Exhibit 10.29
SALES REPRESENTATION AGREEMENT
Affymetrix, Inc.
Amersham Pharmacia Biotech, Ltd
[THE SYMBOL "**" IS USED THROUGHOUT THIS EXHIBIT TO INDICATE THAT A PORTION OF
THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION.]
CONTENTS
1. Appointment; Products; Start of Obligations.. . . . . . . . . . . . . .3
2. Representative Covenants and Representations. . . . . . . . . . . . . .4
3. Commissions, Collections and Payment; Supply Terms. . . . . . . . . . .7
4. Product Support.. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
5. Limited Warranty. . . . . . . . . . . . . . . . . . . . . . . . . . . .9
6. Indemnity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
7. Limited Liability.. . . . . . . . . . . . . . . . . . . . . . . . . . 11
8. Term and Termination. . . . . . . . . . . . . . . . . . . . . . . . . 11
9. General.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
This Sales Representation Agreement (the "Agreement") is entered as of
November 28, 1997 by and between Affymetrix, Inc. ("Company"), a Delaware
corporation, with its principal place of business at 0000 Xxxxxxx Xxxxxxxxxx,
Xxxxx Xxxxx, Xxxxxxxxxx and Amersham Pharmacia Biotech, Ltd ("Representative"),
with its principal place of business at Xxxxxxxxxx 00, X-000, 00 Xxxxxxx,
Xxxxxx.
1. APPOINTMENT; PRODUCTS; START OF OBLIGATIONS.
a. Subject to all the terms and conditions of this Agreement, Company
hereby appoints Representative for the term of this Agreement as a worldwide,
nonexclusive agent of Company for soliciting, taking and filling orders for the
sale by Company (collectively, "solicits" or "solicitation") of Company's
products set forth in Attachment A (as modified from time to time), together
with the documentation therefor ("Products"), but for research, non-diagnostic
use only (the "Field of Use"), and only pursuant to the terms of the applicable
customer sales agreement for each Product as provided hereunder. The parties
anticipate that other generally, commercially available chip products for use in
expression, re-sequencing and mapping fields, and other non-chip products may be
added to Attachment A from time to time, by mutual agreement of the parties.
Company reserves the right to change, modify or discontinue any Product at any
time; provided, however, that Representative shall have the right to sell off
any remaining inventory of discontinued Products or, alternatively, return such
inventory to Company for a credit equal to any amount paid therefor. Nothing in
this Agreement shall be construed as limiting in any manner Company's marketing
or distribution activities or its appointment of dealers, distributors,
licensees or agents; or, with respect to any products other than the Products,
Representative's marketing or distribution activities. All Products shall be
distributed to customers only accompanied by Company's then-current sales
agreement or such other alternative sales agreement as is approved by the
Committee (as defined below) for such purpose. Prior to approval of an
alternative sales agreement by the Committee, nothing contained herein will
preclude Representative from using its commercial terms in dealing with
customers, provided that such terms are (i) fully consistent with (and as
protective of the Company, its intellectual property and its rights and
obligations as) the Company's then current sales agreement and (ii) fully
consistent with this Agreement and with the Company's role as principal (and
Representative's role as a sales representative) with respect of the sale of
Products.
b. Representative may solicit the Products by themselves, or bundled
with, or in conjunction with, other products; provided, however, that Products
bundled with or in conjunction with other products that compete with any Product
shall only be bundled with Company's prior written approval. All solicitation of
Products shall be directly to customers, and not through other agents or
representatives, and in any event only for the Field of Use. All Products shall
bear the names, logos, notices and other designations ("Designations") required
by Company. When Representative solicits Products bundled with or in conjunction
with other products, Representative may brand such other products with its own
Designations, but will ensure that Company's Designations are displayed in at
least as prominent location and shall be of equal size. Representative shall not
alter, remove, obscure, or deface any of Company's Designations. From time to
time, at Company's reasonable request, Representative shall supply samples of
products that are bundled with or offered in conjunction with Products to
Company for inspection, and Representative will comply with all reasonable
requests of Company for changes thereto to conform with Company standards.
Except to the extent expressly and
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unambiguously set forth herein, Company retains all rights and licenses with
respect to the Products, and Representative has no right to use any Products
except to solicit orders as provided herein.
c. Products may be solicited by Representative, or by the affiliates of
Representative set forth on Attachment D ("Affiliates"), which will be completed
by Representative within thirty (30) days after execution of this Agreement.
Representative may propose additional affiliates in which Representative owns,
directly or indirectly, more than fifty percent (50%) of the outstanding shares
of securities (representing the right to vote for the election of directors or
other managing authority); such proposals shall be added to the list of
Affiliates upon Company's approval, which will not be withheld unreasonably.
