MANUFACTURING AND SUPPLY AGREEMENT between Combimatrix Corporation ("Company") and Furuno Electric Company, Ltd. (“MANUFACTURER”) (Dated as of 01 July 2006)
Exhibit
10.1
MANUFACTURING
AND SUPPLY AGREEMENT
between
Combimatrix
Corporation ("Company")
and
Furuno
Electric Company, Ltd. (“MANUFACTURER”)
(Dated
as of 01 July 2006)
| Purchase and Sale of Products |
1
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1.1
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Orders |
1
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1.2
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Delivery |
1
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1.3
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Rejection of Noncomplying Products |
2
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1.4
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Schedule; Delay |
2
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1.5
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Warranty |
2
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1.6
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Location of Manufacture |
2
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1.7
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Product Records |
3
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Section
2.
|
Compensation |
3
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2.1
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Purchase Price of Products |
3
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2.2
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Invoice and Payment |
3
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2.3
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Review and Adjustment of Formula Price and Price Cap |
3
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2.4
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Taxes |
4
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Section
3.
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Consideration for Manufacturing Rights |
4
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3.1
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MANUFACTURER Payments |
4
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Section
4.
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Product Processes; Changes; New Products |
5
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4.1
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Product Processes and Specifications |
5
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4.2
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Changes |
6
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4.3
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Changes Initiated by Company |
6
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4.4
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Implementation |
6
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4.5
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New Products |
7
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i
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Section 5.
|
Ownership and IPR |
7
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5.1
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MANUFACTURER-Furnished Items |
7
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5.2
|
Products |
7
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5.3
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Product Processes |
8
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5.4
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Names, Trade Names and Trademarks |
8
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5.5
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Implementation |
8
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Section
6.
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Protection of Confidential Information |
8
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6.1
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General |
8
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6.2
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Exceptions |
9
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Section
7.
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Term and Termination |
9
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7.1
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General |
9
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7.2
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Optional Termination |
9
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7.3
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Termination for Material Breach or Default |
9
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7.4
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Termination for Act of Insolvency |
10
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7.5
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End of the Term |
10
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Section
8.
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Indemnification |
10
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8.1
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By Company |
10
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8.2
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By MANUFACTURER |
11
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8.3
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Notice and Cooperation |
11
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8.4
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Waiver of Certain Immunities, Defenses and Protections Relating to Employee Injuries |
11
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Section
9.
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Miscellaneous |
11
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9.1
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Independent Contractor |
11
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9.2
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Notices |
12
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ii
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9.3
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Compliance With Laws |
12
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9.4
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Rights and Remedies Cumulative |
12
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9.5
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Publicity |
12
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9.6
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Nonwaiver |
13
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9.7
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Assignment |
13
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9.8
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No Third Party Beneficiaries |
13
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9.9
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Severability |
13
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9.10
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Attorneys’ Fees |
14
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9.11
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Applicable Law |
14
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9.12
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Amendments |
14
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9.13
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Entire Agreement |
14
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iii
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List
of Exhibits
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Exhibit
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Description
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Reference
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A
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Glossary
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Preamble
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B
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Product
Description and Specifications
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Glossary
|
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iv
MANUFACTURING
AND SUPPLY AGREEMENT
This
Agreement, dated as of 01 July 2006 is made and entered into by and between:
Combimatrix Corporation, a Delaware corporation (“Company”); and Furuno Electric
Company, Ltd, a Japanese corporation (“MANUFACTURER”). The definitions of
certain terms used in this Agreement are set forth in the Glossary attached
as
Exhibit A.
A. Company
develops, markets and sells electrode-containing microarray devices having
content synthesized thereon or ready for synthesis, associated software,
associated reagents, and associated instrumentation.
B. MANUFACTURER
manufactures medical devices having the ability to transfer exact amounts of
fluids.
C. Company
desires to engage MANUFACTURER, and MANUFACTURER desires to be engaged by
Company, to exclusively manufacture and supply a certain Synthesizer instrument
developed under the Development Agreement dated 09 August 2004 (“BTS”) to
Company subject to and in accordance with the terms and conditions of this
Agreement.
Agreement
The
Parties agree as follows:
MANUFACTURER
shall make and deliver to Company or its designee such Products as Company
may
from time to time order from MANUFACTURER under this Section 1. Each of
Company’s orders under this Section 1 shall specify: (a) the name and part
number of each Product being ordered; (b) the quantity of each Product being
ordered; (c) the purchase price of each Product being ordered; (d) the dates
upon which the Products are to be shipped by MANUFACTURER, (e) the destination
to which the Products are to be shipped by MANUFACTURER; (f) the purchase order
number and billing instructions; and (g) any additional shipping instructions
(including, without limitation, specification of any particular carrier,
insurance, means of shipment or packaging required by Company), provided however
that unless otherwise approved by MANUFACTURER, Company shall not specify any
date for delivery of any Product less than four (4) months after the date that
Company submits the order to MANUFACTURER.
