Exhibit 10.7
ITMS COLLABORATION AGREEMENT
BY AND BETWEEN
HEWLETT-PACKARD COMPANY
AND
BRUKER DALTONIK GMBH
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
TABLE OF CONTENTS
RECITALS 1
ARTICLE 1 - DEFINITIONS 2
ARTICLE 2 - MANAGEMENT OF THE RELATIONSHIP AND COMMUNICATIONS
BETWEEN THE PARTIES 4
ARTICLE 3 - OVERVIEW OF THE GEMINI PROGRAM 6
ARTICLE 4 - SPECIFICATIONS FOR THE GEMINI / GEMINI R&D MS 7
ARTICLE 5 - DESIGN AND DEVELOPMENT OF THE GEMINI / GEMINI R&D MS 8
ARTICLE 6 - MARKETING OF THE GEMINI / GEMINI R&D MS 10
ARTICLE 7 - MANUFACTURING AND PROCURING COMPONENTS FOR THE
GEMINI / GEMINI R&D MS 11
ARTICLE 8 - SALES OF COMPONENTS AND OF THE GEMINI MS AND GEMINI
R&D MS 15
ARTICLE 9 - HP'S MINIMUM PURCHASE COMMITMENT, INITIAL PURCHASE
ORDER AND DISPOSITION OF HP'S SECURITY DEPOSIT/DOWN PAYMENT 19
ARTICLE 10 - WARRANTIES AND SUPPORT 20
ARTICLE 11 - NEW DEVELOPMENT PROJECTS 21
ARTICLE 12 - EMPLOYEE RELATIONS 22
ARTICLE 13 - CONFIDENTIAL INFORMATION 23
ARTICLE 14 - DEVELOPMENT INVENTIONS AND OTHER INTELLECTUAL
PROPERTY CREATED DURING DEVELOPMENT PROGRAMS 24
ARTICLE 15 - REPRESENTATIONS, WARRANTIES AND DISCLAIMERS 29
ARTICLE 16 - CONFLICTS WITH THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS 29
ARTICLE 17 - RESPONSIBILITIES FOR SALES OF ESQUIRE-LC SYSTEMS 30
ARTICLE 18 - DISPOSITION OF RESEARCH FUNDS 32
ARTICLE 19 - PUBLICITY 33
ARTICLE 20 - TERM, TERMINATION AND EXCLUSIVITY 33
ARTICLE 21 - DISPUTES BETWEEN THE PARTIES 38
ARTICLE 22 - MISCELLANEOUS 39
EXECUTION 41
41BRUKER-HP Collaboration Agreement ii
ITMS COLLABORATION AGREEMENT
This Agreement is made with an Effective Date of April 28, 1999 by
Hewlett-Packard Company, a Delaware corporation with offices at 0000 Xxxxxxxxxx
Xxxxxx, Xxxx Xxxx, XX 00000-0000 ("HP"); and Bruker Daltonik GmbH, a corporation
organized and existing under the laws of Germany with offices at
Xxxxxxxxxxxxxxxxx 0, X-00000 Xxxxxx, Xxxxxxx ("Bruker"), formerly called
Bruker-Xxxxxxx Analytik GmbH ("BFA").
RECITALS
A. HP is in the business of designing, manufacturing, and marketing
analytical chemistry instruments such as liquid chromatographs, gas
chromatographs, and mass spectrometers; analytical chemistry systems that
combine a liquid or gas chromatograph with a mass spectrometer; and
software tools for collecting and processing data in such systems. HP is a
leader in developing low-cost mass spectrometers and technology for the
ionization/interface stage of LC/MS systems. HP has considerable expertise
in the design and manufacture of API ion sources.
B. Bruker is in the business of designing, manufacturing and marketing
analytical chemistry instruments such as mass spectrometers and associated
software. Bruker is a recognized leader in developing ion trap mass
spectrometers. Bruker has considerable expertise in the design and
manufacture of ion trap mass spectrometers and conventional
nanoelectrospray ion sources.
C. HP and Bruker have complementary expertise. HP and BRUKER wish to develop
a long-term collaboration in API-ITMS technology. HP and Bruker desire to
serve their respective customers more effectively by collaborating on
developing LC/MS() mass spectrometers, especially certain critical core
components thereof, thereby enabling both parties to take advantage of the
particular strengths, experience and superior competencies of each. HP and
Bruker also recognize that by allocating responsibility for manufacturing
components of mass spectrometers, the parties can take advantage of higher
volume production, reducing the cost of the components to each party and
enabling the parties to participate in a highly competitive market.
D. Bruker and HP entered into a certain BRUKER-HP ITMS Agreement dated
January 19, 1996, which established a plan for developing (1) a product
series (Esquire-LC ITMS) for market introduction in Fall 1996 and (2) a
lower cost, higher volume product series (Gemini) for market introduction
in January 1998. The BRUKER-HP ITMS Agreement has been amended twice: on
March 14, 1997, (Amendments I and 2) and on September 1, 1997 (Amendment
3). Phase I of the program provided for in the ITMS Agreement, as amended,
has been completed. The hardware development work under Phase 2 of the
program is substantially complete. The software development work is
progressing. The Esquire ITMS product series has been developed and the
second generation product, called Esquire-LC, is currently being marketed
by both parties. The Gemini mass spectrometer, which was to be developed
in Phase 3, is still under development.
E. The Parties desire to continue the development of software for, and the
manufacture and marketing of, the Esquire-LC ITMS system.
F. The parties now wish to recommit themselves and undertake to develop a
re-defined Gemini / Gemini R&D MS and to allocate the necessary resources
to complete this development.
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
G. The parties wish to complete the set of specifications for the Gemini /
Gemini R&D MS, and to adopt a plan for finalizing these specifications.
The Parties also wish to allocate responsibility for designing,
integrating, and manufacturing the various components of the Gemini/Gemini
R&D MS. The Parties will sell these components and other parts to each
other, allocate responsibility for integrating the various components and
testing the integrated Gemini / Gemini R&D MS, establish the terms and
conditions of sale of the Gemini / Gemini R&D MS and certain components
thereof, and provide for long term support of the Gemini / Gemini R&D MS.
H. Because circumstances have changed substantially from what was
contemplated when the ITMS Agreement was signed, the Parties wish to
replace the ITMS Agreement, as amended, with this agreement.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual covenants expressed in this
Agreement, HP and Bruker agree as follows:
ARTICLE I - DEFINITIONS
1.1 Affiliate means a business entity which controls, is controlled by, or is
under common control with a Party. "Control" means ownership or control of more
than 50% of the stock entitled to vote for the election of directors, or in the
case of a non-corporate entity an equivalent majority control. Such entity will
be considered an Affiliate only so long as such control exists.
1.2 Agreement means this ITMS Collaboration Agreement, comprising this document
and the appendices identified in Section 22 .
1.3 APCI means atmospheric pressure chemical ionization.
1.4 API means atmospheric pressure ionization, the process of producing ions at
atmospheric pressure and then sampling the ions through atmospheric interfaces.
1.5 Bruker Core Areas means the following areas: RF ITMS technology design or
parts of an RF ITMS, RF ion trap, and methods of operating an RF ion trap;
electronics, firmware and software for RF ion trap control and detection and
acquisition of MS, MS/MS and MS(n) data.
1.6 Engineering Collaboration Period means the period of time during which the
Parties collaborate on the joint development of ITMSs, including Esquire,
Esquire-LC, Gemini/Gemini R&D, [*](1), and any other future ITMS jointly
developed hereunder. The Engineering Collaboration Period is specified and
determined in Article 20. 1.
1.7 Esquire-LC means the API-ITMS co-developed by the Parties under the Old
Agreement.
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(1) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 2
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
1.8 ESI means electrospray ionization.
1.9 Gemini is the code name given to (1) the project to develop
high-performance, rugged, easy-to-use, relatively low cost, bench-top, ITMSs for
high performance liquid chromatography with MS('~ capability; (2) the ITMSs that
are expected to result from such project; and(3) the overall program that
includes manufacturing and marketing, as well as the development, of such ITMSs.
1.10 Gemini NIS is the internal code name for the API-ITMS that the Parties will
develop and manufacture for HP in accordance with this Agreement.
1.11 Gemini R&D NIS is the internal code name for an alternative configuration
of the Gemini MS that the Parties will develop and manufacture for Bruker in
accordance with this Agreement.
1.12 HP Core Areas means the following areas: conventional on-line electrospray
and APCI generation of ions but excluding nano-electrospray; as reduced to
practice in an ITMS product.
1.13 Intellectual Property Rights means the rights under patents, patent
applications, and copyrights, and the rights in any industrial designs or trade
secrets recognized by law.
1.14 ITMS means radio frequency ion trap mass spectrometer.
1.15 LCIMS means a mass spectrometer designed to work with a liquid
chromatograph.
1.16 MS(n) means multiple stages of mass spectrometry (where n = the number of
stages) in which there is a collision or reaction between each stage of mass
analysis.
1.17 Old Agreement means the "BRUKER-HP ITMS AGREEMENT between Bruker-Xxxxxxx
Analytik GmbH and Hewlett-Packard Company" dated January 19, 1996, together with
Amendments I and 2 thereto, dated March 14, 1997, and Amendment 3, dated
September 1, 1997.
1.18 Party and Parties refer to HP and Bruker as the context requires.
1.19 Qualified New Lead means the identification of a prospective new customer
who is presented as interested in buying a product and who either has the
authority to buy the product or can authorize the purchase of the product. A
lead will be considered new if the selling Party who receives the lead has not
had any contact with the individual (or his / her predecessor) during the 12
months prior to receiving the lead.
ARTICLE 2 - MANAGEMENT OF THE RELATIONSHIP AND COMMUNICATIONS
BETWEEN THE PARTIES
2.1 Designation of Key Personnel. Bruker will designate appropriate persons to
serve as its Program Manager, Product Manager, Project Manager, and Business
Manager. HP will designate appropriate persons to serve as its Program Manager,
Product Manager, Project Manager, and Business Manager. Each Party also may
designate one or more Project Leaders.
41BRUKER-HP Collaboration Agreement 3
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
2.2 Program Managers. The Program Managers will represent their respective
Parties on all business and management issues. They will confer as needed to
ensure that schedule delays and administrative issues are resolved; that
inventions are being identified and reported; that intellectual property and
confidentiality issues are properly addressed ; and that other activities are
proceeding in accordance with this the Agreement. The Program Managers will
ensure that all issues relating to the manufacture and delivery of parts,
components and finished instruments are addressed properly.
2.3 Product Managers. The Product Managers will be responsible for product
strategy, product definition, marketing programs, product introduction plans,
promotions, business plans, and pricing proposals.
2.4 Project Managers. The Project Managers will be responsible for answering
technical questions, clarifying technical issues, and resolving schedule delays.
They will confer regularly to ensure that all technical issues are resolved
quickly; that all inventions are being identified and reported promptly; and
that all intellectual property issues are addressed thoroughly. The Project
Managers will confer whenever important issues arise in the development of the
specifications or the prototypes of the Gemini MS / Gemini R&D MS.
2.5 Project Leaders. The Project Leaders will be responsible for receiving and
answering technical questions and resolving technical issues in the areas for
which they have been designated.
2.6 Business Managers. The Business Managers have the authority to resolve any
issues that arise under this Agreement. The Business Managers will not be
involved on a day-to-day basis, but they will confer as needed to ensure
harmonious relationships between the Parties and their respective Program
Managers, Product Managers, and Project Managers.
2.7 Changing Designations. Each Party may change its Project Leader, Program
Manager, Product Manager, Project Manager, or Business Manager. Each Party will
notify the other Party of such change in a timely manner.
2.8 Lifecycle Planning. In developing the Gemini / Gemini R&D MS and any other
product under this Agreement the Parties will use "Lifecycle Planning," HP's
product development methodology. As part of Lifecycle Planning, the Parties will
prepare a set of Lifecycle Documents substantially like those that HP prepares
for the development of a new product. To minimize redundant effort, the Parties
will collaborate in developing those portions of their respective Lifecycle
Documents that are common to the product development. The Parties will exclude
from their jointly prepared Lifecycle Documents, and will not collaborate on or
exchange, information about pricing, customer profiles, and markets. Lifecycle
Planning prescribes well-defined phases in developing a new product, with
checkpoints and formal reviews at the end of each phase. The Parties will
conduct joint formal reviews at each check point to discuss all common issues on
the development of the product. The Parties will conduct separately their
independent formal reviews of the marketing and financial aspects of the
development project. The Parties will develop consensual quality plans for
hardware, software, and analytical performance. The Parties must sign off upon
the completion of each phase before proceeding to the next phase. The Parties
will revise their Project Plan and other Lifecycle Documents, as required to
track the progress of the Project.
41BRUKER-HP Collaboration Agreement 4
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
2.9 Meetings and Reviews. The Parties will conduct regular telephone conferences
to discuss any corrective actions that may be required to keep the project on
track. The Parties will conduct formal project reviews at checkpoint dates.
These meetings will be face-to-face, by video conference, or by teleconference.
2.10 Notices. Any required notices will be given in writing. Notices may be
delivered by any reasonable means and will be deemed to have been given on the
date of actual receipt. Notices will be given to the Parties at the following
addresses, or at such other addresses as the Parties may designate:
Hewlett-Packard Company Bruker Daltonik GmbH
Attn.: Xxxx Xxxxxx Attn.: Xxxxxx Xxxx
0000 Xxxxxxxxxx Xxxxxx Xxxxxxxxxxxxxxxxx 0, X-00000
Xxxx Xxxx, XX 00000 XXX Bremen, Germany
Fax: 000 000-0000 Fax: 00-000-0000-000
with a copy to: with a copy to
Hewlett-Packard Company Bruker Daltonics, Inc.
