Exhibit 10.30
***Text Omitted and Filed Separately
Confidential Treatment Requested
Under 17 C.F.R. (Sections) 200.80(b)(4),
200.83 and 230.406
GENOMICA
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Object Model Technology License
Agreement
September 5, 2000
The information in this Agreement shall not be disclosed outside Applied
Biosystems and Genomica 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, then the parties 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 the parties to use information contained in the Agreement if it is obtained
from another source authorized to disclose it.
Table of Contents
TABLE OF CONTENTS.......................................................... 2
SECTION 1.0 DEFINITIONS.................................................. 5
1.1 AB Instrument...................................................... 5
1.2 AB Informatics Product............................................. 5
1.3 AB Product......................................................... 5
1.4 API................................................................ 5
1.5 Bundled Software................................................... 6
1.6 Conceptual Model................................................... 6
1.7 Data Model/ Data Dictionary........................................ 6
1.8 Database Schema.................................................... 6
1.9 Distribute......................................................... 6
1.10 End-Customer....................................................... 6
1.11 Loaders............................................................ 6
1.12 Modification....................................................... 7
1.13 Object Model....................................................... 7
1.14 Object Model Addition.............................................. 7
1.15 Object Model Update................................................ 7
1.16 Runtime Object Model............................................... 8
1.17 Sale............................................................... 8
1.18 Support Request.................................................... 8
1.19 Technical Support.................................................. 8
SECTION 2.0 REPRESENTATIONS AND OBLIGATIONS.............................. 8
2.1 Appointment as Technology Licensee................................. 8
2.2 Object Model Synchronicity......................................... 8
2.3 Relationship as Asset.............................................. 9
SECTION 3.0 LICENSE GRANT AND DELIVERABLES............................... 9
3.1 Reproduction License............................................... 9
3.2 Development License................................................ 9
3.3 Distribution License............................................... 9
3.3.2 Restrictions................................................... 10
3.3.3 Indemnity...................................................... 10
3.3.4 Infringements.................................................. 10
3.4 VAR Certification.................................................. 10
3.5 Use of Documentation............................................... 11
3.6 Proprietary Notices................................................ 11
3.7 Intellectual Property Rights Notices............................... 11
3.8 Ownership.......................................................... 11
3.9 Deliverables....................................................... 11
SECTION 4.0 OBJECT MODEL MODIFICATIONS................................... 12
4.1 Genomica-Initiated Modifications................................... 12
4.2 AB-Initiated Object Model Additions................................ 12
4.3 AB-Initiated Modifications......................................... 12
4.4 Derivative Rights.................................................. 12
SECTION 5.0 TECHNOLOGY TRANSFER.......................................... 13
5.1 Initial Technology Transfer........................................ 13
5.2 On-going Technology Transfer....................................... 13
Genomica Corporation Confidential Page 2 of 29
5.3 Travel and Living Expenses........................................ 13
SECTION 6.0 TECHNICAL SUPPORT........................................... 13
6.1 Support Services.................................................. 13
6.1.1 AB Technical Contact.......................................... 13
6.1.2 Standard Support.............................................. 13
6.1.3 Named Individual.............................................. 14
6.2 Scope of Support.................................................. 14
6.2.1 Support During this Agreement................................. 14
6.2.2 Support Exclusions............................................ 14
6.3 Support Request Handling.......................................... 14
6.3.1 Support Requests.............................................. 14
6.3.2 Replication Information....................................... 14
6.3.3 Support Request Closure....................................... 14
SECTION 7.0 GENOMICA TRADEMARKS AND MARKETING........................... 15
7.1 Genomica Trademarks............................................... 15
7.2 Press Release..................................................... 15
7.3 Declaration of Compatibility...................................... 15
SECTION 8.0 PAYMENTS TO GENOMICA........................................ 15
8.1 Royalty-Free Option............................................... 15
8.2 Object Model Fees................................................. 16
8.2.1 Payments...................................................... 16
8.2.2 Fee Payment Schedule.......................................... 16
8.2.3 Non Fee-Generating Activities................................. 16
8.2.4 Returns....................................................... 16
8.3 Collections....................................................... 16
8.4 Other Expenses.................................................... 16
8.4.1 Technology Transfer Expenses.................................. 16
8.4.2 Travel and Living Expenses.................................... 16
8.4.3 Invoicing and Payments........................................ 17
8.5 Payments.......................................................... 17
8.5.1 Form of Payment............................................... 17
8.5.2 Late Payments................................................. 17
8.5.3 Right to Challenge............................................ 17
8.6 Reporting......................................................... 17
8.7 Record Inspection and Audit....................................... 17
8.7.1 Record Keeping and Archiving.................................. 17
8.7.2 Auditing...................................................... 17
8.7.3 Underpayment.................................................. 18
8.8 Taxes............................................................. 18
SECTION 9.0 TERM AND TERMINATION........................................ 18
9.1 Term.............................................................. 18
9.2 Termination....................................................... 18
9.2.1 Breach........................................................ 18