Prior
to
shipment, MANUFACTURER shall inspect each Product to ensure compliance with
the
warranty set forth in paragraph 1.5 and compliance with performance
specifications, which specifications are to be agreed to by the parties.
MANUFACTURER shall properly package the Products in accordance with the
Specifications, any instructions set forth in Company’s order and as otherwise
required for protection against any damage or deterioration during shipment.
MANUFACTURER shall ship all Products ordered by Company pursuant to paragraph
1.1 in accordance with all shipping instructions set forth in Company’s order.
Unless otherwise specified in the applicable order, MANUFACTURER shall ship
all
Products FOB the MANUFACTURER Facility to the shipping destination specified
in
the applicable order. Company shall pay or reimburse all shipping costs
reasonably incurred by MANUFACTURER to ship any Products in accordance with
the
shipping instructions set forth in Company’s order, including duties and customs
costs. Title of the Products shall pass to Company upon MANUFACTURER’s receipt
of the payment for the said Products. Risk of loss with respect to any Product
shall pass to Company upon loading of the Product at Manufacturer to the carrier
in accordance with Company’s order.
Company
may reject any Product, within thirty (30) days after the Company’s receipt
thereof that does not comply with the Warranty set forth in paragraph 1.5.
Company shall not be obligated to pay any purchase price, shipping costs or
other amounts otherwise payable to MANUFACTURER for any Products rejected in
accordance with this paragraph.
MANUFACTURER
shall ship all Products ordered by Company under this Section 1 in accordance
with the shipping schedule and instructions set forth in Company’s applicable
order under paragraph 1.1. Should MANUFACTURER anticipate that the shipment
of
any Products ordered by Company be delayed by any reason, MANUFACTURER shall
notify Company thereof immediately, and thereafter MANUFACTURER and Company
shall discuss in good faith on the shipment date of the Products. However,
MANUFACTURER shall not be liable for any delay in shipment due to any causes
that are beyond the reasonable control of MANUFACTURER and that cannot be
overcome by MANUFACTURER’s exercise of reasonable diligence, provided that
MANUFACTURER gives Company prompt notice of any circumstances that may give
rise
to any delay, the anticipated duration of delay and the action being taken
by
MANUFACTURER to mitigate the delay and that MANUFACTURER uses its reasonable
best efforts to mitigate the delay.
|
1.5
|
MANUFACTURER
warrants that, upon delivery, each Product shall: (a) comply with all applicable
Specifications; (b) be free from all defects in material and workmanship; and
(c) be free and clear of all mortgages, security interests, levies, liens and
encumbrances. MANUFACTURER DISCLAIMS ALL OTHER WARRANTIES (INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE) REGARDING THE PRODUCTS AND Company HEREBY AGREES THAT NO SUCH OTHER
WARRANTIES APPLY TO ANY PRODUCT.
2
The
Warranty period shall be “[redacted]” from the date of shipment “[redacted]”from
the Date of Installation at a customer facility, whichever comes
first.
The
warranty under this Section 1.5 shall be limited to free supply of replacement
Products, parts or components to repair or replace any defective Products,
and
shall not apply to the defects arising from any of the foregoing:
(a)
misuse or improper use of the Products;
(b)
use
of spare parts not supplied by MANUFACTURER;
(c)
modification or alteration without prior written permission of MANUFACTURER;
or
(d)
the
Products being repaired by unauthorized person.
During
the period of “[redacted]” following the first order by Company, the Company may
request MANUFACTURER to hold the fulfillment of a purchase order for a specified
period of time. The maximum time period that an order may be held by the
MANUFACTURER is “[redacted]”. The request to hold fulfillment of a purchase
order by Company must be made before the shipping date of an order has been
arranged by MANUFACTURER or no longer than “[redacted]” after the purchase order
was sent by the Company.
MANUFACTURER
shall maintain product liability insurance coverage for the Products as the
manufacturer of the Products on such terms and conditions as MANUFACTURER deems
suitable. Company shall maintain product liability insurance coverage as a
distributor of the Products and other chemicals and disposable items consistent
with the terms and conditions provided to customers.
MANUFACTURER
shall be responsible for the creation of and updating of a service manual with
support from Company concerning hardware and firmware aspects of the BTS
instrument. Company shall be responsible for the creation and updating of a
Users Manual with support from MANUFACTURER concerning any and all external
(to
the BTS instrument) software aspects.
3
Except
as
otherwise approved by Company in writing, MANUFACTURER shall Make all Products
at the MANUFACTURER Facility. Upon Company’s request, MANUFACTURER shall provide
Company safe and sufficient access to the MANUFACTURER Facility and any other
location at which any Product may be Made as reasonably required for Company
to
observe, monitor and evaluate the Making of Products under this Agreement;
provided that such access shall be during MANUFACTURER's normal business hours
and will be conducted in a manner which does not unreasonably interfere with
MANUFACTURER's business. MANUFACTURER shall ensure that the MANUFACTURER
Facility and any other location at which any Product may be Made shall comply
with any and all Governmental Requirements applicable to the Making of the
applicable Products.
|
1.9
|
MANUFACTURER
shall prepare appropriate records regarding each Product Made under this
Agreement (including, without limitation, records of the MANUFACTURER Direct
Costs and the serial code, date code, lot number, inspector, and shipment
information relating to each Product, but excluding the costs of raw materials,
assembly procedures and adjustment procedures). MANUFACTURER shall maintain
such
records for a period of “[redacted]” years after the end of the Term. Upon
Company’s request, MANUFACTURER shall make such records available for audit,
inspection and reproduction by or on behalf of Company. Further, MANUFACTURER
shall provide to Company a complete xxxx of materials for each Product showing
the supplier and cost of each component of any Product together with such other
information as Company may reasonably request regarding any Product.
