Exhibit 10.9
OEM SUPPLY AGREEMENT
OEM SUPPLY AGREEMENT ("Agreement") effective this ___________ day of
___________ 1998 by and between AFFYMETRIX, INC. a California corporation,
having a place of business at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx
00000 ("Affymetrix", as that term is further defined in Paragraph 1.2 hereof)
and XXXXXXX XXXXXXX, INC., a Delaware corporation, having a place of business at
0000 Xxxxx Xxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000 ("BCI", as that
term is further defined in Paragraph 1.4 hereof).
R E C I T A L S
I. Affymetrix is in the business of developing, manufacturing and
selling Array Chips (as that term is hereinafter defined).
II. BCI desires to purchase Array Chips from Affymetrix for resale to
BCI customers.
NOW THEREFORE, in consideration of the mutual covenants and
undertakings contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties, intending
to be legally bound, agree as follows:
ARTICLE 1.0 DEFINITIONS
The following terms, when used herein with an initial capital letter
and without regard to whether they appear in the singular, plural or possessive
form, shall have the following defined meanings:
1.1 "AFFILIATE" shall mean any corporation or other form of limited
liability legal person, partnership, association, joint venture or other form of
business entity controlled by, controlling or under common control with a party
hereto. As used herein, the word and root "control" in the context of a
corporation shall mean the ownership, directly or indirectly, of more
than fifty percent (50%) of the voting shares or other equity interests entitled
to vote in the election of directors of the corporation; and, in the context of
any other form of business entity, the right to receive more than fifty percent
(50%) of the net profits of such entity and the right to a majority interest in
the management and control of such entity; provided that notwithstanding the
foregoing definition, BCI may not have as an Affiliate entitled to receive the
benefits of the licenses granted under Section 3.1 hereof (a) a corporation
wherein any of the companies listed in Exhibit A is more than a passive investor
in such Affiliate and such passive investor does not have the right to manage or
control such Affiliate or (b) a partnership wherein any of the companies listed
in Exhibit A is a partner.
1.2 "AFFYMETRIX" shall mean Affymetrix, Inc., its divisions and
Affiliates and its and their permitted successors and assigns.
1.3 "ARRAY CHIPS" shall mean a series of polynucleotides arranged on a
substrate to perform quantitative or qualitative analyses.
1.4 "BCI" shall mean Xxxxxxx Xxxxxxx, Inc., its divisions and
Affiliates and its and their permitted successors and assigns.
1.5 "BCI SYSTEM" shall mean an instrument, device or system
manufactured or distributed by BCI which uses Array Chips to perform
quantitative or qualitative analyses. For the avoidance of doubt, if an
instrument, device or system is manufactured by a third party and distributed by
BCI only those specific instruments, devices or systems which are sold or leased
or otherwise distributed to end users (directly or indirectly) by BCI are BCI
Systems and the identical instrument, device or system which is sold, leased or
otherwise distributed directly to the end user by the manufacturer or indirectly
from the manufacturer to a third party and then to the end user are not BCI
Systems.
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1.6 "PRODUCT" shall mean an Array Chip manufactured by Affymetrix and
sold to BCI under the terms of this Agreement.
ARTICLE 2.0 IDENTIFICATION OF ARRAY CHIPS AS PRODUCTS
2.1 IDENTIFICATION OF ARRAY CHIPS BY AFFYMETRIX - Affymetrix shall,
from time to time, notify BCI, in writing, of: (a) [ ](1) or (b)
[ ](2). Such notice shall contain an offer from Affymetrix to
manufacture and supply such Array Chips to BCI under the terms of this
Agreement. Such notice shall also contain the specifications of such Array
Chip, the transfer price for such Array Chip at an identified annual volume
of purchases by BCI (the "Target Purchases") and a price ladder showing the
transfer prices if the BCI purchases in any year are above or below the
Target Purchases. The proposed transfer prices in such offer shall be fixed
for the first year of BCI purchases.
2.1.1 The Affymetrix offer shall remain open for not less than
[ ](3) from the date of receipt by BCI and may be accepted by BCI, by
written notice to that effect to Affymetrix within such period. If BCI
accepts such offer, such Array Chip shall become a Product under this
Agreement.