9.2.2 Insolvency.................................................... 18
9.2.3 Acquisition, Change of Control or Merger...................... 19
9.3 Effect of Termination............................................. 19
9.4 Survival.......................................................... 19
SECTION 10.0 CONFIDENTIALITY............................................. 19
10.1 Obligations....................................................... 19
10.2 Exceptions........................................................ 20
10.3 Confidentiality Agreements........................................ 20
Genomica Corporation Confidential Page 3 of 29
SECTION 11.0 WARRANTY................................................... 21
11.1 Ownership Warranty............................................... 21
11.2 Genomica Warranty Disclaimer..................................... 21
11.3 Testing and Certification........................................ 21
11.4 End-Customer Support............................................. 21
SECTION 12.0 INDEMNITIES................................................ 21
12.1 Indemnity........................................................ 21
12.2 Exclusions....................................................... 22
12.3 Exclusive Remedies............................................... 22
12.4 Sole Obligation.................................................. 22
SECTION 13.0 LIMITATION OF LIABILITY.................................... 22
SECTION 14.0 MISCELLANEOUS.............................................. 23
14.1 Confidentiality of Agreement..................................... 23
14.2 Solicitation..................................................... 23
14.3 Assignment....................................................... 23
14.4 Parties Independent.............................................. 23
14.5 Force Majeure.................................................... 24
14.6 Notices.......................................................... 24
14.7 Governing Law; Forum Selection................................... 24
14.8 Export Regulations............................................... 24
14.9 Government Rights................................................ 25
14.10 Severability..................................................... 25
14.11 Waiver........................................................... 25
14.12 Entire Agreement................................................. 25
EXHIBIT A--PRESS RELEASE ................................................. 26
EXHIBIT B--ROYALTIES...................................................... 27
EXHIBIT C--MONTHLY AND QUARTERLY REPORTING FORMAT......................... 28
EXHIBIT D--TRADEMARKS..................................................... 29
Genomica Corporation Confidential Page 4 of 29
This Object Model Technology License Agreement (the "Agreement") is entered into
this 5th day of September, 2000 (the "Effective Date") by and between Genomica
Corporation, a Delaware Corporation with principal offices at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Genomica"), and PE Corporation, by and through its
Applied Biosystems stock group, a Delaware corporation with principal offices at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("AB").
RECITALS
Whereas, AB is in the business of developing and selling hardware instruments,
reagents and software to the life sciences market; and
Whereas, Genomica is in the business of developing bioinformatics software for
the life sciences market, and wishes AB to integrate or otherwise use the Object
Model with AB's products and software for purposes of expanding the commercial
use of the Object Model, leading potentially to the Object Model becoming an
industry standard for use in genomics-based studies.
Whereas, AB desires to license from Genomica, and Genomica desires to grant to
AB, a worldwide, non-exclusive license to use Genomica's proprietary Object
Model (as hereinafter defined) to develop AB Products (as hereinafter defined)
and to distribute the Runtime Object Model (as hereinafter defined) in
accordance with the terms of this Agreement.
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 AB Instrument
"AB Instrument" means any current or future AB genotyping instrument whose
Bundled Software contains the Runtime Object Model.
1.2 AB Informatics Product
"AB Informatics Product" means any current or future standalone software (i.e.,
non-Bundled Software) product developed and sold by AB that contains the Runtime
Object Model.
1.3 AB Product
"AB Product" means all AB Instruments and AB Informatics Products.
1.4 API
"API" means an Application Programmer Interface that is used as an access
mechanism to find, insert, update, and delete objects via Java function calls.
The API consists of (i) a specification
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describing each API function, the function parameters, return values, and error
conditions, and (ii) a collection of Java class files that implement the API
specification.
1.5 Bundled Software
"Bundled Software" means software that is packaged and sold in conjunction with
a hardware instrument. Bundled Software cannot be purchased as a standalone
product.
1.6 Conceptual Model
"Conceptual Model" means a domain object model encompassing both scientific and
functional areas that contains classes, attributes and links. The Conceptual
Model consists of (i) a collection of UML (Unified Modeling Language) object
diagrams represented as a Together/J project (or an equivalent replacement form)
and (ii) a series of HTML pages that contain the object diagrams and the
documentation of the classes, attributes, and links.
1.7 Data Model/ Data Dictionary
"Data Model/Data Dictionary" means a logical data model represented by an Entity
Relationship diagram in ▇▇▇▇▇ (or an equivalent replacement form), a physical
data model represented as a DBMS Model in ▇▇▇▇▇ (or an equivalent replacement
form), and a series of textual reports describing the entities, attributes, and
relationships.
1.8 Database Schema
"Database Schema" means a DDL (Dynamic Data Language) file that implements the
physical data model as a collection of Oracle tables, associated triggers and
stored procedures, including scripts to properly configure the database, and
scripts to load the initial data required to use the schema.
1.9 Distribute
"Distribute" means to enter into (1) a binding transaction of sale of an AB
Product with an End Customer, or (2) a binding license transaction with an End
Customer involving an AB Product, such that revenue may be recognized by AB
under Generally Accepted Accounting Principals.
1.10 End-Customer
"End-Customer" means an entity that has obtained from AB a valid license to or
has completed a Sale and received shipment from AB of an AB Product.
1.11 Loaders
"Loaders" means a mechanism that reads information from text files and inserts
and updates objects into an instance of the Runtime Object Model. The Loaders
consist of a user document that describes how to invoke the loader programs, the
structure of each file read by the loaders, the error conditions that might be
detected by the loaders, as well as collection of Java class files that
implement the loader programs.
