EXHIBIT 10.18
JOINT MARKETING AGREEMENT
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This Joint Marketing Agreement ("Agreement") is made this 11th day of May,
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1999 (the "Effective Date"), by and between the Biotechnology Industry
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Organization, a not-for-profit industry organization with offices at 0000 X.
Xxxxxx XX, Xxxxx 0000, Xxxxxxxxxx, X.X. 00000 ("BIO"), and Chemdex Corporation,
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a Delaware corporation with offices at 0000 Xxxxxx Xxx, Xxxx Xxxx, XX 00000
("Chemdex").
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RECITALS
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Whereas BIO is a not-for-profit industry organization chartered with providing
leadership and service-oriented guidance and services to its members in order to
advance the industry and bring the benefits of biotechnology to the people of
the world; and
Whereas BIO has developed a network of biotechnology professionals supporting a
common goal of increasing their effectiveness through group purchasing
arrangements; and
Whereas BIO has been fostering the development of electronic commerce and
procurement of biotechnology supplies through a common interface; and
Whereas Chemdex has developed and is currently marketing and supporting a
comprehensive electronic commerce and procurement solution for the life sciences
industry; and
Whereas Chemdex has determined that BIO maintains strong relationships with
biotechnology customers; and
Whereas BIO, BIO's board of directors, and representatives of BIO's member
companies conducted an industry survey and request for proposal process to
evaluate electronic commerce options for its members; and
Whereas, as a result of the above described process, the parties have agreed to
cooperate as set forth in this Agreement in the marketing of Chemdex's
electronic commerce and procurement solution for biotechnology companies.
AGREEMENT
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In consideration of the mutual promises contained in this Agreement, the
parties agree as follows:
1. Definitions.
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"BIO/Chemdex Interface" means the first WWW page which is viewed by an
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Enterprise Customer when such customer first accesses the Chemdex System.
"BIO Trademarks" means the trademarks owned or controlled by BIO.
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"Chemdex Enterprise Customer Agreement" means the agreement pursuant to
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which Chemdex authorizes customers to purchase Products through the Chemdex
System.
"Chemdex System" means Chemdex's online ordering system for life science
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supplies currently located on the World Wide Web at xxx.xxxxxxx.xxx and which
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shall conform with, when commercially reasonable, the guidelines set forth on
Exhibit A.
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"Chemdex Trademarks" means the trademarks owned or controlled by Chemdex.
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"Confidential Information" shall mean (i) any information disclosed by one
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party to the other pursuant to this Agreement which is in written, graphic,
machine readable or other tangible form and is marked "Confidential",
"Proprietary" or in some other manner to indicate its confidential nature, (ii)
oral information disclosed by one party to the other pursuant to this Agreement,
provided that such information is designated as confidential at the time of
disclosure, (iii) other information disclosed by one party to the other which
the receiving party should reasonably know that the disclosing party would
regard as confidential, and (iv) the terms and conditions of this Agreement.
"Enterprise Customer" means a Member that enters into a Chemdex Enterprise
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Customer Agreement with Chemdex in order to use the Chemdex System to purchase
Products.
"Intellectual Property Rights" means any trade secrets, patents,
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copyrights, trademarks, know-how, moral rights and similar rights of any type
under the laws of any governmental authority, domestic or foreign, including all
applications and registrations relating to any of the foregoing.
"Joint Marketing Fund" means the fund the parties will establish, in
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accordance with Section 2(k), to fund BIO's marketing obligations hereunder.
"Marketing Plans(s)" will have the meaning set forth in Section 4(a) below.
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"Member(s)" means the biotechnology companies which have registered with
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BIO to be represented by BIO.
"Products" means the products offered for sale through the Chemdex System.
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"WWW" means the World Wide Web.
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2. BIO Obligations.
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(a) Pilot Users. Immediately after the Effective Date, BIO will
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provide Chemdex with access to the Members that previously have expressed to BIO
an interest in becoming pilot users of the Chemdex System, and will make
commercially reasonable efforts to enlist each such potential Enterprise
Customers in a pilot program on terms mutually agreeable to the parties.
(b) Personnel. BIO will provide sales and marketing personnel (at
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the minimum, the equivalent of one hundred percent (100%) of [.......] full time
employees) reasonably sufficient to enable BIO to fulfill its obligations under
this Agreement. BIO will provide the names and credentials of such personnel to
Chemdex within thirty (30) days after the Effective Date of this Agreement, and
will provide Chemdex with thirty (30) days written notice prior to replacing
such personnel. Such personnel shall be subject to the prior written approval
of Chemdex; provided, however, that Chemdex shall not unreasonably withhold or
delay such approval.
(c) White Paper. BIO, at Chemdex's request, will edit and provide
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other reasonable assistance in the preparation by Chemdex or its representatives
of a white paper on electronic commerce in the biotechnology industry. BIO will
use commercially reasonable efforts to cooperate with Chemdex in the preparation
of a white paper of a quality which BIO, in the exercise of its reasonable
discretion, would endorse, and upon completion of the white paper, will consider
in good faith endorsing the same.