MANUFACTURER
will be responsible for creating a list of spare parts and a transfer price
list. Company shall be responsible for setting up an instrument service
infrastructure to service the installed base of BTS instruments, including
an
inventory of most frequently used spare parts. The MANUFACTURER inventory of
parts shall include at a minimum an amount of commonly ordered spare parts
sufficient to immediately meet demand based upon the installed base of BTS
instruments in view of experience with component reliability.
MANUFACTURER
shall provide to Company’s personnel “[redacted]” training sessions for the
service of the Products. MANUFACTURER shall bear the costs for trainers for
such
training, provided that all the traveling and lodging expenses of the Company
trainees shall be borne by Company. Should Company require additional training,
MANUFACTURER shall provide such additional training at the costs and expenses
(including the costs for trainers) of Company.
Company
shall provide revised rolling annual forecasts of projected BTS instrument
sales
by Company and third party distributors every “[reacted]”. The “[redacted]”
forecasts shall each look ahead for “[redacted]” and shall not be binding.
MANUFACTURER shall accept all orders and promise delivery within “[redacted]”
from the date that Company provides a firm order.
Unless
otherwise agreed upon by the Parties in writing, Company shall pay MANUFACTURER
a purchase price for each Product Made and delivered under Section 1 equal
to
the applicable Transfer Price according to Table 1 below (FOB Japan basis),
provided, that such Transfer Price shall be adjusted pursuant to the provisions
of Section 2.3. The Transfer Price shall be determined at the time of the
order.
|
Cumulative
Number of Units Ordered
|
Transfer
Price per unit (US$)
|
|
“[redacted]”
|
“[redacted]”
|
|
“[redacted]”
|
“[redacted]”
|
|
“[redacted]”
|
“[redacted]”
|
MANUFACTURER
shall separately invoice Company for each shipment of Products pursuant to
and
in accordance with this Agreement. Each of MANUFACTURER’s invoices under this
paragraph shall specify the following with respect to the Products included
in
the shipment: (a) the number and date of Company’s purchase order for such
Products; (b) the quantity of each Product; (c) the purchase price payable
under
paragraph 2.1; and (d) any shipping costs to be reimbursed by Company pursuant
to paragraph 1.2. MANUFACTURER shall provide such additional documentation
and
information as Company may reasonably request relating to any invoice submitted
by MANUFACTURER under this paragraph. Within “[redacted]”after receipt of any
invoice under this paragraph, Company shall pay to MANUFACTURER the amount
properly due and payable under the invoice in United States dollars. The terms
and conditions in Company’s purchase order shall apply. Company and MANUFACTURER
agree that the provisions of this Agreement prevail over the provisions of
the
terms and conditions in Company’s purchase order.
The
transfer price shall be adjusted based upon a review of the exchange rate
between the U.S. dollar and the Japanese yen. The base exchange rate “X” shall
be determined as the exchange rate existing on 01 July 2006 according to the
Tokyo Mitsubishi Bank. The following 01 January and 01 July (six month
intervals) each year the exchange rate shall be determined (successive exchange
rates) based upon the published rate of Tokyo Mitsubishi Bank. If any of the
successive exchange rates are either more than “[redacted]” or less than
“[redacted]”(that is, a change of X of greater than or less than “[redacted]”
the transfer price shall be adjusted to be fifty percent of the exchange rate
difference from X. As an example, if the US dollar is “[redacted]” less than its
“X” value on a successive determination date, the transfer price shall increase
by five percent. The adjusted transfer price shall apply only to subsequent
firm
orders placed after the successive determination dates and not to orders that
are in process.
5
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2.4
|
Taxes.
Unless otherwise agreed to in writing, each Party shall
be solely
responsible for the payment of all taxes, duties and other governmental
charges imposed upon it in connection with the transactions contemplated
hereby.
|
| Section 3. |
Consideration
for Manufacturing Rights
|
|
3.1
|
MANUFACTURER
Payments.
MANUFACTURER shall pay to Company the sum “[redacted]” after the sale of
the “[redacted]” BTS instrument (Product) under this Agreement. In
addition, MANUFACTURER shall pay to Company “[redacted]” after the sale of
the “[redacted]”BTS instrument (Product) under this Agreement. The
payments under this section 3.1 are unrefundable once
made.
|
| 3.2 |
Exclusive
Manufacturing Rights.