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1.12 Modification
"Modification" means any additions, enhancements, changes or deletions (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) derived from and made directly to any version of
the Object Model that is delivered to AB by Genomica. Genomica shall not [***]
that [***] the [***] of the Object Model with AB Products, given however, that
the [***] shall not include situations under which AB can make reasonable
accommodations on its part to [***] of the modified Object Model with AB
Product.
1.13 Object Model
"Object Model" means collectively the or any specific Conceptual Model, Data
Model/Data Dictionary, Database Schema, API, and Loaders that Genomica provides
to AB under the terms of this Agreement.
1.14 Object Model Addition
"Object Model Addition" means [***] by [***] that effects [***] in the [***]
with AB Products and other AB software of the Object Model, or addresses [***]
or functional [***] outside of those addressed by the Object Model [***]
developed and delivered to [***]. An Object Model Addition shall [***] under
this Agreement and all Object Model Additions [***] the exclusive property of
[***]. [***] agrees to (i) assign to [***] any and all of any right, title and
interest in and to each Object Model Addition (ii) further agrees to execute any
and all documents requested by [***] to perfect [***] right in same, and (iii)
agrees to provide [***] with all source material for each Object Model Addition
so that [***] can [***] the Object Model Addition [***] the source material.
Notwithstanding the foregoing, nothing contained herein shall be deemed to grant
[***] any [***] or [***] to any of the Object Model or any [***] related
directly thereto. Object Model Addtions include, but are not limited to, [***]
that may be from time-to-time necessitated by new versions of [***], new
versions of [***], or new [***].
1.15 Object Model Update
"Object Model Update" means (i) a revision, patch or work-around, that when
applied to the Object Model, shall prevent one or more incidents ("incidents"
meaning here and elsewhere herein a failure, actual or apparent, of the Object
Model to function as specified) from reoccurring, or (ii) a subsequent release
of the Object Model that includes some Modifications in features, functionality
or performance of the Object Model. Each Object Model Update that is
incorporated into or supercedes the current Object Model, shall be considered
part of or the replacement of the current Object Model and shall thereupon be
subject to all of the terms and conditions of the Object Model as defined in
this Agreement.
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 7 of 29
1.16 Runtime Object Model
"Runtime Object Model" means the subset of Object Model components that AB is
permitted to Distribute with an AB Product, subject to the restrictions defined
in this Agreement. The Runtime Object Model specifically and completely includes
the Database Schema, API and Loaders.
1.17 Sale
"Sale" means that AB has Concluded a license or sale transaction with an End
Customer in such a manner that AB may recognize revenue under Generally Accepted
Accounting Principles.
1.18 Support Request
"Support Request" means communication from AB to Genomica via electronic mail,
fax or telephone of a question or incident with respect to the Object Model.
1.19 Technical Support
"Technical Support" means commercially reasonable efforts undertaken by
Genomica, to provide AB with answers to Object Model-related questions or to
provide AB with Object Model Updates that repair defects in the Object Model.
Technical Support is further described in Section 6.0 of this Agreement.
Section 2.0 REPRESENTATIONS AND OBLIGATIONS
2.1 Appointment as Technology Licensee
Subject to the terms and conditions of this Agreement, Genomica hereby appoints
AB as a "Built on Genomica" technology licensee (or other replacement
designation as defined, from time to time, by Genomica). This appointment is
non-exclusive. The parties understand and agree that the designation "Built on
Genomica" is Genomica's internal nomenclature and AB shall have no obligation to
designate the AB Products as expressly "Built on Genomica," thought AB shall
work in good faith with Genomica to ascertain means by which the inclusion of
the Object Model within AB Products may be brought to public attention.
2.2 Object Model Synchronicity
As a Built on Genomica technology licensee, and in support of mutual
compatibility between Genomica and AB Products (pursuant to Section 7.3), AB
agrees to make reasonable efforts to keep the Object Model synchronized with
Genomica's then-current version of the Object Model.
2.3 Relationship as Asset
Both parties agree that the relationship established in this Agreement is a
valuable business asset, and subject to Section 14.4 agree at all times, and in
good faith, to promote and protect the interests of the other party, as
described herein.
Genomica Corporation Confidential Page 8 of 29
Section 3.0 LICENSE GRANT AND DELIVERABLES
3.1 Reproduction License
3.1.1 Object Model Reproduction License for Development
Subject to the terms and conditions of this Agreement, Genomica hereby grants to
AB a worldwide, non-exclusive, non-transferable license to reproduce the Object
Model exclusively for internal development purposes pursuant to Section 3.2 of
this Agreement.
3.1.2 Runtime Object Model Reproduction License for Distribution
Subject to the terms and conditions of this Agreement, Genomica hereby grants to
AB a worldwide, non-exclusive, non-transferable license to reproduce the Runtime
Object Model exclusively for Distribution purposes pursuant to Section 3.3 of
this Agreement.
3.2 Development License
Subject to the terms and conditions of this Agreement, Genomica hereby grants to
AB the right to use the Object Model components to develop AB Products.
