EXHIBIT 10.29
COLLABORATION AGREEMENT
BETWEEN
VARIAGENICS, INC ("VARIAGENICS")
AND
BRUKER DALTONICS, INC ("BDAL")
OBJECTIVE
Variagenics and BDAL wish to collaborate technically and commercially in the
application of MALDI-TOF mass spectrometry to pharmacogenomics. In particular,
Variagenics wishes to purchase certain mass spectrometers from BDAL for
incorporation into products to be used and or sold by Variagenics, and BDAL
wishes to grant Variagenics the right to use, market and resell such products to
Variagenics' customers and partners.
TERM
Once signed by both parties, this Agreement shall be valid until March 31, 2003
or until terminated by either party for any other reason with (90) days written
notice. Notwithstanding the foregoing, in the event of termination of the
Agreement, BDAL shall remain obligated to fill any outstanding orders which have
been placed by Variagenics and accepted by BDAL. Thereafter, this Agreement is
renewable for additional one year periods by mutual written consent.
PRODUCT DEFINITION
The mass spectrometer which may be resold by Variagenics as an authorized
OEM-dealer for BDAL, is a BDAL autoflex -Registered Trademark- MALDI-TOF, which
may have additional software or target applications tailored to the demands of
Variagenics, described in more detail in the list price quotation shown in
Attachment A . Variagenics shall have the right to co-label the BDAL MALDI-TOF
instrument installed at the Variagenics' customer site with its own brand names.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
OEM PRICING AND VOLUME DISCOUNTS
The following OEM pricing and annual volume discount structure will apply to
future Variagenics orders for autoflex systems:
Quantity (p.a.) OEM discount
[___] [__]%
[___] [__]%
[____] [__]%
[___] [___]%
"Quantity" is the number of autoflex systems, ordered by Variagenics, and
accepted by BDAL, in a given calendar year, for which a down payment of N30
after order placement has been received by BDAL.
"OEM Discount" is the percentage discount off the U.S. list price quotation
given in Attachment A. This U.S. list price is valid for the 1 year term
extension of the Agreement (ie to March 31st 2003) and any changes will occur
only by mutual written consent upon agreement renewal.
For each calendar year, the initial OEM discount is [__]% but if Variagenics
orders more than [__] or reaches the other trigger-points, in any calendar year,
the relevant higher quantity OEM discount will be applied to the previously
ordered systems retroactively. This volume discount method will apply for the
calendar year 2002. For systems ordered by Variagenics for in-house use and
development, the highest OEM discount will apply providing that the system is
not resold within 2 years after delivery. All pricing is understood as EX-WORKS,
BDAL factory in Billerica, USA (or Leizpeg, Germany for European deliveries) and
does not include import duty, or any country local sales tax, VAT,
Mehrwertsteuer, or similar tax.
PAYMENT TERMS
For each autoflex system, the payment terms are as follows:
[__]% deposit N30 after order placement
[__]% N30 after first deleivery to either Variagenics or final customer
[__]% N30 upon installation and acceptance at final customer site
(Provided, however, that if the system is first installed at
Variagenics, then [__]% will be due N30 after acceptance at Variagenics,
and the final [__]% will be due N30 after acceptance at the final
customer site.)
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
FORECASTS AND DELIVERIES
For each new calendar year, Variagenics, at its own discretion, may provide BDAL
with a realistic volume forecast for the next calendar year at least four months
before the end of the previous year. This forecast shall be reviewed and updated
by Variagenics quarterly, at least 45 days before the end of each quarter.
Unless specifically stated otherwise, BDAL will plan on delivering the
forecasted autoflex systems to Variagenics at a steady flow, provided however,
that for each system Variagenics has also placed a purchase order with
corresponding down-payment at least 2 months before expected delivery. (Example:
If Variagenics forecasts 12 systems for calendar year 2002, then BDAL will
delivery one system per month)
If Variagenics orders significantly fewer (GREATER THAN 25% discrepancy)
autoflex -Registered Trademark- systems than forecasted or for any calendar year
for which Variagenics does not provide a forecast as outlined in the previous
paragraph, then the forecasting method will be abandoned as a delivery planning
tool, and deliveries will be within 3-4 months ARO (After Receipt of Order),
depending on quantity of autoflex systems ordered and also depending on BDAL's
other MALDI-TOF order and production flow.
For orders of single autoflex systems in any one month which have not been
forecasted, delivery will occur 3-4 months ARO. BDAL will also assign and hold a
delivery slot for up to one month with a Letter of Intent (LOI) that converts
into a firm order unless the LOI is cancelled within one month.
BDAL and Variagenics will coordinate any changes in the delivery schedule. If
delivery occurs more than 30 days beyond the agreed upon delivery date,
Variagenics will receive an additional [__]% discount for each full week that
the system is late up to a maximum discount of [__]% per system.
INSTALLATION, WARRANTY AND SERVICE
BDAL remains responsible for installation, warranty service and post-warranty
service of all autoflex systems.
The purchase of each autoflex system includes one installation and demonstration
of specifications by BDAL free-of-charge. As an option to the Customer, BDAL
will supply one day training for one person specifically for GenoTools software
at an additional cost of $[_______]/proposal to be performed at either the BDAL
Billerica site or at Variagenics, Inc. The cost of consumer site preparation
according to BDAL's site planning guide shown in Attachment B or rigging and
transportation of the system into the Variagenics or customer lab, and
consumables required for the installation, are not included in the BDAL OEM
price. Additional installations, if any, will be billed by BDAL to Variagenics
at normal posted service rates outlined in Attachment C.
Each system price includes a one-year limited warranty under BDAL's standard
warranty terms. The period of the warranty is one year following demonstration
of specifications, but in any event not more than 15 months after delivery. The
warranty covers both parts
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
and labour. For those items supplied by not manufactured by BDAL, the warranty
terms of the manufacturer will be transferred to the buyer.
After expiration of the one-year limited warranty, Variagenics or the final
customer may purchase additional annual Maintenance Service Agreements (MSA) or
per-call service from the BDAL service organization in each country at normal
MSA or per-call service rates, posted in each country from time to time. If the
customer requires additional response time guarantees, or 24/7 coverage, then
surcharges to the normal MSA rates will apply.
JOINT SALES CASES
In selected customer cases, Variagenics and BDAL may jointly pursue the sale of
a larger Variagenics genotyping product offering, including an autoflex system.
However, Variagenics shall receive OEM pricing and volume discounts provided in
this Agreement for any joint sale to Variagenics' customers or partners or any
sale which involves a Variagenics system
CUSTOMER PROTECTION PROCEDURE
Variagenics and BDAL will designate one contact sales manager (Variagenics:
Xxxxxxxxxxx Xxxxxxxx, BDAL: Xxxxxx Xxxxxx) to administer the following
agreed-upon customer protection procedure:
When one party forwards a specific serious customer lead in writing (including
e-mail) to the other, this sale becomes an exclusive "Joint Sales Case" for a
period of six months, unless the other party within one week of receipt of the
lead, responds in writing and demonstrates with reasonable written
documentation, that it had previously already vigorously pursued this particular
lead on its own. In this case, an exclusive "Joint Sales Case" means that the
party identifying the customer lead is the main contact for the "Joint Sales
Case".
This lead exchange procedure shall not be abused by either party, and is not
intended for exchanging lists of customers, just in case they someday become
serious prospects. Therefore, at any given time, it is not anticipated, unless
specifically agreed in writing, that the number of protected Joint Sales Cases
exceed 5-10 worldwide at any given time.
As indicated above, Variagenics shall receive the OEM pricing and volume
discounts provided in this Agreement for any sale to Variagenics' customers or
partners or any sale which involves a Variagenics system.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
FUTURE DEVELOPMENTS AND CONFIDENTIALITY
For future development efforts, whether joint, jointly funded, or whether they
simply require the exchange of confidential or proprietary information,
Variagenics and BDAL will conclude a Confidential Disclosure Agreement (CDA),
substantially in the form of Attachment D to protect each party's confidential
and proprietary information, intellectual property, know-how, and trade secrets.
