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Exhibit 10.27
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. (Sections) 200.80(b)(4),
200.83 and 230.406
[GENOMICA LETTERHEAD]
4001 Discovery Drive, Suite 130
Boulder, Colorado 80303
Phone: (303) 402-9800
Fax: (303) 402-9877
Product Development and
Reseller Agreement
April 7, 2000
The information in this Agreement shall not be disclosed outside PE Biosystems
and shall not be duplicated, used or disclosed in whole or in part for any
purpose other than to evaluate the Agreement, provided that if the Agreement is
signed, PE Biosystems shall have the right to duplicate, use or disclose the
information for archival and other internal purposes, or as otherwise provided
by the Agreement. This restriction does not limit the right of PE Biosystems to
use information contained in the Agreement if it is obtained from another
source authorized to disclose it.
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<TABLE>
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Table of Contents
<S> <C>
Table of Contents...................................................................... 2
Section 1.0 Definitions.............................................................. 7
1.1 Distribute................................................................... 7
1.2 Documentation................................................................ 7
1.3 End-Customer................................................................. 7
1.4 Evaluation Product........................................................... 8
1.5 Exclusive.................................................................... 8
1.6 Genomica Product............................................................. 8
1.7 GeneMapper Product........................................................... 8
1.8 Object Code.................................................................. 8
1.9 Sale......................................................................... 8
1.10 Software License Agreement................................................. 8
1.11 Sold Product............................................................... 9
1.12 Source Code................................................................ 9
1.13 Source Party............................................................... 9
1.14 Technical Support.......................................................... 9
1.15 Technical Support and Maintenance Agreement................................ 9
Section 2.0 APPOINTMENT AS RESELLER................................................ 9
2.1 Appointment of Reseller...................................................... 9
2.2 Conditional Exclusivity...................................................... 9
2.3 Effect of Non-Exclusivity.................................................... 10
2.4 Relationship as Asset........................................................ 10
Section 3.0 GENOMICA PRODUCT LICENSE GRANT......................................... 10
3.1 Distribution License......................................................... 10
3.2 Copying License Grant........................................................ 11
3.3 Evaluation, Training and Demonstration License Grant......................... 11
3.4 Development License Grant.................................................... 11
3.5 Documentation License Grant.................................................. 11
3.6 Proprietary Notices.......................................................... 11
3.7 Ownership.................................................................... 11
3.8 Derivative Rights............................................................ 12
3.9 Remedies..................................................................... 12
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Section 4.0 REPRESENTATIONS AND OBLIGATIONS.............................................. 12
4.1 Product Feedback................................................................ 12
4.2 Representations on Behalf of the Other Party.................................... 12
4.3 Ethical Conduct................................................................. 12
4.4 Representations................................................................. 13
Section 5.0 MARKETING AND LAUNCH SUPPORT................................................. 13
5.1 Appointment of Principal Marketing Contact Person............................... 13
5.2 Datasheet Development........................................................... 13
5.3 Genomica Collateral Material.................................................... 13
5.4 Tag-Along Marketing............................................................. 13
5.5 Advertising..................................................................... 14
5.6 Co-Marketing Responsibilities................................................... 14
5.7 Industry Events................................................................. 14
5.8 Users Conference Participation.................................................. 14
5.9 PEB Internal Sales Meetings..................................................... 14
5.10 Sales Training................................................................ 14
5.11 Sales Binder.................................................................. 15
5.12 Mutual References............................................................. 15
5.13 Promotional Materials......................................................... 15
5.14 Evaluation, Training and Demonstration License Grant.......................... 15
Section 6.0 BRANDING AND TRADEMARKS...................................................... 15
6.1 Dual-Branding................................................................... 15
6.2 Trademarks...................................................................... 16
6.3 Use of Trademarks............................................................... 16
Section 7.0 GENOMICA PRODUCT DEVELOPMENT................................................. 16
7.1 Appointment of Project Manager.................................................. 16
7.2 Development Schedule Sharing.................................................... 16
7.3 Integration Definition.......................................................... 17
7.4 Integration Testing............................................................. 17
7.5 GeneMapper Product License Grant................................................ 17
7.6 Beta Sites...................................................................... 17
7.7 Pre-Release Evaluation Program Participation.................................... 17
7.8 Genomica Product Updates........................................................ 17
7.9 Retiring Genomica Product....................................................... 17
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<TABLE>
<CAPTION>
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7.10 Retiring GeneMapper Product.................................................................... 18
7.11 Ownership of Integration Intellectual Property................................................. 18
Section 8.0 TECHNICAL SUPPORT........................................................................... 18
8.1 End-Customer Technical Support by Genomica..................................................... 18
8.2 End-Customer Technical Support by PEB.......................................................... 18
8.2.1 PEB Responsible For Total Customer Support................................................... 18
8.2.2 Technical Support Outside of North America and Europe........................................ 18
8.2.3 Technical Support In North America and Europe................................................ 19
8.2.4 Customer Dissatisfaction with Genomica Support............................................... 19
8.2.5 Technical Support Warranties................................................................. 19
8.2.6 Technical Support Assistance from Genomica................................................... 19
8.3 GeneMapper Product Technical Support Requests to Genomica...................................... 19
8.4 Evaluation Product Support..................................................................... 19
Section 9.0 MANUFACTURING AND DISTRIBUTION.............................................................. 20
9.1 Materials Hand-off............................................................................. 20
9.1.1 Materials Acceptance......................................................................... 20
9.2 CD Manufacturing and Quality Assurance......................................................... 20
9.3 Documentation Manufacturing and Quality Assurance.............................................. 20
9.4 Shipping Container Manufacturing and Quality Assurance......................................... 20
9.5 Genomica Product Package Assembly.............................................................. 21
9.6 Genomica Sign-off.............................................................................. 21
9.7 Genomica Product Inventory..................................................................... 21
9.8 Genomica Product Distribution.................................................................. 21
9.9 Distribution of Current Materials.............................................................. 21
9.10 Evaluation Product Distribution.............................................................. 21
9.11 Update Product Distribution.................................................................. 21
Section 10.0 SALES, ORDER PROCESSING AND COLLECTIONS..................................................... 22
10.1 PEB Sales Material........................................................................... 22
10.2 PEB Sales Effort............................................................................. 22
10.3 Genomica Presales Support.................................................................... 22
10.4 Sale of Technical Support and Maintenance Contracts.......................................... 22
10.4.1 Notification of Technical Support and Maintenance Sale...................................... 22
10.5 Sales Leads.................................................................................. 23
10.6 Order Processing............................................................................. 23
10.7 Collections.................................................................................. 23
Section 11.0 PAYMENTS TO GENOMICA........................................................................ 23
11.1 Fees......................................................................................... 23
11.1.1 Payments.................................................................................... 23
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11.1.2 Fee Payment Schedule..................................................................... 23
11.1.3 Non Fee-Generating Activities............................................................ 23
11.1.4 Returns.................................................................................. 24
11.2 Payments...................................................................................... 24
11.2.1 Form of Payment.......................................................................... 24
11.2.2 Late Payments............................................................................ 24
11.2.3 Right to Challenge....................................................................... 24
11.3 Reporting..................................................................................... 24
11.4 Record Inspection and Audit................................................................... 24
11.4.1 Record Keeping and Archiving............................................................. 24
11.4.2 Auditing................................................................................. 24
11.4.3 Underpayment............................................................................. 25
11.5 Taxes......................................................................................... 25
Section 12.0 TERM AND TERMINATION..................................................................... 25
12.1 Initial Term.................................................................................. 25
12.2 Termination................................................................................... 25
12.2.1 Breach................................................................................... 25
12.2.2 Insolvency............................................................................... 26
12.2.3 Acquisition, Change of Control or Merger................................................. 26
12.3 Effect of Termination......................................................................... 26
12.4 Survival...................................................................................... 26
Section 13.0 CONFIDENTIALITY.......................................................................... 26
13.1 Obligations................................................................................... 26
13.2 Exceptions.................................................................................... 27
13.3 Confidentiality Agreements.................................................................... 27
Section 14.0 WARRANTY................................................................................. 28
14.1 Ownership Warranty............................................................................ 28
14.2 Genomica Warranty Disclaimer.................................................................. 28
Section 15.0 INDEMNITIES.............................................................................. 28
15.1 Indemnity..................................................................................... 28
15.2 Exclusions.................................................................................... 28
15.3 Exclusive Remedies............................................................................ 29
15.4 Sole Obligation............................................................................... 29
15.5 PEB Indemnity................................................................................. 29
15.6 Sole Obligation............................................................................... 29
Section 16.0 LIMITATION OF LIABILITY.................................................................. 29
Section 17.0 MISCELLANEOUS............................................................................ 30
17.1 Confidentiality of Agreement.................................................................. 30
</TABLE>
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<TABLE>
<CAPTION>
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17.2 Solicitation.................................................................................... 30
17.3 Assignment...................................................................................... 30
17.4 Parties Independent............................................................................. 30
17.5 Force Majeure................................................................................... 31
17.6 Notices......................................................................................... 31
17.7 Governing Law; Forum Selection.................................................................. 31
17.8 Export Regulations.............................................................................. 31
17.9 Government Rights............................................................................... 32
17.10 Severability.................................................................................... 32
17.11 Waiver.......................................................................................... 32
17.12 Entire Agreement................................................................................ 32
EXHIBIT A--GENOMICA PRODUCT DESCRIPTION................................................................. 33
EXHIBIT B--SOFTWARE LICENSE AGREEMENT................................................................... 34
EXHIBIT C--TECHNICAL SUPPORT AND MAINTENANCE AGREEMENT.................................................. 36
EXHIBIT D--PAYMENTS AND SALES MILESTONES................................................................ 39
EXHIBIT E--TRADEMARKS................................................................................... 40
EXHIBIT F--GENOMICA PRODUCT BILL OF MATERIALS........................................................... 41
EXHIBIT G--MONTHLY AND QUARTERLY REPORTING FORMAT....................................................... 42
</TABLE>
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This Product Development and Reseller ("Agreement") is entered into this 7th day
of April, 2000 (the "Effective Date") by and between Genomica Corporation, a
Delaware Corporation with principal offices at 1745 38th Street, Boulder,
Colorado 80301 ("Genomica"), and PE Corporation, by and through its PE
Biosystems divisions, a Delaware corporation with principal offices at 850
Lincoln Center Drive, Foster City, California 94404 ("PEB").