2.2 IDENTIFICATION OF ARRAY CHIPS BY BCI - BCI may, from time to time,
propose an Array Chip to be developed by Affymetrix and, when developed,
manufactured by Affymetrix under this Agreement. The BCI proposal shall be in
writing and shall specify the particulars of the
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(1) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(2) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(3) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Array Chip and contain an estimate of BCI's anticipated purchases in each of the
next five (5) years.
2.2.1 The BCI proposal shall remain in effect for not less
than [ ](4) from the date of receipt by Affymetrix. Affymetrix may, by
written notice to BCI, at any time within such period offer to develop and
manufacture the proposed Array Chip for BCI. The Affymetrix offer will
include a development schedule, the amount (if any) of Affymetrix development
expenses to be reimbursed by BCI, the specifications for the Array Chip, a
proposed first delivery date when commercial scale deliveries will begin, a
transfer price for such Array Chip at Target Purchases and a price ladder
showing the transfer prices if the BCI purchases in any year are above or
below the Target Purchases. The proposed transfer prices in such offer shall
be fixed for the first year of BCI purchases.
2.2.2 The Affymetrix offer shall remain open for not less than
[ ](5) from the date of receipt by BCI and may be accepted by BCI by
written notice to Affymetrix to that effect within such period. If BCI
accepts such offer such Array Chip shall become a Product under this
Agreement.
2.2.3 Affymetrix and BCI are parties to a research and
development agreement of even date herewith under which Affymetrix has agreed
to perform [ ](6) of contract research and development services on Array
Chip technology and products of interest to BCI (the "R and D Agreement"). To
the extent that any part of the [ ](7) under the R and D
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(4) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(5) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(6) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(7) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Agreement is unspent and an Affymetrix offer under Paragraph 2.2.1 hereof
includes development expenses to be reimbursed by BCI then BCI shall off-set
such development expenses by applying the unspent R and D funds up to the full
amount of such development expenses.
ARTICLE 3.0 MANUFACTURE AND SUPPLY
3.1 SUPPLY - PURCHASE COMMITMENT - Affymetrix agrees to and shall
manufacture, sell and deliver to BCI and BCI shall purchase and take from
Affymetrix such quantities of the Products as BCI may order in accordance with
Paragraphs 3.4 and 3.4.1 hereof.
3.2 SPECIFICATIONS - Each Product shall conform to its specifications
in the Affymetrix offer of Article 2.0. Such specifications shall automatically
be added to this Agreement, as Exhibit A, concurrently with the BCI acceptance
of such offer. Notwithstanding the preceding sentence, BCI may at any time
request changes, modifications or additions to the specifications either prior
or subsequent to their addition to Exhibit A. Affymetrix will negotiate in good
faith such changes, modifications or additions, including any corresponding
adjustment to the transfer price or other applicable terms and conditions of
this Agreement and will use reasonable commercial efforts to incorporate such
BCI requested changes, modifications or additions. The new specifications will
then be added to Exhibit A in replacement for the specification in the
Affymetrix offer of Article 2.0.
3.3 CHANGES TO THE PRODUCTS - Affymetrix shall notify BCI of any
proposed changes to a Product or to the raw materials used therein, or the
methods for their manufacture, storage or shipment which may alter the Product's
stability or performance. Such notice shall include a full description of the
proposed change and sufficient samples of the proposed new product for BCI
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SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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to determine if the new product meets each and all of the specifications for
such Product in Exhibit A, correlates in all respects with the Product or
requires any operating software change for the BCI System. BCI will complete
such determination promptly, but in no event longer than [ ](8) after
receipt of such samples. If BCI determines that the proposed new product
either does not meet specifications or does not correlate with the existing
Product, then Affymetrix will, at its option, either not make the change or
continue to sell BCI the existing Product for the remainder of the term of
this Agreement. If BCI determines that the proposed new product meets
specifications and correlates with the existing Product but requires a change
to the operating software for the BCI System, then Affymetrix agrees to and
shall: (a) continue to sell BCI the existing Product until the introduction
of BCI's next regularly scheduled software modification for the effected BCI
System and (b) provide sufficient samples of the new product at the prices
specified in Paragraph 4.3, for BCI to perform system validation. If BCI
determines that the proposed new product meets specifications, correlates
with the existing Product and does not require any change to the operating
software, then Affymetrix may make the desired changes and introduce the new
product on ninety (90) days prior written notice.