Representative shall bind all Affiliates in writing to all the restrictions on
Representative contained in this Agreement, and Representative shall ensure that
the Affiliates only solicit Products subject to such restrictions.
d. Until February 1, 1998 ("Solicitation Date"), Representative
acknowledges that Company shall not be obliged to accept or fill any orders for
Products, and Company acknowledges that Representative shall not be obliged to
actively solicit orders for Products; all other obligations and requirements of
this Agreement shall be in full force during this time.
e. Sales will not be made in any country until such country has been
approved by Company as a supported region which approval will not be
unreasonably withheld.
2. REPRESENTATIVE COVENANTS AND REPRESENTATIONS.
Except as expressly and unambiguously provided herein, Representative
represents, warrants, and covenants:
a. to use all diligent efforts, on behalf of Company to solicit Products
to third parties in a manner intended to maximize Company sales of Products.
Without limiting the foregoing, Representative shall provide meaningful
incentives to its sales representatives to encourage them to continuously and
diligently solicit sales of Products, where such incentives shall be reasonable
and non-discriminatory to incentives that Representative provides for soliciting
competitive products. From time to time, the Committee (as defined below) may
propose, and Representative shall consider, possible incentives. Representative
shall be entitled to allocate its efforts between Products and other products in
a reasonable commercial manner; provided, however, that if Representative
solicits any products that compete, directly or indirectly, with Products, then
Representative shall not discriminate in any manner against Products, or favor
such competing products to the detriment of sales of Products. The Company will
not actively compete in order to undercut Representative with materially more
favorable terms as a whole (to the customer) for specific sales from those end
users of Products where Representative has made the principal sales efforts in
proportion to Company's efforts to make those specific sales, whereby a net
result is avoidance of commissions that would otherwise be due on account of
sales of those Products. In the event that Representative reasonably believes
that Company has systematically made such sales, Representative will bring the
issue to the Committee and the Committee will identify mechanisms to avoid such
competing sales. In the event that the Committee cannot resolve such issues,
any disputes will be resolved according to the procedures in Section 2.g. It is
understood that this Section shall not limit Company's ability to, INTER ALIA,
enter into academic
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collaborations for use of the Probe Arrays, enter into joint ventures or
other arrangements providing substantial intellectual property rights to
Company, or enter into agreements that stimulate interest and sales of the
Probe Arrays.
b. to at all times maintain an adequate inventory of all commercially
generally available Products at its Chicago, Illinois facility, and/or such
other facility in the United States or Europe as Representative may reasonably
designate from time to time ("Facility") (where the inventory levels shall be
determined and modified by the Committee, and where inventory levels may overlap
for a reasonable transition period when the location of the Facility changes),
solicit Products (whether or not bundled with other products) only at the prices
indicated on the Price List set forth on Attachment B (as modified by Company
from time to time at its sole discretion), ship Products from inventory or as
supplied by Company to fill orders, include a copy of the applicable customer
sales agreement with each Product shipped, invoice and collect from customers
payments for the Products and remit such collections to Company.
c. that it will not ship any Product from inventory with a remaining
shelf-life that is less than the time-period described in the warranty set forth
in the Company sales agreement accompanying such Product, with a reasonable
shelf life to be established for each Product by Company, and a difference
between warranted shelf life and remaining shelf life established for each
Product by the Committee.
d. as Company's agent hereunder, to act reasonably and in good faith with
respect to Company, and comply with good business practices and all laws and
regulations and standards of industry and professional conduct relevant to this
Agreement or the subject matter hereof.
e. to fulfill the marketing and promotional activities (alone or in
conjunction with Company) set forth on Attachment C, pursuant to a detailed
sales and marketing plan to be developed by the Committee ("Marketing
Activities") at their expense, where the Marketing Activities will be reviewed
and modified from time to time by the Committee, and any such modifications
suggested by a party will not be objected to unreasonably by the other party.
Representative shall submit all promotional materials that reference Products or
Company by name to Company at least 30 days prior to the date of introduction,
for prior approval before use. In those cases where literature is to be
provided to Representative, Company will provide necessary original materials,
and Representative will perform needed production activities.
f. to provide Company within five (5) days of the beginning of each
calendar quarter with a good faith forecast of Representative's quantity
requirements for each Product for the next four (4) quarters.