RECITALS
Whereas, PEB desires that Genomica develop, and Genomica desires to develop, a
functional subset of Genomica genetic analysis software that shall be fully
interoperable with PEB's GeneMapper Software Product and that PEB may resell and
Distribute as provided in this Agreement;
Whereas, the parties entered into a Joint Development And Marketing Ageement,
effective September 17, 1999 (the "Joint Development"), which describes the
cooperation between the parties in developing software products in the field of
high throughput linkage viz-a-viz gene sequencing;
Whereas, the parties now desire to provide further detail respecting the Joint
Development by setting forth, in this Agreement, additional development and
resale provisions applicable to software developed primarily by Genomica, as
described herein.
Now, Therefore, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
Section 1.0 Definitions
The following words, terms and phrases shall, in this Agreement, have the
following meanings, which shall apply equally to both the singular and plural
forms of the terms defined:
1.1 Distribute
"Distribute" means to issue, transfer or make available to an End-Customer a
Genomica Product by any means now known or hereafter developed.
1.2 Documentation
"Documentation" means all written or electronic technical documentation
furnished by Genomica during the term of this Agreement that relates to the
Genomica Product.
1.3 End-Customer
"End-Customer" means an entity that has obtained from PEB or its Sub-
Distributors (as defined in Section 3.11) a valid license to the GeneMapper
Product and one or more Sold Products for use internally and not for resale,
service bureau (including, but not limited to an Application Service Provider)
or other non-internal commercial use.
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1.4 Evaluation Product
"Evaluation Product" means an Object Code version of the Genomica Product that
is provided, at no charge, to an End-Customer for the purpose of evaluating the
fitness of the Genomica Product to the needs of the End-Customer. An Evaluation
Product must be Distributed for nonproductive, demonstration use with a usage
limitation consistent with the purpose of fitness evaluation, dictated by
Genomica and subject to approval of PEB, which approval shall not be
unreasonably withheld.
1.5 Exclusive
"Exclusive" means PEB shall be the sole distributor of the Genomica Product
having the specific features of Exhibit A.
1.6 Genomica Product
"Genomica Product" means the Object Code format only of a Genomica software
product, with the features as described in Exhibit A, which shall integrate with
PEB's GeneMapper Product in such a manner as to enhance the utility and
marketability of PEB's GeneMapper Product.
1.7 GeneMapper Product
"GeneMapper Product" means the PEB Software Product that performs Allele
Calling, including Personal Oracle, or any functionally similar product
developed and licensed by PEB.
1.8 Object Code
"Object Code" means unmodified software related to the Genomica Product that is
used in the installation or operation of the Genomica Product or in the
preparation of data for, loading of data into or re-formatting of data exported
from the Genomica Product. Object Code includes any Java code, any Oracle
scripts, stored procedures, etc., and any other scripts or codes whether they be
machine-readable or human readable. Object Code also includes any code or other
information obtained by running analytic or transformation tools (such as
decompilers) on any of the above types of items.
1.9 Sale
"Sale" means the Distribution of a Genomica Product or Technical Support and
Maintenance Agreement, regardless of when billing or fee collection actually
occurs by PEB.
1.10 Software License Agreement
"Software License Agreement" means an agreement between Genomica and an End-
Customer that grants the End-Customer the right to use the Genomica Product. An
example of a Software License Agreement is contained in Exhibit B. In no case
shall the terms of the license in Exhibit B interfer with or impair the terms of
this Agreement.
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1.11 Sold Product
"Sold Product" means a license, acquired by an End-Customer, for a non usage-
limited Object Code version of a Genomica Product.
1.12 Source Code
"Source Code" means any software relevant to this Agreement that is not
specifically defined as Object Code.
1.13 Source Party
"Source Party" means either Genomica or PEB, who in the context of a particular
contract term is the party that is providing the product being discussed.
1.14 Technical Support
"Technical Support" means commercially reasonable efforts, undertaken to provide
End-Customers with answers to questions, or to provide valid Technical Support
and Maintenance Agreement licensees with software updates that repair defects in
Genomica Products or its Documentation. Technical Support specifically excludes
providing scientific expertise or consultation services. Such questions may be
submitted to Genomica under a separate consulting agreement.
1.15 Technical Support and Maintenance Agreement
"Technical Support and Maintenance Agreement" means the agreement on Exhibit C
attached to this Agreement, as it may be amended from time to time by Genomica,
between Genomica and an End-Customer that specifies the terms and conditions
under which Genomica will provide Technical Support and product updates to an
End-Customer.
Section 2.0 APPOINTMENT AS RESELLER
2.1 Appointment of Reseller
Subject to the terms and conditions of this Agreement, Genomica hereby appoints
PEB as an "Authorized Genomica Reseller," with worldwide rights to resell the
Genomica Product. This appointment is Exclusive (as defined in Section 2.2) and
non-transferable.
2.2 Conditional Exclusivity
PEB and Genomica acknowledge and agree that the grant of Exclusive distribution
rights under Section 2.1 herein is in consideration for PEB's on-going
achievement of the Sales Milestones (as defined in Exhibit D. Failure on the
part of PEB to (i) achieve a Sales Milestone in two (2) consecutive quarters, or
(ii) achieve 75% of the aggregate Sales Milestones for four (4) consecutive
quarters, will cause this Agreement to change from a conditionally Exclusive to
a non-exclusive Agreement for the remainder of the term of the Agreement. During
the first four full calendar
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quarters of this Agreement, PEB may choose to fulfill its milestone obligations
by remitting quarterly payments to Genomica equal to the number of Genomica
Product and Technical Support and Maintenance contracts that were to be sold by
PEB for that quarter multiplied by the agreed upon fees for Genomica Product and
Technical Support and Maintenance contracts to be paid to Genomica pursuant to
Exhibit D.
2.3 Effect of Non-Exclusivity
Should this Agreement become non-exclusive, PEB (i) shall have the right to
renegotiate the terms and conditions of this Agreement such that they are no
less favorable than the terms and conditions under which Genomica or any third
party may sell the Genomica Product; (ii) shall have the option at its sole
discretion to continue or discontinue any or all activities related to the
responsibilities outlined in Sections: 5.4, 5.6, 5.7-5.10, 10.1, 10.2 and 10.5;
(iii) shall not have to manufacture and distribute Genomica Products, pursuant
to Section 9 of this Agreement, that are not sold by PEB; (iv) may require that
no PEB Trademarks be associated with Genomica Products that are not sold by PEB.
2.4 Relationship as Asset
Both parties agree that the relationship established in this Agreement is a
valuable business asset, and subject to Section 17.4 agree at all times, and in
good faith, to promote and protect the interests of the other party, as
described herein.
Section 3.0 GENOMICA PRODUCT LICENSE GRANT
3.1 Distribution License
3.1.1 Distribution License Grant
Subject to the terms and conditions of this Agreement, Genomica hereby grants to
PEB, under all of Genomica's intellectual property rights in and to the Genomica
Product, a conditionally Exclusive (as described in Section 2.2 above), non-
transferable license, without right of sublicense, to Distribute on worldwide
basis: (i) Sold Products directly, or indirectly through other resellers (the
"Sub-Distributors") solely to End-Customers, and (ii) Evaluation Products
directly or indirectly through Sub-Distributors to End-Customers.
3.1.2 License Grant Restriction
PEB shall have no rights to Distribute Genomica Product Source Code.
3.1.3 End-Customer Licenses
Distribution of the Genomica Products pursuant to Section 3.1.1 above shall only
be permitted to End-Customers pursuant to the Software License Agreement between
Genomica and the End-Customer, and optionally the End-Customer Technical Support
and Maintenance Agreement between Genomica and the End-Customer, attached as
Exhibits B and C respectively, as may be
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amended from time to time by Genomica, subject to the requirement that such
amendments not interfere with or impair in any way the terms and conditions of
this Agreement.
3.2 Copying License Grant
PEB may and is hereby granted the right and license to make copies of the master
copy of the Genomica Product provided to PEB pursuant to Section 9 solely in
support of its rights granted in this Section 3, and such copies may be
Distributed strictly in accordance with the provisions specified in Section 9.
3.3 Evaluation, Training and Demonstration License Grant
Subject to the terms and conditions of this Agreement, Genomica grants to PEB a
nontransferable evaluation, training and demonstration license to use and
reproduce the Genomica Product and its associated Documentation, solely (i) for
training PEB employees on the use of the product, and (ii) demonstrating
Genomica Products to potential End-Customers. Licenses issued pursuant to this
Section 3.3 may not be used by PEB or any of its subsidiaries or affiliates for
its own research or the research of its subsidiaries or affiliates.
3.4 Development License Grant
PEB may, at no cost, use properly acquired Genomica Products to develop and test
the integration of the GeneMapper Product with the Genomica Product. Genomica
shall provide PEB, at no cost, technical support for these licenses.
3.5 Documentation License Grant
Genomica hereby grants to PEB a non-transferable license to reproduce, and
distribute unmodified Documentation to End-Customers.
3.6 Proprietary Notices
PEB agrees that each copy of the Genomica Product and Documentation shall
include reproductions of the copyright notices and other proprietary legends of
Genomica and its suppliers, in Object Code format or otherwise, which accompany
such items. PEB shall not remove, efface or obscure any copyright notices or
other proprietary notices or legends from any Genomica materials provided
hereunder.
3.7 Ownership
Genomica shall retain all right, title and interest, including all intellectual
property rights, in and to the Genomica Product (including, but not limited to,
Object Code and Source Code formats) and Documentation. PEB shall retain all
right, title and interest, including all intellectual property rights, in and to
the GeneMapper Product (including, but not limited to, Object Code and Source
Code formats) and Documentation.
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3.8 Derivative Rights
Both parties acknowledge that only the Source Party is permitted to enhance,
improve, modify or change a Source Party Product. Both parties further agree
that any and all enhancements, improvements, modifications, and changes of any
sort to a Source Party product and documentation (such as, but not limited to,
addition of new functionality, creation of new algorithms, design changes, code
changes, ideas, concepts, know-how, approaches, processes, methodologies and
techniques) regardless of origin, are the exclusive property of Source Party.
