EXHIBIT 10.15
ELECTRONIC COMMERCE AGREEMENT
This Electronic Commerce Agreement ("Agreement") is entered into between
Chemdex Corporation ("Chemdex"), having an address at 000 Xxx Xxxxxxx Xxxx, Xxxx
Xxxx, XX 00000, and Genentech, Inc., having an address at 0 XXX Xxx, Xxxxx Xxx
Xxxxxxxxx, XX 00000 ("Customer").
1. Definitions:
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"System" shall refer to the Chemdex on-line ordering system.
"Term" shall refer to the time period from the date of this Agreement until
one (1) year from the date of this Agreement.
2. Term and Termination
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The Term shall automatically renew at each anniversary of the effective
date of this Agreement, unless a party provides written notice to the other
party of its intention to terminate this Agreement at least ten (10) days' prior
to such anniversary. This Agreement may be terminated by either party at any
time upon ten (10) days' prior written notice to the other party.
3. Payment Terms
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Use of the System will be provided at no cost in consideration of the
obligations contained herein. Chemdex does not guarantee a ready date, but
currently expects to be able to provide Customer with access to the System
between January 15, 1998 and March 1, 1998.
4. Acknowledgment of Beta Testing
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Customer and Chemdex acknowledge and agree that the System is a beta
version that may contain bugs, defects and errors. Customer and Chemdex further
acknowledge and agree that use of the System is being provided to Customer free
of charge during the Term in exchange for Customer's evaluation of the System
during the Term and information that results from the evaluation, as well as the
additional undertakings of Customer provided below.
5. Role of Chemdex
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Chemdex wishes there to be open collaboration and encourages Customer to
interact freely with members of Chemdex's staff. In order to assure that
Customer receives prompt and effective assistance, if requested by the customer,
Chemdex will provide Customer with full-time access to a phone contact, free of
charge. Should service or technical support be required, the phone contact will
inform the appropriate people and ensure that Customer's needs are addressed.
On-site assistance shall be available, free of charge, upon request by Customer.
[....]CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
6. Role of Customer
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Customer agrees that it will test the System with a small, select group of
its employees for a reasonable period of time. After this testing period,
Customer agrees that it will make every effort to encourage the rapid adoption
and use of the System throughout Customer's organization. While Chemdex
recognizes that adoption of the System is dependent upon the performance and
utility of the System and the number of products available for purchase through
the System, Customer agrees to use its best efforts to meet the following
milestones:
a. [.............] of Customer's purchases of products, the general type
of which are available for purchase through the System, will be made through the
System by the date which is [............] from the completion of the testing
period as mutually agreed by both parties. Customer estimates that this equates
to approximately [........] per month.
b. [...............] of Customer's purchases of products, the type of
which are available for purchase through the System, will be made through the
System by the date which is [.........] from the completion of the testing
period as mutually agreed by both parties. Customer estimates that this equates
to approximately [........] per month.
Customer agrees to provide Chemdex with (i) the results of Customer's use
and evaluation of the System, including any defects found in the System and any
information necessary for Chemdex to evaluate such defects and (ii) any
recommendations for changes or modification to the System. All data obtained
during the Term shall be available for inspection and analysis by Chemdex
personnel.
7. Right to Use Customer's Evaluation
Customer agrees that Chemdex shall have the right to use, in any manner and
for any purpose, any information (excluding Genentech proprietary information)
that pertains to the operation of the System gained as a result of Customer's
use and evaluation of the System during the Term. Such information shall
include but not be limited to changes, modifications and corrections to the
System. With prior written consent Chemdex shall have the right to release
information that Customer has used the system and cite Customer as a reference.
8. Notice to Suppliers
Recognizing that it is to the mutual benefit of Customer and Chemdex,
Customer agrees to communicate in writing directly with its existing suppliers,
notifying such suppliers that Customer is testing the System and is considering
using the System on an ongoing basis. Customer further agrees to encourage its
suppliers, in writing, or by other such means that customer may deem to be more
effective, to participate voluntarily in selling their products through the
System.