3.4 FORECASTS AND ORDERING OF PRODUCT - BCI shall, promptly after
acceptance of an Affymetrix offer under Article 2.0 for a Product provide
Affymetrix with a written forecast of the quantities of such Product which BCI
anticipates it will purchase from Affymetrix during each of the next twelve (12)
months. A non-cancelable BCI Purchase Order for the total quantity, if any,
specified during the initial six (6) months of this Agreement, shall accompany
the forecast. The remaining six (6) months of the forecast shall be BCI's best
estimate of its requirements for such
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(8) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Product from Affymetrix during such period. The forecast shall not be binding on
either party and shall be used for planning purposes only.
3.4.1 BCI shall, within ten (10) days of the end of each three
(3) month period commencing with the acceptance of the Affymetrix offer of
Article 2.0 for a Product, send Affymetrix a revised twelve (12) month forecast
for such Product. BCI shall include with each revised forecast a non-cancelable
Purchase Order for the quantities, if any, of such Product specified in months
four (4) through six (6). The remaining six (6) months of the revised forecast
shall be BCI's best estimate of its requirements for such Product from
Affymetrix during such period, shall not be binding on either party and shall be
used for planning purposes only.
3.4.2 Affymetrix shall build Products for BCI only in response
to a BCI Purchase Order and not to a BCI forecast.
3.4.3 Each BCI Purchase Order shall set forth the quantity to
be purchased, the delivery date, the form, in which the Products are to be
shipped and shipping instructions.
3.5 DELIVERY - Affymetrix shall deliver the Products in the
quantities specified in the BCI Purchase Orders, FOB Affymetrix loading dock.
Affymetrix understands and accepts that BCI operates on a "just-in-time"
manufacturing system and that the delivery date specified by BCI in the
non-cancelable Purchase Order is when BCI needs the Products in-house.
Accordingly, Affymetrix will plan, manufacture, test and provide adequate
transportation time to assure that the delivery date is met. Affymetrix will
promptly communicate to the BCI Purchasing Agent any anticipated delays in
delivery so that special shipping or other arrangements can be made.
Affymetrix will be responsible [ ](9). Any disputes arising from
delivery scheduling shall, to the extent possible, be resolved by the BCI
Purchasing Agent and the Affymetrix Account Manager. Any unresolved
(9) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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disputes shall be transferred to BCI and Affymetrix Vice-Presidents for
settlement. Any disputes which have not been settled by the party's
Vice-Presidents will be resolved in accordance with Paragraph 14.2.
3.5.1 BCI is not required to accept partial shipments.
3.6 RETURN MATERIAL AUTHORIZATION - Affymetrix agrees to promptly
respond to all requests for return material authorizations and bear all freight
and insurance costs associated with either Products which do not meet
specifications or over shipments of Product.
3.7 PRODUCT PROBLEM - Each party shall promptly communicate to the
other all information which comes to its attention pertaining to adverse
reactions, product anomalies, or stability problems relative to or having a
bearing on the Products. Affymetrix shall promptly investigate and regularly
report back to BCI on its actions contemplated and taken to resolve all such
problems.
3.8 PRODUCT CORRECTIVE ACTION - BCI shall be responsible for,
coordinate and conduct any corrective action required for Products sold
hereunder to its customers. If such corrective action is caused by the failure
or fault of Affymetrix to comply with Paragraphs 3.2 or 5.1, then Affymetrix
shall replace, at no cost to BCI, all Products affected thereby and shall
reimburse BCI for collection of the defective Product and shipment of
replacement Product.
3.8.1 Each party shall retain samples of each quantity of
Products sold hereunder. The number of samples retained shall be specified by
BCI prior to Affymetrix establishing the Target Price and the conditions of
storage shall be specified by the current labeling of the Products and shall be
used to determine if any product failures or product corrective actions are the
result of a failure of Affymetrix to conform with the requirements of
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Paragraphs 3.2 or 5.1 or the result of an Affymetrix design or manufacturing
defect and thus the responsibility of Affymetrix or a storage or handling defect
and thus the responsibility of BCI.
3.9 PURCHASE AND SALE FORMS - Any terms and conditions on either a BCI
Purchase Order or an Affymetrix Order Acknowledgment or any other document
relating to the purchase, sale or transfer of Products between the parties which
are in conflict with any of the terms of this Agreement shall be null and void
and without legal effect.