The non-Source Party agrees to assign to the Source Party all of its right,
title and interest in and to each enhancement, improvement, modification and
change, and further agrees to execute any and all documents requested by the
Source Party in order to perfect the Source Party's right in same.
3.9 Remedies
3.9.1 Improper Copying or Distribution
The parties acknowledge that any copying, use or distribution of the Genomica
Product or the GeneMapper Product not explicitly authorized by this Agreement is
a breach of this Agreement and an infringement of the parties' rights in and to
their respective products. In the event of such breach, and in addition to and
not in lieu or limitation of any other remedies to which it may be entitled,
each party shall be entitled to equitable relief to terminate such unauthorized
activities, as well as to monetary relief at law and in equity.
Section 4.0 REPRESENTATIONS AND OBLIGATIONS
4.1 Product Feedback
Each party agrees promptly to report in writing to the Source Party all
suspected and actual problems with any Source Party product.
4.2 Representations on Behalf of the Other Party
Each party shall refrain from making any representations, warranties or
guarantees to End-Customers with respect to the specifications, features or
capabilities of the other party's products that are inconsistent with the
Documentation provided by Genomica and generally available product documentation
provided by PEB. The Source Party shall have no obligation to honor any
warranties that the other party makes or is deemed to have made to its End-
Customers with respect to any Source Party product. Each Source Party is
responsible only for the warranties provided by the Source Party in the license
agreement under which the product is made available to Source Party's End-
Customer.
4.3 Ethical Conduct
Both parties agree to exhibit the highest level of ethical conduct when dealing
with End-Customers. In particular, each party agrees to (i) conduct business in
a manner that reflects favorably at all times on the products, goodwill and
reputation of the other party, (ii) avoid deceptive, misleading
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or unethical practices that are or might be detrimental to the other party or
its products and (iii) refrain from making any false or misleading
representations with regard to other party, the other party's products, or the
relationship between the parties.
4.4 Representations
Each party hereby represents, warrants and covenants that (i) it is not
restricted in any way, by agreement or otherwise, from entering into this
Agreement and performing any of its responsibilities as described herein; and
(ii) that neither the execution nor performance of this Agreement will breach
any agreement or other obligation to keep in confidence, or to refrain from
using, the confidential, proprietary or trade secret information of a former
employer, another client or any other person or entity; and (iii) will not use
any such information in connection with performing its responsibilities as
described herein.
Section 5.0 MARKETING AND LAUNCH SUPPORT
5.1 Appointment of Principal Marketing Contact Person
Each party shall assign a principal marketing contact person as its principal
contact to coordinate the Genomica Product requirements gathering and related
marketing activities. Such manager may be changed at the discretion of the
naming party.
5.2 Datasheet Development
Genomica shall develop, with assistance from PEB, a Genomica Product datasheet
that shall be the primary printed marketing literature to be provided to
potential customers in presales situations (the "Datasheet"). PEB shall have the
right to approve the Datasheet. Genomica shall, at its own expense, print and
deliver to a single, pre-specified PEB address in the United States, one
thousand (1000) copies of the Datasheet. The payment for printing of additional
Datasheets shall be mutually agreed to by the parties prior to the printing.
5.3 Genomica Collateral Material
PEB agrees to include mutually approved Genomica collateral material with each
Evaluation Copy and Sold Copy of the Genomica Product. The cost of printing such
collateral materials and shipping them to PEB for inclusion in Genomica Products
shall be borne solely by Genomica. The parties agree that a Genomica corporate
overview/description and a datasheet that describes an upgrade from the Genomica
Product to a more feature-rich version of the Genomica Product will be included.
All other Genomica collateral materials must be mutually agreed to in writing.
5.4 Tag-Along Marketing
PEB agrees that Genomica may participate, at Genomica's expense, in any
GeneMapper Product-related marketing activities. PEB agrees to provide Genomica
with sufficient, advanced written notification of all such activities, so that
Genomica may have adequate time to prepare any required marketing materials.
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5.5 Advertising
Either party may create and place print and on-line advertisments that reference
the other party's product. Any such advertisment may not be placed until first
having been approved in writing by the non-creating party. The cost of
designing and placing each advertisment shall be borne by the originating party.
Genomica agrees to take reasonable efforts to advertise the Genomica Product in
print publications.
5.6 Co-Marketing Responsibilities
PEB shall use reasonable commercial efforts to promote the acceptance and
licensing of the Genomica Product. PEB shall promote the Genomica Product in a
commercially reasonable manner and will transmit Genomica-supplied information
and promotional materials to potential customers as reasonably necessary.
5.7 Industry Events
The parties agree to use commercially reasonable efforts to mutually identify
and participate in such industry-sponsored events as may be mutually acceptable
to jointly publicize and promote the GeneMapper Product and Genomica Product.
Each party hereby offers the other party, at no cost, a demonstration station in
its booth. Acceptance of any such offer is at the sole discretion of the party
receiving the offer.
5.8 Users Conference Participation
During the term of this Agreement, each party guarantees the other party the
opportunity to attend and participate each other's respective Users Conferences.
There shall be no participation fee charged to the attending party by the
hosting party; however, the attending party shall be responsible for its own
travel and living expenses.
5.9 PEB Internal Sales Meetings
During the term of this Agreement, PEB shall make available to Genomica a
presentation opportunity at internal PEB sales meetings in which Genomica shall
provide Genomica Product information to PEB personnel.
5.10 Sales Training
At a frequency of once per calendar quarter, or more frequently if mutually
agreed upon in writing by the parties, Genomica shall provide training to a
minimum of five (5) PEB's sales personnel and/or distribution channel personnel
at a time, at a mutually agreed upon location. PEB shall bear the costs of
securing the training facility and the reasonable and actual travel and living
expenses of the Genomica instructor. Genomica shall bear the cost of paying for
its instructors time. The parties agree, at the earliest possible opportunity,
that Genomica shall provide sales training to all GeneMapper Product sales
personnel in conjunction with PEB regularly scheduled sales training.
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5.11 Sales Binder
The parties agree to collaborate on the development and on-going maintenance of
a sales binder that shall contain information to assist PEB sales personnel in
selling the Genomica Product.
5.12 Mutual References
At a mutually agreed time, but no later than thirty (30) days after the
Effective Date:
(a) Each party shall provide a statement of written endorsement of the other
party (the "Quotation") from an executive (Vice President level or higher)
providing a positive representation of the other party (the company) and its
products, which may be included in press releases and promotional materials
in all formats (including, but not limited to printed and electronic);
(b) Genomica and PEB shall issue a joint press release, announcing the
relationship contemplated by this Agreement with mutual endorsements for PEB
and Genomica Products;
(c) Pursuant to Section 6, Genomica and PEB each grant to the other party, the
right to include the logo of the other party on its respective website, a
hyperlink to the other party's Website and a mutually agreed upon
description of the relationship contemplated by this Agreement with mutual
endorsements for PEB and Genomica Products.
5.13 Promotional Materials
Pursuant to Section 6, the parties hereto agree that each may use the other's
name, logo, and Quotation on the other's promotional materials for the
GeneMapper Product and Genomica Product respectively, in all formats (including,
but not limited to printed and electronic), at no cost to such party.
5.14 Evaluation, Training and Demonstration License Grant
Subject to the terms and conditions of this Agreement, PEB grants to Genomica a
nontransferable evaluation, training and demonstration license to use and
reproduce the GeneMapper Product and its associated Documentation, solely (i)
for training Genomica employees on the use of the product, and (ii)
demonstrating GeneMapper Product to potential End-Customers. Licenses issued
pursuant to this Section 5.14 may not be used by Genomica or any of its
subsidiaries or affiliates for its own research or the research of its
subsidiaries or affiliates.
Section 6.0 BRANDING AND TRADEMARKS
6.1 Dual-Branding
The parties agree that the Genomica Product marketing materials shall be dual-
branded, including both the Genomica and PEB trademarks. The parties further
agree that Genomica Product materials and product-related artwork designed by
Genomica shall be designed at the sole discretion of Genomica, but shall include
the appropriate PEB logo(s) as designed by PEB. These materials shall
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include appropriate items listed in Exhibit F, as well as, but not limited to
the Genomica Product splash screen.
6.2 Trademarks
Each party acknowledges that the symbols, trademarks and service marks adopted
by the other party or its suppliers to identify its products, as set forth in
Exhibit E attached to this Agreement (the "Trademarks"), including any
modifications hereinafter furnished by one party to the other, belong to the
owning party and its suppliers and that the non-owning party shall have no
rights in such Trademarks except as expressly set forth herein. At no time
during or after the term of this Agreement will either party challenge or assist
others to challenge the Trademarks, or the registration thereof, or attempt to
register any trademarks, service marks or trade names confusingly similar to
those of the other party or that tend to dilute the distinctive quality of any
of such trademarks.
6.3 Use of Trademarks
During the term of this Agreement, each party may, when marketing the GeneMapper
Product or Genomica Product, use in a way that will not impair or lessen the
brand equity, the other party's Trademarks in the advertising and promotional
media, provided that the party using such Trademarks receives advance
authorization from the Owning Party of any such use. The Owning Party may in its
sole and unrestricted discretion approve or not approve all materials that
reference the Owning Party, its products, its Trademarks or the relationship
created by this Agreement; such approval shall not be unreasonably withheld.
Upon termination of this Agreement for any reason, the Using Party immediately
shall cease all use of the Owning Party's Trademarks and cease all reference to
the Owning Party. At the Using Party's election, the Using Party shall destroy
or deliver to the Owning Party all materials in the using party's control or
possession which bear such Trademarks, and if requested by the Owning Party,
shall certify in writing as to the destruction of such materials.
Section 7.0 GENOMICA PRODUCT DEVELOPMENT
7.1 Appointment of Project Manager
Each party shall assign a Project Manager as its principal technical contact
with the authority to act for its company in all technical decision making
regarding the integration of the GeneMapper Product and the Genomica Product.
Such manager may be changed at the discretion of the naming party.