g. to appoint an employee with appropriate skills and authority to a
committee comprised of representatives of both parties that shall manage certain
interactions between the parties hereto ("Committee"). Such employee (or a proxy
that is reasonably acceptable to Company) shall attend all Committee meetings,
including, but not limited to, regularly scheduled meetings that will be held at
least once each calendar quarter at Company's offices or another mutually agreed
upon location. Such employee shall participate fully in fulfilling Committee
functions, including, but not limited to, establishing bundling specifications,
determining Support Terms (as described below), managing Products introduction
through Representative
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(including, but not limited to, any special Product order lead time
requirements, shipping and delivery procedures and any adjustments to the
forecast and order mechanism set forth in the preceding paragraph), joint
Marketing Activities, reporting formats, and other functions to maximize
sales of Products, and shall, on behalf of Representative, keep the parties
informed of the requirements of the end users and the marketplace. All
decisions taken by the Committee shall be unanimous. In the event that the
Committee is unable to reach a decision by unanimous action with respect to
any matter for which it is clearly responsible and such inability continues
for a period of forty-five (45) days after the date on which the matter is
first submitted to the Committee, Company and Representative shall, on such
date, each refer the matter to its chief operating or executive officers for
resolution. Each party shall set forth in writing and provide to the other a
proposed solution to the impasse at the time that the matter is referred to
its chief operating officer or executive officers. The chief operating
officer or executive officers of the parties shall within fifteen (15) days
thereafter meet and confer in good faith for the purpose of achieving a
compromise solution. In the absence of agreement upon a detailed sales and
marketing plan by 30 days before a due date set by the Committee for which
the plan must be available for implementation in the following year, either
Party may submit the outstanding issues to expedited binding arbitration such
that such issues may be resolved before the due date earlier set by the
Committee. All other disputes shall be resolved by arbitration according to
Section 9.
h. to immediately notify Company of any adverse or unexpected results or
any actual or potential government action relevant to a Product and, if and to
the extent requested by Company in writing, to suspend sales of that Product.
i. to keep for two (2) years after termination of this Agreement records
of all Product sales and customers sufficient to adequately administer a recall
of any Product and to cooperate fully in any decision by Company to recall,
retrieve and/or replace any Product.
j. to regularly inform Company as to any desired improvements or
modifications to the Products suggested by Representative or any end user
customers, and to advise Company periodically with respect to competitors and
the introduction and/or success of products that are competitive with the
Products as long as such disclosures do not violate any confidentiality
obligations that Representative has to any third party; in addition,
Representative will allow Company to make a presentation to Representative's
sales representatives at least once each calendar year.
k. to keep Company informed as to any problems encountered with the
Products and any resolutions arrived at for those problems, and to communicate
promptly to Company any and all modifications, design changes or improvements of
the Products suggested by any customer, employee or agent, as long as such
disclosures do not violate any confidentiality obligations that Representative
has to any third party, Representative to use reasonable efforts to obtain the
right to disclose such information. Representative further agrees that, and
hereby grants to, Company a non-exclusive, worldwide, royalty-free right and
license to any and all such suggested modifications, design changes, or
improvements of the Products ("Improvements"), to use, incorporate and otherwise
exploit such Improvements in connection with the Products; provided that such
license shall not grant Company any rights to any of Representative's
intellectual property to reagents, array development products, or any other
intellectual property that is not
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developed or acquired in connection with an Improvement. Representative will
also endeavor to notify Company of any infringement of any patents or other
proprietary rights relating to the Products.
1. to comply with the U.S. Foreign Corrupt Practices Act and all
applicable export laws, restrictions, and regulations of the United States or
foreign agency or authority, and not export, or allow the export or re-export
of any Product in violation of any such laws, restrictions or regulations,
and to obtain, and bear all expenses relating to, any necessary licenses
and/or exemptions with respect to the export from the U.S. of any Product to
any location.
3. COMMISSIONS, COLLECTIONS AND PAYMENT; SUPPLY TERMS.
a. Representative shall comply with the following provisions in
connection with paying Company, invoicing customers and collecting payments from
customers on behalf of Company hereunder:
i. For each shipment of Product by Company to Representative,
Representative shall pay to Company, in US dollars, within sixty (60) days of
the later of receipt of the shipment or receipt of Company's invoice the
amount due for such shipment, less the applicable Order Fees and commissions
shown on Attachment F, except that any "drop shipped" Products shall be
subject to [**]. If the Order Fee. Representative will consolidate orders
when reasonable. Company will have the right to contest the processing fee in
those circumstances where such orders are not reasonably consolidated.
ii. As part of its duties hereunder, Representative shall be
responsible for promptly invoicing customers for all Products shipped at the
prices set forth on the Price List, and for collecting the amounts shown in
such invoices. Representative shall use best efforts to collect from
customers payments of all invoices and Representative shall be entitled to
retain the amount collected from the applicable customer as reimbursement to
Representative for any payments made by Representative to Company pursuant to
paragraph (i) above.
iii. Notwithstanding the provisions of paragraph (i) above,
Company shall retain the risk of collectibility of accounts receivable
relating to all Products sold under this Agreement. With respect to any
invoice for which Representative has not received a collection from the
customer within 180 days after the date of such invoice (an "Uncollected
Invoice"), (A) Representative shall turn over to Company for collection the
Uncollected Invoice and (B) Company shall credit to Representative's future
commissions (I) the amount of the Uncollected Invoice that was previously
paid by Representative to Company pursuant to paragraph (i) above plus
(II) the Order Fee that Representative was entitled to for such Uncollected
Invoice plus (III) 120 days' interest on the amount specified in (I) at an
annual rate of 12% or, if lower, the maximum rate allowed by law. Thirty days
after the expiration or termination of this Agreement, any outstanding
invoices shall become Uncollected Invoices subject to the foregoing, except
that Company shall pay Representative the amounts that would otherwise have
been credited on such post-termination Uncollected Invoices. Representative
will use reasonable efforts to avoid shipment to those customers with poor
collection histories provided that Representative is aware of such poor
collection history.