Attn.: Managing Counsel(IP) Attn.: Xxxxx X. Xxxxxxx, Ph.D.
0000 Xxxx Xxxx Xxxx 00 Xxxxxxx Xxxxx, Xxxxxxx Xxxx
Xxxx Xxxx, XX 00000 Billerica, MA 0 1821
Fax: 000 000-0000 Fax: 000 000-0000
ARTICLE 3 - OVERVIEW OF THE GEMINI PROGRAM
3.1 Goals of the Gemini Project. As the first project under this Agreement, HP
and Bruker undertake to develop the Gemini MS for HP and the Gemini R&D MS for
Bruker. The Gemini MS will be a high-performance, rugged, easy-to-use,
relatively low cost, bench-top ITMS for high performance liquid chromatography
with MS(n) capability. The Gemini R&D MS will be a high-performance, flexible,
research-oriented ITMS for high performance liquid chromatography with MS(')
capability. The Gemini MS / Gemini R&D MS is described in more detail and the
required functionality, features, and performance characteristics are set out in
the Gemini Product Data sheet, which is incorporated herein as Appendix 1. The
Gemini MS and the Gemini R&D MS will be based upon essentially the same
components, but will have different configurations, as well as differences in
names and appearances as provided in Section 5.7. HP and Bruker will complete
the development so that HP and Bruker can begin shipping the Gemini MS and the
Gemini R&D MS respectively to their demo centers and to their first customers
between January 1, 2000 and March 1, 2000. The Gemini Project if successful may
lead to the [*](2) as further described in Article 11. Improvements to or
further developments of the Gemini MS / Gemini R&D MS after the product is
introduced and first marketed, particularly any software developed during any
continuing development program, may be made available as an upgrade to the
Gemini MS / Gemini R&D MS or as part of the next generation platform, [*].
3.2 General Plan. The Parties will collaborate to complete a set of
specifications for the Gemini MS and the Gemini R&D MS. The Parties will divide
the responsibilities for designing, developing, manufacturing, assembling,
integrating and testing the Gemini / Gemini R&D MS. The
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(2) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 5
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Parties will apply jointly for certifications of the product(s) in the names of
both Parties. The specific responsibilities of each Party are described in the
Gemini Project Plan, incorporated herein as Appendix 2. The Parties will carry
out the development work, including the manufacture of prototype units and pilot
run units, during the different phases of the development in accordance with the
Gemini Project Plan.
ARTICLE 4 - SPECIFICATIONS FOR THE GEMINI / GEMINI R&D MS
4.1 Documents Comprising Set of Specifications. The Gemini MS will be defined,
described and specified in accordance with the following set of specifications:
4.1.1 Gemini Product Data Sheet
4.1.2 Gemini Hardware External Reference Specification
4.1.3 Gemini Software External Reference Specification
4.1.4 Gemini Compatibility Matrix
4.1.5 Gemini Analytical Performance Quality Plan
4.1.6 Gemini Hardware Quality and Regulatory Plan
4.1.7 Gemini Software Quality Plan
4.2 Requirements and Desired Targets. In some instances the specifications will
set out not only the requirements that the Gemini MS / Gemini R&D MS must meet,
but also the desired targets that the Parties recognize as technically
challenging. The Parties will meet all requirements and will use reasonable
efforts to meet all desired targets. A Party will not be in default for failing
to design and/or manufacture a component so that the Gemini MS meets a desired
target.
4.3 Status and Further Efforts to Complete Set of Specifications. The set of
specifications, while substantially complete, still have areas requiring further
work. Items designated "TBD" (to be determined) will be the subject of further
discussions. The Parties will endeavor to complete and formally adopt the
specifications in April 1999. To that end, the Project Managers and the other
affected technical personnel will confer at least bi-weekly by teleconference to
discuss any open issues until the entire set of specifications is complete and
the Parties have adopted them.
4.4 Formal Adoption of Specifications. When the Parties agree that a
specification is complete, Bruker's and HP's Product Managers and the Project
Managers will sign the specification to signify that the specification has been
formally adopted.
4.5 Changes to Specifications After Adoptions. After a specification has been
formally adopted, the Parties may change the specification only by mutual
written agreement, signed by Bruker's and HP's Product Manners and Project
Managers.
ARTICLE 5 - DESIGN AND DEVELOPMENT OF THE GEMINI / GEMINI R&D MS
5.1 Project Plan. The Gemini Project Plan (Appendix 2) sets out the plan for
designing and developing the Gemini MS and the principal portions of the Gemini
R&D MS, which are in common with the Gemini MS. The Gemini Project Plan
allocates the various tasks between the Parties. Each Party will perform its
tasks on the development of the Gemini MS / Gemini R&D MS in each of the phases
of the Project in accordance with the Gemini Project Plan.
41BRUKER-HP Collaboration Agreement 6
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
5.2 Individual and Collaborative Approach. Each Party has -well-defined tasks
called out in the Gemini Project Plan. The Parties will work closely together on
system design, integration and testing, particularly of software. The Parties
also will work together as necessary to solve a problem or correct for a missed
milestone or a delay in an element on the critical path. Because the various
components of the Gemini MS will need to work together, a Party may offer
suggestions respecting a component even if that Party is not responsible for
developing that component. The Party responsible for developing the component
will consider each suggestion and will adopt the suggestion unless in its
judgment the suggestion is not feasible or reasonable.
5.3 HP's Core Responsibilities. HP will design and develop the APCI and ESI
ionization sources of the Gemini MS / Gemini R&D MS, the high voltage supplies
that drive the ion source, the ion optics that guide the ions to the mass
analyzer section, the vacuum system, the mechanical packaging and exoskeleton,
and the ChemStation software. HP also will design (or procure) the APCI hardware
accessory and application software options for protein database searching,
peptide tools analysis and deconvolution analysis. HP also will provide
assistance to Bruker in the integration and testing of the hardware components
that HP develops and the software that HP develops with the hardware components
and software that Bruker develops, as and when it becomes necessary. The Gemini
Project Plan contains a more detailed and complete itemization of the components
for which HP is responsible.
5.4 Bruker's Core Responsibilities. Bruker will design and develop the ion trap
mass analyzer portion of the Gemini MS, including the electronics, the
algorithms, and the software for controlling the ion trap mass analyzer. Bruker
will do the mechanical design of the internal tub supports. Bruker will develop
the acquisition and control software and software for performing data analysis.
Bruker also is responsible for overall integration of the Gemini MS, with HP
assisting when and as necessary. Bruker also will design (or procure) the
nanoelectrospray accessory and application software options for MS library
searching, standalone data analysis, and identification- of-unknown-peaks ("LUMS
Dissect") analysis. The Gemini Project Plan contains a more detailed and
complete itemization of the components for which Bruker is responsible.
5.5 Joint Responsibilities. Bruker and HP are jointly responsible for ensuring
that their respective components and contributions to Gemini MS/Gemini R&D MS
are fully compatible so that when the kit components are integrated, the
products will meet their set of specifications. Bruker and HP are jointly
responsible for conducting and passing tests for the prototype and pilot run
instruments and software.
5.6 Alternate Versions and Models of the Gemini MS. The Gemini MS will be
designed, developed, and manufactured to include all essential features and
functions so that HP may sell it as a stand-alone product and as part of a
high-throughput, routine analysis system. The Gemini MS will bear the product
identification and appearance or trade dress of an HP instrument. The Gemini MS
is also intended to serve as a core platform from which each Party may develop
specialized Gemini instruments and systems. A Party may include additional
software as a standard or optional feature. All Gemini instruments and systems
and Gemini R&D systems will be based on the core Gemini MS so that economies of
scale may be realized in manufacturing common parts and components and in
assembling and testing the finished product. The Parties expect to differentiate
their respective products.
41BRUKER-HP Collaboration Agreement 7
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
5.7 Gemini R&D MS. Bruker will modify the Gemini MS to make the Gemini R&D MS.
The Gemini R&D MS will differ in appearance from the Gemini MS and will be
consistent with the appearance of the Bruker product line. Bruker will design
and manufacture different external covers for the Gemini R&D MS. The Gemini R&D
MS will bear the product identification and appearance or trade dress, of a
Bruker instrument. Bruker will distribute the Gemini R&D MS to its customers.
Bruker intends to market the Gemini R&D MS as a flexible research-oriented
instrument and as part of a high-end LC/MS(') system. Bruker may include other
ion sources and/or other software as standard features. HP will provide a fast
switching power supply as a standard component of the Gemini R&D MS.
5.8 Continuing Responsibilities. If a purchased part that a Party has designed
into a component becomes obsolete, that Party will develop an alternative design
using parts that will be available in the future. That Party also will develop
an appropriate migration plan (acceptable to HP and Bruker) that includes the
purchase of sufficient parts to (a) continue manufacture and timely delivery of
the Gemini MS and Gemini R&D MS during the period of transition to the new
design and (b) make field replacements of obsoleted parts or components as may
be required.
5.9 Formal Testing and Certifications. Bruker and HP are jointly responsible for
obtaining the required certifications as set out in the Gemini Hardware Quality
and Regulatory Plan and for meeting all requirements for CSA and CE
certification. Whenever testing occurs at the other party's site, the visiting
party will provide engineering support personnel for the tests at their own
expense, including travel costs.
5.10 Product Documentation. HP and Bruker Will collaborate on the development of
-the (a) product engineering documentation for use in manufacturing and testing,
(b) training materials for training product support engineers, and (c) user
information for generation of user manuals. Bruker will take the lead in
preparing the first draft and the final draft of the product engineering
documentation. Each Party will prepare and exchange its drafts of training
materials and user information pertaining to the parts and functions of the
Gemini/Gemini R&D for which it is responsible for designing and developing. Both
Bruker and HP will own the copyright in the product documentation. Each Party
may adapt and prepare derivative works of the product documentation in
developing manuals or other documentation for its employees and its customers.
5.11 Sustaining Engineering. Each Party will provide sustaining engineering for
the Gemini / Gemini R&D MS product line comparable to the level that it provides
for other similar products. The Parties will continue to collaborate on
refinements, engineering changes, cost reduction, and software updates,
upgrades, and new releases.
ARTICLE 6 - MARKETING OF THE GEMINI / GEMINI R&D MS
6.1 Market Introduction. Neither Party may announce the Gemini/Gemini R&D MS or
show such instruments to prospective customers until both Parties have accepted
the production prototypes at the end of the Production Prototype Phase, unless
both Parties agree to the early announcement or showing. Neither Party may issue
quotations on, accept purchase orders for, or ship its Gemini/Gemini R&D MS
instrument unless the other Party consents or both Parties have accepted the
pilot run units at the end of the Pilot Run Phase. At any time the Parties may
by mutual agreement disclose information about the
41BRUKER-HP Collaboration Agreement 8
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Gemini/Gemini R&D MS and invite industry experts to observe demonstrations of
prototype units, under terms of appropriate confidentiality agreements, to
obtain critical feedback.
6.2 No Restrictions on Sales by the Parties. Bruker may sell the Gemini R&D MS
without restriction on customers, geographic territory or sales channels. HP may
sell the Xxxxxx.XX without restriction on customers, geographic territory or
sales channels.
6.3 HP Collaboration on Sales of the Gemini R&D MS. Whenever appropriate, HP
will provide to Bruker or its Affiliates. Qualified New Leads to prospective
customers who express an interest in the Gemini R&D MS. Bruker or its Affiliates
will pay HP a commission or finder's fee on the sale of a Gemini R&D MS that
results from a Qualified New Lead, as provided in the Finder's Fee Agreement.
6.4 Bruker Collaboration on Sales of the Gemini MS. Whenever appropriate, Bruker
or its Affiliates will provide to HP Qualified New Leads to prospective
customers who express an interest in the Gemini MS. HP will pay Bruker or its
Affiliates a commission or finder's fee on the sale of a Gemini MS that results
from a Qualified New Lead, as provided in the Finder's Fee Agreement.
ARTICLE 7 - MANUFACTURING AND PROCURING COMPONENTS FOR THE
GEMINI / GEMINI R&D MS
7.1 HP's Core Responsibilities.
7.1.1 HP Gemini Kits and HP Gemini R&D Kits. HP will manufacture (or procure)
and test all components comprising the HP Gemini Kit and the HP Gemini R&D Kit.
These components are identified in "Appendix 2 - Gemini Component Breakdown" in
the Gemini Project Plan. HP will assemble and test each HP Gemini Kit and each
HP Gemini R&D Kit. HP will manufacture HP Gemini Kits based on (a) HP's forecast
of demand and actual purchase orders from HP customers for the Gemini MS and (b)
Bruker's forecast of demand and actual purchase orders received from Bruker for
kits with standard positive/negative power switching. HP will manufacture HP
Gemini R&D Kits based on (a) actual purchase orders and sales forecasts from
Bruker and (b) HP's forecast of demand and actual purchase orders received from
HP customers who specify fast positive/negative power switching. HP will design
the shipping container and packaging for the HP Gemini Kits and HP Gemini R&D
Kits so that Bruker can reuse the shipping container and packaging for the
Gemini MS and the packaging for the Gemini R&D MS. HP will provide the container
and packaging as part of the Gemini MS Kit and Gemini R&D Kit. HP will pack the
High Voltage Power Supply within the shipping container, but separate from and
outside the mechanical packaging or body of the HP Gemini Kit and the HP Gemini
R&D Kit, so that Bruker may easily remove the power supply and store it
separately. HP will ship HP Gemini Kits and HP Gemini R&D Kits to Bruker FOB San
Francisco using reasonable efforts to ship in accordance with schedules in
Bruker purchase orders.