3.10 TECHNICAL LITERATURE AND MARKETING ASSISTANCE - Affymetrix shall
supply BCI with copies of all current and hereafter developed published
technical literature relative to the Products. BCI may freely copy such
literature, in whole or in part, without royalty or payment to Affymetrix
therefor and may use such copies only in conjunction with its sale and customer
support of the Products. BCI shall, prior to using such copied literature,
obtain Affymetrix approval to the copy, graphics and format of such copied
literature, which approval shall not be unreasonably withheld or delayed.
3.11 PROGRAM MANAGER - Each party shall appoint a Program Manager who,
except for notices under Article 6.0, shall be the source of all communications
from, and the addressee of all communications to, such party relative to the
Products. The Program Managers shall meet from time to time, not less than
semi-annually, to discuss each party's performance and resolve any differences.
ARTICLE 4.0 PRICING AND PAYMENT
4.1 PRICING - Subject to Paragraph 4.2, the transfer price from
Affymetrix to BCI or each Product shall be that specified in the Affymetrix
offer of Article 2.0.
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4.2 PRICE CHANGES [ ].(10)
4.3 PRICE FOR PRODUCTS USED IN INTERNAL TESTING - Notwithstanding
anything in this Agreement to the contrary, the prices charged by Affymetrix for
Products to be used by BCI for application to the BCI System validation, systems
integration or other internal or quality control testing shall be [ ].(11)
BCI shall identify or its Purchase Order the quantity of Products required
for the foregoing purposes and subject to the prices of this Paragraph 4.3
and certify that such Products are for internal purposes only.
4.4 PAYMENT TERMS - BCI shall pay each Affymetrix invoice for Products
within thirty (30) days of the latter of receipt of the Products or the invoice.
4.5 INVOICE INFORMATION - Affymetrix will include the following
information on all invoices and packing slips: (i) Purchase Order number
including the alpha character prefix, (ii) line item number, (iii) release
number, and, on invoices, the packing slip number. Affymetrix understands and
agrees that failure to comply with these requirements may delay payment.
ARTICLE 5.0 QUALITY ASSURANCE AND COMPLIANCE WITH LAWS
5.1 WARRANTY - Subject to the next sentence, Affymetrix warrants
that the Products are upon receipt by Beckman and shall be for a period of
not less than [ ](12) thereafter [ ](13) and [ ](14).
Affymetrix will use reasonable commercial efforts to
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(10) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(11) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(12) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(13) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(14) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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increase the period of the warranty to [ ].(15) Affymetrix shall use
reasonable commercial efforts to [ ](16). Affymetrix' sole obligation
under this warranty is limited to [ ](17).
I. THE FOREGOING WARRANTY SHALL BE IN LIEU OF ANY
OTHER WARRANTIES EXPRESS OR IMPLIED, RESPECTING
THE PRODUCTS SUPPLIED HEREUNDER, INCLUDING, BUT
NOT LIMITED TO, ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. IN NO CASE SHALL AFFYMETRIX BE LIABLE FOR
CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM
OR IN ANY WAY CONNECTED WITH THE WARRANTY OF THIS
PARAGRAPH 5.1.
5.1.1 Affymetrix, subject to the next sentence hereof,
warrants that the Products do not infringe [ ](18) owned by a third
party and not licensed to Affymetrix. The foregoing warranty shall not apply
(a) to a Product wherein BCI specified the Gene or Genes to be incorporated
and it is the Gene or Genes which infringe, or (b) to a Product wherein BCI
specified a change in the design or structure of the Product and but for the
BCI specified change the Product would not infringe, or (c) to a Product
which, in and of itself, does not infringe but only that Product in
combination with something not provided by Affymetrix which infringes.
5.2 QUALITY TESTING - Affymetrix agrees to and shall, prior to shipment
of any of the Products sold hereunder, perform each of the quality tests on such
Products to be hereafter agreed by the parties and attached to this Agreement as
Exhibit B. Affymetrix shall provide a
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(15) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(16) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(17) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(18) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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Certificate of Analysis in a form mutually agreed upon by the parties specifying
conformance to the preceding sentence and the numerical or other results of such
testing.