3.3 Distribution License
3.3.1 Distribution License Grant
Subject to the terms and conditions of this Agreement, Genomica hereby grants to
AB a worldwide, non-exclusive, non-transferable license to Distribute copies of
the Runtime Object Model only (and specifically not those parts of the Object
Model that are not included in the Runtime Object Model) when and only when
integrated with AB Products. In addition, Genomica grants to AB the right to
appoint distributors and resellers to market and Distribute the Runtime Object
Model, when integrated with AB Products only, to End-Customers. All distributors
and resellers appointed by AB must enter into a written agreement with AB that
provides substantially the same protection to Genomica's title, rights, and
defenses as this Agreement. AB will use reasonable commercial efforts to ensure
that such distributors and resellers comply with the terms of their respective
agreements. Except as otherwise provided in this Agreement, AB shall not use or
embed the Runtime Object Model with any products other than the AB Products,
without Genomica's express prior written consent. AB shall not Distribute or
market the Runtime Object Model in any manner except as expressly provided in
this Section 3.3.
3.3.2 Restrictions
Each AB Product that incorporates or is bundled with the Runtime Object Model
shall be Distributed by AB or its affiliates, distributors and resellers with a
license, signed or otherwise legally accepted by the End-Customer of the AB
Product, which applies to the Object Model. AB agrees that the terms of such
End-Customer licenses shall, at a minimum, provide for the following:
(a) The End-Customer may not modify, enhance, supplement, create
derivative works from, reverse engineer, reverse compile or
otherwise reduce the AB Products to
Genomica Corporation Confidential Page 9 of 29
human readable form, nor remove, alter, cover or obfuscate any
copyright notices or other proprietary legend replaced or embedded
by AB on or in any of the AB Products; and
(b) The End-Customer acknowledges that all proprietary interest and
rights in the AB Products is and shall remain the exclusive property
of AB and its suppliers; and
(c) The End-Customer may not modify the Runtime Object Model, but may
call upon the API to access the Runtime Object Model;may use the
Loaders to populate the Runtime Object Model; and may extend or add
to (but not delete from or otherwise alter) the Schema but only in
accordance with further restrictions acceptable to Genomica and AB.
No other use of the Runtime Object Model is permitted.
3.3.3 Indemnity
AB shall be solely responsible for, and Genomica shall have no obligation to
honor, any warranties that AB provides to its End-Customers with respect to the
Runtime Object Model beyond those warranties made to AB by Genomica under this
Agreement. AB shall defend any claim against Genomica arising in connection with
any such warranties to AB's End-Customers, express, implied, statutory, or
otherwise, and shall pay any settlements or damages awarded against Genomica,
and reimburse Genomica for all attorney's fees incurred arising from or in
connection with any claim based on any such warranty.
3.3.4 Infringements
AB agrees to use reasonable commercial efforts to enforce violations or
infringements under any sublicense agreements for the Object Model and to inform
Genomica promptly of any known violation, infringement or breach.
3.4 VAR Certification
AB certifies that each and every copy of the Runtime Object Model to be
distributed under this Agreement will include the addition of products supplied
by AB that, by an objective examination of such factors as cost, product
features, and pricing, represent a significant enhancement and transformation of
the scientific or software functionality of the AB Product and result in a
product substantially different from LinkMapper, Discovery Manager or the Object
Model as a stand-alone product. AB agrees that AB has no right to distribute the
Runtime Object Model for any purpose not specifically granted in this Agreement,
including, but not limited to as a stand-alone product. In the event Genomica is
unable through its own examinations of AB Products to confirm AB's compliance
with this Section 3.4, upon Genomica's reasonable request, AB shall furnish to
Genomica reasonable evidence of compliance with the provisions of this Section
3.4.
3.5 Use of Documentation
As part of the deliverables described in Section 3.8 Genomica shall provide
documentation that describes how to use the API and Loaders of the Runtime
Object Model. AB may use such documentation for the preparation of End-Customer
documentation for the Runtime Object Model bundled with the AB Products. For
such purpose, Genomica hereby grants to AB a non-exclusive,
Genomica Corporation Confidential Page 10 of 29
non-transferable license to reproduce, modify, create derivative works of and
distribute the documentation. Appropriate credits shall be given to Genomica in
such documentation.
With respect to Object Model documentation in general, Genomica agrees to
develop and promptly forward (no later than 30 days following execution of this
Agreement) to AB developer documentation that includes (a) a "white paper" that
explains the Conceptual Model and that describes the rationale for all design
elements of the Object Model that would not be reasonably apparent to a person
reasonably learned in data modeling and the specific domain; (b) a detailed
description of how the Conceptual Model is mapped to the Data Model, including a
description of the mapping of each object and describing object
interrelationships and foreign key relationships.
3.6 Proprietary Notices
AB agrees that each copy of the Runtime Object Model components, and all
packaging-related medium used for their distribution, shall include
reproductions of the copyright notices and other proprietary legends of Genomica
and its identified suppliers, in machine-readable, compiled object code format
or otherwise, which accompany such items. AB shall not remove, efface or obscure
any copyright notices or other proprietary notices or legends from any Genomica
materials provided hereunder. AB further agrees to update its Object Model with
any changes to Genomica's proprietary notices, within six months of being
notified of such changes or upon the next major revision of the AB Product,
whichever is later.
3.7 Intellectual Property Rights Notices
AB shall include the following Intellectual Property Rights notice in the code,
and documentation and to have it appear during program start-up, "Portions of
this program include material Copyrighted (C) by Genomica Corporation 2000."
