Service Provider Agreement
Exhibit
10.50
Certain
confidential information contained in this document, marked by brackets and
the
word “Redacted” ([REDACTED]), has been omitted and filed separately with the
Securities and Exchange Commission pursuant to Rule 24b-2 promulgated under
the
Securities Exchange Act of 1934, as amended.
Service
Provider Agreement
This
Agreement (the “Agreement”) is entered into by and between Affymetrix, Inc.,
having its principal place of business at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx,
XX 00000 (“Affymetrix”) and Gene Logic Inc. (“Gene Logic”), having its
principal place of business at 000 Xxxxxxxxxxxx Xxxxx, Xxxxxxxxxxxx, XX,
00000, XXX, each a “Party,” and together the “Parties” to this
Agreement.
Affymetrix
is pleased to enter into a relationship which will allow Gene Logic to
exploit the unique capabilities of Affymetrix’ GeneChip® technology.
Affymetrix looks forward to working with Gene Logic to ensure that the
GeneChip products purchased under this agreement will enable Gene Logic to
provide great benefits to its customers.
Therefore,
the Parties hereby agree as follows:
1. Definitions.
The
following capitalized terms used herein shall have the following
meanings:
a)
“2002
Agreement” means the Amended and Restated Agreement between the Parties
effective as of January 1, 2002.
b)
“Affiliates” means any corporation, company, partnership, joint venture and/or
firm which is controlled by or controls a Party or is under common control
with
a Party, but only for so long as such Affiliate remains an Affiliate of a Party,
and only if such Affiliate is bound by the terms of this Agreement. For purposes
of this Section, “control” shall mean, in the case of corporations (or
equivalents of corporations), direct or indirect ownership of more than 50%
of
the stock having the right to vote for directors of such corporation or, in
the
case of partnerships, more than 50% of the ownership interest in such
partnership.
c)
“Database” shall mean a collection of data derived from Probe Arrays and
licensed or otherwise made available by Gene Logic or a third party to multiple
unrelated parties in whole or in part for use in analysis or otherwise to derive
additional information.
d)
“GeneChip Products” means all Probe Arrays and the related kits and reagents
currently available for sale as listed on Exhibits
2-5
and any
other kits, reagents or other consumable products now or hereafter generally
offered for sale by Affymetrix and any custom Probe Arrays available through
the
programs specified in the definition of Probe Array.
e)
“HTA
Agreement” means the agreement between the Parties dated June 21, 2005 that
covers, among other things, the sale to and use by Gene Logic of HTA
Products.
f)
“HTA Products” means the high throughput GeneChipHT array plates (including but
not limited to Rat Plates as hereinafter defined and plates for human arrays)
sold by Affymetrix and related reagents, kits, instruments and software sold
by
Affymetrix for use with such plates. Such plates are currently offered in 24
or
96 well formats with each well constituting an array, but HTA Products includes
any format in which such plates are hereafter sold by Affymetrix. “HTA
Instruments” means any instruments or other equipment sold by Affymetrix for use
with HTA Products, including the Instrumentation as defined in the HTA
Agreement.
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g)
“Instruments” means any instruments or other equipment sold by Affymetrix for
use with GeneChip Products.
h)
“Internal R&D” means using GeneChip Products, for (a) internal research,
testing, validation, or training at Gene Logic, (b) product or service
development, including use for generating data for inclusion in Databases to
be
offered for license or sale, and (c) research projects involving collaboration
with one or more customers or other third parties.
i)
“Internal R&D Pricing” has the meaning defined in Section 4(a) of this
Agreement.
j)
“Marks”
means the trademarks, service marks, logos and tradenames owned or controlled
by
each Party.
k)
“Net
Sales” has the meaning as defined in Section 2.15 of the 2002
Agreement.
l)
“Probe
Array” means a solid support having an array of polynucleotides with known
location and sequence fabricated by or for and sold by Affymetrix for use in
expression analysis and genotyping and shall include all probe arrays generally
offered by Affymetrix for commercial sale during the Term as well as arrays
available through Affymetrix’ current CustomExpress®, NimbleExpress™ and
Made-to-Order programs, as well as resequencing arrays available through
Affymetrix’ current CustomSeq® program, including those now available as
indicated on Exhibits
2-5.
Such
arrays must be purchased in whole wafer increments unless otherwise indicated
in
Exhibits
2-5.
All
other custom arrays/array designs will be mutually agreed to in writing between
the Parties in advance. However, the term Probe Array, as used herein, shall
not
include HTA Products.
m)
“Purchase Commitment” means the commitment to purchase a certain value
of Affymetrix products and services as specified in Section 5
hereof.
n)
“Rat Cartridge Arrays” has the meaning defined in Section 5(e)(i) of this
Agreement.
o)
“Rat Plates” means the high throughput GeneChipHT array plates as further
defined in Section 5(e)(i) of this Agreement. Such Rat Plates are currently
provided in 96- or 24-well formats with each well constituting an array, but
Rat
Plates includes any format that Affymetrix offers for sale during the
Term.
p)
“Royalties” means royalties on database licenses as specified in Sections 5.4
and 5.5 of the 2002 Agreement.
q)
“Services” means the use of GeneChip Products in generation of data that will be
provided to a third party for a service fee. Services shall include data
developed by Gene Logic and/or its Affiliates for a third party for such third
party’s use. Services may include “Data Generation Services,” in which samples
are processed to obtain data for a third party, and “Analysis Services,” in
which Gene Logic may provide analysis services using its data or data obtained
from a third party or from processing samples provided by Gene Logic or the
third party. Services shall not include activities classified hereunder as
Internal R&D.
r)
“Software” means any software installed on an Instrument or HTA Instrument or
otherwise made available by Affymetrix for use with GeneChip Products and HTA
Products.
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s)
“Term”
has the meaning defined in Section 11 of this Agreement.
2. Reduced
Probe Array Pricing for Services.
a)
During the Term, Gene Logic shall be entitled to purchase Probe Arrays to
provide Services pursuant to the Agreement for Gene Logic’s [REDACTED] customers
pursuant to the [REDACTED] price sheet attached hereto as Exhibit
2;
for each
of Gene Logic’s [REDACTED] customers [REDACTED] pursuant to the [REDACTED] price
sheet attached hereto as Exhibit
3;
and for
Gene Logic’s other [REDACTED] customers (for which Gene Logic is not authorized
to use the [REDACTED] price sheet) pursuant to the [REDACTED] price sheet
attached hereto as Exhibit
4,
as such
price sheets for each Tier are updated by Affymetrix from time to time to
include new Probe Arrays that Affymetrix begins to generally offer for
commercial sale during the Term. Gene Logic may provide Services hereunder
to
its customers located in all countries.
b)
Gene Logic may use Probe Arrays purchased at a certain Tier price to provide
Services to a customer falling into a different pricing Tier or use such Probe
Arrays for Internal R&D, provided that if the Probe Arrays are used for a
higher priced Tier (e.g.,
[REDACTED]
Probe
Arrays used for providing Services to an [REDACTED]
customer)
(i) Gene
Logic identifies such alternate use in the quarterly reports made to Affymetrix
pursuant to Section 7, and (ii) pays to Affymetrix with such quarterly report
the difference between the Tier for which such Probe Arrays were purchased
and
the price applicable to the reported Tier in which the Probe Arrays were
actually used. If any Probe Arrays are purchased at a Tier price which is higher
than the Tier for which the Probe Arrays are actually used, Gene Logic will
not
be entitled to any reduction or credit based on such use in a lower priced
Tier.
a)
During
the Term, Gene Logic may provide Services to Affymetrix customers and such
customers may purchase GeneChip Products directly from Affymetrix, have such
GeneChip Products shipped directly to Gene Logic only for use in Services for
such Affymetrix customer, and Affymetrix will directly invoice its customer
for
such GeneChip Products. Alternatively, customers may ship GeneChip Products
previously purchased from Affymetrix directly from the customer to Gene Logic
only for use in Services for such Affymetrix customer, provided that any
GeneChip Products obtained by Gene Logic from other Affymetrix customers will
be
governed by the terms applicable to the customer from which such
GeneChip Products were obtained. Affymetrix will release its transfer
restrictions for such third parties to permit such delivery of GeneChip Products
to Gene Logic for use in the performance of such Services by Gene Logic for
such
third parties and will confirm such release to any third parties requesting
such
confirmation.
b)
During
the Term, Affymetrix may at its discretion extend to Gene Logic, on a
project-by-project basis, GeneChip Product pricing [REDACTED]. Gene Logic agrees
to protect such information pursuant to Section 17 (Confidentiality) of the
Terms and Conditions (as defined below). For clarity, and without limiting
the
foregoing, Gene Logic agrees not to disclose any aspect of [REDACTED] prices
for
GeneChip Products with any other Affymetrix customer or any other party, except
as required by law (provided that Gene Logic has provided Affymetrix with prior
notice of such disclosure, to the extent reasonably practicable).
4.