5.3 RECEIPT AND ACCEPTANCE - BCI may reject any shipment of Products
that does not conform to the warranty of Paragraph 5.1
5.4 GOOD MANUFACTURING PRACTICES - Affymetrix represents and warrants
that it will at all times under this Agreement use commercially reasonable
efforts to comply with U.S. FDA good manufacturing practices then in effect and
conform to all other applicable statutes and regulations. BCI may, from time to
time, upon not less than five (5) days prior written notice to Affymetrix
inspect the Affymetrix facilities where the Products are being manufactured
and/or stored.
5.5 QUALITY GOAL - BCI's quality goal is to receive, and Affymetrix'
quality goal is to supply, defect-free material. Accordingly, the parties agree
to a "zero-defect" objective. Affymetrix understands BCI's supplier philosophy
and quality supplier principles, and accepts those principles as the basis of
the relationship between Affymetrix and BCI. Affymetrix and BCI agree to
communicate openly and to work together on quality programs to achieve long-term
success for the businesses involved. Meetings to review progress will be held.
This Paragraph 5.5 is not intended to impose on either party any legal
obligations additional to those imposed by the other sections of this Agreement.
It is intended simply to recognize the quality focus on which the parties'
business relationship is based.
5.6 MSDS - Affymetrix shall, if required by law, provide Material
Safety Data Sheets for the Products, as required by 29 CFR 1910.1200.
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5.7 REGULATORY APPROVAL - Affymetrix shall assist BCI in obtaining any
regulatory approvals required to make, use and/or sell diagnostic products made
from or with the Products. Such assistance shall be at BCI's expense and
include, but not be limited to, providing such information and data relative to
the Products as may be requested or required by any governmental agency or body.
ARTICLE 6.0 RIGHTS TO BECKMAN
6.1 EXCLUSIVE SELLER AND DISTRIBUTOR - Affymetrix hereby appoints BCI,
and BCI accepts appointment, as Affymetrix' sole and exclusive seller and
distributor throughout the world of the Products for use on BCI Systems. Nothing
in the preceding sentence or this Agreement shall prevent Affymetrix from
selling Array Chips identical to Products for use on Affymetrix systems or
instruments or the instruments or systems of a third party.
6.2 RESTRICTIONS ON AFFYMETRIX - Affymetrix will not knowingly, after
exercising due caution, care and diligence, and undertaking reasonable inquiry,
sell any Array Chips to an end user who will use such Array Chips on a BCI
System. Similarly, Affymetrix will proactively and regularly inform each of its
dealers and distributors of Affymetrix Array Chips that such Array Chips should
not be sold to an end user who will use such Array Chips on a BCI System.
ARTICLE 7.0 CONFIDENTIALITY
7.1 CONFIDENTIALITY - Each party shall maintain in confidence (with the
same level of care as the receiving party uses to safeguard its own highly
confidential and proprietary information, but no less than a reasonable level of
care) any information received during the term of this Agreement from the other
party in written or graphic form or other tangible medium of expression that is
marked confidential. Neither party shall copy nor publish, disseminate nor
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disclose such information to any third party or use such information except for
the furtherance of the specific purposes of this Agreement without the express
written permission of such other party. Subject to the next sentence, the
foregoing obligations of confidentiality and non-use shall continue for five (5)
years after the expiration of this Agreement. The obligation of the first two
sentences shall not apply to any information which is: (a) now or hereafter
comes into the public domain, or (b) which is already in the possession of the
receiving party other than as a result of having received it from the disclosing
party and as shown by written records, or (c) is brought to the receiving party
by a third party who does not require that it be maintained confidential or (d)
is independently developed by the receiving party without use of or access to
the information of the disclosing party. Information shall not be deemed to be
in the public domain or in the receiving party's possession merely because it is
embraced by more general information in the public domain or the receiving
party's possession or merely because individual items of the information are in
the public domain or the receiving party's possession. Upon termination of this
Agreement, each party shall, at the other party's request, destroy or return to
such other party all copies of such information; provided that, counsel for each
receiving party may retain one (1) copy of such information solely for the
purpose of monitoring such party's obligation of confidentiality under this
Agreement.
7.2 OBLIGATIONS OF RECEIVING PARTY - Each party agrees that it shall,
at its sole cost, take all measures (including but not limited to court
proceedings) to restrain its officers, employees, directors and agents from
unauthorized use or disclosure of the Information.