7.2 Development Schedule Sharing
Both parties agree that the respective project managers shall hold conference
calls on a regular basis to share their respective software development
schedules, product definitions, and all other necessary and relevant technical
specifications needed to ensure the integration of the GeneMapper Product and
the Genomica Product and to implement this Agreement.
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7.3 Integration Definition
Both parties agree to dedicate the necessary resources to define the initial and
on-going integration of the GeneMapper Product and the Genomica Product
according to the terms of this Agreement.
7.4 Integration Testing
Genomica shall have primary responsibility for integration testing, and PEB
agree to dedicate the necessary resources to ensure the successful initial and
on-going integration of the Genomica Product and GeneMapper Product. The parties
shall work together to develop and define compliance tests for the integration
of the Genomica Product and GeneMapper Product.
7.5 GeneMapper Product License Grant
PEB shall provide to Genomica at no cost, sufficient GeneMapper Product
licenses to develop and test the integration of the GeneMapper Product with the
Genomica Product. PEB shall provide Genomica, at no cost, technical support for
these licenses.
7.6 Beta Sites
At the request of Genomica, PEB will solicit and help establish beta test sites
for the Genomica Product. Genomica will be responsible for administering any
Genomica Product beta test program.
7.7 Pre-Release Evaluation Program Participation
PEB shall participate in Genomica's pre-release evaluation programs, if
requested by Genomica. Such participation shall include, without limitation,
testing and evaluating new Genomica products and new versions of existing
Genomica products, and reporting to Genomica on a timely basis any
inconsistencies or defects found during such testing and evaluating processes.
7.8 Genomica Product Updates
During the Term of this Agreement, Genomica shall (within the constraints of its
development resources, and in congruence with its business model) make
reasonable efforts to update, revise, and modify the Genomica Product so that it
remains compatible with future releases of the GeneMapper Product. PEB shall
provide sufficient advance notification to Genomica of the feature changes for
each subsquence release of the GeneMapper Product so as to provide Genomica with
reasonable time to evaluate and understand the GeneMapper changes and plan for
and implement appropriate updates to the Genomica Product. Genomica will make
reasonable efforts to ensure that it updates the Genomica Product in such a
manner as to ensure interoperability of the Genomica Product with the GeneMapper
Product.
7.9 Retiring Genomica Product
Genomica shall provide End-Customer licensees of its Genomica Product with
reasonable notice (no less than six (6) months), prior to retiring or
withdrawing support for the Genomica Product. Upon receipt of such notice, PEB
immediately may terminate this Agreement, by providing thirty (30) days written
notice to Genomica.
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7.10 Retiring GeneMapper Product
PEB shall provide Genomica with reasonable notice (no less than six (6) months),
prior to retiring or withdrawing support for the GeneMapper Product. Upon
receipt of such notice, Genomica immediately may terminate this Agreement, by
providing thirty (30) days written notice to PEB.
7.11 Ownership of Integration Intellectual Property
Any and all intellectual property, including patent rights, copyrights, trade
secrets and confidential information, developed in the course of integrating the
Genomica Product with the GeneMapper Product and which cannot be clearly shown
to belong exclusively to a Source Party shall be owned jointly as to all right,
title and interest equally by both parties.
Section 8.0 TECHNICAL SUPPORT
8.1 End-Customer Technical Support by Genomica
Genomica shall, at its own expense, be solely responsible for providing
Technical Support to End-Customers in North America and Europe. Genomica shall
provide valid End-Customer Technical Support licensees with Technical Support
and Genomica Product updates according to the terms and conditions of the
Technical Support and Maintenance Agreement sold to the End-Customer. Genomica
shall have no obligation to provide Technical Support or product updates to End-
Customers who do not have in place a valid Technical Support and Maintenance
Agreement at the point in time when the request for support or product update is
made.
8.2 End-Customer Technical Support by PEB
8.2.1 PEB Responsible For Total Customer Support
PEB retains rights and responsibilities for worldwide, total customer support
and customer satisfaction for systems sold to its customers, which include
instruments, reagents and software (which may include the Genomica Product).
Within the context of PEB's overall responsibility for customer support,
Genomica has the responsibility for providing Technical Support to Genomica
Product End-Customers as described in this Section 8.2.
8.2.2 Technical Support Outside of North America and Europe
PEB shall, in accordance with the terms specified in the Technical Support and
Maintenance Agreement, provide front-line Technical Support to Genomica Product
End-Customers outside of North America and Europe. Such support shall consist
of product installation and basic product usage support. Genomica shall provide
backup support directly to PEB support personnel as described in Section 8.2.6.
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8.2.3 Technical Support In North America and Europe
In North America and Europe, should End-Customers call upon PEB to provide
Technical Support, PEB's obligation with respect to such inquiries shall be to
ensure that the inquiries from End-Customers regarding the use or operation of
the Genomica Product are promptly addressed to Genomica via the pre-approved
Genomica Technical Support submission means.
8.2.4 Customer Dissatisfaction with Genomica Support
If PEB believes there is a reasonable risk that an End-Customer, who also
purchased PEB hardware or reagents, may wish to return any or all of its
purchase directly or indirectly as a result of being dissatistifed with the
Technical Support provided by Genomica, PEB may provide the End-Customer, at its
sole discretion and cost, any Genomica Product Technical Support that it deems
necessary.
8.2.5 Technical Support Warranties
With respect to PEB rights and obligations in this Section 8.2, should PEB
provide direct Technical Support to an End-Customer in North America or Europe,
Genomica shall have no obligation to honor any warranties or to fulfill any
obligations that PEB provides to End-Customers with respect to such Technical
Support.
8.2.6 Technical Support Assistance from Genomica
In support of Section 8.2, Genomica shall provide appropriately authorized PEB
employees with electronic mail, fax, and telephone Technical Support during
Genomica's then-current published Technical Support days and times. Under this
Section 8.2.6, Genomica shall not provide support to PEB or any affiliate or
subsidiary who is using the Genomica Product for research purposes, unless the
entity requesting support is also an End-Customer with a valid Technical Support
and Maintenance Agreement in place with Genomica.
8.3 GeneMapper Product Technical Support Requests to Genomica
PEB shall, at its own expense, be solely responsible for providing Technical
Support to GeneMapper Product customers. PEB shall ensure that all questions
from GeneMapper Product customers regarding the use or operation of the
GeneMapper Product are addressed to and answered by PEB. Genomica shall refer
any questions regarding the GeneMapper Product to PEB. PEB shall be solely
responsible for, and Genomica shall have no obligation to honor, any warranties
that PEB provides to its customers with respect to the GeneMapper Product.
8.4 Evaluation Product Support
Any Technical Support provided to Evaluation Product licensees shall be at
Genomica's sole discretion.
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Section 9.0 MANUFACTURING AND DISTRIBUTION
9.1 Materials Hand-off
For each release of the Genomica Product, Genomica shall provide to PEB,
according to a mutually agreed upon product schedule, the final bill of
materials for producing a Genomica Product for Distribution. The materials
included in a "Hand-off" are more fully described on Exhibit F attached to this
Agreement, as it may be amended from time to time by Genomica, subject to prior
approval by PEB.
9.1.1 Materials Acceptance
PEB shall, upon receipt of final materials from Genomica for a given Genomica
Product release, have ten (10) business days to inform Genomica in writing of
any perceived quality problems with the final materials provided. Upon receipt
of written notification of quality issues, Genomica shall employ best efforts to
correct any mutually agreed upon problems and resubmit final materials to PEB
for re-acceptance. Barring any such written notification, the final materials
shall be deemed accepted by PEB.
9.2 CD Manufacturing and Quality Assurance
Genomica shall provide to PEB a Master CD containing the final software to be
replicated on Genomica Product CDs intended for End-Customer Distribution. PEB
shall, at its own expense, reproduce the Genomica Product CDs using the contents
of the Master CD. PEB shall also imprint the artwork provided by Genomica onto
the CD itself and its associated Jewel case coverings. PEB shall be solely
responsible for the quality of the CD manufacturing process and the appearance
and readability of the resulting CDs.
9.3 Documentation Manufacturing and Quality Assurance
Genomica shall provide to PEB Postscript versions of the final Documentation
manuals, Postscript artwork for the Documentation manual covers, and complete
manufacturing specifications. PEB shall, at its own expense, reproduce
according to the supplied manufacturing specifications, the Genomica
Documentation manuals using the Postscript files provided by Genomica. PEB
shall be solely responsible for the quality of the Documentation manufacturing
process and the appearance and readability of the resulting Documentation
manuals.
9.4 Shipping Container Manufacturing and Quality Assurance
Genomica shall provide to PEB Postscript versions of the artwork for the
shipping container, and complete manufacturing specifications. PEB shall, at
its own expense, manufacture the shipping containers according to the supplied
manufacturing specifications, imprinted with the shipping container artwork
provided by Genomica. PEB shall be solely responsible for the quality of the
shipping container manufacturing process and the appearance of the resulting
shipping containers.
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9.5 Genomica Product Package Assembly
Genomica shall provide PEB with package assembly specifications. PEB shall, at
its own expense, assemble a Genomica Product package according to the supplied
manufacturing specifications.
9.6 Genomica Sign-off
PEB shall provide to Genomica one complete Genomica Product Package Assembly for
Genomica quality assurance inspection. Genomica shall have three (3) business
days from receipt of the Genomica Product Package Assembly to respond in writing
to PEB if Genomica believes there is a quality assurance problem with the
supplied Genomica Product Package Assembly. PEB shall take appropriate steps to
remedy any such quality assurance issue identified by Genomica, and shall
resubmit a revised Genomica Product Package Assembly for re-inspection by
Genomica.
9.7 Genomica Product Inventory
PEB shall, at its own expense, be responsible for maintaining an adequate supply
of Genomica Product inventory to meet its predicted sales demands and drop-
shipment time obligations.
9.8 Genomica Product Distribution
PEB shall, at its own expense, be responsible for shipping Genomica Product
packages to End-Customer delivery addresses.
9.9 Distribution of Current Materials
PEB agrees, at all times, to Distribute the most current materials to new End-
Customers. On a frequency of no more than once a quarter, PEB shall distribute
the most current materials to current Technical Support and Maintenance End-
Customers.
