Common use of Adding Products Clause in Contracts

Adding Products. From time to time, New Products may be added to Exhibits A or B, at which time such New Products will become subject to the terms of this Agreement. (a) If a New Product is offered by AB to its customers, then 30 days after Celera’s written request, such New Product will be added to Exhibit A, subject to Section 2.8, at the New Product Price. In the event that AB must pay a royalty to a Third Party in order to sell such New Product to Celera pursuant to this Agreement, and such royalty is not already included in the New Product Price, the amount of such royalty due with respect to a sale of such New Product by Celera will be paid by Celera to AB (defined herein as a “Pass-Through Royalty”). The New Product Price and any applicable Pass-Through Royalty will be determined by AB within 30 days of such New Product being added to Exhibit A. For the avoidance of doubt, no Pass-Through Royalty will be applicable to Products listed on Exhibit A as of the Effective Date to the extent AB has breached its representations and warranties set forth in Section 2.8 with respect to such Products. (b) Notwithstanding Section 2.2(a) above, if Celera can demonstrate that it has previously ordered a product that is not listed on Exhibit A, such product will be added to Exhibit A, subject to Section 2.8, at the price previously paid by Celera, as adjusted pursuant to Section 5.2, and will be deemed a Product hereunder as of the Effective Date. (c) If a New Product is not offered by AB to its customers at the time of Celera’s request, such New Product will be deemed a custom product and will be addressed as described in Section 2.7. (d) If a New Product is derived from the Kauai Project (as defined in the Operating Agreement) it will be added to Exhibits A or B, as the case may be, at a price determined as set forth in the agreement between the Parties for the Kauai Project. (e) If a New Product is derived from the Maui Project it will be added to Exhibits A or B, as the case may be, at the New Product Price. In the event that AB must pay a royalty to a Third Party in order to sell such New Product to Celera pursuant to this Agreement, and such royalty is not already included in the New Product Price, the Pass-Through Royalty will be paid by Celera to AB. The New Product Price and any applicable Pass-Through Royalty will be determined by AB within 30 days of such New Product being added to Exhibit A. (f) If a New Product is an Instrument and is not covered by clauses (d) and (e) above, it will be added to Exhibit B at a price agreed to by the Parties.