7.3 INJUNCTION - Each party, acknowledges and agrees that money damages
would not be a sufficient remedy for its breach of this Article 7.0 and that the
disclosing party shall be entitled to equitable relief including injunction and
specific performance as a remedy for any such
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breach. Such remedies shall not be deemed the exclusive remedy for the receiving
party's breach but shall be in addition to all other remedies available to the
disclosing party. Article 14.0 shall not be a limitation on the remedies
available to the disclosing party for a breach by the receiving party of this
Article 7.0.
ARTICLE 8.0 THIRD PARTY PATENTS
Subject to the next sentence hereof, Affymetrix agrees to and shall
defend, indemnify and hold BCI and its customers harmless, including
attorneys fees necessary to consider, advise and defend, from and against any
suit, proceeding, claim or loss and any damages or penalties awarded or
agreed to therein so far as such suit or proceeding is based upon an
assertion that the use or sale of Products purchased under this Agreement
constitutes an infringement of [ ](19). The foregoing indemnity shall
not apply (a) to a Product wherein BCI specified the Gene or Genes to be
incorporated and it is the Gene or Genes which infringe, or (b) to a Product
wherein BCI specified a change in the design or structure of the Product and
but for the BCI specified change the Product would not be alleged to
infringe, or, (c) to a Product which, in and of itself, is not alleged to
infringe but only that Product in combination with something not provided by
Affymetrix is alleged to infringe. If a Product is, in such suit or
proceeding, held to infringe and its further use or sale is enjoined
Affymetrix shall, at its sole cost and expense, either (1) procure for BCI
and its direct and indirect customers, the right to continue using and
selling such Product, (2) replace the same with a non-infringing equivalent,
or (3) modify such Product so that it becomes non-infringing. Affymetrix will
be responsible for and manage all court proceedings on behalf of BCI for
claims made under this Paragraph. BCI shall assist Affymetrix
(19) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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at Affymetrix' cost in any reasonable way in handling court proceedings.
Affymetrix has the right on behalf of BCI to settle claims brought under this
Paragraph by third parties.
ARTICLE 9.0 HOLD HARMLESS
9.1 HOLD HARMLESS - Affymetrix agrees to and shall defend, indemnify
and hold BCI, its employees, agents and officers harmless, including
attorneys fees necessary to consider, advise and defend, from and against any
suit or proceeding alleging injury to persons, including death, or property
and any liability, damages or penalties awarded therein and resulting from
and arising out of [ ](20). of Products prior to receipt thereof by BCI.
BCI agrees to and shall defend, indemnify and hold Affymetrix, its employees,
agents and officers harmless, including attorneys fees necessary to consider,
advise and defend, from and against any suit or proceeding alleging injury to
persons, including death, or property and any liability, damages or penalties
awarded therein and resulting from or arising out of [ ](21). Neither
party will settle a claim from a third party without the prior written
consent of the other party hereto. Each indemnifying party will be
responsible for and manage court proceedings on behalf of the indemnified
party on claims brought by a third party under this Paragraph. The
indemnified party shall assist the indemnifying party at the indemnifying
party's cost in any reasonable way in handling court proceedings. The
indemnifying party has the right on behalf of the indemnified party to same
claims from third parties brought under this Paragraph.
9.2 INSURANCE - Each party shall at all times during the term of this
Agreement self insure for, or purchase and maintain, comprehensive general
liability insurance including products liability, contractual liability and
broad form property damage with combined single limits for
(20) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(21) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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bodily injury and/or death and property damage of [ ](22) for any one
occurrence. Such insurance shall also require thirty (30) days' prior written
notice of cancellation or material change in coverage. The insurance to apply to
any claim will be governed by Paragraph 9.1 and with respect to a party's
indemnification obligations thereunder, provide that such insurance is primary
without right of contribution from any other insurance which might otherwise be
available to the insured party and provide that in the event of loss payment
under a policy the insurer shall waive any rights of subrogation against the
insured party and shall waive any set-off or counterclaim or any other deduction
whether by attachment or otherwise as respects the activities under this
Agreement or any other agreement between the parties.
ARTICLE 10.0 TERM AND TERMINATION
10.1 TERM - the term of this Agreement shall be ten (10) years from the
effective date identified on Page 1.