Reduced
Probe Array Pricing for Internal R&D and Pricing for other GeneChip
Products, Instruments and Software.
a)
During
the Term, Gene Logic shall be entitled to purchase GeneChip probe arrays for
its
own Internal R&D activities (excluding Services), in accordance with the
terms and conditions of this Agreement, pursuant to the price sheet
attached hereto as Exhibit
5
(“Internal R&D Pricing”). For clarity, Gene Logic shall not
use products purchased at Internal R&D Pricing to provide a
fee-for-service or other non-collaborative sample processing service to one
or
more third parties unless it reports such use and pays the additional
amount required under Section 2(b). In addition, for purposes of the adjustment
in pricing based on the use as described in Section 2(b), all of Gene Logic’s
unused inventory of Probe Arrays as of December 31, 2005 shall be deemed to
have
been purchased at Internal R&D Pricing, and, if used in 2006 for a use that
would fall under another pricing Tier, Gene Logic will pay the additional amount
as determined pursuant to Section 2(b) for such use.
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b)
During
the Term, Gene Logic shall be entitled to purchase reagents and kits,
for use for all purposes for which it is otherwise permitted to buy and use
Probe Arrays under this Agreement, pursuant to the Internal R&D
Pricing as described in Exhibit
5
and shall
not be obligated to pay to Affymetrix any additional price for such products
for
use in any other pricing Tier.
5. 2006
Purchase Commitment; No 2006 Access Fee; Waiver of Database
Royalties.
a)
In
exchange for the reduced Probe Array pricing set forth above and other benefits
provided to Gene Logic hereunder, Gene Logic agrees to spend at least Seven
Million Six Hundred Twenty-Five Thousand U.S. Dollars ($7,625,000.00) with
Affymetrix during 2006 toward the purchase from Affymetrix of Affymetrix
products, including GeneChip Products and Instruments, the HTA Products and
HTA
Instruments, Software and services (including but not limited to
instrument services, service contracts and software and instrument maintenance
agreements), and to accept shipment and performance of all such products
and services during calendar year 2006 (the “Purchase Commitment”). If Gene
Logic orders commercially launched GeneChip Products, HTA Products or other
Affymetrix products in 2006 on or before December 15, 2006 for current
delivery or orders services from Affymetrix for current performance before
December 15, 2006 and Affymetrix is unable to ship such products or perform
such services in 2006, then such products and services shall be
deemed to have been purchased in 2006 even though such products are
actually not shipped or services performed in 2006, and the price therefor
shall
be counted in determining if and the extent to which Gene Logic met its Purchase
Commitment for 2006, provided that Gene Logic has (i) acted in good faith,
communicated timely and reasonably accurate forecasts, based on orders
it has received from its customers, on a consistent basis during 2006 and
otherwise worked with Affymetrix to assist Affymetrix in Affymetrix’ planning
and resource allocation for the production and delivery of the products and
services ordered, (ii) used commercially reasonable efforts to avoid
large spikes in purchase volumes near the end of the year, and (iii) used
commercially reasonable efforts not to expect shipment of products or
performance of services in 2006 that, based on Affymetrix statements known
to
Gene Logic or statements that Gene Logic can reasonably be expected to know
based on Affymetrix’ public statements, it knows or has reason to know
Affymetrix will not be able to ship or perform in 2006. For new or
renewed annual or other periodic service and maintenance contracts covering
2006
or a portion thereof, if the fees for such contract are paid in 2006, then
such
payment will count toward meeting the Purchase Commitment (it being understood
that any prepayment for service or maintenance contracts that do not cover
at
least a portion of 2006 shall not count toward the Purchase
Commitment).
b)
Gene
Logic shall not be required to pay any annual access/subscription fee to
Affymetrix under this Agreement. Within five (5) business days after November
30, 2006, Affymetrix shall provide to Gene Logic a summary of the amounts spent
through November 30, 2006 that qualify toward meeting the Purchase Commitment
and, if there is any difference in opinion as to such amount, the Parties shall
work together to promptly reconcile such difference. If Gene Logic fails
to meet the Purchase Commitment for 2006 during 2006, Affymetrix shall notify
Gene Logic in writing within ten (10) business days after the end of 2006 of
the
amount by which Gene Logic failed to meet its Purchase Commitment and, as
Affymetrix’ sole and exclusive remedy, Gene Logic shall then pay to Affymetrix
within thirty (30) days after its receipt of notice from Affymetrix the
difference between the Purchase Commitment and the amount actually purchased
in
2006 and, when such payment is made, Gene Logic shall be deemed to have met
its
Purchase Commitment.
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c)
Gene
Logic shall not be required to pay any royalties to Affymetrix under this
Agreement. Notwithstanding the foregoing, Gene Logic shall remain obligated
to
promptly pay to Affymetrix Royalties that otherwise would become due on database
licenses and payable under the 2002 Agreement, pursuant to Section 5.4 of such
agreement, for “Net Sales” on “Databases” (as defined in such agreement)
accruing on or before 12/31/2005. However, the Parties have hereby agreed that
no Royalty shall be payable to Affymetrix for licenses issued during [REDACTED]
for Gene Logic’s [REDACTED] System. Provided that Gene Logic achieves the
Purchase Commitment or pays to Affymetrix the difference between the Purchase
Commitment and the amount actually purchased in 2006, pursuant to Section 5(b)
above, Gene Logic shall not be required to pay to Affymetrix Royalties that
otherwise would become due on database licenses and payable under the 2002
Agreement for Net Sales on Databases accruing after 12/31/2005. For
clarity, this paragraph shall not be construed as conveying, by implication,
estoppel or otherwise, or expanding to the scope of, any right or license to
Gene Logic under any patent right of Affymetrix.
d)
The Purchase Commitment has been made in part because the Parties have hereby
agreed that (i) Gene Logic may use the HTA Products to perform an upgrade of
its
ToxExpress® Database licensed to its customers, subject to Section 5(e) and (f)
below, and that the data therein may be used in other systems licensed or
otherwise provided by Gene Logic to customers where such systems are dependent
on that ToxExpress Database and to provide Services, and (ii) Affymetrix will
cooperate with Gene Logic to use commercially reasonable efforts to make
available on a timely basis the HTA Products needed to perform and complete
such
upgrade in an orderly process during calendar year 2006.
e)
To assist Gene Logic in attempting to meet the upgrade schedule described in
Section 5(d) above, Affymetrix agrees to use commercially reasonable efforts
to
provide to Gene Logic the following, based on purchase orders from Gene Logic
(Gene Logic acknowledges that the Rat Plates are not commercially launched
as of
the Effective Date and, due to inherent risks in technology
development, that Affymetrix may not meet such schedule or the dates set forth
in Sections 5(e)(i)-(iii) below):
i) on or before [REDACTED], reasonably sufficient quantities (at
least [REDACTED] 24-well and [REDACTED] 96-well Rat Plates) of commercial
version HTA Plates featuring [REDACTED] the GeneChip Rat Genome 230 2.0
Cartridge Arrays (“Rat Plates”) to allow Gene Logic to determine in its opinion
that the [REDACTED] and [REDACTED] of the Rat Plates are [REDACTED] to those
of
the GeneChip Rat Genome 230 2.0 Cartridge Arrays (the “Rat Cartridge Arrays”),
and to establish protocols for the use of the HTA Products for the upgrade,
on
or before [REDACTED];
ii) [REDACTED] GeneChipHT Array Scanner and [REDACTED] GeneChip Array
Station robotics/liquid handling (hybridization/wash/stain) instrumentation
(in
addition to the [REDACTED] unit of each already provided under the HTA
Agreement), which HTA Instruments shall be the model commercially released
and
currently being sold by Affymetrix (including the principal components listed
on
Exhibit
8
hereto)
to be delivered to Gene Logic and installed and validated by Affymetrix in
accordance with Affymetrix’ standard Site Acceptance Test procedures and the
Instrumentation specifications set forth in Section M of the HTA Agreement,
and
accepted by Gene Logic, on or before [REDACTED], at the [REDACTED] price
[REDACTED];
5
iii)
provide basic user training with Affymetrix provided kits and arrays at Gene
Logic’s Gaithersburg, MD lab (one customer training session, typically 3-5 days
in length) included at no additional charge as part of the purchase of the
GeneChip Array Station and GeneChipHT Array Scanner, with the agreed-upon goal
of completing such training by [REDACTED]; and
iv)
beginning in the [REDACTED] and continuing in the [REDACTED] (if Gene Logic
determines, in its opinion, that the [REDACTED] of the Rat Plates are [REDACTED]
those of the Rat Cartridge Arrays as further described in Section 5(f) below),
reasonably sufficient quantities of commercial version Rat Plates that possess
the same [REDACTED] and meet the same [REDACTED] as the Rat Plates that were
used and approved by Gene Logic during the evaluation phase, it being understood
by the Parties that Gene Logic will then use commercially reasonable efforts
to
complete the majority of the ToxExpress upgrade during the third and fourth
quarters of 2006.