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iv. Within fifteen (15) days following the end of each calendar
quarter, Representative shall provide Company with a detailed statement
setting forth (A) all sales and solicitations of Products, identity of the
customer, and amounts invoiced and collected thereon, (B) the quantity of
Products that Representative retains in inventory, (C) the amounts of
warranty returns processed by Representative (if any) during such quarter
relating to sales of Products pursuant to this Agreement, (D) the percentage
of sales of Products pursuant to this Agreement that such warranty returns
represented during such quarter and (E) if the percentage referred to in
clause (C) above is greater than [**], reasonable support or documentation as
to the cause of all such warranty returns. Products which are returned to
Representative shall be returned to Company at Company's expense.
v. Representative shall use reasonable efforts to match
invoices to applicable customer payments, but if more than one invoice is
outstanding with respect to such customer's account, and Representative is
unable to match any payment to a particular invoice, Representative shall
apply the "first-in, first-out" principle in determining the invoice to which
such payments applies. One or more invoices issued on the same date shall be
aggregated and treated as a single invoice for purposes of this paragraph.
vi. For any sales, ad valorem or similar taxes or duties,
customs fees or duties and other governmental assessments that arise in
connection with sales of Products by Representative, Representative shall:
(A) collect such amount on behalf of Company from the customer and remit it
to the appropriate taxing authority or jurisdiction in Company's name;
(B) show such taxes, duties or other governmental assessments separately on
customer invoices and on reports to Company; (C) provide a separate report to
Company no later than the fifteenth (15th) calendar day of each month for the
previous month indicating the customer, amount invoiced, taxes, duties and
other governmental assessments invoiced and collected, and the taxing
authority or jurisdiction. Company shall hold Representative harmless for any
liability that arises in connection with such taxes, duties and other
governmental assessments unless such liability arises due to a failure of
Representative to comply with a provision of this Agreement, including, but
not limited to, the foregoing provisions. To the extent that Representative
receives any refund on any such payments made to taxing authorities, it will
remit such refund to Company.
vii. As between Representative and Company, Representative shall
be responsible for all shipping, transportation, insurance and other charges
related to shipping Products from its Facility to customers, as well as all
taxes (except sales taxes and taxes on Company's income), duties and other
governmental assessments related to the foregoing.
b. During the term of this Agreement, subject to the other terms and
conditions of this Agreement, Company shall use its reasonable commercial
efforts to fill promptly (by full or partial shipment) Representative's written
orders for Products, which are accepted by Company at its main office, insofar
as practical and consistent with then-current Company's lead-time schedule,
shipping schedule, access to supplies on acceptable terms and allocation of
available products and capacity among Company customers. In deciding which
orders to accept, and the schedule for filling them, Company shall not
discriminate between Representative and other similarly situated agents for the
Products. Each order for a Product must comply with the minimum quantity
requirement for such Product as set forth on the Price List. Company will
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provide reasonable lead time estimates and minimum quantity requirements to
the Committee for each Product. Company will deliver all Products F.O.B.
Representative's Facility, or as the parties mutually agree, F.O.B. Company's
manufacturing facility with arrangements to ship to the customer at
customer's expense. All Products will be packaged according to Company's
standard packaging. Orders may not be changed or canceled without Company's
written approval.
c. Company will not accept returns except pursuant to Company's warranty
policy set forth in the applicable Product sales agreement and subject to the
terms, conditions and restrictions on such warranty returns in such agreement.
Representative will coordinate all returns through a designated Company contact.
Company will not accept returns from Representative valued at over [**] (based
on the original sale price of the Products) unless the designated Company
contact has given prior approval to such returns, which approval shall not be
withheld unreasonably. In the event that the returns for any country, for any
period, exceed [**] of the volume of Product sold in that country for that
period, the Committee shall investigate the reasons for excessive returns, and
shall attempt to correct and minimize such returns for future periods.
d. Company or its authorized representatives shall be entitled to review
and audit Representative's books, records and facilities, as they relate to
activities under this Agreement, from time to time during normal business hours
upon reasonable notice to Representative and at Company's expense to confirm
sales activity and compliance with the terms of this Agreement.