3.8 Ownership
Genomica shall retain all right, title and interest, including all intellectual
property rights, in and to the Object Model.
3.9 Deliverables
Genomica shall provide to AB (at no cost) via the internet (or other means
specified at Genomica's sole discretion), electronic copies of the Object Model
components.
Section 4.0 OBJECT MODEL MODIFICATIONS
4.1 Genomica-Initiated Modifications
During the Term of this Agreement, Genomica shall, from time to time, make
Modifications to the Object Model. Genomica shall deliver (pursuant to Section
3.8) such Modifications to AB. AB shall make reasonable effort to include such
Modifications into the AB Products as soon as practical.
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4.2 AB-Initiated Object Model Additions
AB may make Object Model Additions. At AB's sole discretion, it can choose to
grant Genomica license to one or more specific Object Model Additions.
4.3 AB-Initiated Modifications
Should AB desire a Modification to the Object Model (a "Requested
Modification"), AB agrees to abide by the following procedure:
(a) Submit a written request to Genomica to [***]
(b) Genomica will respond to the AB request within [***]. Such response will
indicate whether or not Genomica is willing to make the [***], and if so,
an [***] which Genomica will provide AB with the [***].
(c) If Genomica is [***] the [***], AB may [***] the [***] directly to the
Object Model, subject to the [***] described in [***]. AB shall make
reasonable effort to ensure that all [***] to the Object Model result in an
Object Model that is [***] with the latest Object Model Update provided by
Genomica to AB.
(d) If Genomica agrees to [***], but AB [***] that the [***] is unacceptable,
the parties shall work in good faith to establish an acceptable [***]. If
the parties cannot agree after a concerted, good faith attempt to establish
an acceptable [***], AB may [***] the [***] directly to the Object Model,
subject to the [***] described in [***]. AB shall make reasonable effort to
ensure that all Modifications to the Object Model result in an Object Model
that is [***] with the latest Object Model Update provided by Genomica to
AB.
4.4 Derivative Rights
Both parties agree that any and all Modifications of any sort to the Object
Model regardless of origin are the exclusive property of Genomica. AB agrees to
(i) assign to Genomica all of its right, title and interest in and to each
Modification, (ii) further agrees to execute any and all documents requested by
Genomica to perfect Genomica's right in same, and (iii) agrees to provide
Genomica with all source material (subject to this Section 4.4) for each
Modification so that Genomica can regenerate the Modification directly from the
source material.
Section 5.0 TECHNOLOGY TRANSFER
5.1 Initial Technology Transfer
Genomica shall provide to AB, at no charge for its time, up to [***] of
reasonable and appropriate technology-transfer services (for example Object
Model training and other services that assist AB to integrate the Object Model
with AB's products - "technology-transfer services" involve the set-up and
initial integration of the Object Model and it Modifications) to assist AB's
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 12 of 29
initial use of the Object Model and up to [***] of reasonable and appropriate
technology-transfer services for each Genomica-Initiated Modification.
5.2 On-going Technology Transfer
At any time after the completion of the initial technology transfer (as defined
by Section 5.1), Genomica shall make technology transfer services available to
AB on a time-and-materials basis, and Genomica shall ▇▇▇▇ AB in accordance with
Section 8.3.
5.3 Travel and Living Expenses
All travel required by Genomica personnel in conjunction with the services
provided in accordance with this Section 5 shall be billed in accordance with
Section 8.3.
Section 6.0 TECHNICAL SUPPORT
6.1 Support Services
6.1.1 AB Technical Contact
AB will designate to Genomica a technical contact person ("AB Technical
Contact") and an alternate who will submit Support Requests, submit source
material for AB-performed Modifications and receive all Object Model Updates,
correspondence and other communications concerning the Object Model.
6.1.2 Standard Support
Genomica shall provide AB with electronic mail, fax, and telephone Technical
Support every day, excluding weekends and Genomica Holidays, during Genomica's
then-published Technical Support hours in the United States. Genomica shall
provide AB with a single electronic mail address, fax number and telephone
number to be used for submission of all Support Requests. Genomica immediately
may reasonably change support hours and contact information anytime by providing
written notice to the AB Technical Contact
6.1.3 Named Individual
Genomica does not offer or guarantee AB that a particular named individual shall
provide any Technical Support services.
6.2 Scope of Support
6.2.1 Support During this Agreement
During the term of this Agreement, Genomica shall provide Technical Support
services for the Object Model, including all Object Model Updates furnished to
AB during the term of this Agreement.
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 13 of 29
6.2.2 Support Exclusions
Genomica shall not provide Technical Support for: (i) an Object Model that has
been modified or altered in a manner inconsistent with this Agreement; (ii)
hardware failures or malfunctions that cannot be in any way linked or attributed
to the Object Model; (iii) use of the Object Model on a computer system
(hardware, operating system or database version) other than those specified by
Genomica; provided that Genomica must have so specified in advance; (iv) Object
Model Additions; (v) AB Products, excepting of course the Object Model bundled
therein; (vi) an incident that Genomica, using the Object Model Update that it
most recently has delivered to AB, cannot, after reasonable efforts, reproduce
the incident either directly or indirectly as a consequence of a Modification
performed by AB in accordance with the terms of Section 4.3(c) or (d).
