship between
the parties hereto, nor will either party have the right, power or
authority to create any obligation or duty, express or implied, on behalf
of the other.
----------
[ * ] Confidential Treatment Requested
15.6 NO ASSIGNMENT. Except with respect to AGILENT's rights regarding the use of
authorized subcontractors, neither party may assign any rights or
obligations under this Agreement or any Statement of Work without the prior
written consent of the other party.
15.7 EXPORT ADMINISTRATION REGULATIONS. If CUSTOMER exports any Deliverable
outside the country in which the Deliverable is delivered to CUSTOMER,
CUSTOMER assumes responsibility for complying with applicable laws and
regulations and for obtaining required export and import authorizations.
CUSTOMER will not export or re-export any technical data in violation of
U.S. Export Administration regulations or other applicable export
regulations.
15.8 FORCE MAJEURE. Neither party will be liable for performance delays or for
non-performance due to causes beyond its reasonable control.
15.9 NOTICES. All notices required under or regarding this Agreement or any
individual Statement of Work will be in writing and will be considered
given upon personal delivery of a written notice to the AGILENT
representative or CUSTOMER representative designated in the Statement of
Work, or within five days of mailing, postage prepaid and appropriately
addressed.
15.10 WAIVER. Neither party's failure to exercise any of its rights under this
Agreement will constitute or be deemed a waiver or forfeiture of those
rights.
15.11 SEVERABILITY. If any term or provision of this Agreement is held to be
illegal or unenforceable, the validity or enforceability of the remainder
of this Agreement will not be affected.
15.12 EXHIBITS. The following documents are attached hereto as exhibits, the
terms of which are incorporated by reference in their entirety:
A Statement of Work (and all subsequently executed Statements of Work)
B Change Order Procedures
15.13 PRECEDENCE. In the event of conflict between the provisions of this
Agreement and any Statement of Work or Change Order, the provisions of this
Agreement will to the extent of such conflict take precedence.
15.14 ENTIRE AGREEMENT. This Agreement, and the Agreement's exhibits and
Statements of Work constitute the entire agreement between AGILENT and
CUSTOMER for Component Development and Deliverables Services provided
during the Term supersedes any prior or contemporaneous communications,
representations or agreements between the parties, whether oral or written,
regarding the subject matter of this Agreement. CUSTOMER's additional or
different terms and conditions will not apply. The terms and conditions of
this Agreement may not be changed except by an amendment signed by an
authorized representative of each party.
15.15 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of New York, USA.
SIGNED FOR AND ON BEHALF OF SIGNED FOR AND ON BEHALF OF
CUSTOMER AGILENT TECHNOLOGIES
MALAYSIA SDN BHD
By: /s/ Xxxxxx X. Xxxxxxx By: /s/ Xxx Xxx Xxxx
--------------------------------- ------------------------------------
Name: Xxxxxx X. Xxxxxxx, Ph.D. Name: Xxx Xxx Xxxx
Title: President and CEO Title: WW OBU Manager
LIGHT SCIENCES CORPORATION AGILENT TECHNOLOGIES MALAYSIA