During
[REDACTED], Affymetrix agrees to provide the Rat Plates and HTA reagents to
Gene
Logic for this verification and upgrade at a price of [REDACTED] per array
for
the Rat Plates and [REDACTED] per well for the HTA reagent kits.
f)
During the verification phase, Gene Logic shall determine that, in its opinion,
the [REDACTED], and the [REDACTED], of the Rat [REDACTED] Plates are
[REDACTED] those of the Rat Cartridge Arrays. If Affymetrix does not meet the
deadlines set forth in Sections 5(e)(i)-(iii) above, or if on or before March
31, 2006, Gene Logic determines in its opinion that (i) such Rat Plates do
not
have such [REDACTED], or (ii) there is a substantial risk that Affymetrix will
be unable, within the time frames specified by Gene Logic, to provide on a
timely basis commercial version Rat Plates with such [REDACTED] in sufficient
quantity, then Gene Logic shall so notify Affymetrix in writing and, in any
such
event, as Gene Logic’s sole and exclusive remedy, (1) the Purchase Commitment
shall be reduced to Seven Million Five Hundred Thousand Dollars ($7,500,000),
(2) Gene Logic shall then have the option to suspend or discontinue the
ToxExpress upgrade, or to perform and complete the upgrade during calendar
year
2006 using Rat Cartridge Arrays and related labeling reagents, (3) during
[REDACTED], Affymetrix shall provide the Rat Cartridge Arrays for use in the
ToxExpress upgrade at a price of [REDACTED] per Rat Cartridge Array and
[REDACTED] per sample for the reagent kits for use with the Rat Cartridge Arrays
for the ToxExpress upgrade, and (4) during [REDACTED], Affymetrix shall use
commercially reasonable efforts to provide such Rat Cartridge Arrays and reagent
kits in sufficient quantity and in a timely manner to assist Gene Logic in
completing the upgrade in accordance with the schedule described in Section
5(d)
above.
6. Joint
Responses to RFxs.
From
time
to time during the Term, either Party may at its discretion submit detailed
proposals to the other for the Parties to collaborate on specific projects
for
third parties, and the Parties may submit joint responses to third party
requests for information/proposal/quote (RFx). Such proposals, each Party's
response thereto, and ensuing discussions between the Parties with respect
thereto shall be subject to Section 17 (Confidentiality) of the Terms and
Conditions (as defined below).
7. Reports.
6
Gene
Logic
shall deliver to Affymetrix within sixty (60) days after the end of each
calendar quarter a written report showing: (i) the country location
and type (as defined in Section 2 above) of each service customer that
received services during that quarter; (ii) the number of Probe Arrays used
in
providing Services to each such customer during that quarter, (iii) the
number of Probe Arrays used in conducting Internal R&D during that quarter,
and (iv) the number of Probe Arrays that were purchased at one pricing Tier
and
used for another purpose pursuant to Section 2(b). For avoidance of doubt,
Gene Logic shall not be obligated to identify any customer names or provide
any
other information identifying specific customers in the reports due to
Affymetrix hereunder.
a)
The
Parties acknowledge that it is in their mutual interest to ensure that Services
provided by Gene Logic that include the use of GeneChip Products are of a high
and reliable quality. Therefore, each Party agrees to use commercially
reasonable efforts to maintain a high level of quality of the GeneChip Products
and the Services provided to customers using GeneChip Products. If Affymetrix
learns of any problem with a customer involving Gene Logic Services, or if
Gene
Logic learns of any problem with a customer potentially caused by defective
GeneChip Products, the Parties agree to cooperate to resolve any such issue
in a
prompt, commercially reasonable manner.
(b)
During
the Term and for a period of two (2) years following the time at which the
relevant payment is due, Affymetrix shall have the right, upon commercially
reasonable notice, but not to exceed once per calendar year, during regular
business hours and upon ten (10) days prior notice, to have an auditing firm
acceptable to all Parties make such examination as such firm deems necessary
to
verify that Gene Logic has been paying the proper price for Probe Arrays based
on the type of use of such Probe Arrays specified in Sections 2-4 herein. In
the
event that such examination reveals a discrepancy between the amounts
payable under this Agreement and the amounts actually paid, all such
additional amounts, together with interest at the rate of one and one-half
percent (1.5%) per month, or the maximum allowed by law, whichever is less,
from
the date when such additional amounts would have been due, shall be paid to
Affymetrix within forty-five (45) days of written notice from the auditing
firm
of such discrepancy. Any such audit shall be at Affymetrix’ sole expense and
performed by a nationally recognized accounting firm. In the event that a
deficiency of more than five percent (5%) is discovered, the audit shall be
at
Gene Logic’s expense. The auditing firm conducting the examination shall be
under appropriate obligations of confidentiality to all Parties hereto such
that
(1) if no discrepancy is found between amounts payable and actually paid for
a
given contract year, the auditing firm shall report that and nothing else to
the
Parties, (2) if a discrepancy in favor of Affymetrix is found between amounts
payable and actually paid, the auditing firm shall report the amount of the
discrepancy and only those particulars necessary for the understanding of the
Parties of the nature of the overpayment, (3) if a discrepancy in favor of
Gene Logic is found between amounts payable and actually paid, the auditing
firm
shall report the amount of the discrepancy and only those particulars necessary
for the understanding of the Parties of the nature of the overpayment, and
Affymetrix shall reimburse Gene Logic within forty five (45) days of the date
it
is notified of the discrepancy, (4) any given contract year may only be audited
once, (5) in no event shall the auditing firm reveal to any Party hereto any
information it may gain during the course of the examination (i.e., to
Affymetrix the names of customers for whom Services were provided by Gene Logic)
other than as previously stated herein, and (6) in no event shall the auditing
firm reveal to any third party any information it may gain during the
course of the examination. The Parties agree that the auditing firm chosen
to
perform audits pursuant to this Section will not be compensated on a
commission-for-findings basis.
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9. Use
of
Product and Service Descriptions and Marks.
a)
Each Party recognizes that the other Party hereto has developed valuable Marks,
as listed on Exhibit
6
hereto,
and may in the future develop additional Marks. Each Party may desire to
describe the other Party as a customer (in the case of Gene Logic) or a
supplier (in the case of Affymetrix) in public marketing materials and technical
materials published by such Party for marketing purposes and to use the other
Party’s marks in such materials. Each Party may make such a general description
of the Parties’ relationship and use the other Party’s Marks to assist with such
description (i.e., to refer to or generally describe such Party’s products or
services) without the prior approval of the other Party, provided that the
description is not inconsistent with information on the other Party’s website or
current published materials and, provided further, that the use of the other
Party’s Xxxx is limited to text and is not the logo or stylized Xxxx
itself. Each Party shall allow the other Party reasonable prior review and
approval of any more detailed description of the other Party’s products or
services, and any use of the other Party’s logos or stylized Marks, in any of
its proposed marketing materials, such approval not to be unreasonably withheld
or delayed. Gene Logic will also include on its website a link to the
Affymetrix website along with a brief description of the relationship between
Affymetrix and Gene Logic that has been approved in advance by Affymetrix,
such
approval not to be unreasonably withheld or delayed.
b)
Each Party acknowledges the ownership and renown of all Marks used by the other
Party prior to this Agreement that are listed on Exhibit
6.
Each
Party will maintain a quality standard in connection with its products and
services promoted in a manner that uses the other Party’s Marks or refers to the
other Party’s products and/or services, that is at least as high as the standard
such Party maintains for any of its other comparable products or services.
Subject in all cases to the terms of Section 9(a) and this Section 9(b), each
Party hereby authorizes the other Party to use its name and Marks for the
specific purpose of identifying and/or promoting the other Party’s products and
services and identifying the manner in which such Party is involved in the
other
Party’s products or services, and for no other purpose. If, in each Party’s sole
discretion, the other Party’s use of the first Party’s Marks in marketing
materials does not meet the first Party’s trademark usage policy, the first
Party may notify the other Party of the specific objection to the use of a
specific Xxxx or Marks and, if the other Party is unable to correct its usage
to
the reasonable satisfaction of the party owning the Marks within sixty (60)
days
after receipt of such notice, such Party at its option, may terminate the right
of the other Party to use such specific Xxxx or Marks.
10. Terms
and Conditions.
The
GeneChip Products, HTA Products, Software and Instruments provided to Gene
Logic under this Agreement shall be subject to the terms and conditions
(including all Addenda) attached hereto as Exhibit
1
(“Terms
and Conditions”).
This
Agreement will become effective on and as of 01/01/2006
(“Effective Date”) and will continue in effect through 12/31/2006 (the
“Term”). If the Parties enter negotiations for an extension, renewal or
follow-on agreement for this Agreement to become effective upon expiration
of
the Term, the Parties agree that Affymetrix shall provide Gene Logic with a
draft of a renewal or extension amendment or follow-on agreement for review
and
comment at least thirty (30) days prior to expiration of the Term. If
either Party should fail to perform any obligations under this Agreement, the
other Party may give written notice to the defaulting Party calling attention
to
the default. In the event of a material breach or default, said other Party
shall have the right to terminate this Agreement upon sixty (60) days prior
written notice to said defaulting Party calling attention to the default unless
said breach or default is corrected within sixty (60) days after such notice.