6.3 Support Request Handling
6.3.1 Support Requests
An AB Technical Contact must submit each Support Request, but Support Requests
executed or performed outside of the Technical Contact scheme, and specifically
accepted by Genomica through execution or performance, shall nonetheless be
under the terms and conditions of this Agreement.
6.3.2 Replication Information
AB agrees to provide all necessary assistance to aid Genomica efforts to
duplicate an incident. AB shall maintain at its own expense all appropriate
equipment to provide Genomica with remote access to the Object Model for these
limited purposes. Genomica agrees to undertake reasonable security measures to
safeguard AB's data and equipment and prevent unauthorized access to AB's
computer systems.
6.3.3 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 AB question that is a reasonable
attempt to address AB's Support Request(ii) Genomica provides an Object Model
Update that in Genomica's reasonable opinion, satisfactorily addresses a Support
Request; (iii) Genomica is unable to reproduce the incident described in the
Support Request after applying commercially reasonable efforts; (iv) Genomica
reasonably, following diligent investigation, concludes that an incident is not
the result of a defect in the Object Model, but is a result of hardware or
software not developed by Genomica; (v) AB fails to respond to two (2) or more
consecutive Genomica communications regarding the Support Request in a ten (10)
business day period.
Genomica Corporation Confidential Page 14 of 29
Section 7.0 GENOMICA TRADEMARKS AND MARKETING
7.1 Genomica Trademarks
AB acknowledges that the symbols, trademarks and service marks adopted by
Genomica or its suppliers to identify the Object Model, as set forth in Exhibit
D attached to this Agreement (the "Trademarks"), including any modifications
hereinafter furnished to AB by Genomica, belong to Genomica and its suppliers
and that AB shall have no rights in such Trademarks except as expressly set
forth herein. All AB Products incorporating the Runtime Object Model and all
documentation, associated brochures, packaging and advertising shall display the
Trademarks prominently. Samples of all materials that may be distributed by AB
displaying the Trademarks shall be submitted to Genomica upon Genomica's
reasonable request, and the Trademarks shall be used only in a form so approved
by Genomica. Upon termination of this Agreement for any reason, AB shall cease
all use of the Genomica's Trademarks. If requested by Genomica, AB shall certify
in writing as to the cessation of use of materials bearing the Genomica
Trademark.
7.2 Press Release
At a mutually agreed time, but no later than thirty (30) days after Effective
Date, Genomica and AB shall issue the joint press release shown in Exhibit A.
7.3 Declaration of Compatibility
AB hereby agrees that Genomica may declare in any and all marketing materials
(regardless of media), subject to AB's prior approval as to form and content,
which approval shall not be unreasonably withheld, that current or future
Genomica products that share a similar Object Model with AB Products may be
marketed as "Compatible" with the AB Products.
Section 8.0 PAYMENTS TO GENOMICA
8.1 Royalty-Free Option
In the event that Genomica and AB enter into a [***] for an [***] of any [***],
whether [***], for an [***] of [***], prior to September 6, 2000, then (i) all
licenses granted by Genomica under this Agreement shall automatically and
without further notice, demand, or presentment, convert to royalty-free, fully
paid licenses and AB shall owe no fees whatsoever to Genomica, with the sole
exception of payments for Technical Support and associated Other Expenses
hereunder; and (ii) the terms of Sections 8.2, 8.3, 8.6, and 8.7 shall not be
applicable during the term of this Agreement.
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 15 of 29
8.2 Object Model Fees
8.2.1 Payments
During the term of this Agreement, Genomica shall be entitled to receive
payments for Sales as specified in Exhibit B, as may be amended from time to
time by mutual agreement of the parties.
8.2.2 Fee Payment Schedule
AB shall pay to Genomica fees as described in Section 8.2.1. All payments will
be made within thirty (30) days after the last business day of each calendar
quarter for all AB Products Distributed during such quarter, and shall be
accompanied by the documentation specified in Section 8.5.
8.2.3 Non Fee-Generating Activities
No fees shall be owed for AB Products provided at no charge to an End-Customer
for the purposes of evaluation or other nonproductive use ("Evaluation
Products") Distributed by AB for marketing, demonstration, customer evaluation
or training of AB or affiliated personnel.
8.2.4 Returns
Genomica will provide AB a credit against payments, as described in Section
8.1.1, for each AB Product that an End-Customer returns to AB for a refund
within thirty (30) days from shipment of product by AB. AB shall provide
documentary evidence of each valid return in conjunction with the quarterly
report specified in Section 8.5.
8.3 Collections
AB shall have full responsibility for collecting monies from End-Customer for
the sale of AB Products. Genomica fees are earned when a Sale occurs, not when
collection is completed.
8.4 Other Expenses
8.4.1 Technology Transfer Expenses
AB shall pay [***] for all on-going technology transfer services as defined in
Section 5.2.
8.4.2 Travel and Living Expenses
AB shall pay for reasonable travel and living expenses incurred by Genomica in
performance of its obligations under this Agreement.
8.4.3 Invoicing and Payments
Genomica shall invoice AB monthly for all fees due related to this Section 8.3
and AB shall pay the invoiced amount within fifteen (15) days of receipt of each
invoice.