Such a CDA will be structured with an "open annex", which will be updated and
extended by mutual agreement, as disclosures of additional confidential
information occur over the term of this Agreement.
Before disclosing confidential information which is not covered in the CDA
executed in connection with this Agreement, each party will verify whether the
other party wishes to receive such confidential information. Additional topics
to be covered by the CDA and added to its "open annex" have to be clearly
identified, and the purpose for disclosure explained, before thay are added to
the CDA annex by mutual agreement.
Except as may be mutually agreed upon in writing between BDAL and Variagenics as
to publicity parameters, neither BDAL or Variagenics shall use the name of the
other in any advertising, press releases, or other sales communications without
prior written consent of the other party.
LICENSING BDAL'S MALDI-TOF IP FOR BDAL OEM SYSTEMS
With the purchase of each autoflex, Variagenics and its final system's customer
shall receive a fully paid-up, royalty-free, non-exclusive license for each
particular autoflex system to use and resell the particular system, either as
received or bundled with the previous party's own system. BDAL represents and
warrants that it has the right to grant Variagenics the licenses contemplated by
this Agreement, thereby providing Variagenics the freedom to use, bundle with
its own system, and resell the product and to sub-license such rights to
partners and customers who use the product as part of Variagenics' system.
Specifically, this license includes the Indiana University patent portfolio on
SVCF (Space-Velocity Correlation Focusing, by Xxxxxx et. al.), and for BDAL OEM
MALDI-TOF systems purchased by Variagenics or its customers, the royalty cost to
Indiana University will be paid by BDAL. A copy of the license is attached as
Attachment E.
BDAL shall defend, indemnify and hold Variagenics and its customers harmless
from and against all claims, damages, costs (including reasonable attorneys
fees), or judgements against Variagenics in which it is determined or alleged
that the sale or the use of any BDAL product infringes on any patent, copyright,
trademark or any other intellectual property right of any third party.
Variagenics agrees that BDAL, at its sole option shall be relieved of the
foregoing obligations unless Variagenics or its customers (i) notifies BDAL
promptly in writing of such claim, suit or proceeding, (ii) gives BDAL available
information and assistance to settle and/or defend any such claim, suit, or
proceeding (iii) gives BDAL authority over the defense or settlement of such
claim as contemplated above, and (iv) refrains from settling such claim without
BDAL's written consent. If a product (or any part thereof) is, or in the opinion
of BDAL, may become,
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
the subject of any claim, suit or proceeding for infringement of any patent,
copyright, or trademark, or if it is determined that a product (or any part
thereof) is infringing and, as a result, its use is enjoined, then BDAL may, at
its option and expense without prejudice to BDAL's obligations above: (I)
procure for Variagenics the right under such patent, copyright, or trademark to
distribute such product (or such part thereof); or (ii) replace such product (or
part thereof) with other suitable parts; or (iii) suitably modify such product
(or part thereof) to make them non-infringing without modifying their
capability; or (iv) if the use of a product (or part thereof) and refund of the
aggregate payment paid therefor by Variagenics less an amount to account for
actual use by Variagenics customer, as measured over a sixty (60) month life
span.
These infringement clauses shall survive termination or expiration of this
Agreement
RELATIONSHIPS OF THE PARTIES
BDAL and Variagenics are independent contractors. Neither party nor their
respective employees, consultants, contractors, or agents, employees, or joint
venturers of the other, nor do they have any authority to bind the other.
GENERAL TERMS AND CONDITIONS
See Attachment F
In the event of a conflict between the terms of this Agreement and an attachment
or appendix, the terms of this Agreement shall govern
For Variagenics: /s/ Xxxxxx X. Xxxxxx
----------------------
Name: Xxxxxx X. Xxxxxx
----------------------
Title: President and CEO
----------------------
Date: 3/29/02
----------------------
For Bruker Daltonics: /s/ Xxxx Xxxxxx
----------------------
Name: Xxxx Xxxxxx
----------------------
Title: VICE PRESIDENT
----------------------
Date: 3/27/02
----------------------
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Attachment A: Formal List Price quotation for Autoflex(R) Linear MALDI-TOF MS
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
BRUKER
DALTONICS(R) QUOTATION
XXXXXXX PARK NO.: XX-XXX-00-00-00
XXXXXXXXX, XX 00000 XXX
TEL. (000) 000-0000
FAX. (000) 000-0000
DATE: MARCH 27, 2002
DELIVERY: 3-4 MONTHS ARO
XXXXXXXXXXX X. XXXXXXXX
VARIAGENICS INC SHIP VIA: BEST WAY
00 XXXXXXXXX XX.,
XXXXXXXXX, XX, 00000-0000 PREPARED BY: XXXXXX XXXXXX
(XXXXXXXXX@XXXXXXXXXXX.XXX) SALES REPRESENTATIVE: XXX XXXXXX
PHONE: 000 000 0000 - FAX: 000 000 0000 PAGE 1 OF 2
1. AUTOFLEX(TM) MALDI-TOF MS SYSTEM (# 202840)
TIME-OF-FLIGHT MASS ANALYZER
- 122 cm linear TOF analyzer for both positive and negative ions
- High sensitivity fast MCP detector system with detector housing
- Integrated vacuum system and electronics
- Silent operation
- Ultra-Stable power supplies for TOF analyzer, detector and ion source
- Adjustable height
- Small footprint
- Industrial hardened horizontal design
- Self diagnostics
- Remote service package included
GRIDLESS MALDI SOURCE WITH PULSED ION EXTRACTION (PIE(TM))
- Ion source and ion lens system
- Automatic vacuum lock for sample introduction with inlet vacuum pump
- Long Lifetime N2-LASER including variable power attenuator and UV optics
- SCOUT(TM) MTP Microtiter Plate Source / Target with Observation Optics
- Large area target (12cm x 8cm) with exact dimensions of microtiter plate
- SCOUT MTP Target Kit :(FOR VARIAGENICS = 2X600 MICRON ANCHOR CHIP
PLATES/HOLDERS)
- Precise X-Y positioning (5 micron step increments, 20mm/sec. Speed)
- High resolution magnifying observation optics with display on PC monitor
(see below)
- Intuitive GUI for simple mouse controlled X-Y positioning
- Horizontal probe inlet for adaptation to robotic lines
PUMPING SYSTEM INCLUDING VACUUM MEASUREMENT AND CONTROL UNIT
- 300 l/sec turbomolecular pump including fore-pump
- Vacuum measurement system and control unit integrated in GUI
- Silent operation
DATA SYSTEM AND SOFTWARE
- 2 GHz Digitizer
- PC / Windows(TM) NT, > 1 GHz processor, 512 MB RAM, 80 GByte hard disk,
1.44 MB xxxxxx xxxxx, XX-XX xxxxx, XX-XXX drive, 2 x Ethernet connection
for external networks and system control, 21" color monitor
- Mass spectrometry software FLEX Control NT and XMASS(TM) NT for analysis
in a networked multi-user environment
- AutoXecute with fuzzy-logic optimization for automated acquisition
- Laser printer
SYSTEM LIST PRICE $ [ ]
--------------------------
QUOTATION ONLY VALID WHEN BY: /s/ Xxxx Xxxxxx
SIGNED BY CORPORATE OFFICER ----------------------
AUTHORIZED SIGNATURE
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
BRUKER
DALTONICS(R) QUOTATION
XXXXXXX PARK NO.: XX-XXX-00-00-00
XXXXXXXXX, XX 00000 XXX
TEL. (000) 000-0000
FAX. (000) 000-0000
DATE: MARCH 27, 2002
DELIVERY: 3-4 MONTHS ARO
XXXXXXXXXXX X. XXXXXXXX
VARIAGENICS INC SHIP VIA: BEST WAY
00 XXXXXXXXX XX.,
XXXXXXXXX, XX, 00000-0000 PREPARED BY: XXXXXX XXXXXX
(XXXXXXXXX@XXXXXXXXXXX.XXX) SALES REPRESENTATIVE: XXX XXXXXX
PHONE: 000 000 0000 - FAX: 000 000 0000 PAGE 2 OF 2
2. GENOTOOLS 1.1 (FOR PC-NT SYSTEMS- P/N #74575 & ONE LICENSE #208437) $[ ]
Software for MALDI-TOF SNP genotyping in combination with genotools, the
Daltonics MALDI-TOF systems can now be used as reliable, highly automated
systems for high throughput SNP genotyping. GENOTOOLS 1.1 features the SNP
MANAGER, which allows for automatic SNP genotyping of samples from 384 well
targets. Simultaneous SNP genotyping for multiple biallelic markers
(multiplex analysis) is supported.