(d) Speaking Engagements. Upon Chemdex's reasonable request
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consistent with the applicable Marketing Plan, BIO will provide qualified
personnel to speak on and endorse the Chemdex System at sales meetings and
industry trade shows, conferences, and other related events. BIO will also, upon
Chemdex's request, provide reasonable opportunities for Chemdex to speak at
appropriate BIO events. BIO will provide opportunities for significant
participation by Chemdex at BIO meetings and events, including, without
limitation, speaking engagements, exhibitions, and the BIO show to be held in
Seattle, Washington, between May 16 and May 20, 1999.
(e) Trademark License.
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(i) Subject to the provisions of this Section 2(e), BIO hereby
grants to Chemdex a non-exclusive worldwide license under BIO's Intellectual
Property Rights in the BIO Trademarks to use and reproduce the BIO Trademarks
solely as is necessary to fulfill its branding and marketing obligations set
forth under this Agreement. Chemdex will comply with any usage guidelines which
may be provided to Chemdex by BIO from time to time, and upon BIO's request,
shall provide BIO with samples of Chemdex's usage of such BIO Trademarks. BIO
will provide the BIO Trademarks to Chemdex in a format reasonably acceptable to
Chemdex no later than thirty (30) days after the Effective Date. Chemdex shall
not challenge BIO's ownership of the BIO Trademarks or use or adopt any
trademarks that might be confusingly similar to such BIO Trademarks.
(ii) Chemdex shall comply with all instructions, standards,
specifications, quality criteria and procedures that BIO may reasonably and in
good faith prescribe from time to time for the purpose of assuring that the
products and services offered in conjunction with any BIO Trademark meet the
quality standards prevailing in the industry at the time. In the event Chemdex
fails to comply with such requirements and standards and, in BIO's
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMMISSION
reasonable view, such failure causes or is likely to cause Chemdex's products or
services to be substandard, then BIO shall notify Chemdex of the same and if
Chemdex fails to cure the same within sixty (60) days then BIO may require
Chemdex by written notice to suspend its use of the applicable BIO Trademark(s)
until the failure is remedied to BIO's reasonable satisfaction.
(f) Mailing List. Subject to the limitations set forth in this
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Section 2(f), BIO hereby grants to Chemdex a non-exclusive, worldwide license to
use BIO's mailing list containing the names and contact information of Members
and prospective Members, as such list is amended and updated from time to time
during the term of this Agreement ("Mailing List"). BIO will provide such
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Mailing List to Chemdex on the first day of each calendar quarter during the
term of this Agreement. The Mailing List shall be deemed BIO Confidential
Information. Notwithstanding any other provision of this Agreement, Chemdex
shall use the mailing list (i) only as necessary to perform its obligations
under this Agreement, and (ii) only to distribute information and materials BIO
has approved in advance, such approval not to be unreasonably withheld or
delayed. Chemdex will not sell or distribute the Mailing List without the prior
written consent of BIO.
(g) Exclusivity. During the term of this Agreement, BIO will not
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market or promote an online ordering system for life science supplies, other
than the Chemdex System. Notwithstanding the foregoing, nothing in this
Agreement shall be construed to prevent BIO from negotiating discounts and other
benefits for BIO members with any supplier, irrespective of whether such
supplier participates in the Chemdex System.
(h) Linking. BIO will include links to certain Chemdex WWW sites on
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the BIO WWW sites. Chemdex and BIO will mutually agree upon the quantity,
placement, and design of such links in the Marketing Plans.
(i) Publications. BIO will market and endorse Chemdex and the
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Chemdex System in direct mailings and in other BIO publications, including
publishing advertisements created by Chemdex and approved by BIO (such approval
not to be unreasonably withheld or delayed) in BIO News, BIO Alerts, BIO
Bulletins, and the BIO Member directory.
(j) Other. BIO will provide opportunities for Chemdex to participate
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in appropriate BIO purchasing road shows, Member meetings, and meetings held by
organizations, that are affiliates of BIO. BIO, at its option, may undertake
other activities that BIO reasonably deems necessary or appropriate to market
the Chemdex System, subject to the prior approval of Chemdex, which approval
Chemdex will not unreasonably withhold or delay.
(k) Joint Marketing Fund.
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(i) Formation. BIO will form a Joint Marketing Fund (subject
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to the prior written approval of Chemdex, which approval shall not be
unreasonably withheld or delayed) to receive the contributions to the Joint
Marketing Fund set forth in Section 3(d). BIO shall use such Joint Marketing
Fund (other than the Common Stock which BIO purchases
pursuant to Section 3(d)(ii) below, which BIO will have the right to use to fund
its obligations set forth in this Agreement and the Marketing Plans or for the
general benefit of its Members and the biotechnology industry) solely to fund
its obligations set forth in this Agreement and in the Marketing Plans;
provided, however, that (A) BIO's obligations under this Agreement will be
funded by the Joint Marketing Fund only to the extent BIO withdraws monies from
the Joint Marketing Fund to fund such obligations, and documents such activities
in accordance with Section 2(k)(ii) below, and (B) BIO will have the right to
use up to [...................] of such Joint Marketing Funds to support
activities, which activities may be unrelated to BIO's obligations under this
Agreement, for the benefit of its Members and the biotechnology industry.