Such notice shall specifically state that the non-breaching Party intends to
terminate this Agreement. Said right to terminate for default shall be in
addition to, and without prejudice to the exercise of, any other remedies
available in law or equity.
8
Upon
termination of this Agreement (except for termination by Affymetrix for
material, uncured breach or default by Gene Logic or any of its Affiliates),
Gene Logic and its Affiliates may continue to use the supply of GeneChip
Products, Instruments and Software previously purchased by Gene Logic and its
Affiliates and subject to the warranty and replacement provisions applicable
to
this Agreement.
This
Agreement and the Terms and Conditions (collectively, the “Agreement”) shall
replace and supersede any current or future purchase orders or similar forms
that are not mutually signed. If any of the terms of this Agreement
conflict with the attached Terms and Conditions, then the terms of this
Agreement shall govern. Unless otherwise defined herein, all capitalized
terms used in this Agreement shall have the meaning ascribed to them in the
Terms and Conditions.
Unless
otherwise expressly provided herein, the present Agreement also shall replace,
supersede and terminate any provisions of the 2002 Agreement, whether or not
such provisions are described in 2002 Agreement section 11.4 or elsewhere as
surviving the termination of the 2002 Agreement, including specifically, but
not
limited to 2002 Agreement sections 2, 3.7 (except with regard to any
restrictions on transfer of Probe Arrays or on use of Probe Arrays requiring
FDA
approval, for Probe Arrays received on or before 12/31/05), 3.8, 3.9, 4.1,
5.4
(except for Royalties accrued through 12/31/05), 5.5(except for Royalties
accrued through 12/31/05), 5.7(except for Royalties on Net Sales occurring
on or
before 12/31/05), 6 (except for inventions or improvements made on or before
12/31/05), 8 (except as to Confidential Information fully disclosed on or before
12/31/05), 9 (except as to Probe Arrays and other products and services provided
to Gene Logic on or before 12/31/05), 10 (except as to Probe Arrays delivered
to
Gene Logic on or before 12/31/05), 11.3 (except as to Probe Arrays purchased
by
Gene Logic on or before 12/31/05), 11.4, 12 (except as to actions based on
events occurring on or before 12/31/05 and not thereafter), 13 (except for
Sections 13.1, 13.2 and 13.3 as they relate to Probe Arrays purchased and used
on or before 12/31/05) and except for any moneys accrued and owing by Gene
Logic
to Affymetrix on or before 12/31/05 under the 2002 Agreement not yet paid and
rights of Affymetrix under the 2002 Agreement to collect such amounts
accrued.
If
these
terms are agreeable to you, please have an authorized representative
of Gene
Logic
sign
below and either fax, mail or send us an electronic copy for our
counter-signature. A fully executed copy will then be sent back to you for
your records.
AGREED
AND
ACKNOWLEDGED:
Affymetrix,
Inc.
|
|
By:
____________________________
|
By:
_____________________________
|
Name: __________________________
|
Name:
___________________________
|
Title:
__________________________
|
Title:
___________________________
|
Date:
___________________________
|
Date: ____________________________
|
9
Exhibit
1
Terms
and Conditions (Direct and Representative Sales)
1. General
These
Affymetrix, Inc. ("AFX") Terms and Conditions, all Addenda hereto (if any)
mutually agreed to by the Parties, the accompanying Service Provider Agreement
(the “Service Provider Agreement”) and any terms or conditions issued by
AFX on behalf of a third party original equipment manufacturer of a Product
(as
defined below) or component thereof with regard to such Product/component
agreed to by Buyer (collectively, the “Agreement”) shall exclusively govern AFX'
sale and license of GeneChip Products, Instruments, Software and services
(collectively, “Products” or “AFX Products”) to the purchaser (“Buyer”) all as
described in the Service Provider Agreement. If Buyer’s order of Products
pursuant to the Agreement is deemed an offer, AFX’ acceptance is expressly
conditional on Buyer’s acceptance of the terms of this Agreement; if the terms
of this Agreement are deemed an offer by AFX, Buyer’s acceptance is expressly
limited to these terms. Any additional or different terms or conditions
(preprinted or otherwise) proposed by Buyer shall not become part of this
Agreement unless AFX specifically agrees to such terms in a writing that
specifically identifies such additional or different terms. If a purchase order
or other form containing terms and conditions is used by Buyer to order Products
from AFX, AFX objects to any proposed additions or changes hereto not
specifically agreed to in writing by AFX. The mere acceptance and fulfillment
of
an order submitted by purchase order from Buyer shall not be deemed to be
acceptance by AFX or any conflicting, additional or different terms in such
purchase order. AFX may not substitute or modify Products unless Buyer has
so
specifically agreed and the Products comply with applicable AFX specifications.
Unless expressly stated otherwise in the Service Provider Agreement, all listed
prices and specifications are subject to change without notice, provided that
the prices listed in Exhibits
2-5
will not
be increased during the Term of the Service Provider Agreement. If not defined
in these Terms and Conditions, any capitalized terms used herein shall have
the
meaning defined in the Service Provider Agreement.
2. Price
Unless expressly
provided otherwise in the Service Provider Agreement or unless AFX in any
particular circumstance agrees to any lower price for any particular product,
the price(s) for the Products during the Term of this Agreement will be those
listed on the Exhibits to the accompanying Service Provider Agreement.
For
Deliveries Outside Europe:
Unless
expressly stated otherwise in the Service Provider Agreement, prices exclude
all
insurance, freight, taxes, fees, duties and levies, which shall be payable
by
Buyer.
a)
Products will be packed in AFX’ standard shipping packages. AFX or its
representative may make partial deliveries. AFX will ship new orders of Products
within [REDACTED]
days of
receipt of purchase order for such new orders (excluding Custom Probe Arrays,
which will be shipped as follows, and replacement Probe Arrays for Discretionary
Returns will be shipped as set forth in Section 9 below).
b)
Custom
Arrays.
Upon AFX confirming receipt of complete Buyer Target Sequences and related
information for each new Custom Probe Array design, AFX will use reasonable
efforts to design, lay out, produce masks, and manufacture one lot of Custom
Probe Arrays for each such custom design as follows: (i) within [REDACTED]
weeks
if
Buyer orders only one Custom Probe Array design; (ii) within [REDACTED]
weeks
for
up to [REDACTED]
custom
designs; and (iii) for more than [REDACTED]
custom
designs, according to the schedule quoted to Buyer and/or its Affiliates at
the
time they order such Custom Probe Array designs. Where Buyer and/or its
Affiliates have ordered more than one custom design, AFX reserves the right
to
provide the initial lots of Custom Probe Arrays for each such design at separate
times, at AFX’ sole discretion, subject to the maximum time periods described in
the previous sentence; in such case, the order that the initial lots of each
such design will be provided relative to such other designs and will be
determined by a priority list submitted by Buyer at the time it orders the
designs or, if no such list is submitted, in AFX’ discretion. In no event shall
AFX be obligated to supply more than [REDACTED]
custom
designs per year. Delivery times for all additional lots of Custom Probe Arrays
ordered pursuant to this letter will be quoted at the time AFX receives a firm
order for such products and shall not exceed [REDACTED]
weeks
from
the date of such order. Buyer acknowledges that implementation of any
deviations for a particular custom design may increase the time period
between order placement and delivery of Custom Probe Arrays based on any such
design. All such time extensions for a particular custom design will be
discussed with Buyer prior to start of such design. All Custom Probe Arrays
must
be ordered and purchased in whole-lot increments.
c)
AFX or
its representative will ship via carrier selected by AFX or its representative
to Buyer at 00 Xxxx Xxxxxxx Xxxx Xx., Xxxxxxxxxxxx, XX 00000, Attn: Receiving,
or to such other address as may be specified by Buyer. If shipment is delayed
at
Buyer’s request, Buyer will reimburse AFX for all reasonable costs of
storage.
(i)
For
Deliveries Outside Europe:
Tender
will be FOB
shipping point.
Title
(except for software in which case AFX shall retain title) and risk of loss
or
damage will pass to Buyer upon delivery of the Products to
the
carrier.
(ii)
For Deliveries Within Europe:
Products
shall be Delivered Duty Paid to the Buyer’s site and the Buyer will be the
importer for the Products and be responsible for paying the import VAT or
similar tax(es) within the Buyer’s country. Title (except for intellectual
property right in the software in which case AFX shall retain title) and risk
of
loss will pass to Buyer upon delivery of the Products to AFX
carrier.
10
d)
Buyer
and/or its Affiliates will advise AFX if freight insurance is desired on any
shipments of Products, and will reimburse AFX for all such authorized insurance
charges.