4. PRODUCT SUPPORT.
Company will install the relevant portions of the Product(s), at its
expense, at customer's location. Representative will provide high quality first
line support for Products to all customers through properly trained service
personnel. At a minimum, first line support shall include training, problem
diagnosis and, where feasible, problem correction. Company will provide
Representative (and only designated service personnel of Representative) with
second line support for the Products. Within sixty (60) days of the Solicitation
Date, the Committee will determine and define the levels, priorities, response
times, and other terms of such first line and second line support, including an
appropriate mechanism for referring support issues that have been ("Support
Terms"), which shall be attached hereto as Attachment E. Company shall be
responsible for any cost associated with any Product recall or government action
related to the Products, provided that Representative shall not directly or
indirectly incur any cost in connection with a recall without Company's prior
written consent, which will not be unreasonably withheld. Company will train
designated Representative personnel in a "train the trainer" format regarding
the use, applications, and other aspects of the Products.
5. LIMITED WARRANTY.
Company's sole warranty for the Products shall be the standard customer
warranty (which shall be limited to warranting the shelf-life of such Product
for a limited period of time) included in the sale agreement that Representative
shall provide to each customer as part of the sale of such Products.
Representative shall have no authority to offer, and Company shall have no
obligation to honor or liability for, any other warranty. THE PARTIES
ACKNOWLEDGE
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THAT THIS IS AN AGREEMENT FOR SERVICES, NOT FOR THE SALE OF GOODS, AND THAT,
EXCEPT FOR THE WARRANTY OFFERED ABOVE, COMPANY DOES NOT OFFER ANY OTHER
WARRANTY OF THE PRODUCTS, EXPRESS OR IMPLIED, AND IN PARTICULAR COMPANY DOES
NOT WARRANT THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PRODUCTS OR THE PERFORMANCE OR NONINFRINGEMENT THEREOF, DOES NOT MAKE ANY
WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS, SPECIFICATIONS,
SUPPORT, SERVICE OR ANYTHING ELSE. COMPANY HAS NOT AUTHORIZED ANYONE TO MAKE
ANY REPRESENTATION OR WARRANTY OTHER THAN AS PROVIDED ABOVE.
6. INDEMNITY.
a. INFRINGEMENT INDEMNITY. Company is responsible and shall hold
Representative and its officers, directors, agents and employees harmless
from liability resulting from claims, liabilities, damages, debts,
settlements, costs, attorneys' fees, expenses, and liabilities of any type
whatsoever that may arise on account of infringement by the Products of any
US patent issued as of the date of this Agreement, provided Company is
promptly notified of any and all threats, claims and proceedings related
thereto and given reasonable assistance and the opportunity to assume sole
control over the defense and all negotiations for a settlement or compromise;
Company will not be responsible for any settlement it does not approve in
writing. The foregoing obligation of Company does not apply with respect to
Products or portions or components (i) not supplied by Company, (ii) made in
whole or in part in accordance to Representative specifications or requests,
(iii) which are modified by Representative after shipment by Company, if the
alleged infringement relates to such modification, (iv) combined, processed
or used with other products, processes or materials where the alleged
infringement relates to such combination, process or use, (v) where
Representative continues allegedly infringing activity after being notified
thereof or after being informed of modifications that would have avoided the
alleged infringement, or (vi) where the infringement is incident to use of
the Product but does not result primarily from the Product. The foregoing
indemnity shall be Representative's sole and exclusive remedy for claims of
infringement relating to the Products.
b. PRODUCT LIABILITY INDEMNITY. Company is responsible and shall hold
Representative and its officers, directors, agents and employees harmless
from any claims, liabilities, damages, debts, settlements, costs, attorneys'
fees, expenses, and liabilities of any type whatsoever that may arise on
account of damage to property, economic loss or injury to any person arising
from use of the Products; provided Company is promptly notified of any and
all threats, claims and proceedings related thereto and given reasonable
assistance and the opportunity to assume sole control over the defense and
all negotiations for a settlement or compromise; Company will not be
responsible for any settlement it does not approve in writing. The foregoing
obligation shall not apply if the injury under which indemnity is being
claimed is due to Representative, or its officers, directors, agents or
employees provision of unauthorized representations, unauthorized warranties,
or incorrect instructions in connection with such Product, or failure to
provide correct instructions for use of such Product.
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c. EXCEPTION. Notwithstanding the foregoing, the indemnity set forth
in this Section 6 shall not apply to liability arising from Representative's
negligence or willful misconduct.
7. LIMITED LIABILITY.
NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT OR OTHERWISE, EXCEPT AS SET
FORTH IN SECTIONS 6, 9.c, 9.i, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT
LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN
THE AGGREGATE OF THE AMOUNTS PAID HEREUNDER DURING THE TWELVE-MONTH PERIOD PRIOR
TO THE DATE THE CAUSE OF ACTION AROSE OR (II) ANY INCIDENTAL OR CONSEQUENTIAL
DAMAGES, OR LOST PROFITS OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS,
TECHNOLOGY, OR SERVICES. NEITHER PARTY SHALL HAVE ANY LIABILITY FOR ANY FAILURE
OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. THIS SECTION DOES NOT
LIMIT LIABILITY FOR BODILY INJURY OF A PERSON.