(ii) Reports. Within thirty (30) days after the end of each
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calendar quarter, BIO will submit to Chemdex a detailed report containing the
following information: (A) withdrawals from and deposits to the Joint Marketing
Fund during such calendar quarter, (B) expenditures during such calendar quarter
that relate to joint marketing activities, (C) reasonable documentation to
support such expenditures, and (D) funds remaining in the Joint Marketing Fund
as of the last day of such calendar quarter.
(iii) Audits. BIO shall maintain full and complete records
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related to the use of the Joint Marketing Fund, including copies of the reports
described in Section 2(k)(ii) above, for at least three (3) years after the
creation of such reports. Chemdex shall be entitled to audit such records upon
thirty (30) days written notice, in order to confirm the accuracy of the reports
described in Section 2(k)(ii), provided, that Chemdex may conduct no more than
one such audit in any six (6) month period. Any such audit shall be performed at
Chemdex's expense during normal business hours; provided, that the cost of such
audit (and in addition, the full amount of any Joint Marketing Funds used by BIO
in breach of any provision of this Agreement) shall be promptly paid by BIO if
such audit reveals that BIO used of more than five percent (5%) of the amounts
paid by Chemdex into the Joint Marketing Fund in any six (6) month period for
purposes other than those contemplated by this Agreement.
3. Chemdex Obligations.
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(a) Chemdex System. Chemdex will provide Enterprise Customers with
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online ordering services through the BIO/Chemdex Interface. Chemdex will use
reasonable best efforts to execute Chemdex Enterprise Customer Agreements with
Members who desire to become Enterprise Customers of the Chemdex System.
(b) Trademarks.
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(i) Chemdex hereby grants to BIO a non-exclusive, royalty-free,
worldwide license under Chemdex's Intellectual Property Rights in the Chemdex
Trademarks to use and reproduce the Chemdex Trademarks solely as is necessary to
fulfill BIO's branding and marketing obligations set forth under this Agreement.
BIO will comply with any usage guidelines which may be provided to BIO by
Chemdex from time to time, and upon Chemdex's
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
request, shall provide Chemdex with samples of BIO's usage of such Chemdex
Trademarks. Chemdex will provide the Chemdex Trademarks to BIO in a format
reasonably acceptable to BIO no later than thirty (30) days after the Effective
Date. BIO shall not challenge Chemdex's ownership of the Chemdex Trademarks or
use or adopt any trademarks that might be confusingly similar to such Chemdex
Trademarks.
(ii) BIO shall comply with all instructions, standards,
specifications, quality criteria and procedures that Chemdex may reasonably and
in good faith prescribe from time to time for the purpose of assuring that the
products and services offered in conjunction with any Chemdex Trademark meet the
quality standards prevailing in the industry at the time. In the event BIO fails
to comply with such requirements and standards, then Chemdex shall notify BIO of
the same and if BIO fails to cure the same within sixty (60) days then Chemdex
may require BIO, by written notice, to suspend its use of the applicable Chemdex
Trademark(s) until the failure is remedied to Chemdex's reasonable satisfaction.
(c) Discount. In the event that Chemdex charges a fee for connecting
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Enterprise Customers to the Chemdex System, such Enterprise Customers will
receive a discount of [...................] or [......] whichever is greater,
off of the fees which Chemdex generally charges its customers with respect to
such customers' use of the Chemdex System: provided, however, that during the
term of this Agreement, the parties will re-negotiate such discount in good
faith within thirty (30) days after Chemdex notifies BIO in writing that
Chemdex's business model and/or revenue sources have substantially changed. In
addition, any fee which becomes standard to the majority of Chemdex Enterprise
Customer Agreements will be eligible for such discount.
(d) Joint Marketing Fund Contributions.
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(i) Payments. At the beginning of each calendar quarter, and
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provided that BIO meets its obligations set forth in the applicable Marketing
Plan, Chemdex will make the following contributions to the Joint Marketing Fund:
(A) [........] per quarter during the first twelve (12) month term of this
Agreement, (B) [........] per quarter during the second and third twelve (12)
month terms of this Agreement, and (C) [........] per quarter during the fourth
and fifth twelve (12) month terms of this Agreement. Chemdex may, in its sole
discretion, make contributions to the Joint Marketing Fund in advance of the due
dates set forth in this Section 3(d), which advances shall be fully creditable
against future contributions to the Joint Marketing Fund required by this
Section 3(d) (but which advances shall not be creditable against amounts already
paid to the Joint Marketing Fund by Chemdex prior to the date of such advance),
in the event that the budget for any Marketing Plan exceeds the funds then-
available in the Joint Marketing Fund. The parties will use reasonable best
efforts to promptly settle any dispute arising under this Section 3(d) in
accordance with the procedures set forth in Section 10(d) below.
(ii) Royalty. As a one-time royalty and in consideration for
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the licenses granted to Chemdex pursuant to Sections 2(e) and 2(f), the parties
shall enter into a Stock
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
Purchase Agreement of even date, pursuant to which BIO will purchase 375,000
shares of the Common Stock of Chemdex, which Common Stock shall be deemed to be
a part of the Joint Marketing Fund and its uses as described in section 2(k)(i)
above.