10.2 TERMINATION FOR CAUSE - Should either party be in default as to
any material term of this Agreement and fail to remedy same within forty-five
(45) days after receipt of written notice of such default by the non-defaulting
party, then the non-defaulting party shall have, in addition to all other
remedies available at law or in equity, the right to terminate this Agreement
upon delivery of written notice of termination to the defaulting party, provided
that:
(a) Such notice specifies with particularity the basis for
such default.
(b) Such termination shall only relieve the parties of
obligations which would have arisen under this Agreement after the effective
date of termination and shall in no way relieve the parties from any obligations
existing on the date of such termination.
(22) CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
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(c) The failure of the non-defaulting party to terminate this
Agreement for any cause shall not constitute a waiver of such right in the
future as to any subsequent default.
ARTICLE 11.0 NOTICES
All notices provided for in this Agreement shall be in writing and
shall be considered delivered when they are personally delivered or are sent by
facsimile, with acknowledgement of receipt in good order requested and received,
or deposited in the mail, registered first class, postage prepaid, or sent by
DHL, Federal Express or similar overnight carrier, addressed to the respective
parties as follows:
If to Beckman: Xxxxxxx Xxxxxxx, Inc.
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: President
with a copy to: Xxxxxxx Xxxxxxx, Inc.
0000 Xxxxx Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
Attention: General Counsel
If to Affymetrix: Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
Affymetrix, Inc.
0000 Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
ARTICLE 12.0 SEVERABILITY
12.1 INVALID OR UNENFORCEABLE PROVISIONS - In the event a court of
competent jurisdiction holds any provision of this Agreement to be invalid or
unenforceable, such holding shall have no effect on the remaining provisions and
they shall continue in full force and effect.
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12.2 CONFLICT WITH APPLICABLE STATUTE - If any of the provisions of
this Agreement are in conflict with any applicable statute or rule of law, then
such provisions shall be deemed inoperative to the extent that they conflict
therewith and shall be deemed to be modified so as to conform with such statute
or rule of law.
12.3 EFFECT AND REMEDIES - In the event that the provisions of this
Agreement are materially altered as a result of Paragraphs 12.1 and 12.2, the
parties will renegotiate the affected terms and conditions to resolve any
inequities.
ARTICLE 13.0 ASSIGNMENT
Neither party shall assign this Agreement to another without the prior
written consent of the other party; provided, however, that either party may
assign this Agreement to an Affiliate or a successor in ownership of all or
substantially all of the business assets of the party seeking to assign this
Agreement. Any other purported assignment shall be void. This Agreement shall be
a binding obligation of the heirs, successors and permitted assigns of all the
right, title and interest of either party hereto.
ARTICLE 14.0 LAW GOVERNING AND CONSTRUCTION
14.1 GOVERNING LAW - This Agreement shall be governed by and construed
in accordance with the laws of California, without regard to the conflicts of
laws provisions thereof. Both parties agree to use their best efforts in a good
faith attempt to settle as promptly as possible any and all disputes arising
from transactions pursuant to this Agreement, but failing an amicable
settlement, such disputes shall be decided in accordance with Paragraph 14.2.
14.2 MEDIATION AND ARBITRATION - Except for breaches or anticipated
breaches of Article 7.0, any controversy or conflict involving this Agreement,
its interpretation or the
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respective rights or obligations of the parties shall first be submitted to
their respective Vice-Presidents for resolution. If they cannot agree, the
controversy shall be submitted to mediation to be held in a mutually agreeable
neutral place. If the parties still cannot settle the controversy or reach an
accommodation, the matter shall be submitted to binding arbitration to be
conducted in California at a location to be mutually agreed in accordance with
the following rules:
(a) there shall be a panel of three (3) arbitrators, all of
whom shall be lawyers and at least two (2) of which shall be competent to fully
understand the technology relating to the Products and BCI Systems. If the
parties cannot agree on the selection of the three (3) then each shall pick one
(1) arbitrator and the two (2) so chosen shall select the third.
(b) All disputes which are not specifically raised by the
parties in the arbitration process shall be forever waived.
(c) The arbitration proceeding shall be governed by (i) the
rules and understandings set forth in this Paragraph 14.2 or as hereafter agreed
upon in writing by the parties, and (ii) to the extent not inconsistent with
such rules and understandings, by the Commercial Arbitration Rules of the
American Arbitration Association.