Company grants to MANUFACTURER the exclusive right to manufacture
the BTS
instrument, as described in the Specification herein, for the term
of this
Agreement.
|
| 3.3 |
Third
Party Distributors.
The Company shall control Product distribution and the selection
of third
party distributors of the Product.
|
Any
Specifications and Product Processes that are not set forth or referenced in
the
applicable Supplement shall be subject to Company’s approval. Prior to the first
Making of any Product, MANUFACTURER shall prepare and submit to Company’s
approval for any such Specifications and Product Processes that are required
for
the Making of the applicable Product. MANUFACTURER shall provide such
information as Company may request regarding Product Processes. Company will
promptly review and either approve or disapprove MANUFACTURER's proposal for
any
such Specifications and Product Processes. If Company disapproves any of the
Specifications or Product Processes proposed by MANUFACTURER, MANUFACTURER
shall
revise them taking into account the reasons for Company’s disapproval, and
resubmit the same to Company. The parties will repeat this process until Company
approves the required Specifications and Product Processes. If the Parties
do
not agree upon any such Specifications or Product Processes that are required
for the Making of the applicable Product within “[redacted]” after submitted by
MANUFACTURER or such later date as may be agreed upon by the Parties, then
either Party may terminate the Supplement for such Product by giving the other
Party at least “[redacted]” advance written notice of such termination.
MANUFACTURER shall be solely responsible for the Specifications and Product
Processes, notwithstanding any approval by Company. MANUFACTURER shall ensure
that each Product is Made in accordance with the applicable Specifications
and
Product Processes.
6
|
4.2
|
The
Parties may make such changes in the Specifications and Product Processes as
they may mutually agree upon from time to time. Neither Party shall have the
right to make any unilateral change in the Specifications or Product Processes.
If the BTS instrument is changed significantly or if improved features are
added, the transfer price shall be renegotiated in view of any added costs
or
reduced costs of the BTS instrument.
Company
may make changes in the Specifications by giving MANUFACTURER reasonable advance
written notice of the change, provided that any of the following changes shall
be subject to MANUFACTURER’s approval, which shall not be unreasonably withheld
or delayed: (a) any change that requires any resources (including, without
limitation, IPR) that are not provided by Company or commercially available
to
MANUFACTURER; (b) any change that causes a material increase in the
MANUFACTURER’s costs to Make the applicable Product; or (c) any change that
affects compliance with any Governmental Requirement (e.g.,
by
requiring either Party to obtain or modify any approval, consent, authorization
or other action of any governmental authority having jurisdiction).
|
4.4
|
In
the
event of any change in the Specifications or the Product Processes pursuant
to
this Section 4, the Parties shall amend the Product Documentation or Product
Process Documentation as reasonably required to reflect the change. Further,
if
any such change causes an increase or decrease in the MANUFACTURER’s costs to
make any Product, then the price for such Product shall be discussed in good
faith and agreed upon between the parties hereto.
|
4.5
|
The
Parties may, from time to time, add new Products to the scope of this Agreement
by executing a new Supplement for each such new Product.
7
MANUFACTURER
hereby reserves ownership of all tooling, equipment and related items furnished
and used by MANUFACTURER in performing services under this Agreement, together
with all IPR associated with ownership of such items.
|
5.2
|
Except
for the license granted under this paragraph or otherwise agreed upon by the
Parties in writing after the date of this Agreement: (a) Company reserves any
and all IPR that Company may have or acquire in or to the Products, the
Specifications and the Product Documentation; and (b) MANUFACTURER hereby
assigns and transfers to Company any and all IPR that MANUFACTURER may have
or
acquire in or to any of the Products, the Specifications or the Product
Documentation in connection with MANUFACTURER’s activities under this Agreement.
Company hereby grants to MANUFACTURER a royalty-free, nonexclusive license,
without any right to sublicense, to Use the Specifications, Product
Documentation and Product IPR to Make Products for Company pursuant to and
in
accordance with this Agreement.
Except
for the licenses granted under this paragraph or otherwise agreed upon by the
Parties in writing after the date of this Agreement: MANUFACTURER reserves
any
and all IPR that MANUFACTURER may have or acquire in or to the Product Processes
and the Product Process Documentation; and Company reserves any and all IPR
that
Company may have or acquire in or to any of the Product Processes.
This
Agreement does not grant, create, assign or transfer to either Party any license
or other right with respect to any name, trade name or trademark of the other
Party. The foregoing shall not be interpreted or construed as prohibiting either
Party from disclosing the existence of this Agreement or the fact that the
other
Party is a party to this Agreement.
|
5.5
|
Each
Party shall take such action (including, without limitation, the execution,
delivery and filing of documents and the provision of information, documents
and
testimony) as the other Party may reasonably request to effect, perfect,
evidence or protect the Parties’ respective IPR and other property as described
in this Section 5, provided that the requesting Party shall pay or reimburse
all
of the costs reasonably incurred by the other Party in taking any action
requested pursuant to this paragraph.