(e) Data. Within fifteen (15) days following the end of each
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calendar quarter falling in whole or part within the term of this Agreement, and
provided that Chemdex obtains the Enterprise Customers' prior written consent,
Chemdex will provide BIO with data regarding the use of the Chemdex System by
Enterprise Customers (collectively, "Customer Data"), such data to be
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provided electronically in a format mutually agreed upon by the parties. Neither
party shall disclose Customer Data without the prior written consent of the
other party (which approval such party shall not unreasonably withhold or delay)
except as required by law; Chemdex will have the right to approve any form or
letter which is used to obtain the consent of Enterprise Customers to the
disclosure of such Enterprise Customers' data to BIO hereunder; provided,
however, that Chemdex will not unreasonably withhold or delay approval of such
form or letter.
(f) Linking. Chemdex will include links to the BIO WWW sites on the
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Chemdex WWW site. Chemdex and BIO will mutually agree upon the quantity,
placement, and design of such links in the Marketing Plans.
(g) Exclusivity. During the term of this Agreement, Chemdex will not
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enter into a joint marketing arrangement with any other biotechnology or life
science trade organization or professional association, in accordance with
Section 4(c) hereof, whose membership is more than [....] biotechnology
companies or whose charter includes specific reference to the representation of
biotechnology companies ("Biotechnology Organizations") without first making, in
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good faith, all commercially reasonable efforts to obtain the participation of
BIO in such joint marketing arrangement.
(h) Suppliers. Chemdex shall make best efforts to make available
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through the BIO/Chemdex Interface the full line of products and services
reasonably required by Enterprise Customers. If Chemdex fails to provide
products and services reasonably required by Enterprise Customers, BIO will have
the right to provide links to suppliers providing such products and services on
BIO's WWW site located at xxx.xxx.xxx.
(i) Reports. Within thirty (30) days following the end of each
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calendar quarter, Chemdex will submit to BIO a detailed report containing the
following information: (i) names of Members executing a Chemdex Enterprise
Customer Agreement during the applicable quarter and (ii) contact information
(contact name, address, telephone, fax and electronic mail address) for each
such Member. Subject to the prior written consent of the applicable Enterprise
Customer, Chemdex will also provide to BIO (iii) a copy of the Chemdex
Enterprise Customer Agreement between Chemdex and such Enterprise Customer, and
(iv) the fees and charges paid by the Enterprise Customer to Chemdex pursuant to
such agreement.
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
(j) Publications. Chemdex will market and endorse BIO in direct
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mailings and in other Chemdex publications, including publications related to
the promotion of the relationship of the parties established by this Agreement.
4. Mutual Obligations.
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(a) Marketing Plans. During the term of this Agreement, Chemdex and
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BIO will enter into twelve (12) month marketing plans, which plans shall
describe in detail the obligations of each of the parties with respect to the
marketing and endorsement of the Chemdex System to Members (including, but not
limited to, the obligations outlined in Section 2 and other mutually beneficial
activities), within forty-five (45) days after the Effective Date, and upon each
annual anniversary thereof ("Marketing Plan"); provided, however, that if the
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parties fail to enter into any new Marketing Plan prior to the expiration of the
then-current Marketing Plan, and unless otherwise agreed upon by the parties in
writing, the previous Marketing Plan will remain in effect. Each party will use
reasonable best efforts to fulfill its obligations set forth in each Marketing
Plan during the twelve (12) month term of such Marketing Plan. Xxxxxx Xxxxx (or
a successor designated in writing to BIO) will coordinate the efforts of
Chemdex, and Xxxx Xxxx (or a successor designated in writing to Chemdex) will
coordinate the efforts of BIO, under each such Marketing Plan.
(b) Co-Branding. Chemdex and BIO will cooperate and will mutually
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agree upon the branding of (i) the BIO/Chemdex Interface, (ii) a section of the
BIO WWW site which will be devoted exclusively to communications regarding the
Chemdex System and the relationship of the parties established by this Agreement
and which will be located at xxx.xxx.xxx/xxxxxxx, and (iii) a section of the
Chemdex WWW site which will be devoted exclusively to communications regarding
the Chemdex System and the relationship of the parties established by this
Agreement, and which will be located at xxx.xxxxxxx.xxx/XXX. Chemdex and BIO
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will, in good faith, work with other Chemdex partners, including without
limitation VWR Scientific Products Corporation, to form and implement co-
branding strategies which are agreed upon by all involved parties.
(c) Other Partners. Chemdex and BIO will jointly recruit relevant
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partners to participate with Chemdex and BIO in the endorsement of the Chemdex
System to biotechnology companies. Xxxx Xxxxxxxxx (or a successor designated in
writing to BIO) will coordinate the efforts of Chemdex, and Xxxx Xxxxxxxx (or an
alternate designated in writing to Chemdex) will coordinate the efforts of BIO
with respect to such recruitment. If reasonably necessary, Chemdex and BIO
agree to allocate funds from the Joint Marketing Fund to provide
[.....................] of the funding required to involve new partners in joint
marketing activities. Within thirty (30) days after the Effective Date, Chemdex
and BIO will establish a plan to recruit partners for joint marketing activities
("Partner Recruitment Plan"). Chemdex will be responsible for up to
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[..............] of the costs explicitly set forth in such Partner Recruitment
Plan; provided, however, that all additional costs incurred by the parties to
recruit partners which are not set forth in the Partner Recruitment Plan shall
be the sole responsibility of BIO.