(d) The parties agree to refrain from filing a lawsuit with
regard to any aspect of their controversy and to abide by and perform any award
rendered by the arbitrators. The parties further agree that a judgment of a
Court having jurisdiction may be entered upon the award and an execution may be
issued for its collection.
(e) At least two (2) of the panel of arbitrators must agree on
each point in controversy for an award to be rendered.
(f) The arbitration hearing shall be convened within
forty-five (45) days of request therefor by either party. The request shall be
in writing and sent in accordance with
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Article 11.0. The hearing shall be limited to three days: Each party shall have
a maximum of eight (8) hours to put on its main case and four (4) hours for
rebuttal. Neither party shall engage in extended cross-examination or other
tactics which have the effect of substantially altering this allocation.
(g) The parties agree to exchange all documents they intend to
produce at the hearing at least thirty (30) days in advance of taking of
depositions, serving of interrogatories or any other form of discovery and
neither party may compel the appearance of the other party's employees,
officers, directors or consultants.
(h) The arbitrator's decision must be rendered within thirty
(30) days after completion of the arbitration hearing.
(i) A transcript may, at the option of the parties, be made.
Either party may, at its expense, tape record or video tape the proceedings.
(j) All applicable common law or statutory privileges such as
attorney-client or attorney work product shall be applicable to the arbitration
proceedings.
(k) Either party may, at its option, use prepared testimony as
long as the witness whose testimony is so presented is available to the other
party for cross-examination.
(l) Each party shall bear its own expenses for the arbitration
and they shall each share equally in the expenses and fees of the arbitration
panel.
14.3 MUTUALITY - This Agreement has been drafted after considerable
negotiation by the parties and on the basis of mutual understanding; neither
party shall be prejudiced as being the drafter thereof.
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ARTICLE 15.0 PUBLIC STATEMENTS
Neither party shall make any public announcement or authorize or author
any statement to the press regarding this Agreement or any of its terms or
conditions of the relationships between the parties created by this Agreement
without the prior written permission of the other party. The terms and
conditions of this Agreement shall be maintained as confidential in accordance
with Article 7.0 hereof.
ARTICLE 16.0 FORCE MAJEURE
Each of the parties hereto shall be excused from the performance of its
obligations under this Agreement in the event performance is prevented by Force
Majeure. For purposes of this Agreement, Force Majeure is defined as a cause
beyond the control of the effected party, including but not limited to acts of
God, acts, laws or regulations of any government, civil disorder, strikes,
destruction of production facilities or material by fire, water, earthquake or
storm, epidemics and failures of public utilities or common carriers. The party
incurring a Force Majeure condition shall notify the other party that such
condition exists within five (5) days of the time such party learns of such
condition. Should such Force Majeure condition continue for forty-five (45) days
after such notice, the non-affected party may, at its option, terminate this
Agreement.
ARTICLE 17.0 RELATIONSHIP CREATED
The relationship created by this Agreement shall be strictly that of a
supplier and purchaser. Neither party is hereby constituted an agent or legal
representative of the other party for any purpose whatsoever. Neither party is
granted any right or authority hereunder to assume
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or create any obligation, express or implied, or to make any representations,
warranties or guarantees on behalf or in the name of the other party, except to
the extent that such right or authority, or such representations, warranties or
guarantees are expressly provided for in this Agreement.
ARTICLE 18.0 ENTIRE AGREEMENT, MODIFICATION
18.1 ENTIRE AGREEMENT - This instrument contains the entire and only
agreement between the parties respecting the subject matter hereof and
supersedes all previous negotiations, representations, understandings, promises
or conditions, both written and oral, heretofore made between the parties with
respect to the subject matter hereof.
18.2 MODIFICATION - No waiver, alteration or modification of this
Agreement shall be valid unless made in writing and signed by a duly authorized
representative of BCI and Affymetrix.
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IN WITNESS WHEREOF, the parties hereto have signed this Agreement by
their duly authorized representatives as of the day and year first written
above.
Xxxxxxx Xxxxxxx, Inc. Affymetrix, Inc.
By: By:
----------------------------- --------------------------------
Date: July 31, 1998 Date: 31 July 98