Buyer
shall notify AFX or its representative in writing within 20
days of
receipt of shipment of Products of any visible exterior shipment damage,
describing the damage in detail; otherwise all claims for exterior visible
damage in shipment shall be waived, but this does not affect the warranty or
remedy for defective Products set forth below.
Buyer
will
be invoiced at the time of shipment of each Product. Except as otherwise agreed
in writing by AFX, payment shall be made in full within 30 days
of the date of the invoice. Payments for Products are not subject to Buyer’s
inspection or acceptance of the Products. Undisputed late payments may incur
a
charge at the rate of one and one-half percent (1.5%) percent per month, or
the
maximum allowed by law, whichever is less. Further shipment of Products may
be
deferred until payment is received if Buyer fails to make any undisputed payment
when due and thereafter fails to cure such non-payment within ten (10) business
days after receipt of notice thereof. If Buyer’s account is more than thirty
(30) days past due and is referred to an attorney or collection agency for
collection, Buyer shall pay AFX’ reasonable expenses incurred in such collection
efforts including, without limitation, court costs and reasonable legal fees
and
expenses.
6. Unforeseen
Events
AFX
shall
not be liable for delay or failure in performance of any obligations hereunder
if performance is rendered impracticable by the occurrence of any condition
beyond the reasonable control of AFX. In the event of any such delay or failure
in performance, AFX shall promptly notify Buyer of such delay or non-performance
and the cause thereof and then shall have such additional time within which
to
perform its obligations hereunder as may reasonably be necessary under the
circumstances, provided AFX shall use commercially reasonable efforts to limit
the delay or overcome the cause of the non-performance and AFX shall have the
right, to the extent necessary in AFX’ sole reasonable judgment, to apportion
fairly among its various customers in such manner as AFX may consider equitable
the Products then available for delivery.
If
such
delay or non-performance will continue for more than one month, AFX shall
provide monthly updates as to the status of resolving the delay or
non-performance.
7. Limited
License
EXCEPT
AS
EXPRESSLY SET FORTH HEREIN, NO RIGHT TO COPY, MODIFY, DISTRIBUTE, MAKE
DERIVATIVE WORKS OF, PUBLICLY DISPLAY, MAKE, HAVE MADE, OFFER TO SELL, SELL,
USE
OR IMPORT PROBE ARRAYS OR ANY OTHER PRODUCT IS CONVEYED OR IMPLIED WITH THE
PROBE ARRAYS, REAGENTS, INSTRUMENTS, SOFTWARE OR ANY OTHER ITEMS PROVIDED
HEREUNDER. EXCEPT FOR CERTAIN PROBE ARRAYS AND REAGENTS DESIGNATED AS “ANALYTE
SPECIFIC REAGENTS” (SEE APPLICABLE PACKAGE INSERT) WHICH ARE LICENSED FOR USE AS
ANALYTE SPECIFIC REAGENTS OR RESEARCH USE, ALL PRODUCTS (INCLUDING THE PROBE
ARRAYS, INSTRUMENTS, SOFTWARE, AND REAGENTS) DELIVERED HEREUNDER ARE LICENSED
TO
BUYER FOR RESEARCH USE ONLY (I.E. INCLUDING USE FOR SERVICES AND INTERNAL
R&D AS DEFINED IN THE SERVICE PROVIDER AGREEMENT, NOT FOR DIAGNOSTIC,
PROGNOSTIC OR THERAPEUTIC USE FOR INDIVIUDAL PATIENTS). THIS LIMITED LICENSE
GRANTS BUYER THE RIGHT TO USE THE PARTICULAR PRODUCT(S), IN ACCORDANCE WITH
THE
WRITTEN INSTRUCTIONS PROVIDED THEREWITH, THAT BUYER PURCHASES FROM AFX OR ITS
AUTHORIZED REPRESENTATIVE FOR THE PROVISION OF SERVICES AND INTERNAL R&D AS
SPECIFIED IN THE SERVICE PROVIDER AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED
HEREIN, THE PURCHASE OF ANY PRODUCT(S) DOES NOT BY ITSELF CONVEY OR IMPLY THE
RIGHT TO USE SUCH PRODUCT(S) IN COMBINATION WITH ANY OTHER PRODUCT(S). IN
PARTICULAR, NO RIGHT TO MAKE, HAVE MADE OR DISTRIBUTE OTHER PROBE ARRAYS IS
CONVEYED OR IMPLIED BY THE SALE HEREUNDER OF PROBE ARRAYS, REAGENTS, INSTRUMENTS
OR SOFTWARE. FURTHERMORE, PROBE ARRAYS DELIVERED HEREUNDER ARE LICENSED FOR
ONE
(1) TIME USE ONLY AND MAY NOT BE REUSED. The Products do not have the
approval of the U.S. Food and Drug Administration (“FDA”), the Japanese Minister
of Health, Labor and Welfare (“MHLW”) or other regulatory approval. No license
is conveyed or implied for Buyer to use, and Buyer agrees not to use, the
Products in any manner requiring FDA, MHLW or similar regulatory approval or
use
the Products in any manner not expressly authorized in writing by AFX in advance
of such use. Buyer agrees not to use the Products delivered hereunder in any
clinical or other setting requiring FDA or other regulatory review or approval
except that Buyer may use the Products in clinical trials when it obtains all
required FDA or other regulatory approvals required for use in such trials.
Buyer will indemnify AFX for any claims made by or on the part of (e.g., by
the patient's relatives or an insurer) a patient arising from the use of
the Products in such clinical trials.
Notwithstanding
any other provision hereof, nothing herein is intended as a contractual
obligation precluding Buyer from using non-AFX products, such as [REDACTED],
with the
Products supplied to Buyer pursuant to the Agreement; provided however, that
AFX
makes no representations or warranties regarding any suitability of non-AFX
products for use with such Products, or vice versa, and AFX hereby
disclaims such representations and warranties. Buyer uses such non-AFX products
entirely at Buyer’s own risk and AFX shall have no liability to Buyer or any
third party in respect of such use. AFX shall not provide any support to Buyer
in respect of such use of non-AFX products. Furthermore, notwithstanding any
other provision hereof, nothing herein is intended as a contractual
obligation precluding Buyer from using Products, including AFX-offered
[REDACTED],
with
other products from third parties. Buyer agrees to indemnify the AFX Group
(as defined below) for any claims made by or on the part of a third party
arising from Buyer’s use of non-AFX products in connection with Products.
However, this paragraph shall not be construed as conveying, by
implication, estoppel or otherwise, or expanding to the scope of, any right
or
license to Buyer under any patent right of AFX.
11
8. Limited
Software License
Subject
to
the terms of this Agreement, and any license included or provided with a
particular software Product (which shall govern with respect to such software
Product in the event of conflict) AFX grants to Buyer a non-exclusive,
non-transferable (except to Affiliates and as permitted in Section 19),
non-sublicensable (except to Affiliates) license to use the software Product(s)
delivered to Buyer, on the instrument(s) provided or specified by AFX for use
with such software Product(s), in accordance with end user documentation
provided by AFX with such Product(s). Buyer may make one (1) copy of software
Products for backup purposes only. Buyer agrees not to disassemble, decompile
or
otherwise reverse engineer, or adapt or modify, any software
Product.
U.S.
Government users:
The use,
duplication, reproduction, release, modification, disclosure or transfer of
software Products, or any related documentation of any kind, including technical
data or manuals, is restricted in accordance with Federal Acquisition Regulation
12.212 for civilian agencies and Defense Federal Acquisition Regulation
Supplement 227.7202 for military agencies. The software Products are commercial
computer software and the related documentation is commercial computer software
documentation. The use of software Products and related documentation is further
restricted in accordance with the terms of this Agreement and any software
license included or provided with a particular software Product or related
documentation.
To
the
extent that AFX owns or otherwise controls, with the right to sublicense without
any obligation or accounting to any un-Affiliated third party, as of the
Effective Date or during the Term, patent rights (“Database Patent Rights”) that
are necessarily infringed by the operation, storage, querying (solely for
software provided by Buyer in conjunction with Databases) development or
commercialization of Databases developed by Buyer (the “Database Field”),
AFX hereby grants to Buyer during [REDACTED]
an
option
to negotiate with AFX for a [REDACTED]
license,
without the right to sublicense, under any such patent rights to [REDACTED]
solely
for
the purpose of carrying out those activities expressly contemplated by this
Agreement within the Database Field. In the event that Buyer exercises such
option, the Parties shall negotiate in good faith commercially reasonable terms
and conditions for such license, provided that AFX agrees to waive any license
fee or other payment with regard to any such license for [REDACTED],
without
prejudice to any fees, royalties and other payments with regard to such license
for periods beginning after [REDACTED].
Such
option shall expire on [REDACTED].