8
In
the
performance of this Agreement, either Party may disclose to the other Party
certain Confidential Information. In such event, the Recipient shall protect
such Confidential Information of the Discloser against any unauthorized Use
or
Distribution to the same extent that the Recipient protects its own Confidential
Information of a similar nature against unauthorized Use or Distribution (but
in
no event using less than commercially reasonable efforts to protect the
Confidential Information), provided that the Confidential Information of the
Discloser is conspicuously marked or otherwise identified as confidential or
proprietary upon receipt by the Recipient or the Recipient otherwise knows
or
has reason to know that the same is Confidential Information of the Discloser.
For purposes of the foregoing, the Specifications and Product Documentation
shall be presumed to be Confidential Information of Company without any
particular marking or other identification as being confidential or proprietary.
Without limiting the foregoing: (a) the Recipient shall Use such Confidential
Information solely for the purposes for which it has been disclosed by the
Discloser; (b) the Recipient shall disclose such Confidential Information only
to those of its employees, agents, consultants and other representatives who
have a need to know the same for the purposes described in (a) above, and who
understand and acknowledge their obligation and willingness to preserve and
hold
such Confidential Information in strict confidence; (c) the Recipient shall
not
copy or authorize the copying of any Confidential Materials, except as required
for the purposes described in (a) above or otherwise authorized by the Discloser
in writing; and (d) any copy of any Confidential Materials that is Made or
authorized by the Recipient shall contain all copyright, confidentiality or
other proprietary notices contained on such document as delivered by the
Discloser.
|
6.2
|
Paragraph
6.1 shall not be interpreted or construed to restrict or prohibit any Use:
(a)
that is reasonably necessary or appropriate in connection with the Recipient’s
performance of its obligations or exercise of its rights under this Agreement
or
any other agreement between the Parties; (b) required by applicable law
(e.g.,
pursuant to applicable securities laws or legal process), provided that the
Recipient uses reasonable efforts to give the Discloser reasonable advance
notice thereof and to limit the extent the Confidential Information is
disclosed; (c) made with the consent of the Discloser or (d) are generally
available in the public domain.
The
Term
shall commence as of the date of this Agreement and shall continue unless and
until terminated pursuant to paragraph 7.2, 7.3 or 7.4 of this
Agreement.
9
Either
Party may terminate the Term by giving the other Party written notice of
termination under this paragraph; provided, however, that no termination under
this paragraph shall be effective prior to the later of: (a) “[redacted]”; or
(b) the expiration of “[redacted]” after receipt of the notice of termination.
If
either
Party commits a material breach of or default under this Agreement, then the
other Party may give notice that the breach or default has occurred (including,
but not necessarily limited to, a statement of the facts relating to the breach
or default, the provisions of this Agreement that are in breach or default,
and
the action required to cure the breach or default) and that the Term shall
terminate pursuant to this paragraph if the breach or default is not cured
within “[redacted]” after receipt of notice (or such later date as may be
specified in such notice). If the specified breach or default is not cured
within “[redacted]” after receipt of such notice (or such later date as may be
specified in such notice), then the Term shall terminate.
If
an Act
of Insolvency occurs with respect to either Party, then the other Party may
terminate the Term by giving written notice of such termination.
|
7.5
|
Should
this Agreement be terminated by either party pursuant to paragraphs 7.2, 7.3
or
7.4, the following shall apply, unless otherwise agreed by the Parties: (a)
the
Parties shall cooperate to effect an orderly, efficient, effective and
expeditious termination of their respective activities under this Agreement;
(b)
MANUFACTURER shall deliver to Company any and all Company-Furnished Items and
any other property of Company then in MANUFACTURER’s possession or control; and
(c) Sections 2, 6, 7.5, 8 and 9 shall survive. In the event the MANUFACTURER
terminates this Agreement due to a breach by Company under paragraph 7.3,
MANUFACTURER may cancel any outstanding orders without any cost, penalty or
liability to MANUFACTURER.
Company
shall defend and indemnify MANUFACTURER from and against any
and all claims that
may arise out of or in connection with any: (a) property damage
or bodily injury
(including death), if and to the extent the same is attributable
to the fault,
negligence or strict liability of Company, or any employee, subcontractor
or
supplier of Company, or any other Person acting under the direction
or
supervision of Company or its subcontractors or suppliers (other
than
MANUFACTURER or MANUFACTURER’s employees, subcontractors or suppliers);
“[redacted]” Without limiting the foregoing, Company shall pay or reimburse
any
and all costs and expenses (including, but not limited to, reasonable
attorneys’
fees) incurred in connection with the defense, settlement or
satisfaction of any
such claim (including, but not limited to, any damages, liabilities
or losses
based upon any such
claim).
10
|
8.2
|
MANUFACTURER
shall defend and indemnify Company from and against any and all claims that
may
arise out of or in connection with any: (a) property damage or bodily injury
(including death), if and to the extent the same is attributable to the fault,
negligence or strict liability of MANUFACTURER, or any employee, contractor
or
supplier of MANUFACTURER, or any other Person acting under the direction or
supervision of MANUFACTURER or its subcontractors or suppliers (other than
Company or Company’s employees, subcontractors or suppliers); “[redacted]”
Without limiting the foregoing, MANUFACTURER shall pay or reimburse any and
all
costs and expenses (including, but not limited to, reasonable attorneys’ fees)
incurred in connection with the defense, settlement or satisfaction of any
such
claim.