FUNCTIONS OF THE SNP MANAGER:
- Administration of sample preparation data
- Setup of primer extension reactions for generation of allele-specific
single stranded DNA fragments
- Calculation of molecular masses of extension primer and expected
products
- Definition of critical data processing settings for peak picking and
calibration
- Control of the genotyping analysis by FLEX MS systems
- Display of detailed results, including reliability evaluation
- Result overview for complete 384 well target plates
- Storage of detailed results and summary in table format for export and
further processing
Works on NT platform, networking with Daltonics MALDI-TOF data acquisition
and processing software (FLEX Control NT, XMASS/XTOF 5.1 )
TRAINING :
3. FACTORY TOF BASIC TRAINING COURSE, #205891 $ [ ]
- 3 days course at the factory
- Includes instrument control, data acquisition and processing
- Includes sample preparation and application-specific training
- Price is per person and excludes all travel & lodging expenses
--------------------------
QUOTATION ONLY VALID WHEN BY: /s/ Xxxx Xxxxxx
SIGNED BY CORPORATE OFFICER ----------------------
AUTHORIZED SIGNATURE
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Attachment B: Site Preparation/Facilities information for Autoflex(R) Linear
MALDI-TOF MS
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
AUTOFLEX-TM- -- SITE PREPARATION SPECIFICATION [BRUKER LOGO]
[PHOTO OF EQUIPMENT]
INTRODUCTION
Dear Customer,
As you certainly will understand, it is impossible for us to visit future
installation sites in order to make sure that everything is perfectly
prepared for the installation of your new instrument. So we have to put this
task into our customer's hands. However with this document in hand and some
telephone numbers as a backup, the site preparation for your new autoflex-TM-
should not be a problem.
Please follow the directions given in this manual and make sure, that the
installation site complies with your local laws, regulations, codes and
ordinances with regard to electrical and mechanical installations, building
safety and use of hazardous materials/chemicals.
In order to schedule the installation as flexible as possible, please use the
enclosed form in the appendix of this document for your fax reply to the
BRUKER Daltonics Service Team. This fax does also confirm the preparation of
the installation site.
Note, that it is not possible for us to schedule your installation prior to
the receipt of your reply fax.
If there are any questions related to the site preparation for your new
autoflex-TM-, please do not hesitate to contact us by phone or e-mail.
In appreciation of your cooperation,
Your BRUKER Daltonics Service Team
COPYRIGHT(C) DECEMBER 2001
BRUKER DALTONIK GMBH VERSION 1.3
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
READ THESE INSTRUCTIONS BELOW BEFORE ALL CONTINUOS ACTIONS:
PURPOSE OF PROCEDURE
To ensure that the installation site is properly evaluated and prepared with
the appropriate utilities, consumables and supplies for the successful
installation of the autoflex-TM- system. Installation sites should be
prepared in accordance with the following specifications.
IMPORTANT INFORMATION
If you have problems in providing any of the following, please contact your
local BRUKER office for assistance.
Assistance with user specific applications may be provided but should be
contracted separately. Users of the instrument should be present throughout
the installation and the familiarization otherwise important operational,
maintenance and safety information will be missed.
RESPONSIBILITIES OF THE LOCAL BRUKER OFFICE
The local BRUKER office will contact you to determine the required quantity
of low power cords with the appropriate national plug for your country and
site. Please look up the appendix for more details.
PROCEDURE CHECKLIST
RECEIVING THE INSTRUMENT
Examine the shipping container for any obvious external damage after the
receipt.
In the case of an visible damage, make a note on the freight xxxx: VISIBLE
DAMAGE--SUBJECT TO INSPECTION AND TEST.
Compare the serial numbers of the shock watches with the ones in the delivery
note and record all deviations on the freight xxxx.
Up to begin of the installation the shipping container should be stored in a
closed storeroom-do not leave them outside.
Do not open the shipping container unless a BRUKER representative is
present--opening of the container without authorized persons will void the
receiving warranty of the instrument--as part of the complete installation
our service engineers will set up the instrument in customers laboratory.
Please note that the delivery of your new instrument will be carried out to
the loading ramp of your building. Transportation tools like pallet xxxx,
crowbar and electric drill with two rotational directions should be available
to open the shipping containers and maneuver the system to the final place.
Note, that the system is to heavy for a single person. Make yourself sure
about the accessibility of the appropriate areas: All doors, staircases,
floors and elevators must be suitable to the weight and size of the shipping
container or rather instrument. After installation of the instrument the
shipping container pass into customer hands and should not be returned.
AUTOFLEX-TM- SYSTEM MAINFRAME
DIMENSIONS, WEIGHT AND SPACE
LOCATING THE AUTOFLEX-TM- INSTRUMENT
750 mm x 1920 to 2440 mm(1) x 825 mm
29.5 in x 75.6 to 96.0 in(1) x 32.5 in
340 kg/750 lb net weight
LOCATING THE PACKAGINGS
INSTRUMENT: 2050 mm x 840 mm x 1120 mm
80.7 in x 33.1 in x 44.1 in
477 kg / 1051 xx xxxxx weight
ACCESSORY: 1570 mm x 800 mm x 1310 mm
with Twister-TM- 61.8 in x 31.5 in x 51.6 in
220 kg / 485 xx xxxxx weight
ACCESSORY: 820 mm x 760 mm x 1440 mm
without 32.3 in x 29.9 in x 56.7 in
Twister-TM- 165 kg / 363 xx xxxxx weight
(1) In the case of use of the Twister-TM- microplate handler the height is
fixed to 2045 mm (80.5 in).
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
LOCATING THE TWISTER-TM- MICROPLATE HANDLER (OPTION)
DIMENSIONS, WEIGHT AND SPACE
750 mm x 895 mm x 470 mm
29.5 in x 35.2 in x 18.5 in
20 kg / 44 lb net weight
The installation site for the autoflex-TM- must provide sufficient space for
optional equipment, Personal Computer, monitor, printer and other accessories.
Data system size and weight depends on the components included in the data
system. Reserve at least 1000 mm (39 in) of bench space. Typical weights are
40 kg (88 lb) for the data system including a 21"-monitor.
In addition, there must be sufficient space around the system for ventilation
and maintenance access - at least 1000 mm (39 in) to the left, right and front
side and at least 50 mm (12 in) behind the autoflex-TM- must kept clear.
PICTURE 1: FLOOR PLAN OF AUTOFLEX-TM- SYSTEM (TOP VIEW)
WITH OPTIONAL TWISTER-TM-
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
ENVIRONMENTAL CONDITION REQUIREMENTS
Environmental conditioning considerations include temperature, humidity,
airborne dust and exhaust venting.
The autoflex-TM- is specified for operation under following conditions:
- Operating Temperature: 10 to 30 degrees C (50 to 86 degrees F)
- Operating Humidity: 15% to 85% non-condensing at 30 degrees C
Note that the guaranteed analytical specifications will be met only within
the temperature range of 21 degrees C plus or minus 3 degrees C (70 degrees F
plus or minus 6 degrees F). Regardless the existing room temperature the
temperature variations shall be less than 3 degrees C/hr.
The autoflex-TM- dissipates up to 2000 Xxxxx (6830 BTU/hr). The data system
and additional equipment also contribute significantly to the cooling load
although the exact amount depend on the configuration.