9.10 Evaluation Product Distribution
PEB agrees to manufacture and Distribute an Evaluation Product with every
GeneMapper Product. The reasonable cost to manufacture Evaluation Product CDs
shall be borne by Genomica. PEB shall, in the calendar quarter in which the
Evaluation Product CD production costs are incurred, deduct the production costs
from the revenue due Genomica for that calendar quarter per Section 11 of this
Agreement.
9.11 Update Product Distribution
PEB agrees to manufacture and distribute, on a timely basis, all Genomica
Product upgrades that End-Customers are entitled to receive under a valid
Technical Support and Maintenance Agreement. PEB shall have no obligation to
send Genomica Product upgrades to North American and European End-Customers who
have purchased their second or subsequent years of Technical Support and
Maintenance directly from Genomica pursuant to Section 10.4. PEB shall provide
to Genomica, at Genomica's written request, a specific number of Genomica
Product upgrade packages so that Genomica may provide such upgrades directly to
its Technical Support and
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Maintenance End-Customers. The reasonable cost to manufacture Genomica Product
upgrade shall be borne by Genomica. PEB shall, in the calendar quarter in which
the Genomica Product upgrade production costs are incurred, deduct the
production costs from the revenue due Genomica for that calendar quarter per
Section 11 of this Agreement.
Section 10.0 SALES, ORDER PROCESSING AND COLLECTIONS
10.1 PEB Sales Material
PEB agrees that the Genomica Product shall be included on all PEB price lists
that include the GeneMapper Product or a product that bundles the GeneMapper
Product during the term of this Agreement.
10.2 PEB Sales Effort
PEB shall use commercially reasonable efforts to sell the Genomica Product in
manner intended to achieve or exceed the Sales Milestones of Exhibit D,
employing an effort level and distribution channels at least equal to what PEB
uses to sell the GeneMapper Product.
10.3 Genomica Presales Support
At the request of either party, Genomica personnel may, but are not required to,
assist PEB with presales activities that have the potential to sell the
GeneMapper Product and the Genomica Product. Such activities shall include, but
are not limited to: (i) making customer sales calls, (ii) preparing client
proposals, (iii) capturing requirements for future revisions to the Genomica
Product, and (iv) other activities reasonably deemed necessary and agreed to by
the parties. Unless otherwise specified and agreed to in writing prior to work
being performed, each party shall be responsible for its own costs incurred in
any marketing and sales activities.
10.4 Sale of Technical Support and Maintenance Contracts
Genomica hereby grants PEB the right to sell Genomica Technical Support and
Maintenance contracts to PEB End-Customers. PEB shall not be permitted to sell
renewal technical support licenses for any Genomica Product in North America and
Europe. All renewal technical support for North America and European End-
Customers for years two and subsequently, shall be sold exclusively by Genomica
or its authorized representatives.
10.4.1 Notification of Technical Support and Maintenance Sale
PEB shall immediately notify Genomica of each End-Customer who purchases
Technical Support and Maintenance. Unless Genomica knows that an End-Customer is
a valid support customer, it is not required to provide the End-Customer with
support. Genomica shall not be liable for failing to provide support to those
customers who request support before notification of their support purchase has
been received from PEB.
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10.5 Sales Leads
Included in PEB's quarterly reports to Genomica, as described in Section 11.3,
PEB shall provide to Genomica a list of those organizations that (i) [***] the
GeneMapper Product; (ii) [***] the Genomica Product, (iii) would, in PEB's
opinion, [***] of the Genomica Product; and (iv) have agreed to be
[***] Genomica. This list shall be constructed and provided by the PEB Product
Manager. Genomica shall have the right to [***] these organizations [***] as
part of its [***] and to [***] these organizations any [***]. Any [***] of the
Genomica Product [***] from Genomica [***] with an organization on a report
provided by PEB shall be routed through the appropriate PEB [***] and treated as
a [***] of the Genomica Product by PEB. Genomica agrees that information
provided pursuant to this Section 10.5 shall be considered confidential, and
shall be governed by the terms of Section 13. Genomica also agrees that in [***]
that it will not [***].
10.6 Order Processing
PEB shall process all Genomica Product orders from its sales personnel. Order
processing shall involve all necessary activities from taking the order to
ensuring delivery of the Genomica Product package to the End-Customer.
10.7 Collections
PEB shall have full responsibility for collecting monies from End-Customer for
the sale of Genomica Products and Technical Support and Maintenance contracts.
Genomica fees are earned when a Sale occurs, not when collection is completed.
Section 11.0 PAYMENTS TO GENOMICA
11.1 Fees
11.1.1 Payments
During the term of this Agreement, Genomica shall be entitled to receive
payments for Sales as specified in Exhibit D, as may be amended from time to
time by mutual agreement of the parties.
11.1.2 Fee Payment Schedule
PEB shall pay to Genomica fees as described in Section 11.1.1. All payments will
be made within thirty (30) days after the last business day of each calendar
quarter for all Genomica Products and Technical Support and Maintenance
Agreements Distributed during such quarter, and shall be accompanied by the
documentation specified in Section 11.3.
*Confidential Treatment Requested
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11.1.3 Non Fee-Generating Activities
No fees shall be owed for [***] by PEB for [***] of PEB or affiliated personnel.
11.1.4 Returns
Genomica will provide PEB a credit against payments, as described in Section
11.1.1., for each Genomica Product that an End-Customer returns to PEB for a
refund within thirty (30) days from shipment of product by PEB. PEB shall
provide documentary evidence of each valid return in conjunction with the
quarterly report specified in Section 11.3.
11.2 Payments
11.2.1 Form of Payment
All dollar amounts referred to herein are expressed in U.S. currency. All
payments due Genomica shall be made in U.S. currency by wire transfer, unless
otherwise specified by Genomica.
11.2.2 Late Payments
Late payments shall incur interest at the rate of [***] per month from the date
such payments were originally due.
11.2.3 Right to Challenge
The receipt or acceptance by Genomica of any fee statement or payment shall not
prevent Genomica from subsequently challenging the validity or accuracy of such
statement or payment.
11.3 Reporting
PEB will provide Genomica within ten (10) days after the end of each calendar
month a Monthly Report containing at least the information indicated on Exhibit
G, and fifteen (15) days after the end of each calendar quarter a Quarterly
Report containing at least the information indicated on Exhibit G summarizing
the Genomica fees accrued during the previous quarter. Each report shall be
certified as accurate by a duly authorized officer of PEB reciting, on a
country-by-country basis, the Genomica Product sold. Such statements shall be
furnished to Genomica regardless of whether any GeneMapper Products were sold
during the period or whether any actual fees were owed.
11.4 Record Inspection and Audit
11.4.1 Record Keeping and Archiving
PEB shall keep records adequate to verify the requirements of fees and payments
to be made pursuant to this Agreement for three (3) full years following the
submission of each such fee or payment to Genomica.
*Confidential Treatment Requested
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11.4.2 Auditing
At a frequency of no more than once a year, PEB shall, upon five (5) days
written request from Genomica, provide access to accounting books and records
and all other documents and material in PEB's possession or control with respect
to the volume of Sales made pursuant to this Agreement, to Genomica or an
independent auditor chosen by Genomica for the purposes of audit.
11.4.3 Underpayment
Subject to challenge by PEB, in the event that such audit by an independent
auditor reveals an underpayment by PEB of the actual amount owed Genomica, PEB
shall pay the difference plus interest calculated at the rate of [***] per month
from the time the underpayment first occurred. If such underpayment is in excess
of [***] of the amount for the period in question, PEB shall also immediately
reimburse Genomica for the cost of the audit. Disputed underpayments discovered
by audits undertaken by Genomica itself shall be subject to the dispute
resolution provisions of this Agreement.
11.5 Taxes
PEB agrees that amounts paid pursuant to this Agreement are not subject to sales
and use tax. PEB agrees to provide Genomica with satisfactory documentation
(including, but not limited to resale exemption or other certificates)
supporting such status. PEB agrees that the amounts to be remitted to Genomica
are to be the actual amounts due without withholding taxes or other assessments
by authorities anywhere in the foreign location. If any withholding tax is
imposed under the laws of a country or other taxing jurisdiction outside of the
United States on any amounts paid to the Genomica, such amounts will be
increased by the amount of the withholding tax. PEB shall be solely responsible
for and shall pay any and all amounts required in the foreign location to be
withheld, charged, deducted, or assessed against such payment amounts, and will
promptly furnish Genomica with certificates evidencing payment of such amounts.
Section 12.0 TERM AND TERMINATION
12.1 Initial Term
This Agreement shall become effective on the Effective Date and shall remain in
effect for an initial term of three (3) years thereafter unless the Agreement is
terminated as provided below. Upon the expiration of the initial term, this
Agreement shall automatically renew for additional one (1) year periods under
the same terms and conditions as the previous period, unless the Agreement is
terminated as provided below.
12.2 Termination
12.2.1 Breach
If either party defaults in any material obligation under this Agreement and
continues in default for a period of thirty (30) days after written notice of
default is given to it by the other party, the other
*Confidential Treatment Requested
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party may terminate and cancel this Agreement, in accordance with the provisions
of Section 12, upon written notice of termination given to the defaulting party.
12.2.2 Insolvency
Either party may terminate and cancel this Agreement immediately by notice to
the other if:
(a) the other ceases to carry on its business; or
(b) a receiver or similar officer is appointed for the other and is not
discharged within thirty (30) days; or
(c) the other admits in writing its inability to pay debts as they mature, is
adjudicated bankrupt, or makes an assignment for the benefit of its
creditors or another arrangement of similar import; or
(d) proceedings under bankruptcy or insolvency laws are commenced by or against
the other and are not dismissed within (30) days.
12.2.3 Acquisition, Change of Control or Merger
Should either party in whole or in part, acquire, be acquired by, or merge with
any legal entity that the other party, in its sole discretion, deems to be
competitive to its business, the other party may on thirty (30) days' written
notice terminate this Agreement upon written notice to party who experienced the
event.