If
any
Party desires to enforce any other Party’s obligations under paragraphs 8.1 or
8.2 with respect to any claim thereunder, the enforcing Party shall: (a) give
the other Party written notice of such claim promptly after the Party seeking
to
enforce such obligations receives notice of the same; (b) cooperate with the
other Party in connection with the defense, settlement and satisfaction of
such
claim (at the other Party’s reasonable expense); and (c) not settle such claim
without the prior written consent of the other Party, which consent shall not
be
unreasonably withheld.
In
connection with any action to enforce a Party’s obligations under paragraphs 8.1
or 8.2 above with respect to any claim arising out of any bodily injury
(including death) to an employee of such Party, such Party waives any immunity,
defense, or protection under any workers’ compensation, industrial insurance, or
similar laws. This paragraph shall not be interpreted or construed as a waiver
of a Party’s right to assert any such immunity, defense or protection directly
against any of its own employees or such employee’s estate or other
representatives.
| Section 9. |
9.1
First
Stage Consultation. All disputes, controversies and differences that
may arise between the Parties hereto in respect of any Agreement
shall try to be
settled amicably through mutual consultation within “[redacted]” of a written
settlement request of either Party.
|
|
|
11
9.2
ICC
Arbitration. Any
disputes arising out of or in connection with any Agreement, including
any
question regarding its existence, validity, breach, violation or termination,
shall be exclusively and finally settled under the Rules of Conciliation
and
Arbitration of the International Chamber of Commerce effective January
1st
1998 in
the then applicable form (“ICC Rules”) by three arbitrators (the “Arbitral
Tribunal”) appointed in accordance with the said ICC Rules. Such arbitration
shall take place in (a) Seattle, Washington, United States of America,
if
initiated by MANUFACTURER,
or (b)
Osaka, Japan, if initiated by Company. Any award granted by the Arbitral
Tribunal shall be final, binding and enforceable against the Parties.
The
arbitration shall at all times be held in the English language, provided,
however, that (i) a Party may submit documents in the Japanese language
and such
submitted documents will only be translated into the English language
if the
Arbitral Tribunal or a Party so requests, and (ii) that the cost of translation
of any such Japanese language documents shall be at the sole expense
of the
Party submitting such documents. Discovery shall only be admissible to
the
extent permitted and not prohibited under Article 20 of the ICC-Rules
and agreed
upon by the Parties who shall cooperate with one another at the outset
of the
proceeding to define the extent of discovery reasonably needed to complete
the
proceeding. The procedural law of the State of Washington shall otherwise
be
applied to any proceedings held in connection with said arbitration.
Judgment
upon an award rendered by the Arbitrators shall be binding and may be
entered in
any court with appropriate jurisdiction, and the Parties consent to jurisdiction
therein for the purpose of such enforcement. Notwithstanding anything
to the
contrary contained in this Agreement or elsewhere, each of the parties
hereby
acknowledges and expressly agrees that any breach by it of this Agreement,
which
does or may result in loss of confidentiality of the Confidential Information,
would cause irreparable harm to the other party for which money damages
would
not be an adequate remedy. Therefore, each of the Parties hereby agree,
that in
the event of any breach of this Agreement by it, the non-breaching Party
will
have the right to seek injunctive relief in a court of competent jurisdiction
against continuing or further breach by the breaching Party, without
the
necessity of proof of actual damages, in addition to any other right
which
either Party may have under this Agreement, or otherwise in law or in
equity.
| Section 10. |
Miscellaneous
|
|
10.1
|
Independent
Contractor
|
|
|
|
Each
Party is an independent contractor in the performance of this Agreement. Without
limiting the generality of the foregoing, each Party shall properly withhold
and
pay, or ensure that a Third Party properly withholds and pays for, all federal
income, workers’ compensation, employer’s liability, pension, deferred
compensation, welfare, insurance and other employee taxes or benefits payable
to
or on behalf of any Person engaged by such Party to perform any of its
obligations under this Agreement. Neither Party shall have, by virtue of this
Agreement, any right, power or authority to enter into any contract or to assume
or incur any other commitment or obligation in the name of or on behalf of,
to
act as the agent or representative of, or to otherwise bind the other Party.
This Agreement shall not be interpreted or construed to create or evidence
a
partnership, joint venture or franchise among the Parties or as imposing any
partnership, joint venture or franchise obligation or liability on either
Party.
12
|
10.2
|
Notices
|
Any
notice required or permitted under this Agreement shall be given in writing
and
shall be deemed effectively given upon personal delivery to the Person to be
notified, upon receipt of an electronic facsimile transmission, or upon deposit
with the United States Post Office, postage prepaid, registered or certified
with return receipt requested. Any notice to a Party shall be addressed to
such
Party at the address specified below, and to the attention of the individual
designated.
| If to MANUFACTURER: |
Furuno
Electric Company, Ltd.