ELECTRICAL AND POWER SPECIFICATION
The customer is responsible for providing appropriate electrical power and
power outlets for all system components.
The autoflex-TM- instrument is equipped with a wide-range input of 208 VAC to
230 VAC, 50/60 Hz input, which is content with the provided mains supplies
worldwide.
Because of poor mains reliability in local areas customers shall use a
optional available UPS. Customers also can take advantage of the available
UPS to achieve a much lower failure density in automatic, long-drawn-out
measurements, who might be interfered by voltage dips and interruptions.
The terminal connection of the power socket is customers responsibility in
general. The autoflex-TM- has to be powered either with:
- 208 VAC, plus or minus 10% (dual phase voltage) in North America or
- 230 VAC, plus or minus 10% or 240 VAC, plus or minus 6% (single phase
voltage) in European countries respectively Australia.
Customers who take advantage of the UPS must make a hardwire terminal
(junction box) available to connect the autoflex-TM- via the UPS with
stripped conductors. For all other customers a IEC 60309 connector is needed
(Picture 2):
IEC 60309
High Power Connector
16/20A
3 pin, single phase
Wall mounted receptacle
PICTURE 2
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
The current cut-out device should not have a protection less than 10 ampere
for each existing phase:
Note that the correct grounding of the electrical installation must be
guaranteed by the customer:
It is inadmissible to use the neutral wire as safety ground. The ground wire
should be an isolated ground, carrying zero current except in the case of a
fault.
Interruption of the protective conductor can cause a shock hazard for the
user and can damage the instrument.
The other low power equipment like Twister-TM- microplate handler and data
system (computer, monitor, printer) include full-range power supplies, or a
voltage selector in few cases.
You will need a minimum of 4 or more low power cables with your national,
power appropriated and grounded plug and IEC 60320 C19 connector (Picture 3)
on the equipment side.
The local BRUKER office will contact you to determine the required quantity
of power cords appropriate to your site.
Type C19
IEC 60320/C19
max. 16A
PICTURE 3
ADDITIONAL CONSIDERATIONS
- Plan extra power capacity on your site for additional equipment.
- Take advantage of an optional Uninterruptable Power Supply (UPS), if your
mains voltage is unstable or a data protection is needed.
- If a UPS is not used, each single equipment (autoflex-TM-, data system
etc.) shall have a own separate circuit with a particular breaker to ensure
a self-contained run in the case of individual instrument malfunction.
- It is recommended to install an emergency-off switch stop to interrupt the
electric circuits and other systems in a emergency case or for maintenance.
- Electromagnetic interferences, like NMRs, cellular phones and radio
transmitters may have a bad effect on system performance.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
LABORATORY GAS SUPPLY REQUIREMENTS
NITROGEN GAS REQUIREMENTS
The specified performance of the autoflex-TM- contingent on a constant supply
of nitrogen for the operation and ventilation of the laser system.
The average nitrogen flow rate of the laser come to 5 1/hr at a maximum of
2.5 bar (36 PSI).
You can calculate the usable amount of nitrogen (liter), if you multiply
bottle volume (liter) and filling pressure (bar).
We recommend a high pressure nitrogen cylinder configuration with a minimum
demand of 1 cylinder.
NITROGEN PURITY
The nitrogen gas must be free of contaminants in dependence on the source of
the nitrogen. Reason for this are the different types of contaminants usual to
the different nitrogen sources:
Bottled nitrogen for example have a tendency to be contaminated with
hydrocarbons, which can be the reason for a widely deviation to BRUKER's
specified performance and a damaging of the laser.
Therefore we highly recommend gas quality 4.6 (99.996% purity) or better,
otherwise the laser head will be damaged irreversible.
Note: Even an optional available gas purifier can be unable to remove all of
the hydrocarbon contaminants.
ADDITIONAL CONSIDERATIONS
To satisfy the prior preparation of the site before installation date, the
customer must ensure the following (user) connections of gas supply:
- Nitrogen: SWAGELOK male connection, metric thread, for BRUKER's 6 mm
Teflon tube,
[5 m tube (16 ft), 6 mm diameter, 1 mm wall thickness,
will be supplied with instrument].
Ensure that an appropriate pressure control regulator is available - the
regulator must be able to supply gas according to the bottle pressure on
high-pressure side up to 300 bar in general and typically 0.5 to 4 bar (7 to
58 PSI) absolute value on low-pressure side. Be sure you select a super-clean
regulator.
If you are equipped with nitrogen from a house installation the regulator can
usually be a single-stage one, if the supply pressure is higher than the
above specified one. In comparison a high pressure nitrogen cylinder
configuration requires a dual-stage regulator.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
EXHAUST VENTING REQUIREMENTS
Exhaust venting is required for user safety. Health hazards include chemical
toxicity of samples as well as pump fluid vapor e.g. and must be vented
externally to the building and not recirculated by the environmental control
system.
Connection to ventilation system shall be direct to building exterior or to
clean fume hood to prevent possible bay flow of contaminants - loss of
nitrogen gas may occur due to this.
PUMP EXHAUST
Location: Pump outlet of the mist filter at the
back of the autoflex-TM- instrument
Suggested tubing
to exhaust: 13 mm (1/2") diameter plastic tubing (Tygon)
Capacity: 1 to 2 1/h
The exhaust (environmental) system must be designed and controlled as
directed in conformance with all local laws (codes, ordinances and
regulations).
Dangerously high pressure can be build up in the exhaust pipe--never use a
stop valve on the exhaust side. If a blocking unit is installed because of
internal company reasons, or in the risk of a overpressure in the exhaust
pipe all official accidental regulations have to be observed.
Exhaust pipings should be installed in a falling horizontal direction, so
that no condensate can run back to the pump-otherwise install separators.
For additional descriptions and special maintenance instructions regarding
this subject we recommend the manufacturer manuals.
Furthermore a enclosed 100 mm (3.93 in) diameter flexible tubing can be
installed to vent the cooling air to the outside of the room.
SAFETY PRECAUTIONS
The standard Nitrogen laser emits high intensity radiation at 337 nm, 150
micro Joules max. (Class IIIb laser classification). Laser radiation is
invisible to the eye cause damage to it.
To safeguard the user both side doors of autoflex-TM- instrument are equipped
with locks which prevent users from the laser - during normal operation mode
with all covers closed (i.e. Class I laser classification) no laser radiation
can be transmitted outside the spectrometer.
BRUKER strongly does not recommend bypassing or disabling any of the safety
features of autoflex-TM- instrument by anyone other than trained BRUKER
service engineers or running the system without covers - BRUKER will not take
over any responsibility in such cases.
The spectrometer operation involves use of high voltages. The access of high
voltage cables and high voltage feedthroughs is restricted behind the side
doors of the instrument as far as possible. Accessible high voltage
connections are marked with danger signs according to regulations.
BRUKER will not take over any responsibility for any injury incurred as
result of a misappropriate use of the instrument.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
TECHNICAL ASSISTANCE
If you need any assistance please call or write to
BRUKER Daltonik GmbH
Xxxxxxxxxxxxxxxxx 0
00000 Xxxxxx
Xxxxxxx
Phone : xx00-(0)000-0000-000 Sales Department
xx00-(0)000-0000-000 Service Department
Fax : xx00-(0)000-0000-000 Sales Department
xx00-(0)000-0000-000 Service Department
E-mail : xxxxx@xxxx.xx
xxxxxxxx_xxxxxxx@xxxx.xx
Internet : xxx.xxxxxx-xxxxxxxx.xx
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
APPENDIX
FAX REPLY TO BRUKER DALTONICS SERVICE DEPARTMENT:
Dear customer,
for the correct and fast installation of the new autoflex-TM- at your site we
need your confirmation of the realized site preparation in conformance with
the handed over Site Preparation Specification document. Moreover we need your
informations to configure the computers for your network.
Ensure that the fax reply will be returned at least 4 weeks before instrument
installation-the BRUKER Daltonics Service Team is not able to begin
installation without customers confirmation!