8. TERM AND TERMINATION.
a. Unless terminated earlier or extended as provided herein, this
Agreement shall have a term of three (3) years extending from the Solicitation
Date, and shall automatically renew for additional two (2) year terms unless
either party notifies the other of its desire to terminate the Agreement within
six (6) months of the end of the then-current term, unless the Agreement
terminates sooner as set forth below. Commencing on the second anniversary of
the date of this Agreement, the parties agree to begin good faith negotiations
(with no further obligation) with respect to extending the term of this
Agreement. Either party may discontinue such negotiations at any time upon
written notice to the other party; provided, however, that such termination of
such negotiations shall not otherwise affect the termination of this Agreement.
b. This Agreement may be terminated by a party for cause immediately by
written notice upon the occurrence of any of the following events:
i. if the other ceases to do business, or otherwise terminates
its business operations; or
ii. if the other shall fail to promptly secure or renew any
license, registration, permit, authorization or approval for the conduct of
its business in the manner contemplated by this Agreement or if any such
license, registration, permit, authorization or approval is revoked or
suspended and not reinstated within sixty (60) days; or
iii. if the other materially breaches any material provision of
this Agreement and fails to substantially cure such breach within 30 days
(10 days in the case of a failure to pay) of written notice describing the
breach, provided, however, that in the case of a material breach by an
Affiliate, Company may elect, in its sole discretion, to terminate this
Agreement only with respect to such Affiliate; or
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iv. if the other seeks protection under any bankruptcy,
insolvency, receivership, trust deed, creditors arrangement, composition or
comparable proceeding, or if any such proceeding is instituted against the
other (and not dismissed within 90 days).
c. Each party understands that the rights of termination hereunder are
absolute and that it has no rights to a continued relationship with the other
after termination except as expressly stated herein. Neither party shall
incur any liability whatsoever for any damage, loss or expenses of any kind
suffered or incurred by the other (or for any compensation to the other)
arising from or incident to any termination of this Agreement by such party
that complies with the terms of the Agreement whether or not such party is
aware of any such damage, loss or expenses. Upon termination: (i) Company
and Representative shall mutually agree on whether to continue or terminate
any order then pending; (ii) Representative shall have the right to sell off
any remaining inventory of Products or, alternatively, return such inventory
to Company for a credit equal to the amount paid therefor, but such right to
return only applies to Products with a remaining shelf-life that is less than
the time-period described in the warranty set forth in the Company sales
agreement accompanying such Products; and (iii) Representative shall provide
Company with copies of all account and business information, including,
without limitation, (A) customer lists, (B) account records, (C) account
balances, (D) current inventory levels and (E) other records or information
relating to the business conducted under this Agreement that Company may
request. Termination is not the sole remedy under this Agreement and, whether
or not termination is effected, all other remedies will remain available.
Sections 2(d), 2(h), 2(i), 2(l), Sections 3(a), 3(d), and Sections 5 through
9, and any accrued rights to payment, shall survive termination of this
Agreement.
9. GENERAL.
a. AMENDMENT AND WAIVER--Except as otherwise expressly provided herein,
any provision of this Agreement may be amended and the observance of any
provision of this Agreement may be waived (either generally or any particular
instance and either retroactively or prospectively) only with the written
consent of the parties signed by a duly authorized officer. However, it is the
intention of the parties that this Agreement be controlling over additional or
different terms of any order, confirmation, invoice or similar document, even if
accepted in writing by both parties, and that waivers and amendments shall be
effective only if made by non-preprinted agreements clearly understood by both
parties to be an amendment or waiver.
b. ASSIGNMENT--This Agreement and the rights hereunder are not
transferable or assignable without the prior written consent of the parties
hereto (and any attempt to do so shall be void), except for rights to payment
and except to a person or entity who acquires all or substantially all of the
assets or business of a party, whether by sale, merger or otherwise.
c. RELATIONSHIP OF PARTIES--The parties hereto intend that no
partnership, joint venture or similar relationship be created pursuant to this
Agreement. Representative is solely responsible for all of its employees and its
labor costs and expenses arising in connection with this Agreement and is
responsible for and will indemnify Company from any and all claims, liabilities,
damages, debts, settlements, costs, attorneys' fees, expenses, and liabilities
of any type whatsoever that may arise on account of Representative's activities,
including without limitation, providing unauthorized representations or
warranties (or failing to disclose all limitations on
12
warranties and liabilities set forth herein on behalf of Company) to its
customers or breaching any term, representation or warranty of this
Agreement, provided that Company promptly notifies Representative of any and
all threats, claims and proceedings related thereto and gives Representative
reasonable assistance and the opportunity to assume sole control of the
defense and all negotiations for a settlement or a compromise. Representative
will not be responsible for any settlement that it does not approve in
writing. Notwithstanding the foregoing, the indemnity set forth in this
Section 9.c shall not apply to liability incurred as a result of Company's
negligence or willful misconduct.
d. GOVERNING LAW AND LEGAL ACTIONS--This Agreement shall be governed by
and construed under the laws of the State of California and the United States
without regard to conflicts of laws provisions thereof and without regard to the
United Nations Convention on Contracts for the International Sale of Goods.