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
(d) Expenses. Except as otherwise set forth in this Agreement, each
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party shall bear the entire cost and expense of fulfilling such party's
obligations under this Agreement.
(e) Publicity. The parties will jointly issue a press release
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announcing the relationship of the parties established hereunder by May 16,
1999, or by a date mutually agreed by BIO and Chemdex. The parties will
individually and jointly pursue mutually agreed upon media and press relations
activities during the term of this Agreement; provided, however, that all such
media and press relations activities, whether individually or jointly pursued,
shall be subject to the prior approval of both parties, which approval shall not
be unreasonably withheld or delayed.
(f) Participation Goals. The parties will use their reasonable best
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efforts to obtain new Enterprise Customers in accordance with the table set
forth below:
Term Cumulative Large Cumulative Small Total Cumulative
Enterprise Customers Enterprise Customers Enterprise Customers
[......] employees) by [......] employees) by by the end of the Term
the end of the Term the end of the Term
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First twelve month [...] [...] [...]
term of Agreement
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Second twelve month [...] [...] [...]
term of Agreement
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Third twelve month [...] [...] [...]
term of Agreement
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Fourth twelve month [...] [...] [...]
term of Agreement
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Fifth twelve month [...] [...] [...]
term of Agreement
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The performance goals set forth in the above table assumes that the number
of potential Enterprise Customers is [......................]. At the end of
each twelve (12) month term of this Agreement, Chemdex and BIO will review and
adjust the number of potential Enterprise Customers. If the number of potential
Enterprise Customers increases or decreases by [.................] or more, the
performance goals set forth in the above table will be increased or decreased by
such percentage with respect to the subsequent twelve (12) month term of this
Agreement. If, at any point during the term of this Agreement, it appears that
BIO will fail to
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
achieve the performance goals set forth in the above table, Chemdex and BIO
will, in good faith, discuss mutually agreeable adjustments to the above table
or alternative solutions.
5. Ownership. Chemdex shall own all right, title, and interest in and to
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the Chemdex System and the Chemdex Trademarks. BIO shall own all right, title,
and interest in and to the BIO Trademarks. Upon completion of the white paper
described in Section 2(c), the parties shall jointly own all United States and
international copyrights in such white paper, and neither party shall have a
duty to account to the other party with respect to such party's use of such
white paper; provided, however, that BIO will not distribute or otherwise use
such white paper without the prior written consent of Chemdex.
6. Term and Termination.
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(a) Term. This Agreement shall be effective for a term of five (5)
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years after the Effective Date, unless terminated earlier in accordance with
this Section 6.
(b) Termination for Failure to Achieve Participation Goals. After
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the expiration of the first twelve (12) month term of this Agreement, either
party will have the right to terminate this Agreement upon written notice to the
other party (which notice shall be received no later than forty-five (45) days
after each twelve (12) month anniversary of this Agreement) in the event that
the parties fail to achieve at least [................................] of the
participation goals for the previous twelve (12) month term of this Agreement
set forth in Section 4(f).
(c) Termination for Cause. If either party defaults in the
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performance of any provision of this Agreement, then the non-defaulting party
may give written notice to the defaulting party that if the default is not cured
within thirty (30) days the Agreement will be terminated. If the non-defaulting
party gives such notice and the default is not cured during the thirty (30) day
period, then the Agreement shall automatically terminate at the end of that
period.
(d) Termination for Insolvency. This Agreement shall terminate,
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without notice, (i) upon the institution by or against either party of
insolvency, receivership or bankruptcy proceedings or any other proceedings for
the settlement of such party's debts, which, if involuntary, are not dismissed
within ninety (90) days, (ii) upon either party's making an assignment for the
benefit of creditors, or (iii) upon either party's dissolution.
(e) Return of Materials. Within thirty (30) days after the
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termination of this Agreement, each party either shall destroy or return to
other party all Confidential Information (excluding Customer Data) and all
materials bearing the other party's trademarks, or shall destroy such items.
Neither party shall retain any copies of any Confidential Information or items
that may have been entrusted to it by the other party. Effective upon the
termination of this Agreement, each party shall cease to use all trademarks of
the other party. Upon termination, BIO will have the right to retain all
payments received by BIO prior to the termination of this Agreement.
[.....] CONFIDENTIAL TREATMENT REQUESTED
OMMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION
(f) Survival of Certain Terms. The provisions of Sections 1,
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2(k)(iii), 5, 6(e), 6(f), 6(g), 7, 9, and 10, and the last sentence of Sections
2(e) and 3(b), shall survive the termination of this Agreement for any reason.
Section 8 will survive any termination or expiration of this Agreement for a
period of five (5) years. All other rights and obligations of the parties shall
cease upon termination of this Agreement.
(g) Limitation on Liability. IN THE EVENT OF TERMINATION BY EITHER
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PARTY IN ACCORDANCE WITH ANY OF THE PROVISIONS OF THIS AGREEMENT, NEITHER PARTY
SHALL BE LIABLE TO THE OTHER, BECAUSE OF SUCH TERMINATION, FOR COMPENSATION,
REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PROSPECTIVE PROFITS OR
ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR
COMMITMENTS IN CONNECTION WITH THE BUSINESS OR GOODWILL OF CHEMDEX OR BIO.