Any such
license shall be subject to the execution by authorized representatives of
the
Parties of a separate (from this Agreement), mutually acceptable and definitive
written agreement regarding such subject matter. For purposes of clarification,
this option for Buyer to take a limited license is only intended to give Buyer
(and the licensees of such software and databases) the opportunity to achieve
freedom to operate under AFX’ patent rights described above with regard to
software and databases created and licensed by Buyer for use in analyzing,
querying and storing data generated from Probe Arrays supplied hereunder and
for
use in providing Services as defined in the Service Provider Agreement, and
shall not be interpreted as a license to any specific gene or protein content
or
application, nor shall it be interpreted to mean that AFX shall provide any
information, data, know-how, trade secrets, materials or assistance to Buyer
for
use in developing or commercializing databases or software or providing
Services. For further clarification, Buyer’s Database licensees would only
be licensed under this option to the extent such licensees use
such Databases with data generated using AFX GeneChip arrays and provided
to such licensees in connection with the license of such Databases.
9. Limited
Warranty
Unless
otherwise expressly stated in the Service Provider Agreement, AFX warrants
to
and only to Buyer for thirteen (13) months from the date of shipping or one
(1)
year from the date of installation (or for the period specified in the Sales
Quote for limited-life parts), whichever occurs first, that the Software
and Instruments are free from defects in material and workmanship, and conform
to AFX’ published specifications in all material respects. Service will be
provided to Buyer by or for AFX in a competent, professional and timely manner
pursuant to AFX’ standard service terms and conditions. AFX’ sole and exclusive
liability (and Buyer’s sole and exclusive remedy) under the foregoing warranty
shall be to repair or replace Software and Instruments or provide Buyer a
refund, as solely determined by AFX after discussion with Buyer. Nonconforming
instruments will be serviced at Buyer’s facility or, at AFX’ option, at AFX’
facility. If service is performed at AFX’ facility, AFX will bear shipping
costs. This warranty does not apply to consumables, or to any defect caused
by
failure to provide a suitable storage, use, or operating environment, use of
non-recommended reagents, spills, or the use of the Products for a purpose
or in
a manner other than that for which they were designed, modifications or repairs
done by Buyer, or any other abuse, misuse, or neglect of the Products. This
warranty applies only to Buyer, and not third parties. The foregoing is not
intended to limit any warranty extended to Buyer by a third party original
equipment manufacturer of a Product or component thereof, provided that any
remedy received by Buyer under any such warranty shall relieve AFX of its
obligations with respect to the subject of such remedy. TO THE EXTENT PERMITTED
BY APPLICABLE LAW, AFX, ITS SUPPLIERS AND ITS REPRESENTATIVE DISCLAIM ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS
AND
SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A
PARTICULAR PURPOSE.
Notwithstanding
the above, with respect to Probe Arrays, during the Term of the Agreement,
AFX
agrees to replace free of charge with an array of the same type and without
further investigation (or at AFX discretion, issue a credit for the price paid
for such array) any Probe Array that is scanned by Buyer prior to the expiration
date on such Probe Array and that Buyer determines in its sole discretion to
have a physical defect that is the cause of impaired hybridization of probe
pairs leading to aberrant probe set data for a number of features resulting
from
(i) the manufacture, handling or processing of such Probe Array by AFX prior
to
shipment, or (ii) Instrument (as defined in the Service Provider Agreement)
error during the processing of such Probe Array by Buyer (collectively
“Discretionary Return(s)”), provided that (a) within any calendar quarter such
Discretionary Returns shall not exceed [REDACTED]
percent
([REDACTED]
%)[redact?]
of
the
number of Probe Arrays scanned by Buyer during such quarterly period; and (b)
Buyer reports such Discretionary Returns and number of Probe Arrays scanned
by
Buyer during such quarterly period within sixty (60) days after the end of
each
calendar quarter during the term of the Agreement. AFX agrees to ship
replacement arrays for such Discretionary Returns within thirty (30) days of
receipt of reporting by Buyer.
In
the
event that Buyer requests replacement for Probe Arrays in excess of [REDACTED]
percent
([REDACTED]%)
of the
Probe Arrays scanned by Buyer during any one quarterly period, then such Probe
Array replacements in excess of [REDACTED]
percent
([REDACTED]
%)
will be
subject to the AFX’ Replacement Policy as set forth in Exhibit
7
of the
Service Provider Agreement.
12
All
requests by Buyer for replacement of defective Probe Arrays shall consist of
an
itemized list of the allegedly defective Probe Arrays, including Probe Array
type, array lot number, defect classification, expiration date and any other
information reasonably deemed pertinent to assist AFX with ongoing quality
improvement.
During
the
Term, the Parties agree to consult with each other to determine if there are
ways to consistently reduce the Probe Array defect rate experienced by Buyer
while still complying with Buyer’s standard operating procedures and meeting
Buyer’s quality standards and, if such reduction can be achieved on a consistent
basis, the Discretionary Return Rate can be reduced from [REDACTED]
percent
([REDACTED]
%)
to
[REDACTED]
percent
([REDACTED]
%)
for
commercially available Probe Arrays, and (b) to review the defect rates
experienced by Buyer for [REDACTED]
and
consider whether to alter the Discretionary Return Rate for such arrays to
be
consistent with the defect rate of Probe Arrays experienced by Buyer. However,
no change to the Discretionary Return Rate shall be made without each Party’s
written agreement.
10. Indemnity
for Intellectual Property Infringement Claims
a)
AFX
will indemnify Buyer and its Affiliates against liability and will settle or
defend any suit or proceeding brought against Buyer and its Affiliates to the
extent based on a claim that Buyer or its Affiliates in using the Products
delivered hereunder directly infringe an issued patent in the United States
of
America, the European Patent System (EPO), Japan or the Republic of
Korea.
b)
AFX
will also indemnify Buyer and its Affiliates against liability and will settle
or defend any suit or proceeding brought against Buyer and its Affiliates to
the
extent based on a claim that Buyer or its Affiliates in using the Products
delivered hereunder indirectly (i.e. through contributory infringement or
inducement) infringe an issued patent in the United States of America, EPO,
Japan or the Republic of Korea if (i) a hybridization method using probe arrays,
or probe arrays themselves, or equivalent hybridization devices are specifically
identified as an element of the claims of such patent in a device claim, or
use
of these is specifically identified as an element of the claims of such patent
in a method claim, and (ii) the patentability of such device or method claims
was materially related to the recitation of the hybridization method or the
probe arrays or equivalent hybridization device, or their use.
c)
AFX
shall have no liability under this Section to the extent that the alleged
infringement arises out of any addition or modification to the Products or
their
use by Buyer and its Affiliates in any material respect not specified or
approved by AFX, or Buyer’s and its Affiliates’ combination of the Products with
other devices not specified or approved by AFX, and Buyer shall indemnify AFX
and its Affiliates against liability and will settle or defend any suit or
proceeding brought against AFX and its Affiliates to the extent based on the
foregoing. The indemnifying Party shall pay all damages and costs finally
awarded against the indemnified Party for such infringement including reasonable
attorney’s fees.
d)
For
this Section to apply, the indemnified Party must promptly inform the
indemnifying Party (so as not to prejudice the indemnifying Party in its
preparation of a defense) of its receipt of notice of any claim or suit being
made or brought, and give the indemnifying Party the full authority,
information, and assistance necessary to settle or defend such suit or
proceeding, provided that the indemnifying Party shall not have any authority
to
agree to any settlement that imposes any liability or obligation on the
indemnified Party without the consent of the indemnified Party, which consent
will not be unreasonably withheld so long as the indemnifying Party will satisfy
or pay without recourse any liability imposed on the indemnified Party and
the
indemnified Party is not required to take any action or refrain from taking
any
other action other than discontinuing use of any product or process found to
be
infringing. Neither Party shall be bound in any manner by any settlement made
without its prior written consent.
e)
In the
event that the Products are held to infringe and their use is enjoined as a
result of infringement for which it has indemnified Buyer and its Affiliates,
as
part of its indemnification, AFX may obtain for Buyer and its Affiliates the
right to continue using such Products, modify them or the processes for using
them to become non-infringing in such manner that does not materially impair
their usefulness to Buyer, or grant Buyer and its Affiliates a credit for the
cost of unused Products, and accept the return of unused Products.
f)
In no
event shall an indemnifying Party’s aggregate, cumulative liability arising out
of or relating to its indemnity obligations described in this Section exceed
an
amount equal to [REDACTED]
(the
“Cap”). The Cap is in the aggregate with all expenses incurred by the
indemnifying Party arising out of or relating to its indemnity obligations
(including, without limitation, damages, settlement amounts, costs, and legal
fees) being aggregated to determine satisfaction of the limit. The existence
of
one or more claims or suits will not enlarge the Cap. THE PROVISIONS OF THIS
SECTION STATE THE ENTIRE LIABILITY AND OBLIGATION OF EACH PARTY AS AN
INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY OF EACH PARTY AS AN INDEMNIFIED
PARTY, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF INTELLECTUAL
PROPERTY RIGHTS, AND ARE IN LIEU OF ALL WARRANTIES OF NON-INFRINGEMENT, EXPRESS
OR IMPLIED.