12.3 Effect of Termination
Upon termination of this Agreement, (i) the rights and licenses granted to PEB
and Genomica pursuant to this Agreement, including but not limited to Sections
3, 5 and 8, shall automatically terminate; (ii) PEB shall certify in writing to
Genomica that all unpaid copies of Genomica Products and Documentation have been
destroyed or removed from PEB's equipment and inventory except for a sufficient
number of copies to fulfill PEB's and support obligations to End-Customers and;
(iii) PEB shall cease all use of Genomica's intellectual property as described
herein, including, but not limited to, the Genomica Product, Documentation, and
Trademarks.
12.4 Survival
The provisions of Sections 3.6 (Ownership), 13 (Confidentiality), 16 (Limitation
of Liability) and 17 (Miscellaneous) shall survive the termination or
cancellation of this Agreement for any reason.
Section 13.0 CONFIDENTIALITY
13.1 Obligations
Each party acknowledges and agrees that computer programs, code, algorithms,
names and expertise of employees and consultants, know-how, formulas, processes,
ideas, inventions (whether patentable or not), schematics and other technical,
business, financial and product development
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plans, customer lists, information regarding distribution channels, forecasts,
and strategies, provided to either party hereunder, whether or not such items
are marked "Confidential," constitutes the proprietary confidential information
(collectively, "Confidential Information") of the disclosing party, and that the
other party's protection thereof is essential to this Agreement. Each party
shall retain in strict confidence and not disclose to any third party (except as
authorized by this Agreement) without the other party's express written consent
any and all such information and may only use such information as permitted
under this Agreement. The prohibitions contained in this Section 13.1 preclude
dissemination of such information to PEB's subsidiaries or affiliates.
13.2 Exceptions
The receiving party shall be relieved of this obligation of confidentiality to
the extent any such information that:
(i) was in the public domain at the time it was disclosed or has become in
the public domain through no fault of receiving party;
(ii) the receiving party can prove was known to receiving party, without
restriction or other obligation of confidentiality, at the time of
disclosure as shown by the files of the receiving party in existence at
the time of disclosure;
(iii) is disclosed by the receiving party with the prior written approval of
disclosing party;
(iv) the receiving party can prove was independently developed by it without
any use of disclosing party's confidential information and by employees
or other agents of the receiving party who have not had access to any of
disclosing party's confidential information; or
(v) becomes known to the receiving party, without restriction, from a source
other than the disclosing party without breach of this Agreement by
receiving party and otherwise not in violation of disclosing party's
rights.
(vi) the receiving party is legally compelled to disclose; provided, however,
that prior to any such compelled disclosure, the receiving party will (a)
assert the confidential nature of the Confidential Information against
the third party seeking disclosure and (b) cooperate fully with the
disclosing party in protecting against any such disclosure and/or
obtaining a protective order narrowing the scope of such disclosure
and/or use of the Confidential Information. In the event that such
protection against disclosure is not obtained, the receiving party will
be entitled to disclose the Confidential Information, but only as and to
the extent necessary to legally comply with such compelled disclosure.
13.3 Confidentiality Agreements
Either party, prior to permitting access by any individual who has a need to
know any Confidential Information discussed under this Agreement to any of the
other party's Confidential Information, shall enter into a confidentiality
agreement with each such individual that (i) incorporates the protections and
restrictions set forth herein for the other party's Confidential Information;
(ii) provides that the individual's obligations with respect to the other
party's Confidential Information shall continue after termination of the
individual's employment, consulting relationship or other
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relationship with the party; and (iii) provides that the other party is a direct
and intended beneficiary of the agreement and entitled to enforce it directly
against the individual.
Section 14.0 WARRANTY
14.1 Ownership Warranty
Genomica warrants that it is the owner of the Genomica Product and that it has
the right to grant the licenses described in Section 3 above. PEB's sole remedy
and Genomica's sole obligation for a breach of this Section 14.1 shall be the
obligations set forth in Sections 15.1 and 15.3 below.
14.2 Genomica Warranty Disclaimer
GENOMICA HEREBY DISCLAIMS ALL OTHER WARRANTIES TO PEB OR ITS END-CUSTOMERS,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE GENOMICA PRODUCTS,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. THE EXPRESS LIMITED WARRANTY STATED ABOVE IS IN LIEU
OF ALL LIABILITIES OR OBLIGATIONS OF GENOMICA FOR DAMAGES OR OTHER MONETARY
RELIEF INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES
OCCURRING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GENOMICA
PRODUCTS.
Section 15.0 INDEMNITIES
15.1 Indemnity
Genomica shall defend PEB against any claim that the Genomica Product used
within the scope of this Agreement infringes a United States patent, copyright,
trade secret or United States mask work right, and shall pay any settlements
entered into or damages awarded against PEB to the extent based on such a claim,
provided that (i) PEB notifies Genomica promptly in writing of the claim; (ii)
Genomica has sole control of the defense and all related settlement
negotiations; and (iii) PEB provides Genomica with all necessary assistance,
information, and authority to perform the above. PEB shall have the right to
participate at its expense in any such dispute.
15.2 Exclusions
Genomica shall have no liability for any claim of infringement based on (i) use
of other than the latest modification of the Genomica Product provided to PEB
with sufficient opportunity for replacement of prior versions of the Genomica
Product, if the infringement would have been avoided by use of the latest
modification; (ii) modification of the Genomica Product by PEB without knowledge
and approval if the infringement would have been avoided without such
modification; or (iii) the combination or use of the Genomica Product furnished
hereunder with materials not furnished by Genomica if such infringement would
have been avoided by use of the
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Genomica materials alone and where the Genomica Product may be used in isolation
for its intended purposes without such infringement.
15.3 Exclusive Remedies
In the event a Genomica Product is held to, or Genomica believes is likely to be
held to, infringe a United States patent, copyright, United States trade secret
or United States mask work right, Genomica shall without limiting its
indemnification obligations hereunder, have the right at its sole option and
expense to (i) substitute or modify the Genomica Product so that it is non-
infringing; or (ii) obtain for PEB a license to continue using the Genomica
Product; or (iii) if (i) and (ii) are not reasonably practicable, remove the
infringing Genomica Product or Products from the list of Genomica Products that
PEB may resell.
15.4 Sole Obligation
The foregoing states the sole obligation and exclusive liability of Genomica
(express, implied, statutory, or otherwise) for infringements or claims of
infringement of any patent, copyright, trademark, trade secret, or other
intellectual property right.
15.5 PEB Indemnity
Except for warranty claims for which Genomica is liable under Section 14 and
infringement claims covered by Section 15.1, PEB agrees to indemnify and hold
Genomica harmless from and against any cost, loss or expense (including
attorney's fees) resulting from any and all claims by third parties for loss,
damage or injury (including death) allegedly caused by the actions of the PEB,
its agents or employees resulting from the acts, representations, or omissions
of the PEB with respect to the Genomica Product or any part or parts thereof,
including its Sale, Distribution and use, provided that (a) Genomica notifies
PEB promptly in writing of the claim; (b) PEB has sole control of the defense
and all related settlement negotiations; and (c) Genomica provides PEB with all
necessary assistance, information, and authority to perform the above. Genomica
shall have the right to participate at its expense in any such dispute.
15.6 Sole Obligation
The foregoing states the sole obligation and exclusive liability of PEB
(express, implied, statutory, or otherwise) for infringements or claims of
infringement of any patent, copyright, trademark, trade secret, or other
intellectual property right.
Section 16.0 LIMITATION OF LIABILITY
EXCEPT WITH REGARD TO BREACHES OF SECTION 13 OR 15, IN NO EVENT SHALL EITHER
PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, EVEN IF
SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT
SHALL GENOMICA'S LIABILITY FOR
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<PAGE>
ANY AND ALL CLAIMS RELATING TO OR ARISING FROM THIS AGREEMENT OR THE ACTIVITIES
CONDUCTED HEREUNDER EXCEED THE AMOUNTS PAID TO GENOMICA BY PEB IN THE TWELVE
MONTH PERIOD PRECEDING THE DATE THE ALLEGED LIABILITY ACCRUED.
Section 17.0 MISCELLANEOUS
17.1 Confidentiality of Agreement
Both Genomica and PEB agree that the terms and conditions of this Agreement
shall be treated as confidential information and that no reference to the terms
and conditions of this Agreement or to activities pertaining thereto can be made
in any form without the prior written consent of the other party; provided,
however, that the general existence of this Agreement shall not be treated as
confidential information and that either party may disclose the terms and
conditions of this Agreement:
(i) as required by any court or other governmental body;
(ii) as otherwise required by law;
(iii) to legal counsel of the parties;
(iv) in confidence, to accountants, banks, proposed investors, and financing
sources and their advisors;
(v) in confidence, in connection with the enforcement of this Agreement or
rights under this Agreement; or
(vi) in confidence, in connection with a merger or acquisition or proposed
merger or acquisition, or the like.
17.2 Solicitation
Both parties acknowledge that their relationships with their employees are
valuable business assets. Both parties agree that, during the term of the
Agreement and for six (6) months thereafter, neither shall, directly or
indirectly divert or attempt to divert any such employee through solicitation or
otherwise.
17.3 Assignment
Neither party may assign this Agreement or any rights or obligations hereunder,
except by operation of law, without the prior written consent of the other
party.
17.4 Parties Independent
In making and performing this Agreement, the parties act and shall act at all
times as independent contractors and nothing contained in this Agreement shall
be construed or implied to create an agency, partnership or employer and
employee relationship between PEB and Genomica or
30
<PAGE>
between any party hereto and any officer or employee of the other party. At no
time shall any party make commitments or incur any charges or expenses for or in
the name of the other party.
17.5 Force Majeure
Neither party shall be liable for any delays in the performance of any of its
obligations hereunder due to causes beyond its reasonable control, including but
not limited to, fire, strike, war, riots, acts of any civil or military
authority, judicial action, acts of God, or other casualty or natural calamity.
17.6 Notices
All notices between the parties shall be in writing and shall be deemed to have
been given if personally delivered, sent by certified or registered mail (return
receipt), delivered by a national overnight express service, or telecopy to the
addresses set forth as follows, or such other address as is provided by notice
as set forth herein:
If to Genomica to:
Original to: Copy to:
Contract Administrator Kenneth S. Rubin
1745 38th Street 1745 38th Street
Boulder, Colorado 80301 Boulder, Colorado 80301
If to PEB to:
Original to: Copy to:
Robert C. Jones Matthew P. Ruby
PE Biosystems PE Biosystems, Legal Department
3833 North First Street 850 Lincoln Center Drive
San Jose, CA 95134 Foster City, CA 94404
Notices shall be deemed effective upon receipt or, if delivery is not effected
by reason of some fault of the addressee, when tendered.