------------------------------------------------------------
Hereby I/we verify that all of the below mentioned site preparations criteria
have been fulfilled:
/ / Suitable space for the instrument
/ / Electrical installation according to Site Preparation
Specification and common electrical rules
/ / Exhaust ventilating outlet
/ / Network Setup according to BRUKER MALDI-TOF Computer
Configuration List
------------------------------
Company/Institute
------------------------------ ------------------------------
Address Postal Code, City
------------------------------ ------------------------------
Name Job Position
------------------------------ ------------------------------
Telephone Fax
------------------------------
E-mail
------------------------------ ------------------------------
City, Date Signature/Stamp
PLEASE SEND THE STATEMENT TO:
------------------------------
STAMP
------------------------------
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
FAX REPLY TO BRUKER - Page 1 of 2
BRUKER MALDI - TOF COMPUTER CONFIGURATION LIST
CUSTOMER DATA
ADDRESS:
---------------------------------------
---------------------------------------
---------------------------------------
---------------------------------------
CONTACT PERSON: SYSTEM ADMINISTRATOR:
Mr./Mrs. Mr./Mrs.
---------------------- -------------------------------
TELEPHONE:
---------------------- -------------------------------
FAX:
---------------------- -------------------------------
E-MAIL:
---------------------- -------------------------------
PLEASE NOTE, THAT THE STANDARD LENGTH OF NETWORK CONNECTION
CABLES DELIVERED BY BRUKER IS LIMITED TO 10 METERS. LONGER
CABLES MUST BE ORDERED SEPARATELY!
TECHNICAL DATA
(use as often as the number of computers)
/ / PC UNIT(S) (please fill out for each PC)
HOSTNAME (E.G. TOF-MS)
(if left blank, chosen by Bruker)
---------------------------
IP ADDRESS (E.G. 192.168.200.1)
(if left blank a non-internet-routeable
address is chosen)
---------------------------
SUBNETMASK (E.G. 255.255.255.224)
(if left blank, no subnetting is assumed)
---------------------------
DEFAULT GATEWAY (IP ADDRESS)
(if left blank, no default router is assumed)
---------------------------
DNS IP ADDRESS (IP ADDRESS)
(if left blank, no domain server is assumed)
---------------------------
DNS DOMAIN NAME (E.G. XXXXXX.XXX)
(if left blank, no domain name is assumed)
---------------------------
IF YOU ARE RUNNING A LAN AND/OR IF YOU WANT TO CONNECT MORE THAN ONE PC,
PLEASE ANSWER THE NEXT TWO QUESTIONS:
IS THERE A HUB FOR CONNECTING YOUR NEW COMPUTER TO YOUR LAN?
/ / YES or / / NO
IF BRUKER SHOULD PROVIDE A HUB, WHAT IS YOUR LAN'S BANDWIDTH?
/ / 10 MBit or / / 100 MBit
IS THERE SOMETHING ELSE YOU WANT TO BE CONSIDERED FOR THE
NETWORK SETUP OF YOUR NEW COMPUTERS?
----------------------------------------------------------------
----------------------------------------------------------------
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
FAX REPLY TO BRUKER - PAGE 2 OF 2
Attachment C: Chart of Service and Travel Charges.
1. Service Labor Rate for on-site service call $ 1600.00 per day
2. Additional Half-Day on site service (without overnight stay) $ 850.00 per 1/2 day
3. In house repairs (Price per hour, minimum 1 hour) $ 175.00 per hour
Zone Charge (applied for the first day of on-site service):
Region : Mileage from BDAL: Zone Charge:
#1 0-100 miles $ 400.00
#2 101-300 miles $ 950.00
#3 301-750 miles $ 1400.00
#4 751-1000 miles $ 1750.00
#5 1001 plus miles $ 2131.50
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Attachment D: Confidential Disclosure Agreement
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
BRUKER DALTONICS, INC.
Standard Confidential Information Disclosure Agreement
EFFECTIVE DATE: January 1st 2002
In order to protect certain confidential information Bruker Daltonics and its
corporate affiliates ("Bruker"), and the "Participant" identified below, agree
that:
1. PARTIES TO THE AGREEMENT: The parties to this Agreement, and their
addresses, are:
Bruker Daltonics Inc. Variagenics, Inc.
Xxxxxxx Park 00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
"Bruker" "Participant"
2. PRIMARY REPRESENTATIVES: The parties appoint the following representatives
to disclose and receive Confidential Information:
For Bruker: For Participant:
Xxxx Xxxxxx Ph.X. Xxxxxx X. Xxxxxx
3. DESCRIPTION OF CONFIDENTIAL INFORMATION: The Confidential Information to be
disclosed under the terms of this Agreement is described as:
a. Confidential Varigenics developments on Modified Nucleotides
b. Confidential Variagenics information on utilizing modified nucleotides
in genotyping, haplotyping, or variance discovery.
c. Confidential Bruker Mass Spectrometry developments
d. Confidential information on Bruker's and Variagenics business strategy
and plans, and R&D plans
4. USE OF CONFIDENTIAL INFORMATION: Subject to the exceptions stated below, a
recipient of Confidential Information shall not disclose the Confidential
Information or use the Confidential Information except for the purpose of
this Agreement which is:
The
collaboration agreement between Variagenics and Bruker Daltonics
referenced in the renewed
Collaboration agreement for 2002.Recipient shall
not use Confidential Information for it's own benefit or the benefit of
another without Discloser's consent.
5. CONFIDENTIALITY PERIOD: This Agreement and Recipient's duty to hold
confidential information and intellectual property rights under this
Agreement in confidence expire on:
5 years after disclosure of each item
6. DISCLOSURE PERIOD: This Agreement pertains to confidential information that
is disclosed between the Effective Date and 31st March 2003
7. STANDARD OF CARE: Recipient shall protect the disclosed confidential
information 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 Recipient uses to protect
its own confidential information of a like nature.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Page 1
8. MARKING: Recipient's obligations shall only extend to confidential
information that is described in paragraph 3, and that: (a) comprises
specific materials individually listed in paragraph 3; or, (b) is marked as
confidential at the time of disclosure; or, (c) is unmarked (e.g. orally
disclosed) but treated as confidential at the time of disclosure, and is
designated as confidential in a written memorandum sent to Recipient's
primary representative within thirty days of disclosure, summarizing the
confidential information sufficiently for identification.
9. EXCLUSIONS: This Agreement imposes no obligation upon Recipient with
respect to information that: (a) was in Recipient's possession before
receipt from Disclose; (b) is or becomes a matter of public knowledge
through no fault of Recipient; (c) is rightfully received by Recipient from
a third party without a duty of confidentiality (d) is independently
developed by Recipient without reference to or reliance upon the
Confidential Information (e) is required to be disclosed under operation of
law provided Recipient provides discloser with prior written notice of
intended disclosure; or (f) is disclosed by Recipient with Disclosure's
prior written approval.
10. WARRANTY: Each Disclosure warrants that it has the right to make the
disclosures under this Agreement. NO OTHER WARRANTIES ARE MADE BY EITHER
PARTY UNDER THIS AGREEMENT, ANY INFORMATION EXCHANGED UNDER THIS AGREEMENT
IS PROVIDED "AS IS".
11. RIGHTS: Neither party acquires any intellectual property rights under this
Agreement. This agreement shall not restrict reassignment of Recipient's
employees, provided that such employees remain bound by the provisions of
this agreement.
12. This Agreement imposes no obligation on either party to purchase, sell,
license, transfer or otherwise dispose of any technology, services or
products.
13. Both parties shall adhere to all applicable laws, regulations and rules
relating to the export of technical data, and shall not export or re-export
any technical data, any products received from Disclosure, or the direct
product of such technical data to any proscribed country listed in such
applicable laws, regulations and rules unless properly authorized.
14. This Agreement does not create any agency or partnership relationship.
15. All additions or modifications to this Agreement must be made in writing
and must be signed by both parties.
16. This Agreement is made under, and shall be construed according to, the laws
of the Commonwealth of Massachusetts.