11. Pre-release
Products
If
any
Product provided hereunder is a beta, technology access, early access, or
other pre-commercial release version ("Pre-release Product") but not including
custom Probe Arrays provided by AFX pursuant to its programs as defined in
the
definition of Probe Arrays in the Service Provider Agreement, unless
specifically otherwise hereafter agreed in writing by the Parties as to any
particular set of Products, then this Section applies. To the extent that any
provision in this Section is in conflict with any other term or condition in
the
Agreement, this Section shall supercede such other term(s) and condition(s)
with
respect to the Pre-release Product, but only to the extent necessary to resolve
the conflict. Buyer acknowledges that the Pre-release Product is a pre-release
version, does not represent final product from AFX, and may contain defects,
bugs, errors and other problems that could cause system or other failures,
sample loss and data loss. CONSEQUENTLY, THE PRE-RELEASE PRODUCT IS PROVIDED
TO
YOU "AS IS", AND AFX DISCLAIMS ALL WARRANTIES (INCLUDING THE LIMITED WARRANTY
SET FORTH IN SECTION 9 HEREOF) AND ALL LIABILITY OBLIGATIONS TO BUYER OF ANY
KIND. WHERE LIABILITY CANNOT BE LEGALLY EXCLUDED FOR PRE-RELEASE PRODUCTS,
BUT
IT MAY BE LIMITED, AFX’ LIABILITY AND THAT OF ITS REPRESENTATIVE AND ANY OF ITS
SUPPLIERS SHALL BE LIMITED TO THE SUM OF FIFTY DOLLARS (U.S. $50) IN TOTAL.
Buyer acknowledges that AFX has not promised or guaranteed to Buyer that
Pre-release Product will be announced or made available to anyone in the future,
that AFX has no express or implied obligation to Buyer to announce or introduce
the Pre-release Product and that AFX may elect not to introduce a product
similar to or compatible with the Pre-release Product. Accordingly, Buyer
acknowledges that any Internal R&D that Buyer performs using the
Pre-release Product (Buyer shall not perform Services using Pre-release Products
unless otherwise agreed in advance by AFX) or any product associated with the
Pre-release Product is done entirely at Buyer’s own risk. If Buyer has been
provided the Pre-release Product pursuant to a separate written agreement with
AFX, this Section shall not apply and Buyer's use of the Pre-release Product
is
governed by such agreement, unless expressly provided otherwise
therein.
13
12. Restricted
Use Rights
Buyer
is
not licensed to, and agrees not to: (a) resell any AFX-supplied Probe Array,
reagent or other Product, (b) transfer or distribute any AFX-supplied Probe
Array, reagent or other Product, directly or indirectly, to any third party
for
any purpose or use, except as otherwise approved by AFX in writing; (c) use
or
allow anyone to use any AFX-supplied Probe Array or reagent more than once,
or dilute any AFX-supplied reagent. As used in this Agreement, "AFX-supplied"
includes both direct and indirect supply (e.g., customer transfer).
However,
this Section shall not prohibit transfers of Products, including Software,
(a)
to a current Affiliate of Buyer for its own Internal R&D, provided that such
Affiliate complies with all other applicable terms herein regarding the use
of
such Products or (b) to any third party to which Buyer has subcontracted any
of
its work, provided that Buyer has obtained AFX’ prior written consent as to the
identity of such third party (which shall not be unreasonably withheld or
delayed) and provided further that such third party complies with all other
applicable terms herein regarding the use of such Products.
13. Product
Improvement Inventions
For
purposes of this Section, “Assay Improvement Invention” shall mean any invention
conceived or reduced to practice by Buyer or its Affiliates during the Term
using AFX Probe Arrays that relates to manual or automated assay techniques
that
may be used in connection with Probe Arrays or similar products, but only
insofar as such techniques are used for and after nucleic acid extraction and
up
to and including annealing and washing hybridization mixtures with a Probe
Array, but not to techniques used thereafter.
For
purposes of this Section, “Product Improvement Invention” shall mean any
invention conceived or reduced to practice by Buyer or its Affiliates during
or
after the Term using AFX Probe Arrays supplied to Buyer or its
Affiliates during the Term that relates to (a) design, manufacturing,
layout or packaging of nucleic acid probes or probe arrays; or (b) software
techniques relating to the extraction or storage of data generated using Probe
Arrays after samples have been annealed to the Probe Arrays (e.g., techniques
used in generation of *.cel and *.dat files), but not including any techniques
used thereafter (e.g., software techniques for analysis or other processing
of
data beyond what is required for generation of *.cel and *.dat files). Product
Improvement Inventions also shall not (1) include data generated using Probe
Arrays or discoveries derived therefrom (except as expressly set forth in (a)
and (b) above) or (2) any Assay Improvement Invention, as defined herein.
Neither Product Improvement Inventions nor Assay Improvement Inventions shall
include (3) Target Sequences identified by Buyer as hereinafter described or
(4)
any discoveries or inventions made using data obtained from use of the AFX
Probe
Arrays, including but not limited to, discoveries or inventions relating to
identification of markers used in biological, toxicological and clinical
applications, correlations between nucleic acid sequences and functions,
targets for drug discovery and development and processes for determining and
understanding toxicity. For clarification, such markers include without
limitation, those derived from analysis of gene expression and genotyping data
generated from Probe Arrays.
As
used
herein an invention conceived or reduced to practice “using AFX Probe Arrays”
means an invention that was actually made using such arrays.
For
purposes of this Agreement, “AFX Probe Array(s)” shall mean Probe Arrays for
which Target Sequences have been selected by AFX ("AFX Target Sequences"),
or
jointly by AFX and Buyer ("Buyer Target Sequences") for use on Probe Arrays
to
be supplied by AFX as set forth below.
Except
to
the extent prohibited by applicable law, Buyer hereby grants to AFX and
its Affiliates a non-exclusive, worldwide, fully paid-up,
royalty-free, irrevocable, perpetual license to all Product Improvement
Inventions, with a right for AFX and its Affiliates to sublicense but only
to
AFX’ and its Affiliates’ partners and customers for use with AFX Probe
Arrays. Buyer need not disclose any Product Improvement Inventions to AFX
except as may be reasonably required to comply with the foregoing
license.
If
Buyer
elects, at its sole discretion, to commercialize a product or process that
embodies an Assay Improvement Invention for use by multiple unrelated parties,
then to the extent that Buyer makes such product or process available to other
parties, Buyer agrees to negotiate in good faith with AFX (and, if necessary
with AFX customers and partners) to make each such product or process available
to AFX and all AFX customers and partners for use with AFX Probe Arrays on
commercially reasonable terms comparable to those granted to other parties,
provided that such terms may differ based on the type of party (e.g., non-profit
vs. for-profit), the size of the party, the number of individual users or volume
of use of the product or process, the size of the party’s R&D budget, the
type of use intended or other factors fairly applied, and, provided further,
that this obligation to license on comparable terms shall not apply to licenses
granted or products sold for limited uses, including evaluation, validation
and
testing or small sales for one-time or otherwise very limited use. For clarity,
if Buyer elects to commercialize such product or process by making it available
to others subject to restrictions or other terms that would preclude others
from
using such product or process in business activities that would directly compete
with Buyer’s business activities, then Buyer would not be obligated to make such
product or process available to AFX or AFX customers or partners on terms that
did not include the same restrictions or other terms precluding use of such
products or processes that would directly compete with Buyer’s business
activities.
14
Notwithstanding
the above, Buyer need not make available such Assay Improvement Invention to
AFX
and all required AFX customers and partners on comparable terms if a third
party
has already been granted in good faith by Buyer a conflicting assignment or
license (or an option to obtain such an assignment or license) at or prior
to
the time the embodied Assay Improvement Invention is made. Buyer need not
disclose Assay Improvement Inventions to AFX until such time as Buyer has
elected to commercialize such product or process and makes it available to
multiple other parties.
14. Buyer
Target Sequence Confidentiality
If
Buyer
discloses to AFX a confidential set of nucleic acid target sequences, including
any confidential subset of a set of nucleic acid target sequences previously
known or used by AFX, so long as such confidential subset is not included in
any
of subsections (a)-(d) of this section, below (“Buyer Target Sequences”) for
which Buyer desires AFX to design and manufacture custom AFX Probe Arrays
("Custom Probe Arrays") or custom nucleic acid probe panels pursuant to the
Agreement, such collection of Target Sequences shall be deemed Confidential
Information of Buyer and AFX agrees not to disclose or use such confidential
information disclosed to it by Buyer for any purpose other than designing and
manufacturing such Products, supplying them to Buyer and/or other parties
designated by Buyer, otherwise performing its obligations to Buyer (and any
obligations AFX may have to such other parties), and for other purposes
authorized by Buyer. The provisions of this Section shall not apply to any
information which AFX can demonstrate by competent proof (a) is known or used
by
AFX prior to Buyer’s disclosure to AFX; (b) is disclosed to AFX by a third party
under no obligation of confidentiality to Buyer; (c) is or becomes published
or
generally known to the public through no fault of AFX; or (d) is independently
developed by AFX as documented by contemporaneous records. Notwithstanding
the
foregoing, AFX shall be permitted to disclose such information in order to
comply with applicable laws, a court order, or governmental regulations,
provided that Affymetrix has provided Buyer with prior notice of such
disclosure, to the extent reasonably practicable. AFX' obligations under this
Section shall terminate five (5) years following expiration of the
Term.