7.1.2 HP Software. HP will manufacture CD ROMs containing the standard
ChemStation software. Separate copies of the ChemStation software will be
provided for each customer shipment. HP will provide a master copy of all
integration software components that HP develops for the Gemini MS/Gemini R&D
MS. (Bruker will incorporate these components on its CD-ROM for distribution to
customers.) HP also will manufacture CD ROMs or discs containing the software
for the following
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CONFIDENTIAL HEWLETT-PACKARD - BRUKER
optional products, which Bruker may purchase from HP: HP Peptide Tools, HP
Deconvolution, and Peptide Search.
7.1.3 HP Ship Kits. HP will manufacture or procure all accessories and
consumables comprising the HP Ship Kit. The specific items included in the HP
Ship Kit are listed under the heading "HP Ship Kit" in "Appendix 2 - Gemini
Component Breakdown" in the Gemini Project Plan.
7.1.4 Consumables. HP will manufacture or procure the consumables that are
regularly used by customers in using the Gemini MS or Gemini R&D MS. HP
customers and Bruker customers may order these consumables from HP through HP's
consumables distribution channel.
7.2 Bruker's Core Responsibilities.
7.2.1 Bruker Hardware. Bruker will manufacture (or procure) and test all
hardware components for which Bruker has production responsibility. These
components are identified in the section under the heading "Bruker-Daltonik
Components" in "Appendix 2 - Gemini Im Component Breakdown" in the Gemini
Project Plan.
7.2.2 Bruker Software. Bruker will manufacture CD ROMs containing all software
required to provide control of the Gemini MS and Gemini R&D MS and CD ROMs
containing the data analysis software. Bruker also will manufacture CD ROMs or
discs containing the software for the following optional products, which HP may
purchase from Bruker: LC/MS Dissect, Library Search, and stand-alone data
analysis.
7.2.3 Integration and Final Testing. Bruker will provide final assembly and
integration of the HP Gemini Kit / HP Gemini R&D Kit with the corresponding
Bruker hardware components referred to in Section 7.2.1 and the Bruker Software
referred to in Section 7.2.2 to produce the final Gemini MS units and Gemini R&D
MS units and will conduct the final testing of each of the final units. All work
will be performed in an ISO 9000 certified environment. Bruker will conduct the
final test of each Gemini MS and Gemini R&D MS in accordance with the final test
procedures that Bruker, with 11P's assistance, will develop before the end of
the pilot run phase.
7.3 Separately Procured Items. The following components, although required for
the operation of the Gemini MS and Gemini R&D MS, are not provided by HP to
Bruker as part of the HP Gemini Kit or HP Gemini R&D Kit, and are not provided
by Bruker to HP as part of the Gemini MS that it sells to HP: (1) an Xxxxxxx
EIM18 rough pump; (2) a PC with two LAN boards, monitor, and printer; and (3) a
syringe pump. Each Party will procure these components separately and furnish
them as part of the Gemini MS or Gemini R&D MS that such Party sells to its
customers.
7.4 ISO Compliance. Each Party will prepare its manufacturing facilities and
environment in which Gemini / Gemini R&D components, kits, and products will be
manufactured and the processes and systems that it will use to manufacture
Gemini / Gemini R&D components, kits, and products to meet the relevant ISO 9000
standards by October 1, 1999. Each Party will maintain ISO 9000 certification
for the duration of its activities in manufacturing Gemini / Gemini R&D
components, kits, and products. If a Party decides to use a separate entity for
manufacturing any component for which
41BRUKER-HP Collaboration Agreement 10
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
it is responsible, the Party will use its best efforts to select an entity that
will meet the relevant ISO 9000 standards before engaging such entity to perform
any work required under this Agreement. If a Party uses a separate entity for
manufacturing any component for which it is responsible, and such entity does
not meet the relevant ISO 9000 standards, the Party will carefully inspect all
incoming parts and provide the other Party assurance that such parts meet such
Party's quality standards.
7.5 Year 2000 Compliance Warranties. The phrase "Year 2000 Compliant" means able
to perform without error, loss of data or loss of functionality arising from any
failure to process, calculate, compare or sequence date data accurately. Each
Party warrants to the other Party that the processes and systems that it uses to
manufacture Gemini and Gemini R&D components, kits, and products hereunder will
be Year 2000 Compliant by June 1, 1999, and that such processes and systems will
not have an adverse impact on the provision of components, kits and products to
either Party or their respective customers. Each Party also warrants to the
other Party that all software and firmware that it develops for the other Party
or furnishes to the other Party or to the other Party's customers will be Year
2000 Compliant and will not cause any product with which the software or
firmware is intended to be used and is used to become non-Year 2000 Compliant.
Each Party will demonstrate Year 2000 Compliance by furnishing the other Party
successful results of a formal software inspection and review and by
successfully executing the year 2000 compliance tests.
7.6 Quality Program. Each Party will maintain an objective quality program for
all products it delivers to the other Party. Each Party's quality program will
be in accordance with the current revision of HP's Supplier Quality System
Requirements. Each Party will provide to the other Party a copy of its quality
program and supporting test documentation.
7.7 Delegating Manufacturing Responsibilities. Whenever in this Agreement a
Party is assigned the responsibility for manufacturing an item, such Party may
procure the item from a third party or may have a third party manufacture the
item. However, such Party must use its best efforts to select a third party
supplier or third party manufacturer who will meet all relevant requirements of
ISO 9000. Such Party also will use its best efforts to require the third party
supplier or third party manufacturer to provide Year 2000 Compliance warranties,
substantially like the warranties in Section. 7.5, covering everything,
particularly software and firmware, procured from such third party, and to
permit inspection by both Parties.
7.8 Contingency Manufacturing Plan. The Parties will develop a
mutually-acceptable contingency manufacturing plan for use in case either Party
cannot produce sufficient products to meet the other Party's requirements.
7.8.1 If during any quarter either party is unable or unwilling to ship at least
90% of the quantity of HP Gemini MS and HP Gemini R&D MS kits and instruments,
the Parties' Program Managers will discuss corrective actions. If during any
quarter either party is unable or unwilling to ship at least 80% of the quantity
of HP Gemini MS and HP Gemini R&D MS kits and instruments, the Par-ties' Program
Managers and Business Managers will decide what corrective actions to take. Such
actions may include, but are not limited to the following: (a) hire
appropriately skilled personnel to add capacity or shift personnel from other
programs to meet the shipment goals, or (b) provide additional technical
assistance to the other party in which situation the party receiving assistance
will compensate the other party at a rate of 1.5 times salaries plus
transportation and living expenses.
41BRUKER-HP Collaboration Agreement 11
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
7.9 Engineering Design or Process Changes.
7.9.1 Proposed Changes. Neither Party will, without the prior written consent of
the other Party, make or incorporate in the Gemini kit, Gemini R&D kit or Gemini
MS any change in any process or any change in any design that affects the
electrical performance; the mechanical form fit, or function; the environmental
compatibility; the chemical characteristics; the software compatibility; or the
life, reliability, or quality of such Gemini Product (collectively, "Engineering
Changes"). Each Party will give to the other Party notice of any proposed
Engineering Change, and will provide evaluation samples and other appropriate
information at least 90 days prior to the first proposed shipment of the Gemini
kit, Gemini R&D kit or Gemini MS involving an Engineering Change. Each Party
also will give to the other Party notice of any proposed geographical relocation
of any manufacturing process together with assurances that such relocation will
not affect product availability, the electrical performance, the mechanical
form, fit, or function, the environmental compatibility, the chemical
characteristics, the software compatibility, or the life, reliability, or
quality of such Gemini Product, at least 60 days before such relocation.
7.9.2 Safety Standard Changes. Each Party will immediately give notice to the
other Party if any upgrade, substitution or other change to an instrument is
required to make that instrument meet applicable safety standards or other
governmental statutes, rules, orders or regulations, even those that are not
defined as Engineering Changes in Section 7.9. 1. The Parties will determine
which Party is responsible for meeting the requirement, and such Party shall
take all appropriate steps to effect the upgrade, substitution, or other change
that may be required. If the instrument met all applicable safety standards and
other governmental requirements at the time of manufacture, the Parties will
allocate the costs of any subsequent upgrade, substitution or other change
required, in an equitable manner, based on good faith discussions between the
Parties.
7.9.3 Excessive Failure Rate. If the failure rate for the Gemini MS and/or
Gemini R&D MS exceeds an average of two service calls per instrument per year,
averaged over the total number of instruments under warranty, the Parties
jointly will analyze the failure reports, determine the root causes, and develop
corrective action plans. If the Parties determine that the failures are
primarily attributable to one Party, such Party will provide additional
engineering and technical support needed to bring the failure rate within an
acceptable limit. If the Parties determine that the failures are not primarily
attributable to one Party, both Parties will provide additional engineering and
technical support needed to bring the failure rate within an acceptable limit.
ARTICLE 8 - SALES OF COMPONENTS AND OF THE GEMINI MS AND GEMINI
R&D MS
8.1 HP Gemini Products. Bruker may purchase from HP and HP will sell to Bruker
the following products ("HP Gemini Products") so long as either HP is actively
selling the Gemini MS or Bruker is actively selling the Gemini R&D MS:
HP Gemini Kits, as specified in Sub-Section 7.1.1
HP Gemini R&D Kits, as specified in Sub-Section 7.1.1
41BRUKER-HP Collaboration Agreement 12
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
HP Ship Kits, comprising accessories and consumables, as specified in
Sub-Section 7.1.3
HP APCI accessory HP CDs or disks containing optional software identified
on the document entitled "Pricing of HP and Bruker Kits, Instruments,
Accessories, and Software" which is incorporated herein as an Appendix 3
in Section 22.9.
HP Gemini R&D kit without source parts, etc. as specified in Gemini
Project Plan.
8.2 Bruker Gemini Products. HP may purchase from Bruker and Bruker will sell to
HP the following products ("Bruker Gemini Products") so long as either Bruker is
actively selling the Gemini R&D MS or HP is actively selling the Gemini MS:
Gemini MS as assembled and tested in accordance with Section 7.2.3 Bruker
Nanoelectro spray accessory
Bruker CDs or disks containing optional software identified on the
document entitled "Pricing of HP and Bruker Kits, Instruments,
Accessories, and Software"
8.3 Prices. Sales between HP and Bruker will be conducted in US dollars. The
prices are set out in the document entitled "Pricing of HP and Bruker Kits,
Instruments, Accessories, and Software," which is incorporated herein as
Appendix 3. The Parties have a goal of reducing their respective manufacturing
costs so that they can reduce their prices to each other after the year [*](3)
from the prices specified for the year [*]. The parties will confer regarding
their prices for HP Gemini Kits, HP Gemini R&D Kits and the Gemini MS sold after
the year [*]. HP will reduce the prices that HP charges Bruker for the HP Gemini
Kit and the HP Gemini R&D Kit by the same percentage that Bruker reduces the
price that it charges HP for the Bruker value add portion of the Gemini MS.
Bruker and HP have mutual interest in product differentiation, including
different ionization methods (e.g. MALDI, FAB, XXXX, MCI, MAB). Bruker has an
initial interest in developing an in-source MALDI-ITMS system based upon
ionization in vacuum. Bruker has the option of purchasing a Gemini R&D kit
without ESI/API source parts, power supplies, etc. to be used with different
ionization sources mentioned above. This option is described in the Gemini
project plan and the price set forth in Appendix 3. This provision is applicable
for a volume of more than 5 kits per year. If less than 5 kits per year are
required, Bruker can purchase Gemini R&D kits, and the excess parts not used for
this instrument configuration can be used by Bruker for spare parts.
8.4. Exchange Rate Variances. The prices in Appendix 3 are based upon an
exchange rate of 1.65DM per US dollar. HP and Bruker agree to share the exchange
rate risk associated with the Bruker value add portion of the Gemini MS. If the
actual exchange rate varies more than 5%DM/US$ Bruker and HP will equally share
the impact of the variance. The actual exchange rate will be the noon Fed Funds
fixing rate on the date that Bruker accepts a purchase order placed by HP.
Within thirty days after the end of each HP fiscal quarter HP and Bruker will
settle the impact of the differences and the appropriate party will make a
payment to the other party. If the exchange rate between US dollars and the
DM(or Euro) differs from the assumed exchange rate by more than 15% at the
beginning of any HP fiscal quarter, HP and Bruker will reset the assumed
exchange rate and adjust the prices in Appendix 3. To complete the reset of the
assumed exchange rate, the Parties will (1) replace Appendix 3, "Pricing of HP
and Bruker Kits,
----------
(3) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 13
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Instruments, Accessories, and Software" with a document containing revised
prices in US dollars, (2) agree that any reference to prices refers to the
updated Appendix, and (3) agree that any reference to the assumed exchange rate,
in the body of the contract or any Appendices, refers to the new assumed
exchange rate.
8.5 AOB-HP License Agreement Analytical of Branford, Inc. ("AOB") is the
exclusive licensee of U.S. patents No. 5,130,5338, No. 5,581,080, and No.
5,686,726. AOB has granted to HP sublicenses under AOB's exclusive licenses to
the AOB licensed patents. AOB and HP have agreed that the Esquire-LC, Gemini MS
& Gemini R&D MS and successor ITMS systems will be considered as licensed
products sold by HP and Bruker to their customers so long as HP pays AOB the
royalty due upon such sales. The AOB license fee is included in the price of the
HP Esquire-LC kit and HP Gemini MS and Gemini R&D MS kits and bioanalysis and
deconvolution software. However, Bruker cannot use the HP API source parts or
deconvolution software for products other than ITMS products since Bruker has no
license to AOB patents.