By the signatures below of their authorized representatives, Bruker and
Participant acknowledge that they have read, understood and accepted all of the
terms and conditions of this Agreement.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Page 2
BRUKER DALTONICS INC. VARIAGENICS, INC. (PARTICIPANT)
Name: Xxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
--------------------- -------------------------
Title: Vice-President Title: President & CEO
--------------------- -------------------------
Signature: /s/ Xxxx Xxxxxx Signature: /s/ Xxxxxx X. Xxxxxx
--------------------- -------------------------
Date: March 27, 2002 Date: March 29, 2002
--------------------- -------------------------
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Page 3
Attachment E: Space-Velocity Correlation Focussing License
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
OEM SUB-LICENSE AGREEMENT
THIS AGREEMENT (the "Agreement") is made and/or entered into by and between
Bruker Daltonics Inc. ("Licensor"), a Delaware corporation with its principal
place of business at Xxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx
00000, and Variagenics, Inc. ("Licensee"), a Delaware corporation with its
principal place of business at 00 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
WHEREAS, Licensor is the exclusive licensee of, having the full right to
grant sublicenses to, the Patent Rights, as these are defined with particularity
herein; and
WHEREAS, Licensee desires to obtain a license under certain patent rights
held by Licensor, as defined with particularity in this Agreement;
NOW, THEREFORE in view of the promises set forth below, the parties hereto
agree as follows:
1. DEFINITIONS
Solely for the purposes of this Agreement the following terms, as used
herein, will have the meanings specified below:
1.1 "Effective Date" means the date last written below.
1.2 "Patent Rights" means those patents and/or patent applications
listed on Schedule A and any patents issuing from such patent
applications, or any related U.S. or foreign applications or patents
based upon any of such patent applications or patents, as well as any
continuations, divisions, reexaminations, reissues, substitutes,
renewals or extensions of any of the foregoing patent applications or
patents.
1.3 "Affiliate" of a specified entity means an entity that directly
or indirectly controls, is controlled by, or is under common control
with, the specified entity. For purposes of this Agreement, the direct
or indirect ownership of more than 50% of the outstanding voting
shares of an entity, the right to receive 50% or more of the profits
or earnings of an entity, or the right to control policy decisions of
an entity, will be deemed to constitute control.
1.4 "Licensed Product" or "Licensed Products" means and includes any
apparatus, device, system, product, article of manufacture,
appliance, method or process, the practice, manufacture, use or
sale of which would be, but for this Agreement, covered in whole
or in part by a pending claim in a pending application within the
Patent Rights or an unexpired claim in a patent within the Patent
Rights.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
2. GRANT OF SPECIAL OEM SUB-LICENSE
2.1. Licensor hereby grants an individual systems' license to
Licensee, with the right to grant sublicenses to its Affiliates,
to use and/or to re-sell each MALDI-TOF mass spectrometer
purchased by Licensee from Licensor under a separate
"
COLLABORATION AGREEMENT", dated May 24, 2000, and to grant its
customers an individual systems' license to use for each
MALDI-TOF mass spectrometer purchased under the "
COLLABORATION
AGREEMENT" .
2.2. Pursuant to the separate "
COLLABORATION AGREEMENT" Licensor shall
be responsible for the payment of all royalties to IU-ARTI on
Licensor's MALDI-TOF systems sold as OEM systems to Licensee.
2.3. Any license granted under this Agreement shall not constitute or
be interpreted as a license to the Licensee for manufacture, use
or sale of any other MALDI-TOF or other mass spectrometer, other
than the OEM MALDI-TOF systems specifically purchased from
Licensor under the terms of the "
COLLABORATION AGREEMENT". In
particular, this Agreement does not waive for the Licensee future
access payments, retroactive or future royalty payments on any
other MALDI-TOF or other mass spectrometer not specifically
covered by this Agreement.
3. PAYMENTS/LICENSE FEES AND ROYALTIES
This section is not applicable, as Licensor pays all royalties to IU-ARTI for
OEM MALDI-TOF systems sold to Licensee under the separate "
COLLABORATION
AGREEMENT".
4. REPRESENTATION AND WARRANTIES
Licensor warrants that, to the best of its knowledge and belief, it is the
sole exclusive licensee of all rights, title, and interest in the Patent
Rights, free of any liens, encumbrances, restrictions and other legal or
equitable claims, subject, however, to any rights of governmental
authorities, including full right and authority to sublicense the Patent
Rights.
5. RECORDS, REPORTS, AND PAYMENTS
5.1 not applicable
5.2 not applicable
5.3 not applicable
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
5.4 not applicable
6. TERM OF THE AGREEMENT
6.1 Unless sooner canceled or terminated as herein provided, the
individual system's license granted under this Agreement will continue
(10) years or for the full term of the last expiring patent or patent
application within the Patent Rights, whichever is longer.
6.2 If Licensee becomes bankrupt or insolvent, or files a petition in
bankruptcy, or if the business of Licensee is placed in the hands of a
receiver, assignee or trustee for the benefit of creditors, whether by
the voluntary act of Licensee or otherwise, this Agreement will
automatically terminate without any notice whatsoever to Licensee.
6.3 not applicable
6.4 Licensee will have the right to terminate this Agreement with or
without cause at any time upon six (6) months written notice to
Licensor.
6.5 not applicable
6.6 If, at any time during this Agreement, Licensee directly or
indirectly opposes or assists any third party to oppose the grant of
any Letters Patent on any patent application within the Patent Rights
or disputes or directly or indirectly assists any third party to
dispute the validity of any patent within the Patent Rights, or any of
the claims thereof, Licensor will be entitled thereafter to terminate
immediately all or any portion of the license granted under this
Agreement by notice thereof to Licensee.
6.7 In the event that any claim of any application within the Patent
Rights is canceled, abandoned, or otherwise disallowed by a final
non-appealable or non-appealed action of a Patent Office having
jurisdiction, or in the event that any claim of any patent within the
Patent Rights is held invalid or unenforceable by a non-appealable or
non-appealed decision by any court of competent jurisdiction, such
claim will be deemed to have expired, as of the date of final
disallowance or final decision of invalidity or non-enforceability.
6.8 Provisions of this Agreement which by their nature contemplate
rights and obligations of the parties to be enjoyed or performed after
the expiration or termination of this Agreement will survive until
their purposes are fulfilled. Termination of this Agreement for any
reason
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
will not relieve either party of its obligations under this Agreement
previous to the effective date of such termination.
7. NON-TRANSFERABILITY OF LICENSES
7.1 The license granted by this Agreement can be transferred by the
Licensee, but only as part of a transaction by which the Licensee
divests itself of all or substantially all of the business of
manufacturing and/or selling Licensed Products. In the event of such a
transfer, Licensee and its Affiliates shall thereupon cease to be
Licensees hereunder.
7.2 Should any entity or person cease to be an Affiliate of a party,
as that term is defined in paragraph 1.3 above, this Agreement shall
be terminated as to that entity or person, who shall have no further
rights or obligations under this Agreement.
7.3 The license granted in this Agreement shall be binding upon any
successor of Licensor in ownership or control of the Patent Rights,
and the obligations of Licensee shall run in favor of any such
successor of Licensor's benefits under this Agreement.
8. PAYMENTS, NOTICES AND OTHER COMMUNICATIONS
Any payment, notice, or other communication pursuant to this Agreement will
be sufficiently made or given on the date of mailing if sent to such party
by express mail or certified first class mail, postage prepaid, made out to
Bruker Daltonics, Inc. and addressed to it at its address below or made out
to Licensee and addressed to it at its address below as either party will
designate by written notice given to the other party:
Licensor: Xxxxx X. Xxxxxxx, President
Bruker Daltonics Inc.