7. Warranties; Limitation on Liability.
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(a) Power and Authority. Each party represents and warrants that (i)
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it has the full right, power and authority to enter into this Agreement and to
discharge its obligations hereunder, and (ii) it has not entered into any
agreement inconsistent with this Agreement or otherwise granted any third party
any rights inconsistent with the rights granted to the other party under this
Agreement. Chemdex provides no warranty hereunder to BIO with respect to the
Chemdex System or the Products. Each User receives a warranty on the Chemdex
System or Products, if any, solely pursuant to the Chemdex Enterprise Customer
Agreement which such User executes with Chemdex.
(b) No Other Warranties. EXCEPT FOR THE FOREGOING WARRANTIES,
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CHEMDEX AND BIO MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR
OTHERWISE, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT. EACH PARTY
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT,
AND FITNESS FOR A PARTICULAR PURPOSE.
(c) Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE
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LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT
DAMAGES OF ANY KIND UNDER ANY CAUSE OR ACTION (INCLUDING NEGLIGENCE), WHETHER OR
NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE
LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF
ANY LIMITED REMEDY. THE LIABILITY OF EACH PARTY UNDER THIS AGREEMENT (OTHER THAN
CHEMDEX'S LIABILITY FOR CONTRIBUTIONS OF CASH AND STOCK TO THE JOINT MARKETING
FUND PURSUANT TO SECTION 3(d)) WILL IN NO EVENT EXCEED FIVE HUNDRED THOUSAND
DOLLARS ($500,000).
[....] CONFIDENTIAL TREATMENT REQUESTED
OMITTED PORTIONS FILED SEPARATELY WITH THE SECURITIES AND SECURITIES
COMMISSION
8. Confidentiality.
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(a) Nondisclosure. Each party shall treat as confidential all
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Confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party. Without limiting the
foregoing, each of the parties shall use at least the same degree of care which
it uses to prevent the disclosure of its own confidential information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other party under this Agreement. Each party shall promptly notify the
other party of any actual or suspected misuse or unauthorized disclosure of the
other party's Confidential Information.
(b) Exceptions. Notwithstanding the above, neither party shall have
----------
liability to the other with regard to any Confidential Information of the other
which the receiving party can prove: (i) was in the public domain at the time it
was disclosed or has entered the public domain through no fault of the receiving
party; (ii) was known to the receiving party, without restriction, at the time
of disclosure, as demonstrated by files in existence at the time of disclosure;
(iii) is disclosed with the prior written approval of the disclosing party; (iv)
was independently developed by the receiving party without any use of the
Confidential Information, as demonstrated by files created at the time of such
independent development; (v) becomes known to the receiving party, without
restriction, from a source other than the disclosing party without breach of
this Agreement by the receiving party and otherwise not in violation of the
disclosing party's rights; or (vii) is disclosed pursuant to the order or
requirement of a court, administrative agency, or other governmental body;
provided, however, that the receiving party shall provide prompt notice thereof
to the disclosing party to enable the disclosing party to seek a protective
order or otherwise prevent or restrict such disclosure. In addition, Chemdex
shall have the right to disclose the terms and conditions of this Agreement in
documents filed with the Securities and Exchange Commission if Chemdex deems
such disclosure to be advisable; provided, however, that Chemdex will make such
documents available to BIO for review by BIO from time to time during the term
of this Agreement.
(c) Return of Confidential Information. Upon expiration or
----------------------------------
termination of this Agreement, each party shall return all Confidential
Information received from the other party.
(d) Remedies. Any breach of the restrictions contained in this
--------
Section 8 is a breach of this Agreement that may cause irreparable harm to the
nonbreaching party. Any such breach shall entitle the nonbreaching party to
injunctive relief in addition to all legal remedies.
9. Indemnification. Each party shall be solely responsible for, and
---------------
shall indemnify and hold the other party free and harmless from, any and all
claims, damages or lawsuits (including attorneys' fees) arising out of the
negligent or wrongful acts of such party, its employees or its agents under this
Agreement, including, without limitation, claims by third parties against such
party as a result of such party's (a) representation of the Chemdex System in
a manner inconsistent with the Chemdex's published descriptions and warranties,
or (b) marketing of the Chemdex System inconsistent with the terms of this
Agreement; provided, that such party is provided with (i) prompt written notice
of such claim or action, (ii) sole control and authority over the defense or
settlement of such claim or action and (iii) proper and full information and
reasonable assistance to defend and/or settle any such claim or action.
10. Miscellaneous.
-------------
(a) Amendments and Waivers. Any term of this Agreement may be
----------------------
amended or waived only with the written consent of the parties or their
respective permitted successors and assigns. Any amendment or waiver effected in
accordance with this Section 10(a) shall be binding upon the parties and their
respective successors and assigns.
(b) Successors and Assigns. Neither party will have the right to
----------------------
assign this Agreement without the prior written consent of the other party;
provided, that Chemdex shall have the right to assign its rights, obligations
and privileges hereunder to a successor in business or an acquirer of all or
substantially all of its business or assets to which this Agreement pertains
without obtaining the consent of BIO. Subject to the foregoing, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the parties
hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
(c) Governing Law. This Agreement shall be governed, construed and
-------------
interpreted in accordance with the laws of the State of California, without
giving effect to principles of conflicts of law.