17.7 Governing Law; Forum Selection
This Agreement will be governed by the laws of the State of Colorado, without
giving effect to choice of law principles.
17.8 Export Regulations
PEB understands that Genomica is subject to regulation by agencies of the U.S.
government, including the U.S. Department of Commerce, which prohibit export or
diversion of certain technical products to certain countries. PEB warrants that
it will comply in all respects with the export and re-export restrictions
applicable to the Genomica Products licensed hereunder.
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<PAGE>
17.9 Government Rights
PEB agrees to (i) identify the Genomica Products in all its proposals and
agreements involving the Genomica Product with the United States Government or
any contractor for the United States Government; and (ii) identify or mark the
Genomica Products provided pursuant to any agreement with the United States
Government or any contractor for the United States Government as necessary to
obtain protection substantially equivalent to that afforded commercial computer
software and related documentation developed at private expense and provided
with Restricted Rights as defined in DOD FAR Supplement 48 C.F.R. 252.227-
7013(c)(1)(ii) in effect as of May 18, 1987 or any successor regulation.
17.10 Severability
Any term or provision of this Agreement held to be illegal or unenforceable
shall, if possible, be interpreted so as to be construed as valid, but in any
event the validity or enforceability of the remainder hereof shall not be
affected.
17.11 Waiver
The waiver of, or failure to enforce, any breach or default hereunder shall not
constitute the waiver of any other or subsequent breach or default.
17.12 Entire Agreement
This Agreement, along with the Exhibits attached hereto and the Joint
Development Agreement that are incorporated herein by reference, sets forth the
entire Agreement between the parties and supersedes any and all prior proposals,
agreements, and representations between them, whether written or oral. This
Agreement may be changed only by mutual agreement of the parties in writing.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed
by duly authorized officers or representatives as of the Effective Date.
[GENOMICA] [PE Biosystems]
By: /s/ Kenneth S. Rubin By: /s/ Robert C. Jones
Name: Kenneth S. Rubin Name: Robert C. Jones
Title: EVP of Commercial Development Title: VP & GM PE Informatics
Date: April 7, 2000 Date: April 11, 2000
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<PAGE>
EXHIBIT A--GENOMICA PRODUCT DESCRIPTION
This product will be written in [***] and will run on the [***]. The associated
database will store [***] and [***] data. It will also represent [***] and [***]
information for the stored [***] as well as representing [***] and [***]. Users
will be able to [***] and [***] datasets. The ability to run [***] will be
available as well as the ability to [***] and [***] the [***] found by the
[***]. Users will be able to create [***] from within the software and also have
the ability to write out [***] for further external analysis. This product is
designed so that it can [***] the GeneMapper product. During the term of this
Agreement, the Genomica Product will be able to take [***] and [***] information
from GeneMapper. GeneMapper will have the ability to [***] such that [***]
identified in the Genomica Product can be [***] within GeneMapper.
*Confidential Treatment Requested
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<PAGE>
EXHIBIT B--SOFTWARE LICENSE AGREEMENT
Software License Agreement
Genomica, Inc. ("Licensor" or "Genomica") is willing to license the enclosed
software and documentation (the "Software") to you only on the condition that
you accept all of the terms in this Agreement.
Please read these terms carefully before opening, installing, using, accessing
or manipulating the Software, as by such actions you acknowledge that you have
read this Agreement, understand it and agree to be bound by its terms.
If you do not agree to these terms, Licensor is unwilling to license the
Software to you. You should immediately return this product for a refund.
1. License. You are permitted to install and use the Software in machine-
readable form only and solely for your internal business use. You may copy the
Software only for backup purposes, provided that you reproduce all copyright and
other proprietary notices that are on the original copy of the Software.
2. Restrictions. You may not use, copy, modify, or transfer the Software, or
any copy thereof, in whole or in part, except as expressly provided in this
Agreement. You may not reverse engineer, disassemble, decompile, or translate
the Software, or otherwise attempt to derive the source code of the Software, or
authorize any third party to do any of the foregoing, except to the extent
allowed under any applicable law. Any attempt to transfer any of the rights,
duties or obligations hereunder is void. You may not rent, lease, loan, resell
for profit, or distribute the Software, or any part thereof. You may not use the
Software to operate a service bureau or otherwise perform services on behalf of
third parties.
3. Ownership. The Software is licensed, not sold, to you for use only under
the terms of this Agreement, and Licensor reserves all rights not expressly
granted to you. You own the media, if any, on which the Software is recorded,
but Licensor retains all right, title and interest, including all intellectual
property rights, in and to all copies of the Software itself.
4. Trademarks. You may not use the Genomica name or any of its trademarks,
trade names, service marks or logos, or indicate any affiliation with Genomica,
for any reason, including, but not limited to, in connection with your use, sale
or license of any output or results.
5. Term. This Agreement will terminate immediately upon notice to you if you
materially breach any term or condition of this Agreement. You agree upon
termination to promptly destroy the Software and all copies thereof.
6. Warranty Disclaimer. the Software is provided to you "As Is" and Licensor
and its suppliers expressly disclaim all warranties and conditions including the
implied warranties or conditions of merchantability, fitness for a particular
purpose, and non-infringement. No oral or written information or advice given by
Licensor, its employees, distributors, dealers, or agents shall increase the
scope of the above warranties or create any new warranties. Additionally,
Licensor neither warrants the results achieved by using the Software or the
accuracy of any data used in conbination with such Software. Some jurisdictions
do not allow the disclaimer of certain implied warranties, so the above
disclaimer may not apply to you.
7. Limitation of Remedies. Regardless of whether any remedy set forth herein
fails of its essential purpose or otherwise, in no event will Licensor or its
suppliers be liable to you or to any third party for any lost profits, lost
data, interruption of business, or other special, indirect, incidental or
consequential damages of any kind arising out of the use or inability to
34
<PAGE>
use the Software or any data supplied therewith, even if Licensor has been
advised of the possibility of such loss or damages and whether or not such
loss or damages are foreseeable. In no event shall the liability of
Licensor exceed the amount received by Licensor from you for this software
license. Some jurisdictions do not allow the exclusion or limitation of
incidental, consequential, indirect or special damages, so the above
limitations may not apply to you.
8. U. S. Government End Users. The Software is a "commercial item" as
that term is defined at FAR 2.101 (Oct 1995), consisting of "commercial
computer software" and "commercial computer software documentation" as such
terms are used in 48 C.F.R. 12.212 (Sep 1995) and is provided to the U.S.
Government only as a commercial end item. Consistent with FAR. 12.212 and
DFARS 227.7202 (Jun 1995), all U.S. Government End Users acquire the
Software with only those rights set forth herein.
9. Export Law. The Software and related technology are subject to U.S.
export control laws and may be subject to export or import regulations in
other countries. You agree to strictly comply with all such laws and
regulations and acknowledge that you have the responsibility to obtain such
licenses to export, re-export or import as may be required.
10. General. This Agreement will be governed by the laws of the State of
Colorado in the United States of America, without regard to or application
of conflicts of law rules or principles. The Federal and State Courts
located in Denver County shall have sole jurisdiction over any disputes
arising hereunder. If any provision of this Agreement is held to be
unenforceable, that provision will be removed and the remaining provisions
will remain in full force. This Agreement is the complete and exclusive
statement of the agreement between us, which supersedes any proposal or
prior agreement, oral or written, and any other communications between us
in relation to the subject matter of this Agreement.
If you have any questions regarding this Agreement or the Software, please
contact the party that supplied the Software to you.
The Software is protected by United States Copyright Law and
international treaty.
Unauthorized reproduction or distribution is subject to civil
and criminal penalties.
copyright (C) 2000, Genomica Corporation. All rights reserved. Protected by
copyright and licenses restricting use, copying, distribution and decompilation.
Genomica and Discovery Manager are trademarks of Genomica Corporation in the
United States and other countries.
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<PAGE>
EXHIBIT C--TECHNICAL SUPPORT AND MAINTENANCE AGREEMENT
Software Maintenance And Support Agreement
This Software Maintenance and Support Agreement (the "Agreement") contains the
terms and conditions under which Genomica will maintain and support the Software
sold to you ("Customer") along with the Software License Agreement (the "License
Agreement") between you and Genomica.
. Definitions. The following words, terms and phrases shall, in this
Agreement, have the following meanings, which shall apply equally to both
the singular and plural forms of the terms defined:
1.1 "Defect" means an Incident that is confirmed by Genomica to be the
result of the Software not performing in accordance with the Documentation.
1.2 "Documentation" means the printed or electronic documentation
supplied with the Software.
1.3 "Effective Date" means the date on which the Software was shipped
to Customer.
1.4 "Enhancement" means a Support Request that Genomica determines is a
request for a new Software feature, or a change to an existing Software feature
that is currently performing according to its respective specification.
1.5 "Genomica Holidays" means those days publicly disclosed by Genomica
to be official company holidays on a country-by-country basis.
1.6 "Incident" means an occurrence during Customer's use of the
Software in accordance with the License Agreement in which Customer believes the
Software has failed to work as set forth in the Documentation, or Customer
believes the Documentation to be incorrect.
1.7 "Question" means a question regarding Software installation or
configuration, or Customer's general use of the Software.
1.8 "Software Update" means a revision, patch or work-around, that when
applied to the Software or Documentation, shall prevent one or more Incidents
from reoccurring.
1.9 "Support Request" means communication of a Question or Incident
from the Customer to Genomica via electronic mail, fax or telephone.
1.10 "Technical Support" means commercially reasonable efforts,
undertaken by Genomica, to provide Customer with answers to Customer Support
Requests, or to provide Customer with Software Updates that repair Defects in
the Software or its Documentation.
1.11 "Update Release" means a subsequent release of the Software that
includes some Software Updates, upgrades in features, functionality or
performance of the Software, but may not include any release, option or future
product that Genomica licenses separately.