8.6 Taxes, Duties, Shipping Charges, Insurance. Title to the HP Gemini MS Kits,
HP Gemini R&D MS Kits, HP Ship Kits, APCI accessories, and the media on which HP
has stored its optional software will pass to Bruker, FOB San Francisco. Bruker
will pay all taxes, duties, freight and insurance for shipments from San
Francisco. Title to the finished HP Gemini MS, nanoelectrospray accessory and
the media on which Bruker has stored its optional software will pass to HP, FOB
Bremen, Germany. HP will pay all taxes, duties, freight and insurance for
shipments from Bremen, Germany.
8.7 Order Forecasts.
8.7.1 During the Development Project. At the beginning of the Production
Prototype Phase, Bruker will give HP an initial forecast of Bruker's
requirements for HP Gemini Products (as defined or listed in Section 8.1 ) for
the first year after shipment release. Likewise, at the beginning of the
Production Prototype Phase, HP will give Bruker an initial forecast of HP's
requirements for Bruker Gemini Products (as defined or listed in Section 8.2)
for the first year after shipment release . At the beginning of the Pilot Run
Phase, each Party will provide to the other Party an updated forecast.
8.7.2 On-Going Forecasts. After the successful conclusion of the Pilot Run
Phase, HP will provide to Bruker before the end of each month a forecast of the
quantity of the Gemini MS, the Bruker Nanoelectrospray Accessory, and Bruker
Software that HP has ordered or scheduled for delivery or expects to order or
schedule for deliveries, during the following 12 months. Similarly, before the
end of each month Bruker will provide to HP a forecast of the quantity of the HP
Gemini Kit, the HP Gemini R&D Kit, the HP Ship Kit, the HP APCI Accessory, and
HP Software that Bruker has ordered or scheduled for deliveries, or expects to
order or schedule for deliveries, during the following 12 months. Each Party
will update its forecast each month to provide the other Party its best
estimates of the number of units that it will want delivered in each of the 12
succeeding months.
8.7.3 Implications of Forecasts on Orders for Products. Both parties may accept,
but will not be obligated to accept, a purchase order for quantities of Gemini
Products that differ from the quantities indicated in its forecasts by more than
the percentages indicated in the table below. A conforming purchase order must
conform with each parameter set out below; the variances permitted are to be
considered separately and not cumulatively.
41BRUKER-HP Collaboration Agreement 14
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
--------------------------------------------------------------------------------
Time Between Relevant Minimum Quantity of Maximum Quantity of
Forecast and Required Product on Purchase Order Product on Purchase Order
Shipments on Purchase Order
--------------------------------------------------------------------------------
Forecast Provided 1 Month 100% 100%
Before Shipments Scheduled
on Purchase Order
--------------------------------------------------------------------------------
Forecast Provided 2 Months 100% 110%
Before Shipments Scheduled
on Purchase Order
--------------------------------------------------------------------------------
Forecast Provided 3 Months 80% 120%
Before Shipments Scheduled
on Purchase Order
--------------------------------------------------------------------------------
Forecast Provided 6 Months 50% 150%
Before Shipments Scheduled
on Purchase Order
--------------------------------------------------------------------------------
8.8 Purchase Orders
8.8.1 Function of Purchase Orders. Each Party will formally order kits,
instruments, components, accessories, software, and replacement parts,
("Products") from the other Party and schedule shipments ("Delivery Dates") by
issuing its regular purchase order ("Order") to the other Party. Each Order will
include: (i) unit quantity; (ii) unit price; (iii) shipping destination; (iv)
Delivery Date; and (v) other instructions or requirements pertinent to the
Order. Both parties may schedule regular intervals for deliveries by an
appropriate Order setting forth the intervals. This Agreement will control and
take precedence over the terms of an Order if there is any inconsistency between
this Agreement and an Order.
8.8.2 Order Acknowledgment. An Order will be deemed to have been placed as of
the date of receipt of the Order. The receiving Party will promptly confirm the
receipt of an Order electronically or through facsimile to the ordering Party
within two working days. Orders that are within the allowed variances from the
forecasts, as set out in Section 8.7, will be deemed accepted upon receipt. All
Orders will be deemed accepted if the receiving Party does not reject the Order
or non-conforming item on the Order, in whole or in part, within ten business
days of receipt of the Order. If an Order exceeds the Forecast or shortens the
Lead Time, the receiving Party will use reasonable efforts to fill such excess
or accommodate such shorter Lead Time.
8.8.3 Submission of Regular Monthly Purchase Orders. Each Party will submit to
the other Party its Purchase Order for Products to be purchased and delivered
during any month at least 60 days before the beginning of such month.
8. 9 Standard Payment Terms. Each Party will pay for Products, in US dollars,
net 37 days, after the latest of. (a) receipt by the receiving Party of an
appropriate invoice from the shipping Party; or (b) receipt by the Party of the
corresponding Products or Parts. Except as other-wise provided in this
41BRUKER-HP Collaboration Agreement 15
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Agreement, associated freight expenses and duties will be paid directly by the
receiving Party. Neither Party will be liable for any costs related to or
payments for unordered or Nonconforming Products.
8.10 Prototypes and Products Delivered During Development Project. During the
Lab Prototype Phase, the Parties will provide the parts, hardware components,
software, and labor to make and allocate lab prototypes,, in accordance with the
Gemini Project Plan. This will be done without charge to or receiving
reimbursement from the other Party, irrespective of where the lab prototypes
will be sent, who will get the lab prototypes, or how the lab prototypes will be
used. During the Production Prototype Phase, the Parties may provide the parts,
hardware components, software and labor to upgrade some of the lab prototypes to
become production prototypes. The Parties will also provide the parts, hardware
components, software, and labor to make new production prototypes. The Parties
will allocate the production prototypes between the Parties, in accordance with
the Gemini Project Plan, without charge to or receiving reimbursement from the
other Party, irrespective of where the production prototypes will be sent, who
will get the production prototypes, or how the production prototypes will be
used. During the Pilot Run Phase, the Parties may upgrade some of the production
prototypes to become pilot run instruments, and the Parties will make additional
pilot run instruments. The Parties will distribute the pilot run instruments in
accordance with the Gemini Project Plan, The pilot run instruments will be
treated as customer units for purposes of determining and allocating costs and
payments between the Parties. Bruker will pay HP for all HP Gemini Kits, HP
Gemini R&D Kits, and HP Ship Kits (or their equivalents in components and parts)
incorporated into the pilot run instruments, as though Bruker had ordered the
components for its regular manufacturing. HP will pay Bruker for all the pilot
run units that are delivered to HP, as though the units were ordered for
customer shipments. If one Party has purchased and famished the separately
procured items for a unit that is distributed to the other Party, the other
Party will reimburse the procuring Party for such separately procured items.
ARTICLE 9 - HP'S MINIMUM PURCHASE COMMITMENT, INITIAL PURCHASE
ORDER AND DISPOSITION OF HP'S SECURITY DEPOSIT/DONVN PAYMENT
9.1 Minimum Purchase Commitment by HP. HP will purchase a minimum of [*](4)
units of the Gemini NIS during the two years following shipment release.
9.2 HP's Initial Purchase Order. As assurance for HP's minimum purchase
commitment recited above, HP will issue a new purchase order for this minimum
quantity after completion of the Production Prototype phase. This new purchase
order will replace and automatically cancel existing HP Purchase Order
#23732322. Notwithstanding anything to the contrary in Sub-Section 8.7.3,
Section 8.8, and Section 8.9, (a) HP will not submit regular purchase orders
until the [*] units ordered on its initial purchase order have been allocated
for deliveries; instead HP will issue call offs or use another mutually
acceptable procedure to advise Bruker of shipping destinations, Delivery Dates,
and other instructions for each of the [*] units; (b) HP will pay for the first
[*] units, including the pilot run units, as provided in Section 9.5 below.
9.3 Security Deposit/Down Payment Previously Paid by HP to Bruker. Under the
terms of the Old Agreement, HP submitted Purchase Order 923732322 to Bruker for
[*] Gemini units. HP paid Bruker
----------
(4) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 16
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
[*] as a security deposit and down payment, with an expectation that Bruker
would begin shipping Gemini systems to HP in [*](5).
9.4 Partial Refund of Security Deposit/Down Payment. Within five days of
execution of this Agreement, Bruker will refund to HP, by wire transfer, the
balance of the security deposit / down payment, including accrued interest,
except Bruker will retain [*] as the security deposit/down payment for the first
[*] units of the Gemini MS . Thereafter, Bruker will pay HP interest within 30
days after the end of each HP Fiscal Quarter on any amounts that Bruker retains
as a security deposit/down payment during such quarter. The interest rate for
computing interest for such quarter will be the average of the LIBOR one-year
index for such quarter divided by four.
9.5 Disposition of Security Deposit/Down Payment. Each time Bruker sells and
delivers a Gemini MS to HP, Bruker will deduct [*] of transfer price from the
security deposit/down payment and invoice HP for the remainder. When the balance
of the security deposit/down payment is less than [*], Bruker will apply the
balance to HP's purchase of the next Gemini MS and invoice HP for the
difference. If Bruker fails to develop the Gemini/Gemini R&D MS in a timely
manner in accordance with the Gemini Project Plan, or if Bruker terminates this
Agreement before the security deposit/down payment has been used up in the
normal course of selling products to HP, Bruker shall immediately refund to HP
the remaining balance of the security deposit/down payment. If HP does not order
sufficient products to deplete the security deposit/down payment through no
fault of Bruker, HP will forfeit any remaining security deposit/down payment.
9.6 Delay in Initial Shipment. If the initial shipment of the Gemini MS is
delayed beyond the scheduled shipment date of [*], Bruker will refund to HP [*]
of the Security Deposit for each Gemini MS that HP forecasts, on its forecast
immediately preceding the delay, for delivery during the period of the delay,
until the initial shipment occurs.
ARTICLE 10 - WARRANTIES AND SUPPORT
10.1 HP Warranty. HP warrants that all HP Gemini Products, including the media
on which HP software is fixed, will be free from defects in materials and
workmanship for a period of 15 months from the date of shipment by HP to Bruker.
If any HP part in any Gemini MS or Gemini R&D MS fails during manufacture or
test at Bruker's factory as a result of such defect, Bruker may draw from its
stock of HP parts to replace any such failed HP part and return such failed part
to HP for replacement at no charge: or for credit. If any HP part in any Gemini
R&D MS fails as a result of such defect after Bruker has shipped the Gemini R&D
MS, but within 15 months of HP's shipment to Bruker, HP will provide a
replacement part in exchange for such failed part at no charge. However, HP will
not be responsible for paying for any labor or other expenses incurred in
connection with replacing such part in the Gemini R&D MS.
10.2 Bruker Warranty. Bruker warrants that all Bruker Gemini Products, including
the media on which Bruker software is fixed, will be free from defects in
materials and workmanship for a period of
----------
(5) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 17
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
15 months from the date of shipment by Bruker to HP. If any Bruker part in any
Gemini MS fails as a result of such defect within 15 months of Bruker's shipment
to HP, Bruker will provide a replacement part in exchange for such failed part
at no charge. However, Bruker will not be responsible for paying for any labor
or other expenses incurred in connection with replacing such part in the Gemini
MS.
10.3 Replacement Parts. Each Party will prepare a list of parts (by part number
and description) that it will make available as replacement parts under its
warranty and that it will sell for customer support. In preparing these lists,
each Party will determine whether to furnish individual parts or assemblies of
parts as replacement parts. Each Party also will determine and specify the
lead-time for ordering and the lot quantity for each listed replacement part.
Each Party also will determine the distribution channel(s) that it will use in
selling the replacement parts or making them available to the other Party. The
prices that each Party will charge the other Party for replacement parts or the
formula that will be used to determine such prices is set out in the "Pricing of
HP Kits, Accessories, and Software and Bruker Instruments, Accessories, and
Software".
10.4 Return of Failed Parts and Failure Reports. HP will send to Bruker all
failed electronic boards that HP replaces for its customers, at Bruker's
expense. If Bruker requests HP to send other failed parts to Bruker, HP will use
reasonable efforts to send such other failed parts to Bruker , at Bruker's
expense. If HP requests Bruker to send any failed parts to HP, Bruker will use
reasonable efforts to send such failed parts to HP, at HP's expense. Whether or
not any failed part is returned, the par-ties will provide each other with
failure information to facilitate corrective action by the Party that made the
part.
ARTICLE 11 - NEW DEVELOPMENT PROJECTS
11.1 Upgrades to Gemini/Gemini R&D MS and New ITMS. The Parties will begin
considering upgrades to the Gemini/Gemini R&D MS and/or the design of the next
generation platform (under the code name [*](6)), at the end of the Gemini
Production Prototype Phase. If the Parties decide to jointly develop a major
upgrade to the Gemini/Gemini R&D MS or to jointly develop the [*] or any other
ITMS, the Parties will use Lifecycle Planning, including the preparation of
Lifecycle Documents for the project. Neither Party will be obligated to commence
or to finish any joint development of an upgrade or new product unless both
Parties formally adopt the Lifecycle Documents for the upgrade or new product,
and both Parties agree to a set of prices at which the Parties will sell
components and products to one another.