15. Buyer
Target Sequence Responsibility
Buyer
shall be fully responsible for the Buyer Target Sequences, and Buyer agrees
to
indemnify AFX and its employees, officers, directors, representatives,
contractors, suppliers and any affiliate of the foregoing (the “AFX Group”) and
hold each of them harmless from and against any losses, liabilities, demands,
damages, costs and expenses, including without limitation reasonable legal
fees
and expenses (collectively “Damages”), arising from or relating to the Buyer
Target Sequences or their use as permitted herein, except to the extent that
such losses, liabilities, demands, damages, costs and expenses result from
the
gross negligence or willful misconduct of AFX. Buyer agrees to fully cooperate
with the AFX Group and its counsel in its defense and preparation for any such
action or proceeding.
16. Liability
Limitation
EXCEPT
AS
PROVIDED IN THE INDEMNITY FOR INTELLECTUAL PROPERTY HEREIN OR TO THE EXTENT
(I)
CAUSED BY EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR
(II) REQUIRED BY APPLICABLE LAW, NEITHER PARTY NOR ITS REPRESENTATIVES
SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FOR THE OTHER PARTY’S LOSS OF USE OR
PROFITS, PROCUREMENT OF SUBSTITUTE GOODS OR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, OR SPECIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND REGARDLESS OF
FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT
LIABILITY OR OTHERWISE, EVEN IF THE PARTY AT FAULT OR ITS REPRESENTATIVE HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AS TO ANY LIABILITY OF
EITHER PARTY TO THE OTHER NOT LEGALLY SUBJECT TO THE FOREGOING, THE
LIABILITY OF EITHER PARTY SHALL NOT EXCEED THE CAP AS TO THE INDEMNITY FOR
INTELLECTUAL PROPERTY INFRINGEMENT AS PROVIDED IN SECTION 10 HEREOF AND AS
TO
ANYTHING ELSE, AN AMOUNT EQUAL TO THE AMOUNT PAID BY BUYER TO AFX IN THE PRIOR
TWELVE (12) MONTHS. EACH PARTY UNDERSTANDS THAT THE RISKS OF LOSS HEREUNDER
ARE
REFLECTED IN THE PRICE OF THE PRODUCTS AND THAT THESE TERMS WOULD HAVE BEEN
DIFFERENT IF THERE HAD BEEN A DIFFERENT ALLOCATION OF RISK.
17. Confidentiality
Each
Party
agrees to use reasonable efforts to not disclose or use the confidential
information of the other Party (including without limitation the contents of
this Agreement) for any purpose not contemplated in this Agreement. The
provisions of this paragraph shall not apply to any information which the
receiving Party can demonstrate by competent proof (a) is known or used by
the receiving Party prior to disclosure by the disclosing Party; (b) is
disclosed to the receiving Party by a third party under no obligation of
confidentiality to the disclosing Party; (c) is or becomes published or
generally known to the public through no fault of the receiving Party; (d)
is
independently developed by the receiving Party as documented by contemporaneous
records; (e) is required to be disclosed by a final order of a court of
competent jurisdiction; or (f) is otherwise required to be disclosed by
applicable law following notice of not less than thirty (30) days to the
disclosing Party (unless the deadline imposed by such law does not permit such
a
thirty (30) day notice period, in which case the notice period must be
reasonable under the circumstances). The obligations under this paragraph shall
terminate as to any confidential information five (5) years following the
expiration of the Term.
Notwithstanding
the foregoing, the Parties acknowledge and agree that, to the extent that AFX
makes SIF, exemplar and/or probe pair sequence, gene annotation information,
and
.cdf libraries associated with Probe Arrays (“Probe Array
Information”) generally available to the public or its Probe Array customers,
Buyer shall also have the right to disclose such Probe Array Information to
third parties for the purpose of enabling Buyer to develop and commercialize
its
Databases, software and Services, provided that to the extent such Probe
Array Information is considered Confidential Information of AFX, each such
third
party agrees in writing to be bound by confidentiality obligations consistent
with those set forth in this Section, provided further that Buyer shall not
commercialize Probe Array Information as a stand alone product without mutual
agreement of the Parties. Furthermore, except in connection with their use
of Buyer’s Databases, software or Services, Buyer shall not permit users
that receive Probe Array Information directly or indirectly from Buyer to post
any Probe Array Information on a commercial or for-profit Web site, or within
a
commercial or for-profit software application, or otherwise charge for access
to
or use of any Probe Array Information, without AFX’ prior written permission,
and Buyer shall require that such users agree to terms and conditions that
are
consistent with this sentence. Buyer shall not be permitted to disclose or
use Probe Array Information as described herein if such disclosure or use (i)
would be in violation of any contractual obligation of Buyer or, to Buyer’s
knowledge, AFX to a third party or (ii) would infringe a valid and enforceable
patent or, to Buyer’s knowledge, other intellectual property right of a third
party. Buyer shall be fully responsible for, and agrees to indemnify the
AFX Group and hold each of them harmless from and against any Damages arising
from or relating to, its disclosure and use of Probe Array
Information.
15
18. Export
Controls
Buyer
acknowledges that the Products and related software, technical documents
and materials are subject to export controls under the U.S. Export
Administration Regulations and related U.S. laws. Buyer will (i) comply strictly
with all legal requirements established under these controls, (ii) cooperate
fully with AFX in any official or unofficial audit or inspection that relates
to
these controls and (iii) not export, re-export, divert, transfer or disclose,
directly or indirectly, any Product, or related technical documents or materials
or any direct product thereof to any country (or to any national or resident
thereof) which the U.S. Government determines from time to time is a country
(or
end-user) to which such export, re-export, diversion, transfer or disclosure
is
restricted, without obtaining the prior written authorization of AFX and the
applicable U.S. Government agency.
The
Agreement constitutes the entire agreement between Buyer and AFX with respect
to
the subject matter hereof and is the final, complete, and exclusive statement
of
the terms of the Agreement, superseding all prior written and oral agreements,
understandings and undertakings with respect to the subject matter hereof.
For
avoidance of doubt, the following agreements between the Parties shall continue
in full force and effect: the HTA Agreement, the Limited Research and
Development License Agreement dated November 2, 2004 and all current Instrument
and Software service agreements. Modifications to the Agreement may be
made only in writing, signed by an authorized corporate officer of each Party.
The waiver of any term or condition or any breach thereof shall not affect
any
other term or condition of the Agreement. The Agreement shall be governed by
and
construed according to the laws of California,
without
regard to conflict of law provisions. The U.N. Convention on Contracts for
the
International Sale of Goods shall not apply to this Agreement. Neither Party
may
assign its rights and obligations under this Agreement without the
consent of the other Party, except that either Party may assign its rights
and
obligations under this Agreement to an assignee of or successor to all or
substantially all of the relevant assets of either Party, whether by
merger, sale of assets or otherwise. In any legal action commenced to
enforce or interpret this Agreement, the prevailing Party shall be entitled
to
reasonable legal fees and expenses. AFX may terminate this Agreement immediately
upon written notice to Buyer if Buyer becomes the subject of a petition in
bankruptcy or any proceeding relating to insolvency, receivership or
liquidation, and, in the case of involuntary petition only, such petition is
not
released within sixty (60) days of filing; in such event all payment obligations
of Buyer under this Agreement will become due immediately. Expiration or
termination of this Agreement will not relieve Buyer of any payment obligation
that remains at the time of such termination or termination. Sections 5, 7
and
9-19 of these Terms and Conditions shall survive expiration or termination.
In
the event that any provision of the Agreement or portion thereof is found to
be
illegal or unenforceable, the Agreement shall be construed without the
unenforceable provision or portion thereof.
16
Exhibit
2
Price
List for [REDACTED]
Customers
(see
attached)
17
Exhibit
3
Price
List for [REDACTED]
Customers
[REDACTED]
(see
attached)
18
Exhibit
4
Price
List for [REDACTED]
Customers
(see
attached)
19
Exhibit 5
Price
List for Gene Logic's Internal R&D
(see
attached)
20
Exhibit 6
Marks
of Gene Logic and Affymetrix
(see
attached)
21
Exhibit 7
AFX
Probe Array Replacement Policy
(see
attached)
22
Exhibit 8
HTA
Instrumentation Principal Components
The
following descriptions provide the best view to date of the primary components
that comprise each of the specified products:
GeneChip
Array Station
[REDACTED]
HT
Scanner
System
[REDACTED]
23