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 16 of 29
8.5 Payments
8.5.1 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.
8.5.2 Late Payments
Late payments shall incur interest at the rate of one-and-a-half percent (1.5%)
per month from the date such payments were originally due.
8.5.3 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.
8.6 Reporting
AB 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
C, and fifteen (15) days after the end of each calendar quarter a Quarterly
Report containing at least the information indicated on Exhibit C summarizing
the Genomica fees accrued during the previous quarter. Each report shall be
certified as accurate by a duly authorized representative of AB reciting, on a
country-by-country basis, the AB Informatics Products sold. Such statements
shall be furnished to Genomica regardless of whether any AB Informatics Products
were sold during the period or whether any actual fees were owed.
8.7 Record Inspection and Audit
8.7.1 Record Keeping and Archiving
AB 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.
8.7.2 Auditing
At a frequency of no more than once a year, AB shall, upon thirty (30) days
written request from Genomica, provide access to accounting books and records
and all other documents and material in AB'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.
8.7.3 Underpayment
Subject to challenge by AB, in the event that such audit by an independent
auditor reveals an underpayment by AB of the actual amount owed Genomica, AB
shall pay the difference plus
Genomica Corporation Confidential Page 17 of 29
interest calculated at the rate of one-and-a-half percent (1.5%) per month from
the time the underpayment first occurred. If such underpayment is in excess of
five percent (5%) of the amount for the period in question, AB 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.
8.8 Taxes
AB agrees that amounts paid pursuant to this Agreement are not subject to sales
and use tax. AB agrees to provide Genomica with satisfactory documentation
(including, but not limited to resale exemption or other certificates)
supporting such status. AB 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. AB 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 9.0 TERM AND TERMINATION
9.1 Term
This Agreement shall become effective on the Effective Date and shall remain in
effect unless the Agreement is terminated as provided below.
9.2 Termination
9.2.1 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 party may terminate and
cancel this Agreement, in accordance with the provisions of Section 9, upon
written notice of termination given to the defaulting party.
9.2.2 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
Genomica Corporation Confidential Page 18 of 29
(d) proceedings under bankruptcy or insolvency laws are commenced by or against
the other and are not dismissed within (30) days.
9.2.3 Acquisition, Change of Control or Merger
Should either party in whole or in part, [***], or [***] (the "Altered
Party")with any [***] that the other party, in its sole discretion, deems to be
[***] to its business, then the other party may immediately notify the Altered
Party in writing that it is terminating this Agreement. Upon receipt of such
written notification the parties shall [***] to [***] from the date on the
written notification ([***]) to comply with the [***] as defined in [***].
Should [***] be the Altered Party, [***], [***] shall ensure that all its
personnel who were employed by the competitive acquiring or acquired legal
entity at the time of change of control shall not have direct or indirect access
to the Object Model materials.
9.3 Effect of Termination
Upon termination of this Agreement, (i) the rights and licenses granted to AB
pursuant to this Agreement, including but not limited to Sections 2, 3, 4, 5,
and 6, shall automatically terminate; (ii) AB shall certify in writing to
Genomica that all copies of the Object Model have been destroyed or removed from
AB's equipment and inventory except for a sufficient number of copies to fulfill
AB's and support obligations to End-Customers and; (iii) AB shall cease all use
of Genomica's intellectual property as described herein, including, but not
limited to, the Object Model and Genomica Trademarks. All End-Customer
sublicenses properly granted pursuant to Section 3.3 shall survive termination.
9.4 Survival
The provisions of Sections 1.0 (Definitions) 3.7 (Ownership), 4.4 (Derivative
Rights), 10 (Confidentiality), 13 (Limitation of Liability) and 14
(Miscellaneous) shall survive the termination or cancellation of this Agreement
for any reason.
Section 10.0 CONFIDENTIALITY
10.1 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 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
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 19 of 29
may only use such information as permitted under this Agreement. The
prohibitions contained in this Section 10.1 preclude dissemination of such
information to AB's subsidiaries or affiliates.
10.2 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.
10.3 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 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.
Genomica Corporation Confidential Page 20 of 29
Section 11.0 WARRANTY
11.1 Ownership Warranty
Genomica warrants that it is the owner of the Object Model, Modifications,
Object Model Update ("Genomica Product") and that it has the right to grant the
licenses described in Section 3 above. AB's sole remedy and Genomica's sole
obligation for a breach of this Section 11.1 shall be the obligations set forth
in Sections 12.1 and 12.3 below.
11.2 Genomica Warranty Disclaimer
GENOMICA HEREBY DISCLAIMS ALL OTHER WARRANTIES TO AB 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.
11.3 Testing and Certification
Genomica reserves the right to test the software of AB Products to determine
compliance with the Object Model.
11.4 End-Customer Support
AB shall, at its own expense, be solely responsible for providing technical
support and training to its customers for Object Model and the AB Products with
which the Runtime Object Model is bundled. AB shall ensure that all questions
from AB's End-Customers regarding the use or operation of the Object Model are
addressed to and answered by AB. Genomica shall refer any questions received
from AB's customers to AB. AB shall be solely responsible for, and Genomica
shall have no obligation to honor, any warranties that AB provides to its
customers with respect to the Object Model that are above and beyond the
warranties stated by Genomica in this Agreement.