Unless waived by Company in writing for the particular instance (which Company
may do at its option), the sole jurisdiction and venue for actions related to
the subject matter hereof shall be the California state and U.S. federal courts
having within their jurisdiction the location of Company's principal place of
business. In any action or proceeding to enforce rights under this Agreement,
the prevailing party shall be entitled to recover costs and attorneys' fees.
e. ARBITRATION--In the event of any controversy or claim relating to,
arising out of or in any way connected to any provision of this Agreement
("Dispute"), the Parties shall seek to settle their differences amicably between
themselves and as otherwise set forth herein. Any unresolved Dispute shall be
finally resolved by final and binding arbitration. Whenever a Party shall
decide to institute arbitration proceedings, it shall give written notice to
that effect to the other Parties. The Party giving such notice shall refrain
from instituting the arbitration proceedings for a period of ten (10) days
following such notice to allow the Parties to attempt to resolve the Dispute
between themselves. If the Parties are still unable to resolve the dispute, the
Party giving notice may institute the arbitration proceeding under the rules of
the International Chamber of Commerce ("ICC Rules"). Arbitration shall be held
in Palo Alto, California. The arbitration shall be conducted before a single
arbitrator mutually chosen by the Parties, but if the parties have not agreed
upon a single arbitrator within fifteen (15) days after notice of the
institution of the arbitration proceeding, then the arbitration will be
conducted by a panel of three arbitrators, each chosen by one Party. All
arbitrator(s) eligible to conduct the arbitration must undertake in writing as a
condition of service to render their opinion(s) promptly after the final
arbitration hearing. No arbitrator (nor the panel of arbitrators) shall have
the power to award punitive damages or any award of multiple damages under this
Agreement and such awards are expressly prohibited. Decisions of the
arbitrator(s) shall be final and binding on the Parties.
f. HEADINGS--Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
g. NOTICES--Notices under this Agreement shall be sufficient only if
personally delivered, delivered by telecopy, delivered by a major commercial
rapid delivery courier service or mailed by certified or registered mail, return
receipt requested to a party at its addresses and telecopy number first set
forth herein or as amended by notice pursuant to this subsection. If not
received sooner, notice by mail shall be deemed received ten (10) days after
deposit in the U.S.
13
mails. Notice by telecopy shall be deemed received at the time sent unless
such time is not during a business day, in which case telecopy shall be
deemed received on the next business day.
h. ENTIRE AGREEMENT--This Agreement supersedes all proposals, oral or
written, all negotiations, conversations, or discussions between or among
parties relating to the subject matter of this Agreement and all past dealing or
industry custom.
i. FORCE MAJEURE--A party shall not be liable for nonperformance or delay
in performance (other than of obligations regarding payment of money or
confidentiality) caused by any event reasonably beyond the control of such party
including, but not limited to wars, hostilities, revolutions, riots, civil
commotion, national emergency, strikes, lockouts, unavailability of supplies,
epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any
other Act of God, or any law, proclamation, regulation, ordinance, or other act
or order of any court, government or governmental agency.
j. CONFIDENTIALITY--Except as required by law, neither party will
disclose the terms of this Agreement or any attachment to any third party. Any
business, technical, financial or other information provided by a party to this
Agreement (the "Disclosing Party") to the other (the "Receiving Party") and
designated as confidential or proprietary ("Confidential Information") shall be
held in confidence and not disclosed or, except as expressly permitted under
this Agreement, used by the Receiving Party. For the avoidance of doubt, all
technical information related to the Products is hereby deemed to be
Confidential Information of Company. The obligations of this subsection will not
apply to information that is generally and freely publicly available through no
fault of the Receiving Party, or that the Receiving Party otherwise rightfully
obtains from third parties without restriction, or that the Receiving Party
develops independently through employees without access to or use of
Confidential Information. The Receiving Party acknowledges that failure to
fulfill the provisions of this subsection may cause the Disclosing Party
immediate irreparable harm and, therefore, the Disclosing Party shall, in
addition to other remedies and without necessity of posting bond, be entitled to
seek immediate equitable and injunctive relief to prevent to resolve such a
failure.
k. SEVERABILITY--If any provision of this Agreement is held by a court of
competent jurisdiction to be illegal, invalid or unenforceable, that provision
shall be limited or eliminated to the minimum extent necessary so that this
Agreement shall otherwise remain in full force and effect and enforceable.