11.2 RP Developments of Technologies in HP Core Areas. HP anticipates that it
will continue making improvements in the HP Core Areas. HP will inform Bruker
product, project and program management of any improvements that HP develops and
incorporates into any of its ITMS instruments during the Engineering
Collaboration Period. Both Parties will share technology improvements in their
core areas to assure that both Parties' products are competitive in basic areas
of MS and MS/MS performance such as sensitivity, mass range, resolution, etc.
Upon meeting the required competitive levels, the parties will discuss and
mutually agree how to differentiate their products.
11.3 Bruker Developments of Technologies in Bruker Core Area. Bruker anticipates
that it will continue making improvements in the Bruker Core Areas. Bruker will
inform HP products, project and
----------
(6) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 18
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
program management of any improvements that Bruker develops and incorporates
into any of its ITMS instruments during the Engineering Collaboration Period.
Both Parties will share technology improvements in their core areas to assure
that both Parties' products are competitive in basic areas of MS and MS/MS
performance such as sensitivity, mass range, resolution, etc. Upon meeting the
required competitive levels, the parties will discuss and mutually agree how to
differentiate their products.
ARTICLE 12 - EMPLOYEE RELATIONS
12.1 Visiting Employees. Each Party will perform most of its tasks on its own
premises. However, employees of each Party will visit the other Party's premises
on a regular basis during the Engineering Collaboration Period. Regardless of
the duration of any such visit, the visiting employee will not be deemed an
employee of the Host Party. The visiting employee's regular employer will
continue to be responsible for the employee's wages, benefits and payroll taxes,
and (unless otherwise agreed by the Parties) reimbursable expenses. Each
visiting employee will abide by the safety and security rules of the Host Party.
12.2 Sensitive Information. A visiting employee may inadvertently observe or
overhear information that a reasonably prudent person would recognize as
confidential or proprietary. If this happens, the employee will treat such
information as belonging to the Host Party and will not disclose it to anyone or
use it for any purpose without first inquiring of the Host Party.
12.3 Recruiting. No Party may recruit any employee assigned by another Party to
work on the Project while such employee works on the Project or within one year
thereafter. However, such employee may take the initiative to apply for
employment with the other Party and such other Party may offer employment to
such employee.
ARTICLE 13 - CONFIDENTIAL INFORMATION
13.1 Confidential Information. "Confidential Information" means (a) written
information that is marked as confidential at the time of disclosure and (b)
unwritten information that is treated as confidential at the time of disclosure
and designated as confidential in a written memorandum sent to the recipient
within thirty days of disclosure, summarizing the information sufficiently for
identification.
13.2 Duty of Care. Each Party receiving Confidential Information under this
Agreement will protect it by using the same degree of care, but no less than a
reasonable degree of care, to prevent the unauthorized use, dissemination, or
publication of the Confidential Information as the recipient uses to protect its
own confidential information of a like nature.
13.3 Persons Who May Receive Information. A recipient may disclose Confidential
Information only to its employees and consultants who have a need to know such
information to carry out their duties. All such employees and consultants must
be obligated by written agreement to give substantially the same protection to
the Confidential Information as is provided herein.
13.4 Use of Confidential Information. HP may use Bruker's Confidential
Information only for the purpose of understanding technologies associated with
such disclosures, for developing ITMS products under this agreement, and for
such purposes as may be permitted under Article 14. Bruker may use HP's
41BRUKER-HP Collaboration Agreement 19
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Confidential Information only for the purpose of understanding technologies
associated with such disclosures, for developing ITMS products under this
agreement, and for such purposes as may be permitted under Article 14.
13.5 Disclosures Under Prior Agreements. As of the Effective Date, this
Agreement will govern any disclosure of Confidential Information pertinent to
the Project under any prior agreement.
13.6 Exclusions. The provisions of this Article shall not apply to any
information:
(a) that was already in recipient's possession before disclosure by the
disclosing Party,
(b) that is, or after it becomes, a matter of public knowledge through no
fault of recipient,
(c) that is rightfully received by recipient from a third party without a
duty of confidentiality,
(d) that is disclosed by the disclosing Party to a third party without
imposing a duty of confidentiality on the third party, or
(e) that is developed independently by employees of the recipient with no
access to the Confidential Information.
A recipient may disclose Confidential Information when required by law, but only
to the extent so required, provided that the recipient gives the disclosing
Part), reasonable advance notice so that the disclosing Party can protect its
interests.
13.7 Term. The recipient's obligations of confidentiality expires three years
after the expiration or termination of the Engineering Collaboration Period.
ARTICLE 14 - DEVELOPMENT INVENTIONS AND OTHER INTELLECTUAL
PROPERTY CREATED DURING DEVELOPMENT PROGRAMS
14.1 Invention. "Invention" means anything that comprises patentable subject
matter under the U.S. Patent Law (Title 35, U.S. Code Section 101)
14.2 Development Invention. "Development Invention" means an invention
comprising, or embodied in, an ITMS or a component thereof, or a process
practiced or implemented in or by an ITMS made or developed, by one or more
employees of either Bruker or HP, during the Engineering Collaboration Period.
14.3 Ownership of Development Inventions. A Development Invention made or
developed solely by Bruker employees ("a Bruker Development Invention") is
deemed to be solely owned by Bruker. A Development Invention made or developed
solely by HP employees ("an HP Development Invention") is deemed to be solely
owned by HP. A Development Invention made or developed jointly by employees of
both Parties ("a Joint Development Invention") is deemed to be owned by both
Parties. For purposes of Section 14.5 and Section 14.6 below, a Bruker
Development Invention will be considered solely owned by Bruker, and an HP
Development Invention will be considered solely owned by HP, notwithstanding any
assignment or partial assignment of any ownership by a Party to any other party.
14.4 Disclosure of Development Inventions. Each Party will disclose to the other
Party all Development Inventions, including Joint Development Inventions, made
or developed by its employees.
41BRUKER-HP Collaboration Agreement 20
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
14.5 Obtaining and Maintaining Patents Covering Development Inventions. Each
Party will determine, in its sole discretion, whether and where to file patent
applications covering Development Inventions of which it is the sole owner. Each
Party will be solely responsible for the prosecution of patent applications and
the maintenance of patents covering Development Inventions of which it is the
sole owner. With respect to Joint Development Inventions, the Parties will be
governed by the provisions of Section 143 in determining whether and where to
file patent applications and in allocating responsibility for the prosecution of
patent applications and the maintenance of patents.
14.6 Licenses Regarding Solely Owned Development Inventions. The provisions of
this Section 14.6 and the Sub-sections hereunder relate and extend only to
solely owned Development Inventions and grant no rights to exploit any other
inventions or under any patents covering any other inventions.
14.6.1 Licenses to Each Other Regarding Development Invention Within Owner's
Core Area. With respect to each solely owned Development Invention in the
owner's Core Areas, the owning Party hereby grants and will grant to the other
Party, for the duration of the Engineering Collaboration Period and for 2 years
there after a world-wide, non-exclusive, royalty-free, paid -up license to use,
offer to sell, sell and import ITMSs that constitute, embody, or incorporate
such Development Invention and to practice any process(es) constituting or
embodying such Development Invention in using ITMSs with the right to grant
sublicenses to the other Party's Affiliates, but without the right to grant
sublicenses to non-Affiliates. Such license extends and will extend to all
patents covering the Development Invention and to trade secrets embodied in the
Development Invention, but not to copyrights in computer programs. Such license
specifically excludes the right to make, or have made, i.e. the license is not a
manufacturing license.
14.6.2 Licenses to Each Other Regarding Development Invention In Other Party's
Core Area. With respect to each solely owned Development Invention in the other
Party's Core Areas, the owning Party hereby grants and will grant to the other
Party a world-wide, non-exclusive, royalty-free, paid-up, perpetual. license to
make, have made, use, offer to sell, sell, and import products that constitute,
embody, or incorporate such Development Invention and to practice any
process(es) constituting or embodying such Development Invention in
manufacturing or using products, in all fields, with the right to grant
sublicenses to the other Party's Affiliates, but without the right to grant
sublicenses to non-Affiliates. Such license extends and will extend to all
patents covering the Development Invention and to trade secrets embodied in the
Development Invention, but not to copyrights in computer programs.
14.6.3. Licenses to Each Other Regarding Development Invention In Neither
Party's Core Area. With respect to each solely owned Development Invention that
is in neither Party's Core Areas, the owning Party hereby grants and will grant
to the other Party, for the duration of the Engineering Collaboration Period and
for two years thereafter, a world-wide, non-exclusive, royalty-free, paid-up
license to use, offer to sell, and import ITMSs that have been developed jointly
by the Parties hereunder that constitute, embody, or incorporate such
Development Invention and to practice any process(es) constituting or embodying
such Development Invention in using ITMSs that have been developed jointly by
the Parties hereunder, with the right to grant sublicenses to the other Party's
Affiliates, but without the right to grant sublicenses to non-Affiliates. Such
license extends and will extend to all patents covering the Development
Invention and to trade secrets embodied in the Development
41BRUKER-HP Collaboration Agreement 21
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Invention, but not to copyrights in computer programs. Such license specifically
excludes the right to make or have made, i.e., the license in not a
manufacturing license.
14.6.4 Licenses to Third Parties. Each Party will determine, in its sole
discretion, whether, and to whom else, it will grant additional licenses and the
terms of such licenses with respect to its solely owned Development Inventions.
14.7 Joint Development Inventions
14.7.1 Joint Development Inventions In Bruker Core Areas. If the subject matter
of a Joint Development Invention is exclusively in Bruker Core Areas: (1) Bruker
shall have the first right to determine whether to seek patents on such
invention; (2) if Bruker decides to file one or more patent applications on such
invention, upon request by Bruker, HP will assign its rights to any patent
application and any patent issuing from such patent application covering such
invention, and Bruker may file and prosecute such patent applications solely in
its name; and (3) HP shall retain, and Bruker shall grant to HP under the
patents issuing from such patent applications, a royalty-free, nonexclusive,
perpetual license to make, have made, import, offer to sell, sell, and use
products that incorporate the invention, with the right to grant sublicenses to
its Affiliates, but without the right to grant sublicenses to non-Affiliates. If
Bruker decides not to file a patent application on a Joint Development Invention
in Bruker Core Areas, or if Bruker does not timely request HP to assign HP's
rights to file a patent application on such Joint Development Invention, the
Joint Development Invention will be treated as a Joint Development Invention in
neither Core Areas under the provisions of Section 14.7.3.
14.7.2 Joint Development Inventions In HP Core Areas. If the subject matter of a
Joint Development Invention is exclusively in HP Core Areas: (1) HP shall have
the first right to determine whether to seek patents on such invention; (2) if
HP decides to file one or more patent applications on such invention, upon
request by HP, Bruker will assign its rights to any patent application and any
patent issuing from such patent application covering such invention, and HP may
file and prosecute such patent applications solely in its name; and (3) Bruker
shall retain, and HP shall grant to Bruker under the patents issuing from such
patent applications, a royalty-free, nonexclusive, perpetual license to make,
have made, import, offer to sell, sell, and use products that incorporate the
invention, with the right to grant sublicenses to its Affiliates, but without
the right to grant sublicenses to non-Affiliates. If HP decides not to file a
patent application on a Joint Development Invention in HP Core Areas, or if HP
does not timely request Bruker to assign Bruker's rights to file a patent
application on such Joint Development Invention, the Joint Development Invention
will be treated as a Joint Development Invention in neither core areas under the
provisions of Section 14.7.3.
14.7.3 Joint Development Inventions In Neither Core Areas or in Both Core Areas.
Joint inventions that are in neither Party's Core Areas, or simultaneously in
both Party's Core Areas, will be owned jointly, and both parties will try to
resolve by mutual agreement who takes the lead in filing patents on such
inventions.
14.8 Inventions Prior to Effective Date. The Provisions of this Article 14 will
apply to all Development Inventions-made during the Engineering Collaboration
Period, whether made during the validity of the Old Agreement or after the
Effective Date of this Agreement, except that with respect to any invention
covered by the Old Agreement for which a patent has issued or for which a patent
41BRUKER-HP Collaboration Agreement 22
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
application has been filed in any country in the names of both Parties, all
patents issued in all countries covering such invention will be assigned to both
Bruker and HP in accordance with the Old Agreement.
14.9 Licenses to Each Other on Pre-existing Intellectual Property. With respect
to any HP or Bruker inventions, patents, know-how or trade secrets that existed
before the Old Agreement was signed ("Pre-existing Intellectual Property"), the
owning Party hereby grants and will grant to the other Party, for the duration
of the Engineering Collaboration Period and for two years thereafter, a
world-wide, non-exclusive, royalty-free, paid-up license to use, offer to sell,
sell and import ITMSs that have been developed jointly by the Parties hereunder
that constitute, embody, or incorporate such Pre-existing Intellectual Property
and to practice any process(es) constituting or embodying such Pre-existing
Intellectual Property in using ITMSs that have been developed jointly by the
Parties hereunder, with the right to grant sublicenses to the other Party's
Affiliates, but without the right to grant sublicenses to non-Affiliates. Such
license does not extend to copyrights in computer programs. Such license
specifically excludes the right to make or have made, i.e., the license in not a
manufacturing license. The license also extends to the Esquire-LC.
14.10 Implied Licenses. The Parties acknowledge that with respect to any
invention of a Party that such Party embodies in or incorporates into the Gemini
MS / Gemini R&D MS or a component thereof, any purchaser of the Gemini MS /
Gemini R&D MS will have an implied license under any patent that may cover such
invention permitting such purchaser to use, to offer for sale, and to sell such
patented invention when using or selling such Gemini MS / Gemini R&D MS.