Section 12.0 INDEMNITIES
12.1 Indemnity
Genomica shall defend AB against any claim that the Object Model, Modifications,
Object Model Update, and/or Runtime Object Model (for this Section 12 and its
subsections and as further used in the balance of this Agreement, 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 AB to the extent based
on such a
Genomica Corporation Confidential Page 21 of 29
claim, provided that (i) AB notifies Genomica promptly in writing of the claim;
(ii) Genomica has sole control of the defense and all related settlement
negotiations; and (iii) AB provides Genomica with all necessary assistance,
information, and authority to perform the above. AB shall have the right to
participate at its expense in any such dispute.
12.2 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 AB
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 AB 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 Genomica materials alone and where the Genomica
Product may be used in isolation for its intended purposes without such
infringement.
12.3 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 AB a license to continue using the Genomica
Product; or (iii) if (i) and (ii) are not reasonably practicable, terminate this
Agreement.
12.4 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.
Section 13.0 LIMITATION OF LIABILITY
EXCEPT WITH REGARD TO GENOMICA'S OBLIGATIONS TO AB UNDER THE WARRANTY SECTION
HEREIN AND EXCEPT WITH REGARD TO BOTH PARTIES' OBLIGATIONS TO ONE ANOTHER UNDER
THE CONFIDENTIALITY SECTION HEREIN, 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. EXCEPT WITH RESPECT TO
GENOMICA'S OBLIGATIONS UNDER THE WARRANTY SECTION HEREIN, IN NO EVENT SHALL
EITHER PARTY'S LIABILITY FOR ANY AND ALL CLAIMS RELATING TO OR ARISING FROM THIS
AGREEMENT OR THE ACTIVITIES CONDUCTED
Genomica Corporation Confidential Page 22 of 29
HEREUNDER EXCEED THE AMOUNTS PAID TO GENOMICA BY AB IN CONJUNCTION WITH THIS
AGREEMENT.
Section 14.0 MISCELLANEOUS
14.1 Confidentiality of Agreement
Both Genomica and AB 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.
14.2 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.
14.3 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.
14.4 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 AB and Genomica or 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.
Genomica Corporation Confidential Page 23 of 29
14.5 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.
14.6 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 ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to AB to:
Original to: Copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Applied Biosystems Applied Biosystems, Legal Department
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Notices shall be deemed effective upon receipt or, if delivery is not effected
by reason of some fault of the addressee, when tendered.
14.7 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.
14.8 Export Regulations
AB 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. AB warrants that
it will comply in all respects with the export and re-export restrictions
applicable to the Genomica Products licensed hereunder.
Genomica Corporation Confidential Page 24 of 29
14.9 Government Rights
AB 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 ▇▇▇▇ 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.
14.10 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.
14.11 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.
14.12 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] [APPLIED BIOSYSTEMS]
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer Title: Senior Vice President,
PE Corporation &
President, Applied
Biosystems
Date: September 5, 2000 Date: September 5, 2000
Genomica Corporation Confidential Page 25 of 29
EXHIBIT A--PRESS RELEASE
To be provided.
Genomica Corporation Confidential Page 26 of 29
EXHIBIT B--ROYALTIES
No royalties are due on the sale of AB Products in the event that AB [***] an
[***] Genomica [***].
The following table defines the royalties that are due on the sale of AB
Informatics Products. No royalties are due on the sale of [***]. The exact
royalty per unit sold will depend on whether or not [***] (as defined in the
table) occur [***] the [***] that [***] the [***] is [***] to an [***].
---------------------------------------------------------------------------------------------------------------------
Royalty per Unit Condition
---------------------------------------------------------------------------------------------------------------------
[***] No [***], No [***] before [***] that [***] the [***] is [***] to an [***]
---------------------------------------------------------------------------------------------------------------------
[***] Additional [***] is [***] before [***] that [***] the [***] is [***] to an [***]
---------------------------------------------------------------------------------------------------------------------
[***] AB [***] an [***] Genomica of [***]
---------------------------------------------------------------------------------------------------------------------
Should AB [***] its [***] that [***] the [***] to an [***] and then subsequently
[***] into an [***] or [***] an [***] Genomica of [***], Genomica shall not have
to repay any monies to AB for royalties previous paid.
*Confidential Treatment Requested.
Genomica Corporation Confidential Page 27 of 29
EXHIBIT C--MONTHLY AND QUARTERLY REPORTING FORMAT
Monthly Reporting
-----------------
Total number of units Distributed during the previous month
Quarterly Reporting
-------------------
AB's quarterly reports to Genomica shall contain the following information:
For each AB Informatics Product Sale:
Organization Name, Customer Name, Address, Telephone, Fax, and Email
Date of sale
Number of AB Informatics Products sold
Total units of AB Informatics Products sold
Total payments due Genomica for sales of AB Informatics Product
Total number of AB Informatics Products returned to AB for refund
Genomica Corporation Confidential Page 28 of 29
EXHIBIT D--TRADEMARKS
Genomica(TM), the Genomica Logo, LinkMapper(TM), Discovery Manager(TM), and
"Built On Genomica" are trademarks of Genomica Corporation.
ABI Prism, PE Corporation Business
Genomica Corporation Confidential Page 29 of 29