(d) Dispute Resolution.
-------------------
(i) Negotiation. No arbitration or other proceeding with
-----------
respect to any claim, dispute or controversy arising out of or in connection
with or relating to this Agreement or the breach or alleged breach thereof shall
arise until the following procedures have been completed. Representatives from
each party will meet within ten (10) business days after receipt of a request
from either party to review in good faith any dispute with respect to the
interpretation of any provision of this Agreement or with respect to the
performance of either party under this Agreement. In the event a disagreement or
dispute under this Agreement is not resolved by the designated representatives
of each party by mutual agreement within five (5) business days after a meeting
to discuss the disagreement, which resolution shall be evidenced by a document
signed by both parties, either party may within five (5) business days
thereafter provide the other written notice specifying the terms of such
disagreement in reasonable detail. Upon receipt of such notice, the chief
executive officer of each party shall meet at a mutually-agreed place and time
(but no later than ten (10) business days after receipt of such notice) for
the purpose of resolving such disagreement. Such officers shall make a good
faith effort to resolve the disagreement or negotiate an acceptable revision of
this Agreement acceptable to both parties, without the necessity of formal
procedures relating thereto. During the course of such discussion, the parties
will reasonably cooperate and provide information that is not confidential to
the end that each party may be fully informed with respect to the issues in
dispute. The institution of arbitration to resolve the disagreement may occur
only after the earlier of the following events: (a) the chief executive officers
mutually agree that resolution of the disagreement through continued negotiation
is not likely to occur, or (b) ten (10) business days after the initial meeting
between such chief executive officers.
(ii) Arbitration. Subject to the provisions of paragraph (i)
-----------
above, any dispute or claim arising out of or in connection with this Agreement
will be finally settled by binding arbitration in a location mutually agreed
upon by the parties in accordance with the then-current Commercial Arbitration
Rules of the American Arbitration Association by three arbitrators appointed in
accordance with said rules. Each party shall select one such arbitrator, and the
two arbitrators so chosen shall select the third arbitrator. The arbitrators
shall apply California law, without reference to rules of conflicts of law or
rules of statutory arbitration, to the resolution of any dispute. Judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to
any court of competent jurisdiction for preliminary or interim equitable relief,
or to compel arbitration in accordance with this paragraph, without breach of
this arbitration provision.
(e) Attorney's Fees. If any action at law or in equity (including
---------------
arbitration) is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorney's fees, costs and
necessary disbursements in addition to any other relief to which such party may
be entitled.
(f) Notices. Any notice required or permitted by this Agreement
-------
shall be in writing and shall be deemed sufficient upon receipt, when delivered
personally or by courier, overnight delivery service or confirmed facsimile or
electronic mail transmission, or forty-eight (48) hours after being deposited in
the regular mail as certified or registered mail (airmail if sent
internationally) with postage prepaid, if such notice is addressed to the party
to be notified at such party's address, facsimile number or electronic mail
address as set forth below, or as subsequently modified by written notice.
Chemdex: BIO:
Chemdex Corporation Biotechnology Industry Organization
0000 Xxxxxx Xxx 0000 X Xxxxxx, X.X., Xxxxx 0000
Xxxx Xxxx, XX 94303 Xxxxxxxxxx, XX 00000
Tel: (000) 000-0000 Tel: (000) 000-0000
Fax: (000) 000-0000 Fax: (000) 000-0000
Email:xxxxxx@xxxxxxx.xxx Email:xxxxxxxxx@xxx.xxx
With a copy to: With a copy to:
xxxxxxxxxx@xxxxxxx.xxx xxxxxxx@xxx.xxx
----------------------
(g) Severability. If one or more provisions of this Agreement are
------------
held to be unenforceable under applicable law, the parties agree to renegotiate
such provision in good faith, in order to maintain the economic position enjoyed
by each party as close as possible to that under the provision rendered
unenforceable. In the event that the parties cannot reach a mutually agreeable
and enforceable replacement for such provision, then (i) such provision shall be
excluded from this Agreement, (ii) the balance of the Agreement shall be
interpreted as if such provision were so excluded and (iii) the balance of the
Agreement shall be enforceable in accordance with its terms.
(h) Entire Agreement. This Agreement is the product of both of the
----------------
parties hereto, and constitutes the entire agreement between such parties
pertaining to the subject matter hereof, and merges all prior negotiations and
drafts of the parties with regard to the transactions contemplated herein. Any
and all other written or oral agreements existing between the parties hereto
regarding such transactions are expressly canceled.
(i) Foreign Corrupt Practices Act. In conformity with the United
-----------------------------
States Foreign Corrupt Practices Act, neither party, nor such party's employees
and agents, shall directly or indirectly make an offer, payment, promise to pay,
or authorize payment, or offer a gift, promise to give, or authorize the giving
of anything of value for the purpose of (A) influencing an act or decision of an
official of any government (including a decision not to act) or (B) inducing
such a person to use his influence to affect any such governmental act or
decision in order to assist such party in obtaining, retaining or directing any
such business.