0-00,
Xxxxxxxxxxxxxxx
Xxxxxxxxxxx-Xxxx,
000-0000, XXXXX
Attention:
Shun-ichi Nishi
|
|
| If to Company: |
Combimatrix
Corporation
0000
Xxxxxxx Xxxxxxx Xxxxxxx
Xxxxxxxx,
Xxxxxxxxxx 00000 XX
Attention:
Legal Department
|
Any
Party
may from time to time change such address or individual by giving the other
Parties notice of such change in accordance with this paragraph.
|
10.3
|
Compliance
With Laws
|
In
performance of this Agreement, each Party shall comply with all applicable
Governmental Requirements.
|
10.4
|
Rights
and Remedies Cumulative
|
Any
right
or remedy afforded to either Party under any provision of this Agreement on
account of any breach or default by the other Party is in addition to, and
not
in lieu of, any and all other rights and remedies afforded to such Party under
any other provision of this Agreement, by law or otherwise on account of such
breach or default.
|
10.5
|
Publicity
|
Neither
Party shall issue any press release or similar publicity regarding this
Agreement without the prior approval of the other Party. MANUFACTURER shall
not
use the name or any trade name or trademark of Company as a reference or in
any
sales, marketing or other promotional material without the prior written consent
of Company.
|
10.6
|
Nonwaiver
|
The
failure of either Party to insist upon or enforce strict performance of any
provision of this Agreement, or to exercise any right or remedy under this
Agreement, shall not be interpreted or construed as a waiver or relinquishment
to any extent of such Party’s right to assert or rely upon any such provision,
right or remedy in that or any other instance; rather, the same shall be and
remain in full force and effect.
13
|
10.7
|
Assignment
|
Neither
Party shall assign (voluntarily, by operation of law or otherwise) this
Agreement or any right, interest or benefit under this Agreement without the
prior written consent of the other Party, which consent shall not be
unreasonably withheld. However, either Party may assign all of its rights,
interests and benefits under this Agreement, without the prior written consent
of the other Party, to any successor of the assigning Party’s entire business
(e.g.,
by way
of a merger, consolidation or other corporate reorganization or any sale other
transfer of all or substantially all of the assets of the assigning Party),
provided that the successor assumes or is otherwise bound by all of the
assigning Party’s obligations and liabilities under this Agreement. No
assignment, with or without such consent, shall relieve the assigning Party
from
any of its obligations or liabilities under this Agreement, whether arising
before or after the assignment. Subject to the foregoing, this Agreement shall
be fully binding upon, inure to the benefit of and be enforceable by the Parties
and their respective successors and assigns.
|
10.8
|
No
Third Party Beneficiaries
|
This
Agreement is for the benefit of, and shall be enforceable by, the Parties only.
This Agreement is not intended to confer any right or benefit on any Third
Party. No action may be commenced or prosecuted against a Party by any Third
Party claiming as a third-party beneficiary of this Agreement or any of the
transactions contemplated by this Agreement.
|
10.9
|
Severability
|
This
Agreement shall be enforced to the fullest extent permitted by applicable law.
If any provision of this Agreement is held to be invalid or unenforceable to
any
extent, then: (a) such provision shall be interpreted, construed or reformed
to
the extent reasonably required to render the same valid, enforceable and
consistent with the original intent underlying such provision; (b) such
provision shall be void to the extent it is held to be invalid or unenforceable;
(c) such provision shall remain in effect to the extent that it is not invalid
or unenforceable; and (d) such invalidity or unenforceability shall not affect
any other provision of this Agreement or any other agreement between the
Parties. If the invalidity or unenforceability is due to the unreasonableness
of
the scope or duration of the provision, then the provision shall remain
effective for such scope and duration as may be determined to be
reasonable.
|
10.10
|
Applicable
Law
|
This
Agreement shall be interpreted, construed and enforced in all respects according
to the laws of the state of Washington without reference to its choice-of-law
rules to the contrary, except to the extent preempted by the laws of the United
States.
14
|
10.11
|
Amendments
|
No
amendment, modification or waiver of any provision of this Agreement shall
be
valid unless set forth in a written instrument signed by the Party to be bound
thereby.
|
10.12
|
Entire
Agreement
|
This
Agreement (including, without limitation, Exhibits A through B) sets forth
the
entire agreement, and supersedes any and all prior proposals, understandings
and
agreements between the Parties with regard to the Making of Products by
MANUFACTURER.