[....]CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
9. Confidentiality
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1. Chemdex Proprietary Information. Customer and Chemdex agree that
certain information Customer may receive from Chemdex or that Customer may
develop under this Agreement will be Proprietary Information of Chemdex. Such
information includes but is not limited to (i) the design of the System; (ii)
data and/or conclusions regarding the performance and operation of the System;
(iii) the terms of this Agreement or any agreement Chemdex may have (or may be
negotiating) with any third party; and (iv) non-public information concerning
the System and the business or finances of Chemdex (all of (i) through (iv)
shall be referred to as "Chemdex Proprietary Information"). Customer shall not,
either directly or indirectly, disclose or use any Chemdex Proprietary
Information without prior written authorization from Chemdex. Customer
understands and agrees that the unauthorized disclosure of any Chemdex
Proprietary Information will cause irreparable harm for which there is no
adequate remedy at law.
2. Genentech Proprietary Information. Customer and Chemdex agree that
certain information Chemdex may receive from Customer by virtue of performing
this Agreement will be Proprietary Information of Customer. Such information
includes, but is not limited to (i) vendor and customer lists; (ii) financial
information of any type (iii) other information regarding the business or the
products of Customer. Such information shall be referred to as the "Genentech
Proprietary Information". Chemdex shall not, either directly or indirectly,
disclose or use any Genentech Proprietary Information without prior written
authorization from Customer. Chemdex understands that the unauthorized
disclosure or any Genentech Proprietary Information will cause irreparable harm
for which there is no adequate remedy at law.
3. Exceptions. This Agreement shall impose no obligation upon Chemdex or
Customer with respect to any information which (i) that party is authorized in
writing by the other party to disclose; (ii) becomes publicly available; (iii)
is subsequently rightly furnished to that party by a third party without
restriction on disclosure; or (iv) is rightfully known by that party as shown by
written records in existence at the time of receiving such information.
10. No Warranty
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Customer and Chemdex agree that the System is provided "AS IS" and that
Chemdex makes no warranty as to the System. No warranty with respect to
performance specifications of the System is made. CHEMDEX DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATED TO
THE SYSTEM, ITS USE OR ANY INABILITY TO USE IT, THE RESULTS OF ITS USE AND THIS
AGREEMENT.
11. Limitations of Liability
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In no event shall Chemdex or Customer be liable for any damages, whether in
contract or tort (including negligence), including but not limited to direct,
consequential, special, exemplary, incidental and indirect damages, arising out
of or in connection with this Agreement or the use, the results of use, or the
inability to use the System.
12. Other Provisions
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1. Independent Parties. Nothing contained in this Agreement shall be
construed as creating a joint venture, partnership, agent or employment
relationship between Customer and Chemdex.
2. No Assignment. Neither party may assign or otherwise transfer in any
way any of its rights and obligations arising out of this Agreement without the
prior written consent of the other party.
3. Waiver. The waiver or failure of either party to exercise in any
respect any rights provided for in this Agreement shall not be deemed a waiver
of any further right under this Agreement.
4. Severability. If any term or provision of this Agreement should be
declared invalid or unenforceable by a court of competent jurisdiction or by
operation of law, the remaining terms and provisions of this Agreement shall
remain in full force and effect.
5. Notices. Any notice or other communication required or permitted in
this Agreement shall be in writing and shall be deemed to have been duly given
three (3) days after mailing by first class certified mail, postage prepaid, to
addresses set forth above.
6. Integration. This Agreement and its exhibits and schedules, if any,
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior proposals, negotiations, conversations,
discussions and agreements between the parties concerning the subject matter
hereof.
7. Amendments. No amendment or modification of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
both parties.
8. Applicable Law. This Agreement shall be governed by the laws of the
State of California without regard to conflict of law provisions.
9. Headings. The headings contained herein are for the convenience of
reference only and are not intended to define, limit, expand, or describe the
scope of intent of any Section or other provision in this Agreement.
10. Effective Date. This Agreement shall take effect on the date that the
last party executes this Agreement.
AGREED:
Genentech, Inc. Chemdex Corporation
/s/ X.X. Xxxxxxx /s/ Xxxxx X. Xxxxx
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Signature Signature
X. X. Xxxxxxx Xxxxx X. Xxxxx
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Name Name
Director, Purchasing President
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Title Title
1/5/98 1/5/98
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Date Date