. Support Services
1.12 Standard Support. Genomica shall provide Customer with electronic
mail, fax, and telephone Technical Support every day, excluding weekends and
Genomica Holidays, during Genomica's then-published hours in each country where
Genomica offers direct Technical Support. Genomica shall provide Customer with a
single electronic mail address, fax number and telephone number to be used for
submission of all Support Requests. Support hours and
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<PAGE>
contact information may be changed by Genomica at anytime by publicizing the new
support information on Genomica's Website.
1.13 Support Exclusions. Genomica shall not provide Technical Support
for: (i) Software that has been modified or altered in any way by Customer; (ii)
hardware failures or malfunctions; (iii) use of the Software on a computer
system (hardware or operating system version) other than that for which it is
licensed
1.14 Named Individual. Genomica does not offer or guarantee Customer
that a particular named individual shall provide any Technical Support services.
. Support Request Handling
1.15 Replication Information. Customer agrees to provide all necessary
assistance to aid Genomica efforts to duplicate an Incident.
1.16 Support Request Closure. A Support Request shall be considered
closed upon the occurrence of any of the following: (i) Genomica provides an
answer to a Customer Question; (ii) Genomica provides a Software Update that
addresses a Support Request; (iii) Genomica acknowledges receipt of a Customer
Enhancement request; (iv) Genomica is unable to reproduce the Incident after
applying commercially reasonable efforts; (v) Genomica concludes that an
Incident is not the result of a Defect in the Software, but is a result of
hardware or software not developed by Genomica; (vi) Customer fails to respond
to two (2) or more consecutive Genomica communications regarding the Support
Request in a ten (10) business day period.
1.17 Defect Repair. Genomica shall employ commercially reasonable
efforts to develop Software Updates or Update Releases to provide corrections to
Defects.
1.18 Enhancement Requests. Support Requests for Software Enhancements
shall be reviewed by Genomica for possible inclusion in a future release.
Genomica does not guarantee that any such request shall be included in any
future release.
. Software Releases
1.19 Software Updates. Genomica shall promptly make available, by
download from its Website any Software Updates developed in response to Customer
Incidents. Each Software Update, when incorporated into the Software, shall be
considered part of the Software and shall thereupon be subject to all of the
terms and conditions of the License Agreement.
1.20 Update Releases. During the term of this Agreement, Customer
shall, free of charge, be provided Update Releases. Each Update Release shall be
regarded as the Software that it supersedes, and shall thereupon be subject to
all of the terms and conditions of the License Agreement. Upon download or other
distribution of the Update Release to Customer, the new Update Release shall
become the currently supported version of the Software.
1.21 Support for Non-current Versions. Genomica reserves the right, at
any time after a particular Update Release has been superceded by another Update
Release, to terminate support with respect to the superceded Update Release.
Genomica will not terminate support for any Update Release sooner than ninety
(90) days after the first commercial shipment of such Update Release.
. Term and Termination
1.22 Term. The term of this Agreement shall commence on the Effective
Date, and shall end one (1) year thereafter unless renewed or earlier terminated
as provided herein below.
1.23 Renewal. This Agreement may be renewed for an additional term at
the end of the current term by Customer's prompt payment to Genomica of
Genomica's then-current Technical Support and Maintenance Fee for the Software.
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<PAGE>
1.24 Termination. If Customer defaults in a payment or other material
obligation under this Agreement and continues in default for a period of thirty
(30) days after written notice of default is given to Customer, Genomica may
terminate and cancel this Agreement, upon written notice of termination given to
Customer.
. Miscellaneous
1.25 Survival. Sections 6.2 ("Warranty Disclaimers") and 6.3
("Limitation of Liability") will survive any termination, expiration, or
cancellation of the maintenance and support services provided hereunder.
1.26 Warranty Disclaimers. Genomica does not warrant that any
Software Update or Update Release furnished to Customer hereunder will meet
Customer's requirements, that the operation of the Software, including any such
releases, will be uninterrupted or error-free, or that all Defects will be
corrected. The warranties in the License Agreement are exclusive and in lieu of
all other warranties, express or implied, including the implied warranties of
non-infringement, merchantability, and fitness for a particular purpose.
1.27 Limitation of Liability. IN NO EVENT SHALL GENOMICA BE LIABLE FOR
INDIRECT, CONSEQUENTIAL INCIDENTAL OR SPECIAL DAMAGES, HOWEVER CAUSED AND ON ANY
THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO
LOSS OF ANTICIPATED PROFITS, EVEN IF GENOMICA HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL GENOMICA'S LIABILITY ARISING OUT
OF THIS AGREEMENT OR THE BREACH OR TERMINATION OF THIS AGREEMENT EXCEED THE
AMOUNTS PAID BY LICENSEE TO PURSUANT TO THIS AGREEMENT. THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
1.28 Force Majeure. Genomica shall not be liable for any delays in the
performance of any of its obligations hereunder due to causes beyond its
reasonable control, including but not limited to, fire, strike, war, riots, acts
of any civil or military authority, judicial action, acts of God, or other
casualty or natural calamity.
1.29 Severability. Any term or provision of this Agreement held to be
illegal or unenforceable shall, if possible, be interpreted so as to be
construed as valid, but in any event the validity or enforceability of the
remainder hereof shall not be affected.
1.30 Governing Law; Forum Selection. This Agreement will be governed by
the laws of the State of Colorado in the United States of America, without
regard to or application of conflicts of law rules or principles. The Federal
and State Courts located in Boulder County shall have sole jurisdiction over any
disputes arising hereunder.
1.31 Entire Agreement. This Agreement is the complete and exclusive
statement of the agreement between the parties, which supersedes any proposal or
prior agreement, oral or written, and any other communications between us in
relation to the subject matter of this Agreement.
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EXHIBIT D--PAYMENTS AND SALES MILESTONES
This exhibit defines the payments due Genomica for the sale of Genomica Products
and Technical Support and Maintenance Agreements. It also outlines the specific
sales milestones agreed to by the parties.
--------------------------------------------------------------------------------
Product Description Price
--------------------------------------------------------------------------------
Genomica Product [***] list price per unit
Genomica to receive [***] of the
[***] price.
--------------------------------------------------------------------------------
Technical Support and Maintenance [***] per Genomica Product per
Agreement year
Genomica to receive [***] of
[***] price North America and
Europe.
Genomica to receive [***] of
[***] price in outside of North
America and Europe
--------------------------------------------------------------------------------
Sales Milestones
--------------------------------------------------------------------------------
Q3'00 [***] product and maintenance agreements sold
--------------------------------------------------------------------------------
Q4'00 [***] product and maintenance agreements sold
--------------------------------------------------------------------------------
Q1'01 [***] product and maintenance agreements sold
--------------------------------------------------------------------------------
Q2'01 [***] product and maintenance agreements sold
--------------------------------------------------------------------------------
Q3'01 TBD 30 days prior to Q3'01
--------------------------------------------------------------------------------
Q4'01 TBD 30 days prior to Q3'01
--------------------------------------------------------------------------------
Q1'02 TBD 30 days prior to Q3'01
--------------------------------------------------------------------------------
Q2'02 TBD 30 days prior to Q3'01
--------------------------------------------------------------------------------
Q3'02 TBD 30 days prior to Q3'02
--------------------------------------------------------------------------------
Q4'02 TBD 30 days prior to Q3'02
--------------------------------------------------------------------------------
Q1'03 TBD 30 days prior to Q3'02
--------------------------------------------------------------------------------
Q2'03 TBD 30 days prior to Q3'02
--------------------------------------------------------------------------------
*Confidential Treatment Requested
39
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EXHIBIT E--TRADEMARKS
Genomica(TM), the Genomica Logo, and Discovery Manager(TM) are trademarks of
Genomica Corporation.
ABI Prisim, GeneMapper, PE Corporation Business
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EXHIBIT F--GENOMICA PRODUCT BILL OF MATERIALS
<TABLE>
<CAPTION>
Quantity Item Description
--------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
1 [***] Final [***] that are to be [***] onto final [***].
--------------------------------------------------------------------------------------------------------------------
1 [***] Final [***] in [***] for the [***] itself.
--------------------------------------------------------------------------------------------------------------------
3 [***] Documentation [***] format versions of all [***] documentation that is to
be [***] with the product.
--------------------------------------------------------------------------------------------------------------------
3 [***] Documentation [***] Final [***] in [***] format for the [***].
--------------------------------------------------------------------------------------------------------------------
1 Documentation [***] Specific instructions for [***] the [***].
Specifications
--------------------------------------------------------------------------------------------------------------------
2 Shipping [***] Final [***] in [***] format for use on the shipping [***].
--------------------------------------------------------------------------------------------------------------------
1 Shipping [***] Specific instructions for [***] the shipping [***].
--------------------------------------------------------------------------------------------------------------------
TBD Genomica Product [***] Printed [***].
--------------------------------------------------------------------------------------------------------------------
1 Package [***] Specific instructions for manufacturing a [***].
Manufacturing [***]
--------------------------------------------------------------------------------------------------------------------
1 Software License Agreement The "Shrink-wrapped" Software License Agreement
--------------------------------------------------------------------------------------------------------------------
1 Technical Support and The agreement to be provided in conjunction with the sale of
Maintenance Agreement Technical Support and Maintenance
--------------------------------------------------------------------------------------------------------------------
</TABLE>
*Confidential Treatment Requested
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EXHIBIT G--MONTHLY AND QUARTERLY REPORTING FORMAT
MONTHLY REPORT
--------------
Total Number of Units Invoiced during the previous month
PEB's quarterly reports to Genomica shall contain the following information:
For each Genomica Product Sale:
Organization Name, Customer Name, Address, Telephone, Fax, and Email
Date of Sale, and date that technical support begins
Number of Genomica Product Licenses Purchased
Total revenue from sale of Genomica Products
Total payments due Genomica for sales of Genomica Products
Total revenue from sale of Technical Support and Maintenance
Total payments dues Genomica for sales of Technical Support and Maintenance
QUARTERLY REPORT
----------------
All of the information contained in a Monthly Report for Sales Leads pursuant to
Section 10.5:
[***]
Total number of Genomica Products returned to PEB for refund
Subtract costs associated with production of [***]
Subtract costs associated with upgrade packages sent to Genomica
*Confidential Treatement Requested
42