IN
WITNESS WHEREOF, the Parties have entered into and signed this Agreement as
of
the date first set forth above.
|
CombiMatrix
Corporation:
By:
/s/ Xxxx
Xxxxx
President
|
Furuno
Electric:
By:
/s/ Hidetoshi
Tanigaki
Managing
Director
|
15
Exhibit
A
Glossary
Whenever
used in this Agreement with the initial letter capitalized, the following terms
shall have the following specified meanings:
“Act
of Insolvency”
means
the occurrence of any of the following: (a) the filing of a petition by or
against a Party to have such a Party adjudged as bankrupt or a petition for
reorganization or arrangement of such Party under any Debtor Relief Law (unless,
in the case of a petition filed against such Party, the same is dismissed within
“[redacted]” after it is filed); (b) the making of any general assignment
or general arrangement for the benefit of a Party’s creditors under any Debtor
Relief Law; (c) the appointment of a trustee or receiver to take possession
of all or substantially all of a Party’s assets under any Debtor Relief Law
(unless such possession is returned to such Party within “[redacted]” after such
appointment); (d) the attachment, execution or other judicial seizure of
all or substantially all of a Party’s assets (unless the same is released within
“[redacted]”; or (e) the dissolution or liquidation by or of a Party, or
the adoption of any plan of dissolution or liquidation, if such Party does
not
continue as a viable business in altered form.
“Confidential
Information”
means
any information that is proprietary or confidential or that a Party is obligated
to keep confidential (e.g.,
pursuant to a contractual or other obligation owing to a Third Party).
Confidential Information may be of a technical, business or other nature
(including, but not limited to, information that relates to a Party’s
technology, research, development, Products, customers, employees, contractors,
marketing plans, finances, contracts, legal affairs or business affairs).
However, Confidential Information does not include any information that: (a)
was
known to the Recipient prior to receiving the same from the Discloser in
connection with this Agreement; (b) is independently developed by the Recipient;
(c) is acquired by the Recipient from another source without restriction as
to
Use or disclosure; or (d) is or becomes part of the public domain through no
fault or action of the Recipient.
“Confidential
Material”
means
any document, diskette, tape, writing, prototype or other tangible item (whether
in handwritten, printed, coded, magnetic, electronic or other form or media)
that contains, displays, embodies or manifests any Confidential
Information.
“Debtor
Relief Law”
means
any bankruptcy, moratorium, insolvency, reorganization, liquidation,
conservatorship, or similar law, now or hereafter in effect, for the relief
of
debtors and that affects the rights of creditors generally.
“Discloser”
means a
Party that discloses Confidential Information to the other Party.
A-1
“Governmental
Requirement”
means
any law, rule, regulation, order, judgment, decree, standard or other
requirement of any legislative, administrative, judicial, military, civil or
other authority having jurisdiction.
“MANUFACTURER
Facility”
means
the MANUFACTURER Production and testing facilities specified in the
Supplement.
“IPR”
means
any patent, copyright, trademark, service xxxx, trade name, trade secret, mask
work, moral right or other intellectual property right under the laws of any
jurisdiction, whether registered, unregistered, statutory, common law or
otherwise (including, without limitation, any rights to xxx, recover damages
or
obtain relief for any past infringement, and any rights under any application,
assignment, license, legal opinion, or search).
“Make”
(or any
conjugation thereof as the context may require) means to manufacture, fabricate,
assemble, produce or otherwise make (or any conjugation thereof as the context
may require).
“Party”
means
MANUFACTURER, Company or any Person that acquires all of the right, title or
interest of MANUFACTURER or Company in this Agreement in accordance with
paragraph 9.7.
“Person”
means
any individual, corporation, limited liability company, partnership, trust,
association, governmental authority or other entity.
“Product”
means
the BTS instrument to be Made by MANUFACTURER for Company under this Agreement,
as more particularly described in the Specifications of Exhibit B.
“Product
Documentation”
means
the designs, drawings, plans, bills of materials, specifications and other
documentation (whether in handwritten, printed, coded, magnetic, electronic
or
other form or media) that defines or otherwise describes any Product, all as
set
forth or referenced in the applicable Supplement or otherwise agreed upon by
the
Parties.
“Product
Processes”
means
the methods, techniques, procedures and processes Used by MANUFACTURER in the
Making of Products.
“Product
Process Documentation”
means
the designs, drawings, plans, bills of materials, specifications and other
documentation (whether in handwritten, printed, coded, magnetic, electronic
or
other form or media) developed by or for either Party that defines or otherwise
describes the Product Processes, all as set forth or referenced in the
applicable Supplement or otherwise agreed upon by the Parties.
“Recipient”
means a
Party that receives Confidential Information from the other Party.
“Specifications”
means
the descriptions, criteria, designs, drawings, specifications and other
requirements relating to the size, form, fit, functionality, performance,
durability, quality, color, composition and other characteristics of the
Products, all as set forth or referenced in Exhibit B, the Product Documentation
or otherwise provided by Company and MANUFACTURER in writing and accepted by
both Company and MANUFACTURER. The Specifications may be supplemented by the
Parties as provided herein.
A-2
“Term”
means
the period of time set forth in Section 6.
“Third
Party”
means
any Person that is not a Party.
“Use”
(or any
conjugation thereof as the context may require) means employ, consume,
incorporate, manipulate, operate, perform, copy, duplicate, display, publish,
disclose or otherwise use (or any conjugation thereof as the context may
require).
A-3
Exhibit
B
Product
Description and Product Specifications
1. “[redacted]”
2. “redacted]”
B-1