Affymetrix, Inc. Amersham Pharmacia Biotech, Ltd
Signed: /s/ Xxxxxxx P.A. Xxxxx Signed: /s/ Xxx Xxxx
--------------------------- ---------------------------
Printed: Xxxxxxx P.A. Xxxxx Printed: Xxx Xxxx
-------------------------- --------------------------
Title: President & CEO Title: CEO
---------------------------- ----------------------------
14
Attachment A
PRODUCTS
GENECHIP-Registered Trademark- PRODUCTS - FALL 1997
INSTRUMENTS
Hewlett-Packard GeneArray scanner
GeneChip fluidics station
GeneChip workstation (Dell pentium computer system)
SOFTWARE
GeneChip 3.0 operating system
GeneChip expression analysis window
ASSAYS AND REAGENTS
[**
**
**
**]
* Estimated launch: [**]
** Custom products (reorders) added to the
product list upon completion of mutually
agreed order, processing, quality control,
quality assurance, marketing, documentation,
software and procedures. EasyAccess
customers to be included upon approval of
the relevant customer and Affymetrix.
15
Attachment B
PRICE LIST
GENECHIP ANALYSIS SYSTEMS (US PRICING - NOVEMBER 1997)
Part # Product Price (US$)
GENECHIP SEQUENCE ANALYSIS SYSTEMS
GENECHIP EXPRESSION ANALYSIS SYSTEMS
900136 GeneChip Expression Analysis System [**]
Hewlett-Packard GeneArray Scanner
GeneChip Fluidics Station
GeneChip Workstation
GeneChip Expression Analysis Software - Single user license
GENECHIP EXPRESSION ANALYSIS WINDOW
GENECHIP SOFTWARE 2.1
800114 GeneChip Expression Analysis Workstation [**]
GeneChip Workstation
GeneChip Expression Analysis Software - Single user license
GENECHIP EXPRESSION ANALYSIS WINDOW
GENECHIP SOFTWARE 2.1
GENECHIP INSTRUMENTATION
800101 GeneChip Fluidics Station [**]
GENECHIP SOFTWARE
610003 GeneChip Expression Analysis Software - Single user license [**]
GENECHIP EXPRESSION ANALYSIS WINDOW
GENECHIP SOFTWARE 2.1
16
GENECHIP SERVICE AND SUPPORT
000107 Training/Technical Support [**]
000108 Yearly service contract on instrumentation [**]
including specific minor software upgrades
GENECHIP ASSAYS
ESTIMATED U.S. PRICING FOR ITEMS NOT CONTAINED ON THE NOVEMBER 1997 AFFYMETRIX
PRICE LIST (US $) (REQUIRING THE USE OF SIGNED CONTRACTS WITH THE END USER)
[** **
** **
** **]
17
Attachment C
MARKETING ACTIVITIES
A) SALES AND MARKETING PROMOTIONAL ELEMENTS.
1. [**]
2. [**]
3. [**]
4. [**]
5. [**]
6. [**]
7. [**]
8. [**]
9. [**]
10. [**]
11. [**]
12. [**]
(i) [**]
(ii) [**]
(iii) [**]
18
B) MARKETING AND SUPPORT STAFF.
1. [**]
2. [**]
3. [**]
4. [**]
5. [**]
6. [**]
7. [**]
8. [**]
9. [**]
10. [**]
11. [**]
C) WORLD-WIDE SALESFORCE ACTIVITY.
[**]
19
Attachment D
AFFILIATES
To be provided within 30 days of execution by Representative and reasonably
approved by Company.
20
Attachment E
SUPPORT TERMS
To be determined in good faith by the Committee by February 1, 1998.
21
Attachment F
COMMISSIONS
For Products shipped pursuant to a single Product order, Representative
shall be entitled to an Order Fee of [**], plus applicable value-added tax
assessed on the services provided by Representative (and not on the Product
itself), provided that Representative shall provide Company with
documentation of such tax payments, and the forms needed, and other
reasonable assistance requested, by Company for claiming refund,
reimbursement, or offset of such taxes. Orders solicited by Representative
from a single end-user customer shall be consolidated where feasible, so as
to minimize the number of separate orders for each customer. In each year
during the term of this Agreement, Representative shall be entitled to
Commissions on Net Sales of Products as set forth below. "Net Sales" shall
mean [**] Commissions after Year 3 will be negotiated by the parties prior
to commencement of any renewal period.
*MAXIMUM
COMMISSIONS COMMISSION AMOUNT
Year 1 [**] Net Sales [**]
Year 2 [**] Net Sales [**]
Year 3 [**] Net Sales [**]
* Maximum Commission Amount does not include the Order Fee.
22