14.11 Ownership of Copyrights in Works of Authorship. The copyright in a
document and in any software or firmware code, written solely by employees of
one Party, shall be owned solely by that Party. The copyright in a document and
in any software or firmware code, written by employees of both Parties shall be
owned by both Parties.
14.12 Trade Secrets in and Legends to be Applied to Documents. If a document or
software or firmware code includes or incorporates a trade secret of either
Party, the Party that creates such document or software or firmware must include
a legend on the document or embedded in the code designating such document or
code as "Confidential" or "Proprietary" with the name of the Party whose trade
secret is incorporated (or names of both Parties if trade secrets of both
Par-ties are incorporated). Notwithstanding the ownership of the copyright in a
work by one or both Parties, if the work incorporates or is based upon
Confidential Information disclosed by one or both Parties or developed as
Confidential Information in the Gemini Program or in connection with any other
matters covered by this Agreement, the work may be used and distributed only in
accordance with the provisions governing the use and distribution of
Confidential Information herein.
14.13 License to Use HP Software. HP will make available for purchase by Bruker,
as set out in Section 8.1, CDs containing certain optional computer application
programs covered by HP copyrights. HP hereby grants to Bruker a license, under
HP's copyright in each computer application program for which Bruker has paid
the license fee, to install and to execute the program on one computer. Bruker
will transfer to Bruker's customer the license when Bruker transfers the CDs
containing such computer application program or when Bruker transfers the
computer on which such computer application program is installed. Bruker will
pay HP the license fee (or purchase the CE, containing the optional
41BRUKER-HP Collaboration Agreement 23
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
computer application program) for each computer on which an HP optional computer
application program is installed or executed.
14.14 License to Use Bruker Software. Bruker will make available for purchase by
HP, as set out in Section 8.2, CDs containing certain optional computer
application programs covered by Bruker copyrights. Bruker hereby grants to HP a
license, under Bruker's copyright in each computer application program -for
which HP has paid the license fee, to install and to execute the program on one
computer. HP will transfer to HP's customer the license when HP transfers the
CDs containing such computer application program or when HP transfers the
computer on which such computer application program is installed. HP will pay
Bruker the license fee (or purchase the CD containing the optional computer
application program) for each computer on which a Bruker optional computer
application program is installed or executed.
14.15 License to Copy and Distribute Documents. Each Party grants to the other
Party a non-exclusive, royalty-free, worldwide license under its copyrights in
any technical paper or brochure describing or applicable to the Gemini MS /
Gemini R&D MS to make and distribute copies thereof and to make derivative works
thereof and to make and distribute copies of such derivative works
ARTICLE 15 - REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
15.1 Third Party Confidential Information. Each Party represents and warrants to
the other Party that it will not furnish to the other Party, incorporate in any
works furnished to the other Party or use in any deliverable in the Gemini
Project any confidential information of any third party without permission of
such third party.
15.2 Third Party Works of Authorship. Each Party represents and warrants to the
other Party that it will not furnish to the other Party, incorporate in any
works furnished to the other Party, or use in any deliverable in the Gemini
Project any copyrighted works of any third party without permission of such
third party.
15.3 Third Party Patents. Each Party represents and warrants to the other Party
that it will not furnish to the other Party, incorporate in any works furnished
to the other Party, or use in any deliverable in the Gemini Project any product,
data, information, know-how, or process that such Party reasonably believes may
infringe or conflict with any patent rights of a third party, unless such Party
also furnishes to such other Party a warning of such possible infringement or
conflict and information known by such Party about such possible infringement or
conflict. Neither Party has a duty under this Agreement to conduct a patent
search or infringement study. Except as expressly set forth elsewhere in this
Agreement, neither Party warrants against infringement of third-party patent
rights.
15.4 Disclaimers of Express and Implied Warranties. Except as expressly set
forth elsewhere in this Agreement, each Party expressly disclaims any express or
implied warranties, including without limitation the warranties of
merchantability and fitness for a particular purpose.
ARTICLE 16 - CONFLICTS WITH THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS
41BRUKER-HP Collaboration Agreement 24
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
16.1 Claims Directed to Bruker Core Areas.
16.1.1 Bruker's Duty To Defend. Bruker will, at its expense, defend or settle
any third party claim asserted against HP based on an allegation of infringement
of a third party's intellectual property rights in the Bruker Core Areas. Bruker
will pay all costs, damages and expenses awarded by a court or agreed to in
settlement, arising from such third party claim against HP.
16.1.2 HP's Duty To Notify and Cooperate. HP will give Bruker prompt notice of
any third party claim, tender the defense, permit Bruker to control the defense,
and provide information and reasonable assistance to Bruker at HP's expense.
16.2 Claims Directed to HP Core Areas.
16.2.1 Duty To Defend. HP will, at its expense, defend or settle any third party
claim asserted against Bruker based on an allegation of infringement of a third
party's intellectual property rights in the HP Core Areas. HP will pay all
costs, damages and expenses awarded by a court or agreed to in settlement,
arising from such third party claim against Bruker.
16.2.2 Bruker's Duty To Notify and Cooperate. Bruker will give HP prompt notice
of any third party claim, tender the defense, permit HP to control the defense,
and provide information and reasonable assistance to HP at Bruker's expense.
16.3 Either Party's Right to Defend. The party providing any indemnification
under this Section 16 shall have complete control of the defense and settlement
of the matter subject to indemnification. If an indemnified party under Section
16 decides to retain its own counsel in connection with the matter where it is
receiving indemnification, such indemnified party shall do so at its sole cost
and expense, and such counsel shall have no role other than a monitoring role.
16.4 Other Third Party Claims. Each party will be responsible for its own
defense against third party claims not covered by the provisions above. The
parties will co-operate with one another in defending against such third party
claims.
16.5 Pending Litigation. Bruker will assume the complete defense of the existing
ITMS law suit and any new law suits brought by Xxxxxxxx Corporation against the
Parties in Bruker's Core Areas as of the Effective Date and will be solely
responsible for the selection of counsel and prosecution or settlement of the
suit. HP will provide reasonable assistance to Bruker upon request, at HP's
expense. Bruker will pay all costs of the defense incurred after the Effective
Date. Bruker will pay any settlement and any final adverse judgment. Bruker is
not liable for any of HP's defense costs incurred prior to the Effective Date.
ARTICLE 17 - RESPONSIBILITIES FOR SALES OF ESQUIRE-LC SYSTEMS
17.1 Co-Branding. Bruker will continue to affix the trademarks and logotypes of
both Bruker and HP to the Esquire-LC systems that Bruker makes.
41BRUKER-HP Collaboration Agreement 25
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
17.2 Sales of Esquire Kits. HP will continue to sell to Bruker the HP Esquire-LC
Kit, the HP APCI accessory and certain HP software related to Esquire-LC to
Bruker as is described in Appendix 4. Bruker may purchase the HP software and HP
hardware related to Esquire-LC through Bruker's OEM and DTD agreement with HP at
the prices set out in such agreements. The prices for the Esquire-LC kits and
APCI accessory are set out in an exhibit entitled "Pricing of HP Esquire-LC kits
and APCI accessory" which is attached as Appendix 4. Bruker is responsible for
determining the final amount of Esquire-LC kits to be ordered from HP.
17.3 Marketing Esquire-LC Systems in the United States and Canada
17.3.1 Division of Responsibilities. In the United States and Canada , HP's
primary area of responsibility for promotion and sale of Esquire-LC Systems will
be the commercial (for-profit) market plus HP's established customer base in the
non-profit market. In the United States and Canada , Bruker's primary area of
responsibility for promotion and sale of Esquire-LC Systems will be the
non-profit market plus Bruker's established customer base in the commercial
market. "Non-profit" means institutions such as governments, universities,
hospitals, and research institutions that do not market products with an
expectation of ultimately earning a profit. Representatives of HP and Bruker
may, from time to time, meet to discuss whether each Party is effectively
serving its primary area of responsibility, but nothing stated in this Section
17.3.1 or in any such meeting or discussion will prevent either Party from
accepting, orders for Esquire-LC Systems outside its primary area of
responsibility.
17.3.2 Purchases of Esquire-LC Systems and Accessories. HP may purchase
Esquire-LC Systems and related accessories,, such as the Bruker nanoelectrospray
ionization source, from Bruker for resale to commercial customers in the United
States and Canada. Such purchases will be at transfer prices equal to Bruker's
list prices in effect when HP submits its order, less a [*](7) discount. HP also
may purchase the Bruker nanoelectrospray ionization source, for resale with the
HP 1100 Series LC/MSD at a transfer price equal to Bruker's list price for the
nanoelectrospray accessory in effect when HP submits its order, less an [*]
discount.
17.3.3 Service and Support of Esquire-LC Systems.
17.3.3.1 HP will, at HP's expense, provide demos, first-line phone service and
field support for simple problems, administration of warranties and service,
hardware warranty of HP products and parts, and support for applications
software arising from HP sales of Esquire-LC Systems.
17.3.3.2 Bruker will, at Bruker's expense, provide installation services for
Esquire-LC systems (but not the HP 1100),, phone support and field service for
serious problems, hardware warranty for products and parts not supplied by HP,
software phone support, and support for applications (at the factory only). If
Bruker's sales and service affiliate does not provide such services in a timely
manner, HP may contact Bruker and Bruker either will dispatch an engineer from
the factory to provide the service or authorize HP to provide the service, in
which case HP may invoice Bruker and Bruker will reimburse HP for HP's actual
cost of providing such service for HP customers.
----------
(7) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 26
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
17.4 Marketing Esquire-LC Systems in Other Countries.
17.4.1 Responsibilities. In Europe and other countries outside the United States
and Canada, Bruker shall have primary responsibility for promotion and sales of
Esquire-LC systems. In Europe and other countries outside the United States and
Canada, HP shall promote and co-market the Esquire-LC with Bruker. From time to
time HP can sell to HP's established customer base in Europe and other countries
outside the United States and Canada. Nothing contained in this section 17.4.1
will prevent either party from accepting orders outside of its primary area of
responsibility.
17.4.2 Commission for Sales of Esquire-LC Systems in Other Countries after
Effective Date. Bruker will pay HP for promoting, marketing, and assisting.,
Bruker in selling Esquire-LC Systems in countries other than the United States
and Canada by paying HP a commission upon each sale of an Esquire-LC System
where substantive sales support is provided for a particular sale. The company
receiving the sales lead and substantive sales support has the sole
responsibility to determine whether or not the consummated sale was a direct
result of the sales lead and sales support passed on by the other company. The
commission on all such sales after the effective date will be [*](8) of -the net
value of the order exclusive of all commissions, freight charges, duties or
taxes.
17.4.3 Reports of Sales and Payments of Commissions. Bruker will report its
sales and shipments of Esquire-LC Systems in all countries on a monthly basis
within three business days after the end of each month. Bruker will pay all
commissions due HP within 15 days after the end of each HP Fiscal Quarter.
17.4.4 Commission for Sales of Esquire-LC Systems in Other Countries Prior to
Effective Date. Bruker has paid HP a sales commission of [*] rate of the German
list price on sales of six Esquire-LC systems. This payment was in addition to
the commission already paid by Bruker on three Esquire-LC systems sold under
Amendment 3 of the Old Contract. HP agrees that Bruker does not owe HP any
additional commissions for sales of ESQUIRE-LC systems prior to the Effective
Date.
17.5 Marketing of other Products Not Using Shared Technology
Nothing contained in this Article 17 will be construed in any way to restrict or
limit either Party with regard to promotion, distribution or sale of either
Party's non-ITMS products that do not incorporate shared technology.
ARTICLE 18 - DISPOSITION OF RESEARCH FUNDS
HP heretofore paid Bruker [*] to help fund development of the Esquire/Gemini
product line under the Old Agreement. If the Gemini MS and Gemini R&D MS are
developed and introduced in accordance with the Gemini Project Plan, or mutually
agreed upon changes to the Gemini Project Plan, Bruker will permanently retain
the [*]. Otherwise, Bruker will forwith refund all of the [*] to HP.
ARTICLE 19 - PUBLICITY
----------
(8) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 27
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
19.1 Endorsements. Bruker and HP will consider each other's reasonable requests
for endorsements of technical capabilities or the technology in each Party's
respective core area. However, neither Party is obligated to endorse or give
public testimonials respecting the other.
19.2 Publicity. The Parties will collaborate respecting publicity. Neither Party
will issue any notice to third parties or generate any publicity concerning this
Agreement or the relationship of the Parties without the prior written consent
of the other, except as may be required by law.
ARTICLE 20 - TERM, TERMINATION AND EXCLUSIVITY
20.1 Engineering Collaboration on the Gemini/Gemini R&D and Other ITMS. The
initial term of engineering collaboration on ITMS products, including the
Gemini/Gemini R&D MS, commenced on January 19, 1996, under the Old Agreement,
and will continue under this Agreement through [*](9). The Parties will continue
their engineering collaboration after [*], for successive terms of one year
through [*], unless one Party gives notice to the other Party, on or before [*]
or September 1 of any subsequent year, that such Party does not want to extend
the collaboration beyond the end of that year. The period of time from January
19, 1996, through the termination of engineering collaboration on [*], or on
such date in such later year, up to [*], if the Parties extend the engineering
collaboration, will be called the Engineering Collaboration Period. Certain
provisions of this Agreement related to the engineering collaboration,
specifically Section 2.9 - Meetings and Reviews, Article 3 - Over-view of the
Gemini Program, Article 4 - Specifications for the Gemini/Gemini R&D MS, Article
5 - Design and Development of the Gemini/Gemini R&D MS, Article 11 - New
Development Projects, Article 19 - Publicity, and Section 20.2.1 - Exclusivity
will be in effect from the Effective Date until [*], and will be the extended
automatically each year for an additional period of one year through [*], unless
one Party gives notice to the other Party, on or before [*], or September 1 of
any subsequent year, that such Party does not want to extend the collaboration
beyond the end of that year, in which case these provisions will expire or
terminate upon the expiration or termination of the engineering collaboration (
i.e. the end of the Engineering Collaboration Period). After the Engineering
Collaboration Period neither Party will have any obligations; under such
provisions. The obligations of the Parties to disclose inventions, as provided
in Section 14.4, extends beyond the Engineering Collaboration Period, but
applies only to inventions made during the Engineering Collaboration Period. The
obligations to grant licenses under patents covering Development Inventions, as
provided in Article 14, extends beyond the Engineering Collaboration Period, but
applies only to Development Inventions made during the Engineering Collaboration
Period.