Xxxxxxx Xxxxx, Xxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Licensee: Xxxxxx Xxxxxx, President
Variagenics, Inc.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
9. MISCELLANEOUS PROVISIONS
9.1 Each party hereto agrees that it will not release any information
to any third party with respect to the Terms of this Agreement without
the prior written consent of the other party. This prohibition
includes, but is not limited to, press releases, educational and
scientific conferences,
promotional materials and discussions with lenders, investment
bankers,
public officials and the media. Should any third party seek to obtain
any
information by legal process with respect to the existence or terms of
this Agreement from either party hereto or if disclosures related to
this
Agreement are required by law, such Party shall promptly notify the
other Party hereto, and shall take all appropriate measures to avoid
and minimize the release of such information
9.2 This Agreement will be construed, governed, interpreted, and
applied in accordance with the laws of the Commonwealth of
Massachusetts, U.S.A., except that questions affecting the
construction and effect of any patent will be determined by the law of
the country in which the patent was granted.
9.3 not applicable
9.4 This Agreement constitutes the entire understanding between the
Parties hereto with respect to the subject matter hereof other than
the "
COLLABORATION AGREEMENT". This Agreement supersedes any prior
agreements between the Parties hereto as to the subject matter of this
Agreement except as specifically provided herein. No modification,
extension or waiver of any provision hereof or any release of any
right hereunder shall be valid, unless the same is in writing and is
consented to by both Parties hereto.
9.5 The provisions of this Agreement are severable, and if any
provision of this Agreement is held to be ineffective, unenforceable
or illegal for any reason, such ineffectiveness, unenforceability
and/or illegality shall not affect the validity or enforceability of
any or all of the remaining portions hereof.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
9.6 This Agreement shall be construed in accordance with its fair
meaning and not strictly for or against any Party.
9.7 This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but both of
which together constitute one and the same Agreement.
9.8 Paragraph titles or captions contained herein are inserted only
as a matter of convenience and for reference, and in no way define,
limit, extend, or describe the scope of this Agreement, nor the intent
of any provision thereof.
9.9 Each Party acknowledges that it has or has, had the opportunity
to consult with counsel of its choice and that in executing this
Agreement it has not relied upon any statements, representations or
agreements of any other person other than those contained herein.
9.10 not applicable
9.11 not applicable
9.12 No failure or delay on the part of either Party hereto in the
exercise of any power, right or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial exercise
of any such power, right or privilege preclude other or further
exercise thereof or of any other right, power or privilege.
9.13 Nothing in this Agreement shall be construed as:
(a) a warranty or representation as to the validity,
enforceability or scope of any patent by the Licensor;
(b) a warranty or representation that any manufacture, sale,
lease, use or importation will be free from infringement of
patents other than those under which and to the extent to which
licenses or covenants are in force hereunder, including patents
of third parties;
(c) an agreement to bring or prosecute actions or suits against
third parties for infringement;
(d) conferring any right to use, in advertising, publicity or
otherwise, any name, trade name, trademark, service xxxx, symbol
or any other identification or any contraction, abbreviation or
simulation thereof,
(e) conferring by implication, estoppel or otherwise any license
or other right under any patent, except as expressly granted
herein;
(f) a representation or warranty of any kind or the assumption
of any responsibility whatsoever by any Party with respect to the
manufacture, sale, lease, use or other disposition
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
of any product or method licensed hereunder (including without
limitation, claims of third parties asserting that a product is
defective or unsafe for its intended purpose); and
(g) a representation deemed to place Licensee and Licensor in a
partnership, joint venture or agency relationship and neither
party will have the right or authority to obligate or bind the
other party in any manner.
9.14 All notices and communications provided for hereunder shall be in
writing and shall be mailed or delivered to the business address of
the respective Parties as aforementioned, or to such other address as
any Party may designate from time to time in writing to the other.
9.15 Each of the Parties agrees to perform reasonably requested
actions of the other Party which are required to effectuate the
covenants and purposes of this Agreement.
IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and
seals and duly executed this Agreement as of the day and year set forth below.
LICENSEE LICENSOR
BY: /s/ Xxxxxx X. Xxxxxx BY: /s/ Xxxx Xxxxxx
----------------------------- -----------------------------
Xxxxxx Xxxxxx Xxxx Xxxxxx
President & CEO Vice-President
Variagenics Inc. Bruker Daltonics Inc.
DATE: March 29, 2002 DATE: March 27th 2002
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
SCHEDULE A
US XXX. NO. INVENTOR(S) TITLE
----------- ----------- -----
5,504,326 Xxxxx X. Xxxxxx Spatial-Velocity Correlation Focusing
Xxxxxx X. Xxxxx in Time-of-Flight Mass Spectrometry
Xxxxxxx X. Xxxx
5,510,613 Xxxxx X. Xxxxxx Spatial-Velocity Correlation Focusing
Xxxxxx X. Xxxxx in Time-of-Flight Mass Spectrometry
Xxxxxxx X. Xxxx
5,712,479 Xxxxx X. Xxxxxx Spatial-Velocity Correlation Focusing
Xxxxxx X. Xxxxx in Time-of-Flight Mass Spectrometry
Xxxxxxx X. Xxxx
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
Attachment F: General Terms and Conditions
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
WARRANTY
All standard products sold by Bruker Daltonics, Inc. (hereinafter called
"DALTONICS") carry a limited warranty, subject to the terms and conditions
hereby set forth. The product is warranteed for one year to be free of
defects in material and workmanship. DALTONICS obligation under all
warranties is limited in accordance with the periods of time and all other
conditions stated in all provisions of the warranty, including the periods
and conditions provided in the special warranty statements applicable to
Special Products Custom Products and Accessories.
WARRANTY PERIOD
The applicable warranty period shall begin upon demonstration of
specifications. The warranty for accessories (other than complete
spectrometers) shall commence upon shipment from DALTONICS. Short shipment of
individual times does not delay commencement of the warranty period. Upon
beginning of the applicable DALTONICS warranty period, all Customer remedies
shall be governed by the provisions stated in the warranty. In no event
shall such warranty period extend more than fifteen (15) months from the date
of shipment of the Product.
WARRANTY COVERAGE
The warranty coverage is subject to all the following limitation:
1. This warranty applies only to defects in material and workmanship in
covered Products and is not to be interpreted as providing full service
coverage for such items as routine maintenance, adjustments, or recalibration
as defined by the instruction manual.
2. This warranty covers only parts and labor furnished by DALTONICS. This
warranty does not cover products or services provided by an outside
manufacturer, which may be repaired or replaced according to the original
manufacturer's warranty terms, if any. DALTONICS accepts no responsibility
for failure of the original manufacturer to perform under its own warranty
obligations.
3. The following are expressly not covered under warranty:
a). Any loss, damage, and/or instrument malfunction relating in any way to:
- Shipping or storage;
- Accident, abuse, alteration, misuse, or neglect;
- Breakage or abuse of parts;
- Operation other than in accordance with correct operating procedures;
- Tampering with the system (e.g., modification or tampering with one
part of the instrument can, in some cases, affect another part of the
instrument)
- Lack of routine care and maintenance, such as lubrication and
cleaning, as indicated in the instruction manual;
- Inadequate utility service, failure of electrical or other energy
supplies, incorrect physical environment, or other inadequate
facilities or utilities as indicated in the instruction manuals
and/or pre-installation instructions;
- Chemical action or contamination;
- Failure to maintain proper helium level in superconducting magnets;
b). Products items, parts, accessories, subassemblies, or components which
are expendable in normal use or operation of the instrument, or those of
limited life, such as but not limited to filters, glassware, glass
accessories, fuses, probe inserts, variable temperature dewars, and transfer
lines, unless specifically covered by an express warranty extended to the
customer by DALTONICS in writing.
4. The sole and exclusive remedy under this warranty shall be repair of
instrument malfunctions which in the sole opinion of DALTONICS are due or
traceable to defects in original materials or workmanship, or at DALTONICS
option, replacement of defective parts.
5. In-warranty repaired or replacement parts or products are covered by
warranty only for the remaining unexpired portion of the original warranty
period applicable to the repaired or replaced parts or products. Repair or
replacement of products or parts under warranty does not extend the original
warranty period.