(j) Advice of Legal Counsel. Each party acknowledges and represents
-----------------------
that, in executing this Agreement, it has had the opportunity to seek advice as
to its legal rights from legal counsel and that the person signing on its behalf
has read and understood all of the terms and provisions of this Agreement. This
Agreement shall not be construed against any party by reason of the drafting or
preparation thereof.
(k) Independent Contractors. Notwithstanding the use of the term
-----------------------
"Partner" in this Agreement or in any use of the word "partner" in marketing
materials, the relationship of Chemdex and BIO is that of independent
contractors, and nothing contained in this Agreement shall be construed to (i)
give either party the power to direct or control the day-to-day activities of
the other, (ii) constitute the parties as partners, joint venturers, co-owners
or otherwise as participants in a joint undertaking, or (iii) allow either party
to create or assume any obligation on behalf of the other party for any purpose
whatsoever.
CHEMDEX CORPORATION BIOTECHNOLOGY INDUSTRY
ORGANIZATION
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxxxxx
-------------------- --------------------
Title: President and CEO Title: President
----------------- -----------------
Date: 5/11/99 Date: 5/11/99
------------------ ------------------
Exhibit A
System Requirements, Performance Standards, and Product Offering
System Requirements:
. Beginning-to-end purchasing solution which clearly improves the entire
procurement chain from aggregation of information, placement of an order,
receipt of product and reconciliation of shipping documents, through the
payment of the invoice.
. Easy to use so that any BIO Members will find it "friendly", whether they
are a large multi-national or a small, emerging company. . Provide
commercially reasonable interfaces to Member's legacy purchasing systems.
. Allow for customization based on Members' current purchasing protocols and
supplier relationships.
. Scalable for use by hundreds of suppliers and end-users and must be
compatible with other e-commerce systems available for non-lab related
purchases.
. BIO will not administer orders or invoices. Chemdex or the appropriate
supplier will administer invoices and offer a variety of formats for
receipt of invoices.
. Easy to access and download with searches and request response time of no
more than three seconds on top of any Internet connection delays.
. Link to PO systems for requisitioning and have the ability to tie into a
G/L software package with expense and department codes.
. Reporting capabilities for tracking and sorting purchase orders.
. Ability to highlight preferred suppliers.
. Ability to block certain suppliers.
. Ability to consolidate vendor orders.
. Verification of order, shipment, delivery, backorders, etc.
. Ability for buyers to log in and get a summary of transactions.
. Ability to limit orders for hazardous or controlled materials.
. Ability for built in dollar volume order limits and purchase dollar
authorization codes.
. Ability to support approval routing system.
. Ability to compare real-time inventory from chosen suppliers where
available and commercially feasible.
. Order tracking post shipment.
. Ability to select form of shipment (list shippers available).
. Provide levels of security consistent with industry standards.
. Compatible with Mac's and PC's running Netscape 4.0 or higher and IE 4.0 or
higher.
. Linkable into internal e-mail system for ease of communication with end-
users.
. Ability to add suppliers of choice by Members subject to suppliers
contracting with Chemdex to offer their products for sale on the Chemdex
System under terms acceptable to both the supplier and Chemdex.
. Compatibility with other business applications (i.e. GL, AP, Receiving).
. Ability for suppliers to update their catalog information on a reasonably
consistent basis and existence of a reasonable process for measuring
compliance of supplier updates.
. Incorporation of BIO and/or customer pricing from individual suppliers.
Performance Requirements:
. Confirmations on customer contract pricing, availability, packaging
charges, tax, inventory and final shipment via email or fax.
. Process for cancellation of orders.
. Customer service for drop-shipments and back orders.
. AP customer support.
. Shipper tracking support.
. Customer service support.
. Technical support for customers.
. Supplier technical support.
. Must be able to obtain credit for unwanted merchandise subject to Chemdex's
return policies.
. Must be able to return unwanted product subject to Chemdex's return
policies.
. No charge for damaged or faulty merchandise, subject to Chemdex's return
policies.
Product Offering:
The following lists the products that BIO would like to feature in the interface
and within the Chemdex product line for offer to BIO members. Chemdex will make
its best efforts to accommodate these vendors for inclusion in the system,
subject to the supplier's willingness to enter into a supplier contract with
Chemdex on terms agreeable to the supplier and to Chemdex
. Chemicals, molecular biology and related equipment (Sigma, Xxxxxxx, Fluka
(SAF), Amersham Pharmacia Biotech, Boehringher Manneheim, ABI Xxxxxx Xxxxx,
Life Technologies, Promega, NEN, Roche Molecular, Merck, Millipore and
Tosho).
. General laboratory supplies, chemicals and equipment through VWR and Xxxxxx
Scientific featuring the BIO agreement or member company agreement with VWR
or Xxxxxx.
. Office Supplies and equipment from BIO's preferred provider (subject to
assessment and approval by Chemdex).
. Computers and related supplies and software if BIO develops a preferred
provider agreement (subject to assessment and approval by Chemdex).
Contract Management
. Chemdex will respond to all BIO and customer leads within a commercially
reasonable period of time.
. Chemdex will train all Chemdex sales and customer service employees on BIO
and the nature and terms of the BIO-Chemdex Agreement.
. BIO or Chemdex may request quarterly review meetings with the other party
to assess progress of the partnership.