20.2 Exclusivity.
20.2.1 Exclusivity during the Collaboration Period. During the Engineering
Collaboration Period, HP will not design, develop or manufacture an RIF ITMS,
except as provided herein, or enter into any agreement with a third party for
the design, development, manufacture or distribution of an RIF ITMS, other than
an RF ITMS jointly developed by the Parties hereunder. However, HP's
unrestricted right to distribute the Gemini and its successor products developed
under this Agreement shall not be limited by this Section 20.2. 1.
----------
(9) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 28
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
During the Engineering Collaboration Period, Bruker will not design, develop or
manufacture a commercial LC/MS/MS API-ITMS, except the Gemini R&D and its
successor products, as provided in this Agreement, or enter into any agreement
with a third party analytical instruments company for the design, development,
manufacture or distribution of a commercial LC/MS/MS API-ITMS, other than an RF
UMS jointly developed by the Parties hereunder. However, Bruker's unrestricted
right to distribute the Gemini R&D and its successor products developed under
this Agreement shall not be limited by this Section 20.2. 1.
A specific exception to this exclusivity section 20.2.1, is that Bruker always
has the unencumbered right to design and develop any ITMS technology and systems
for final customers in the Department of Defense, other government agencies, or
their prime contractors or subcontractors for use in the course of their work on
a government contract.
Moreover, during the Engineering Collaboration Period and thereafter, Bruker has
the unencumbered right to give non-exclusive licenses for its ITMS technology to
any other party at any time at Bruker's sole discretion. Similarly, HP has the
right to give non-exclusive licenses for its technology to any party at any
time.
20.2.2 Exclusivity if HP gives notice. If HP gives notice to Bruker, pursuant to
section 20.1, that it does not want to extend the Engineering Collaboration
Period, then (1) HP shall not directly market or distribute any ITMS-based
products, other than ITMS systems procured from Bruker, and Bruker shall
continue to make such systems available to HP at competitive pricing and
performance, for a period of four years from the date that HP gives such written
notice, and (2) HP shall continue to make the components which it is selling to
Bruker at the time of the notice available to Bruker at competitive pricing and
performance, for a minimum of two years from the date that HP gives such written
notice. Both Parties will develop a mutually agreed upon plan to maintain a
competitive advantage for instrument pricing and performance compared with other
state of art ITMS systems during the post-Collaboration period. Both parties
will continue to supply parts to each other beyond the minimum two year period
pursuant to Section 20.3.
20.2.3 Exclusivity if Bruker gives notice. If Bruker gives notice to HP,
pursuant to Section 20.1, that it does not want to extend the Engineering
Collaboration Period, then neither Party is under any continuing obligation
under this Section 20.2. If Bruker gives written notice that it does not want to
extend the Engineering Collaboration Period, then for a period of two years from
the date that Bruker gives written notice (1) Bruker shall continue to make ITMS
systems jointly developed under this agreement available to HP at competitive
pricing and performance, as provided in Section 20.3, and (2) HP shall continue
to make the components which it is selling to Bruker at the time of the notice
available to Bruker at competitive pricing and performance. Both Parties will
develop a mutually agreed upon plan to maintain a competitive advantage for
instrument pricing and performance compared with other state of art ITMS systems
during the post-collaboration period. Both Parties will continue to supply parts
to each other beyond the minimum two year period pursuant to Section 20.3.
20.3 Manufacturing and Selling Gemini Products and Other ITMS Products.
Notwithstanding the expiration or termination of the Engineering Collaboration
Period, the Parties will continue to manufacture and sell to each other Gemini
Products, and any comparable or successor products for any other ITMS jointly
developed by the Parties under this Agreement, in accordance with Article 7 and
41BRUKER-HP Collaboration Agreement 29
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Article 8 for at least two years after the expiration of the Engineering
Collaboration Period. If Bruker obsoletes the Gemini R&D MS and removes the
product from its price list, or if the number of HP Gemini R&D Kits that Bruker
orders from HP declines below 5 per calendar quarter for two successive
quarters, HP may notify Bruker that HP will discontinue manufacturing HP Gemini
Products, in which event, HP will allow Bruker to make one last-time buy of HP
Gemini Products, within three months of such notice, after which HP will no
longer be obligated to accept purchase orders for or sell HP Gemini Products to
Bruker. If HP obsoletes the Gemini MS and removes the product from its price
list, or if the number of Gemini MS that HP orders from Bruker declines below 5
per calendar quarter for two successive quarters, Bruker may notify HP that
Bruker will discontinue manufacturing Bruker Gemini Products, in which event,
Bruker will allow HP to make one last-time buy of Bruker Gemini Products, within
three months of such notice, after which Bruker will no longer be obligated to
accept purchase orders for or sell Bruker Gemini Products to HP. Notwithstanding
the preceding two sentences, each Party will sell replacement parts to the
other, in accordance with Section 10.3, for at least five years after the later
of the last sale of a Gemini MS by Bruker to HP or the last sale of an HP Gemini
R&D Kit by HP to Bruker. This section 20.3 shall also apply to any HP and Bruker
successor products developed under this Agreement.
20.4 Service and Support. Bruker will continue to provide service and support,
both in- warranty and out-of-warranty, in accordance with Article 10, for at
least five years after its last sale of a Gemini NIS to HP. HP will continue to
provide service and support, both in-warranty and out-of-warranty, in accordance
with Article 10, for at least five years after its last sale of an HP Gemini R&D
Kit to Bruker. Bruker will not be required to provide a Failure Report under
Section 10.4 after HP's last sale of an HP Gemini R&D Kit to Bruker. HP will not
be required to provide a Failure Report under Section 10.4 after Bruker's last
sale of a Gemini MS to HP. This section 20.4 shall also apply to any HP and
Bruker successor products developed under this Agreement.
20.5 Termination of Engineering Collaboration Period for Default.
20.5.1 Right to Terminate. If, during the Engineering Collaboration Period,
either Party (a) commits a material breach of its obligations hereunder or (b)
files for bankruptcy or receivership or does not dismiss a petition for
involuntary bankruptcy filed against it within 60 days of such filing, either of
which will be deemed a default hereunder, the other Party may terminate the
Engineering Collaboration Period on a date earlier than that prescribed in
Section 20.1.
20.5.2 Material Breach. A material breach would include, by way of example and
not a limitation: (1) failing to meet and. collaborate on critical tasks for
which collaboration is required for the successful development of Gemini/Gemini
/R&D MS or subsequent product, without good cause; (2) stopping work on the
project to develop Gemini/Gemini /R&D MS or subsequent product, without good
cause; (3) refusing to furnish parts, components, or instruments for which a
Party is responsible to the other Party in accordance with the Gemini Project
Plan (or the corresponding Project Plan for a new product), without good cause,
(4) disclosing or misusing Confidential Information of a Party, in violation of
Article 13, to the material detriment of such Party; or (5) failing to make
available improvements in a Party's Core Areas as required by Section 11.2 and
Section 11.3; (6) willfully failing to disclose Development Inventions (7)
violating the exclusivity in Section 20.2, (8) failing to ship or being
materially late in shipping Gemini Products or other products jointly developed
hereunder; and (9) attempting to assign this Agreement in violation of Section
22.5.
41BRUKER-HP Collaboration Agreement 30
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
20.5.3 Not Material Breach. The following, by way of example and not of
limitation, would not be considered a material breach giving rise to the right
to terminate engineering collaboration: (1) delays in the development of a
product caused by Force Majeure or substantial unanticipated technical problems;
(2) failing to attain a desired target in the specifications; (3) inadvertent or
minor delays in the development project that are promptly corrected; and (4)
minor delays in manufacturing and delivering Gemini Products or other products
jointly developed hereunder where such delays do not cause a significant
disruption of the other Party's ability to sell and deliver products to its
customers.
20.5.4 Notice and Opportunity to Cure Default and Resolve Dispute. Before
terminating the Engineering Collaboration Period under this Section 20.5, a
Party who has the right to terminate under Sub-Section 20.5.1, must send the
other Party a written notice of default setting out the grounds for such early
termination. The Party receiving such a notice of default must cure the default
within 90 days of receipt of such notice. If it is not technically feasible to
cure the default within such 90 days, then within such 90 days the Party
receiving the notice of default must submit to the Party who has the right to
terminate a mutually acceptable plan to cure the default and proceed to cure the
default under such plan. If the Party in Default has not cured the default or
presented a mutually acceptable plan to cure the default within such 90 days,
the Party with the right to terminate may thereafter terminate the Engineering
Collaboration Period by sending the Party in default a written notice formally
terminating the Engineering Collaboration Period on the date specified in such
notice. If the Party receiving a notice of default disputes in good faith the
right of the other Party to terminate the Engineering Collaboration Period, it
may, in addition to, or in lieu of, curing the default or presenting a mutually
acceptable plan to cure the default, initiate actions to resolve the dispute in
accordance with Article 21. If the Party receiving a notice of default initiates
the dispute resolution process under Article 21 and proceeds in good faith to
resolve the dispute, the Party sending the notice of default will postpone
sending any notice formally terminating the Engineering Collaboration Period for
an additional 90 days while the Parties are engaged in resolving the dispute.
The Parties may continue trying to resolve any dispute under Article 21 even
after a Party terminates the Engineering Collaboration Period under this Section
20.5. If the Parties resolve a dispute after the Engineering Collaboration
Period has been terminated under this Section 20.5, the Parties may, by mutual
agreement, rescind the early termination, in which event the Engineering
Collaboration Period will be determined in accordance with Section 20. 1.
20.5.5 Consequences of Early Termination of Engineering Collaboration Period.
20.5.5.1 Termination By Either Party. If either Party terminates the Engineering
Collaboration Period under this Section 20.5, neither Party will be obligated to
collaborate on development projects thereafter. The obligations of the Parties
under Section 2.9- Meetings and Reviews, Article 3 - Overview of the Gemini
Program, Article 4 - Specifications for the Gemini/Gemini R&D MS, Article 5 -
Design and Development of the Gemini/Gemini R&D MS, Article 11 - New Development
Projects, Article 19 - Publicity, and Section 20.2.1 - Exclusivity will
terminate. Notwithstanding the Early Termination of engineering collaboration,
if the Parties have commenced manufacturing and selling Gemini/Gemini R&D
Products, the Parties will continue their relationship in accordance with
Section 20.3.
20.5.5.2 Termination by Bruker. If Bruker terminates the Engineering
Collaboration Period under this Section 20.5 for default by HP, Bruker may
retain the Research Funds, but if Bruker has not shipped the minimum quantity of
Gemini MS specified in Section 9.1, then Bruker will forthwith refund any
41BRUKER-HP Collaboration Agreement 31
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
remaining Security Deposit. If Bruker terminates the Engineering Collaboration
Period under this Section 20.5 for default by HP, then HP shall not market or
distribute directly or indirectly any ITMS-based products, other than ITMS
systems procured from Bruker, and Bruker shall continue to make such systems
available to HP at competitive pricing and performance, for a period of four
years after such early termination by Bruker; however, if Bruker is in default
or subsequently commits a material breach of this Agreement or becomes in
default, then this restriction upon HP will not apply.
20.5.5.3 Termination by HP. If HP terminates the Engineering Collaboration
Period under this Section 20.5 for default by Bruker, prior to the market
introduction of the Gemini MS, then Bruker will forthwith refund to HP the
Research Funds according to Article 18. If HP terminates the Engineering
Collaboration Period under this Section 20.5 for default by Bruker and if Bruker
has not shipped the minimum quantity of Gemini MS specified in Section 9.1, then
Bruker will forthwith refund to HP any remaining Security Deposit.
ARTICLE 21 - DISPUTES BETWEEN THE PARTIES
21.1 Initial Dispute Resolution. The Program Managers will meet and confer as
needed to resolve any disputes between the Parties. If the Program Managers are
unable to resolve a dispute, they will refer it to the Business Managers.
21.2 Escalation of Dispute. Any dispute that the Business Managers are unable to
resolve will be referred to senior executives of the Parties. The senior
executives will meet and confer in good faith to resolve the dispute.
21.3 Mediation. If the Parties have not resolved the dispute within thirty days
of the first meeting of the senior executives, any Party may initiate formal
mediation. Mediation will take place in Boston, Massachusetts unless the Parties
agree otherwise. The Parties will select a mediator. If the Parties are unable
to agree on a mediator, any Party may ask the American Arbitration Association
to appoint a mediator with experience in the analytical chemistry industry. The
mediator will agree in writing to hold in confidence any information that a
Party designates as confidential. All communications made by the Parties in
connection with mediation will be treated as settlement negotiations and will
not be admissible in any other proceeding.