6. After expiration of the applicable warranty period, DALTONICS will provide
service for which the customer shall be charged at DALTONICS then current
prices for parts, labor, and transportation.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
WARRANTY REPLACEMENT AND ADJUSTMENT
All claims under warranty must be made promptly after occurrence of
circumstances giving rise thereto and must be received within the applicable
warranty period by DALTONICS or its authorized representatives. Such claims
should include the product type and serial numbers, and a full description of
the circumstances giving rise to the claim. DALTONICS reserves the right in
its sole discretion to determine whether repair under valid warranty claims
shall be made by (a) sending a field service engineer to the site, (b) having
the customer send the defective part, assemble, or instrument to a service
shop or facility as authorized by DALTONICS, or (c) authorizing the customer
to return the same to DALTONICS. Before any products, parts, or assemblies
are sent to a service shop or facility or are returned to DALTONICS for
repair and/or adjustment, authorization from DALTONICS or its authorized
representative for the return and instructions as to how and where the same
should be shipped must be obtained. Any product, part, or assembly sent to an
authorized service shop or facility or returned to DALTONICS for examination
shall be sent prepaid via the means of transportation indicated as acceptable
by DALTONICS with all transportation at the expense of the customer.
DALTONICS reserves the right to reject any warranty claim not promptly
reported and any warranty claim on any item that has been altered or has been
shipped by non-acceptable means of transportation. When any product, part, or
assembly is sent to a service shop or facility or is returned to DALTONICS
for examination and inspection or for any other reason, the customer shall be
responsible for all damage resulting from improper packing or handling, and
for loss in transit, notwithstanding any defect or non-conformity in the
product part, or assembly. In all cases, DALTONICS has sole responsibility for
determining the cause and nature of failure, and DALTONICS determination with
regard thereto shall be final.
LIMITATION OF LIABILITY
Reasonable care must be used to avoid hazards. DALTONICS expressly disclaims
responsibility for loss or damage caused by use of its products other than
in accordance with proper operating procedures. IN NO EVENT SHALL DALTONICS
BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR RESULTING LOSS OR DAMAGE OF ANY
KIND, HOWEVER CAUSED. DALTONICS LIABILITY FOR DAMAGES SHALL NOT EXCEED THE
PAYMENT, IF ANY RECEIVED BY DALTONICS FOR THE UNIT OF PRODUCT OR SERVICE
FURNISHED OR TO BE FURNISHED, AS THE CASE MAY BE, WHICH IS THE SUBJECT OF
CLAIM OR DISPUTE.
All obligations of DALTONICS under this warranty shall cease in the event its
products or parts have been subject to accident, abuse, alteration, misuse or
neglect, or which have not been operated and maintained in accordance with
proper operating procedures.
All products and services provided within the scope of their warranty must be
provided through, or with the knowledge and approval of DALTONICS. DALTONICS
makes no warranty concerning services or components supplied through
unapproved sources. What constitutes an approved source shall be determined
by DALTONICS.
THIS WARRANTY IS EXPRESSLY IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR
IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO WARRANTIES OF FITNESS FOR
PARTICULAR PURPOSE, USE, OR APPLICATION, AND ALL OTHER OBLIGATIONS OR
LIABILITIES ON THE PART OF DALTONICS, UNLESS SUCH OTHER WARRANTIES
OBLIGATIONS, OR LIABILITIES ARE EXPRESSLY AGREED TO IN WRITING.
Statements made by any person, including representatives of DALTONICS, which
are inconsistent or in conflict with the terms of this warranty, shall not be
binding upon DALTONICS unless reduced to writing and approved by an officer
of DALTONICS.
This warranty shall be construed under and governed by the law of the State
of Massachusetts. No action, regardless of form, arising out of, or in any
way connected with, the products or services furnished or to be furnished by
DALTONICS, may be brought by the customer more than one (1) year after the
cause of action has accrued.
ACCESSORIES
In lieu of the one (1) year period applicable to DALTONICS standard products,
accessories manufactured by DALTONICS are warranted to be free of defects in
material and workmanship for a period of ninety (90) days from the date of
shipment, or if DALTONICS specifically agrees in writing to provide
installation, ninety (90) days from the date of installation. All such
accessory warranties are limited in accordance with all the terms, condition,
and other provisions stated in this warranty.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
------------------------------------------------------------------------------
GENERAL TERMS & CONDITIONS
A. GENERAL CONDITIONS
1. All quotations, shipments and services given and made by Bruker DALTONICS
are governed solely by the conditions and terms set forth in the quotation.
2. No additions to or modifications of any of the provisions upon the face or
reverse of this form shall be binding upon DALTONICS unless made in writing
and signed by a duly authorized representative.
3. In absence of written acceptance of these terms and conditions, an
acceptance of any goods or services, shipped or provided by DALTONICS based
on a purchase order received from purchaser shall constitute an acceptance of
these terms and conditions. The terms and conditions herein shall prevail as
against the terms and conditions of any purchase order.
4. The rights and obligations of the parties shall be governed in all
respects by the laws of the State of Massachusetts and the party shall submit
themselves to the jurisdiction of said State.
5. DALTONICS shall retain copyright, trademark, patent and proprietary rights
in all drawings, technical information, and know-how.
6. Documentation such as Software Listings, detailed Drawings and other
documentation normally not distributed may only be provided by DALTONICS
on the condition that the receiver of such documentation signs a
Confidentiality Agreement.
7. Clerical errors and mistakes of fact are subject to correction by
DALTONICS at any time.
B. PRICE AND QUOTATION
1. All quotations are firm for a period of 60 days from the date hereof,
unless specified in writing.
2. All prices are FOB shipping point unless otherwise stated. Responsibility
passes to purchaser upon delivery to Transportation Company and risk of
damage or loss following such delivery shall be purchasers.
3. Price quoted does not include City, State, or Federal Sales or similar
taxes. Purchaser shall report and pay all such taxes and hold DALTONICS
harmless therefrom.
C. ORDERS AND ORDER SPECIFICATIONS
1. Purchase orders are subject to acceptance by DALTONICS.
2. In a case where a new development is included in an order, or the
execution of any order depends upon successful completion of new development,
DALTONICS reserves the right to cancel such order, without incurring any
obligation to purchaser if such development cannot be completed successfully
in DALTONICS discretion. If the order is for the development of a single
unit, the foregoing shall apply and DALTONICS reserves the right to cancel
that part of the order which covers only the unit for which successful
development appears to be necessary.
D. DELIVERY AND SHIPMENT
1. Delivery time is computed from the date of acknowledgement of written
order.
2. DALTONICS shall not be liable for delivery delayed due to circumstances
beyond its control, including, but not limited to, fire, flood, war, labor
disputes, accidents or delay of carriers, sub contractors or suppliers.
3. Change of an order on request of purchaser after original order was
accepted by DALTONICS shall be subject to reacceptance. The originally quoted
delivery time may no longer be applicable. Should DALTONICS decline
acceptance of change order, the original order remains binding.
4. Cancellation of an order due to reasonable delay of delivery is excluded.
Any rights of purchaser for claims or compensation for damage or loss of any
kind whatsoever due to delay of delivery are excluded.
5. An order covering several independent functional units may be delivered
and invoiced in part as per functional unit and payment thereof shall be due
for such unit upon presentation of invoice.
E. TERMS AND PAYMENT
1. Invoices are due without deduction upon presentation.
Orders shipped and invoiced in separate parts shall be due upon receipt of
such parts. Failure to make payment when due on any one part shall relieve
DALTONICS of delivery of any remaining parts.
2. If Bank Guarantee or Bid Bond is requested the purchase set forth herein
shall be increased by the cost of such guarantee or bond.
3. Upon delivery or demonstration of specifications of the system DALTONICS
Bank Guarantee and/or Bid Bond are to be returned by purchasers.
F. TITLE
1. Title does not transfer to the Purchaser until final payment is received
in full by DALTONICS.
--------------------------
Portions of this Exhibit were omitted and have been filed separately with the
Secretary of the Commission pursuant to the Company's application requesting
confidential treatment under Rule 24b-2 of the Securities Exchange Act of 1934.