21.4 Litigation; Injunctions. If the Parties have not resolved the dispute
through mediation within ninety days of the initiation of mediation, any Party
may initiate litigation to resolve the dispute. No Party may initiate litigation
until the above procedure has been followed. However, any Party may at any time
seek injunctive relief to prevent imminent, irreparable harm.
21.5 Choice of Law. The substantive laws of the State of New York, which are
well developed and provide a preferable structure for commercial transactions,
will govern this Agreement, without regard to the principles of conflict of
laws.
21.6 Forum. Any lawsuit may be brought in the U.S. District Court for the
District of Massachusetts if the requirements for federal jurisdiction are met,
or in the Middlesex Superior Court in Massachusetts if the requirements for
federal jurisdiction are not met. All Parties consent to the exercise of
personal. jurisdiction by these courts.
41BRUKER-HP Collaboration Agreement 32
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
ARTICLE 22 - MISCELLANEOUS
22.1 Legal Status of the Parties. Each Party is an independent contractor. This
Agreement does not create a joint venture, partnership, or other legal entity.
22.2 No Third Party Beneficiaries. This Agreement is intended for the sole
benefit of the Parties hereto, and unless expressly provided herein, no rights
or powers shall arise hereunder in favor of any third party.
22.3 Force Majeure. The failure of any Party to perform hereunder as a result of
governmental action, laws, orders, or regulations, or as a result of disasters,
such as war, acts of public enemies, fires, floods, earthquakes, acts of God or
any causes of like kind beyond the reasonable control of such Party is excused
for so long as such cause exists.
22.4 Exports. Each Party will comply with applicable laws and regulations of the
United States, the European Community, and Germany relating to export of goods
and technical data. The Parties will not export or re-export any technical data,
the direct product of such technical data, or any products received from any
other Party to any proscribed country unless properly authorized.
22.5 No Assignment. No Party may assign any of its rights or obligations
hereunder (except the right to receive money) without the prior written consent
of the other Party. However, consent is not required for an assignment in
connection with a change of the state of incorporation of a Party, a merger of a
Party into its parent corporation, or a transfer of the business with which this
Agreement is associated to an Affiliate of a Party. No assignment will relieve
any Party of responsibility for its obligations hereunder, but consent to a
request for a transfer of such responsibility to a successor in interest or to a
transferee of the business will not be unreasonably withheld. Any purported
assignment by a Party in violation of this Section will be voidable by the other
Party.
22.6 Rules of Construction and Interpretation. This Agreement was prepared by
the Parties in negotiation. No Party will be considered the drafter and this
Agreement will be construed without strict construction in favor of or against
any Party.
22.7 No Waiver. Waiver of any provision of this Agreement will not be deemed a
continuing waiver of that provision or a waiver of any other provision.
22.8 Severability. If any provision of this Agreement is held to be ineffective,
unenforceable or illegal for any reason, such decision will not affect the
validity or enforcement of any or all of the remaining portions thereof.
22.9 Integration; Supersession; and Amendments. This Agreement, including the
Recitals, together with the Appendices identified below, contains the entire
understanding of the Parties as to its subject matter. This Agreement supersedes
and replaces the Old Agreement and any other prior agreements or understandings
between the Parties as to this subject matter. If there are any conflicts
between any provision in this Agreement and a provision in an Appendix the
provision in this Agreement will prevail. Any waiver, modification or exception
to this Agreement must be in writing and signed by a
41BRUKER-HP Collaboration Agreement 33
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
duly authorized company representative. Any such waiver, modification or
exception in a given instance will not be deemed a waiver, modification or
exception as to other or future actions or circumstances. The following
Appendices are part of this Agreement:
22.9.1 Appendix I - Gemini Product Data Sheet
22.9.2 Appendix 2 - Gemini Project Plan
22.9.3 Appendix 3 - Pricing of IIP and Bruker Kits, Instruments Accessories, and
Software
22.9.4 Appendix 4 - Pricing of HP Esquire-LC Kit and Instrument and APCI Prices
22.10 Bruker has been and intends to continue purchasing HP Analytical Chemistry
Products from HP under a DTD Agreement and/or an Original Equipment
Manufacturer's Agreement and reselling such products to Bruker's customers.
Bruker and HP have been collaborating on sales activities, providing leads to
one another under the terms of a Finder's Fee Agreement. The transaction under
such agreements and the relationships governed by such agreements will continue
to be governed by the terms of such respective agreements and are not abrogated
or modified by this Agreement.
22.11 Counterparts. This Agreement may be signed in any number of counterparts,
each of which will be deemed an original, but all of which will constitute one
and the same instrument.
41BRUKER-HP Collaboration Agreement 34
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
EXECUTION
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed by their duly authorized representatives on the date written below.
BRUKER DALTONIK GmbH HEWLETT-PACKARD COMPANY
By /s/ Xxxxx X. Xxxxxxx By /s/ Xxxxxxx X. Xxxxxx
------------------------ --------------------------------
Printed Name Xxxxx X. Xxxxxxx Printed Name Xxxxxxx X. Xxxxxx
-------------------- ----------------------
Title Managing Director Title General Manager - CAD
--------------------- -----------------------------
By /s/ Xxxxxx Xxxx By /s/ Xxxxxxx X. Xxxxx
------------------- --------------------------------
Printed Name Xxxxxx Xxxx Printed Name Xxxxxxx X. Xxxxx
--------------- ----------------------
Title Managing Director Title V.P. & General Manager CAG
--------------------- -----------------------------
Date May 3, 1999 Date April 28, 1999
--------------- ------------------------------
41BRUKER-HP Collaboration Agreement 35
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Gemini Product Data Sheet
Appendix 1 to Bruker-HP Collaboration Agreement
Document Information:
--------------------------------------------------------------------------------
Filename Gemini.pds.doc
--------------------------------------------------------------------------------
Current Owner Xxxxxxx Xxxxxxxx, Xxxx Xxxxxxxxx, Xxx
Xxxxxxx, Xxxxxxxxx Xxxxx-Xxxxx
--------------------------------------------------------------------------------
Product Identifier G2440A LC/MS Detector
--------------------------------------------------------------------------------
Project Identifier Gemini
--------------------------------------------------------------------------------
Current Lifecycle Phase Entwurf/Investigation
--------------------------------------------------------------------------------
Revision Log:
Revision Date Reason for Update
--------------------------------------------------------------------------------
A.00 971114 Initial revision
--------------------------------------------------------------------------------
A.01 971117 Revisions to FURPS, decision priority list, and
critical success factors following review session by Xxxx
Xxxxxxxxx, Xxxxx Xxxxxx, Xxx Xxxxxxx, and Xxxxx Xxxxxx
--------------------------------------------------------------------------------
A.02 971121 Revisions to related projects, boundary
conditions, project management team, and what project is
not following review session with Gemini project team
--------------------------------------------------------------------------------
A.03 971219 Revisions to FURPS following review by HP and BFA
Gemini project management team and LCQ
benchmarking phase 1
--------------------------------------------------------------------------------
A.04 980626 Update for Appendix to new HP-BFA Gemini contract,
by Xxx Xxxxxxx, Xxxx Xxxxxxxxx, Xxxxx Xxxxxxxx,
Xxxx Xxxxxxx, Xxxxx Xxxxxx and Xxx Xxxxxxx; Change
of ownership from Xxxxx Xxxxxx to Xxx Xxxxxxx
--------------------------------------------------------------------------------
A.05 14.7.98 Update by MS after discussions with SMP
--------------------------------------------------------------------------------
A.06 23.7.98 Update by MS after Review with BS and GH.
Clarifications regarding ESI HV supply for use
with nanospray, mass axis stability, trigger
outputs
--------------------------------------------------------------------------------
A.07 12.8.98 Update after discussions with Xxxx Xxxxxxxxx
--------------------------------------------------------------------------------
A.08 24.8.98 Update after more discussions with Xxxx Xxxxxxxxx
--------------------------------------------------------------------------------
A.09 29.9.98 Update after discussion on mass range issues
--------------------------------------------------------------------------------
A.10 9.10.98 Update
--------------------------------------------------------------------------------
A.11 18.1.99 Update
--------------------------------------------------------------------------------
A.12 31.3.99 Update
--------------------------------------------------------------------------------
A.13 Apr. 8, 99 Reformated Header, deleted "Draft, for discussion
only" (JF)
--------------------------------------------------------------------------------
A.14 Apr. 15, 99 Added "Appendix 1 to Bruker-HP Collabor..." (JF)
--------------------------------------------------------------------------------
A.15 Apr. 21, 99 Changed language: stretch goals-> desired targets
(MS)
--------------------------------------------------------------------------------
Instructions: Manually enter the document revisions here
and update the corresponding footer revision each time
revision log changed. Revision text should include
location, time, participants, (R&D, marketing, product
support) and a summary of the changes. Also state the
revision control system used to recover revisions.
--------------------------------------------------------------------------------
[*] Remaining two pages of Appendix 1 have been marked confidential.(10)
----------
(10) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 36
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Gemini Product Data Sheet
Appendix 2 to Bruker-HP Collaboration Agreement
[*] Twenty-four pages of Appendix 2 have been marked confidential.(11)
----------
(11) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 37
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Appendix 3
Pricing of HP & Bruker Kits, Accessories,
Software & Instruments
Ship Release Jan 1, 2001 Jan 1, 2002
HP Esquire-LC Kit sold to Bruker US$, G1961A (230V version) through through and
HP Esquire-LC Kit sold to Bruker US$, G1963A (208V version) through through and
HP Gemini R&D Kit sold to Bruker US$ (fast pos/neg switching) [*](12) [*] [*]
HP Gemini Kit sold to Bruker US$
(standard positive/negative switching) [*] [*] [*]
Bruker Value Add Price to HP US$ [*] [*] [*]
Bruker Value Add Price to HP US$ (fast pos/neg switching) [*] [*] [*]
HP Price Paid to Bruker for Gemini Instrument US$ [*] [*] [*]
HP Price Paid to Bruker for Gemini Instrument US$ [*] [*] [*]
(with positive/negative switching)
HP Gemini Ship Kit sold to Bruker US$ [*] [*] [*]
HP Gemini Kit without source parts as given in Project Plan, sold
to Bruker US$ for up to 10 Kits of such ind per year [*] [*] [*]
HP APCI sold to Bruker US$ [*] [*] [*]
HP Peptide Tools sold to Bruker sales outside US only, US$* [*] [*] [*]
HP Deconvolution plus Peptide Tools sold to Bruker,
sales inside US only, US$ [*] [*] [*]
Bruker Nanoelectrospray sold to HP, DM [*] [*] [*]
Sales of Bruker Software to HP and Sales of HP Software
to Bruker, discount off list [*] [*] [*]
* This price may increase if/when HP increases the list price. The same formula
that was used initially would apply (HPList - [*]) Bruker can sell the jointly
developed deconvolution software outside of the United States, where no AOB
license fee is due. In Europe and Asia-Pacific countries, Bruker may purchase
from HP Peptide Tools bioanalysis software at the price specified in this
appendix. In the United States by purchasing deconvolution and Peptide Tools
from HP at the price specified in this appendix, Bruker obtains a licensed
product for re-sale to its customers which includes the fee due to AOB.
Spare Parts Pricing: The formula for pricing spare parts will be cost of
material multiplied by [*].
----------
(12) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 38
CONFIDENTIAL HEWLETT-PACKARD - BRUKER
Appendix 4
Pricing of Esquire LC Kit, Instrument & APCI
Prices effective until Introduction of Gemini
HP Esquire LC Kit sold to Bruker US$*, G1961A (230V version) [*](13)
HP Esquire LC Kit sold to Bruker US$*, G1963A (208V version) [*]
HP APCI sold to BFA US$**, G1962A [*]
Price for purchases of the Esquire LC instrument by HP from Bruker will be the
US list price less a discount of [*].
*The Price of the HP Esquire Kit sold to Bruker will decrease whenever Bruker
decreases the US List price of the Esquire Instrument. The reduction of the
Esquire Kit price will be the same percentage as the Esquire US List price is
reduced. The current US List for the Esquire instrument is $179,000.
**APCI pricing will be replaced with the APCI pricing for Gemini once Gemini
starts shipping.
Components of the Esquire-LC Kit:
1. API Source Inlet and electrospray source as developed for HP 1100 Series
LC/MSD (spray chamber, nebulizer, integrated drying gas heater, sampling
capillary, dual skimmer differential pumping stages, split octopole ion guide,
and lens focusing optics, modified LC/MSD cast manifold - per current Bruker
drawing, baffle, vacuum hoses and interconnection between pumps, and source
covers). The ESI source is compatible for flow rates from 1 to 1000 uL/min. The
system can also accept an APCI source (from HP, optional) or nanoelectrospray
(from Bruker, optional). This product does not have an autocalibration system.
2. Pumping system as developed for LC/MSD (Xxxxxxx E1M18 rough pump, 250l/s
split-flow drag-stage turbo pump, 70l/s drag-stage turbo pump; two turbo
controllers.
3. Gas Flow Control Assembly as developed for LC/MSD (valves and manifold for
the control of the nebulizer and drying gas flows, no electronics included.
4. Customized Octopole RF drive printed circuit assembly for split octopole ion
guide.
5. License for production of multiply charged ions by electrospray on the
ESQUIRE-LC (this does not include deconvolution software).
6. HP LC ChemStation software (G2170AA, (version A.06); HP spectral Evaluation
module (G2180AA, version A.06).
7. Jet Direct Card 4100A.
----------
(13) [*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
41BRUKER-HP Collaboration Agreement 39
