1
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
EXHIBIT 10.6
TECAN
OEM SUPPLY AGREEMENT
This agreement, made and entered into this January 13, 1995
between
TECAN AG
Xxxxxxxxxxxxxxx 00
XX-0000 Xxxxxxxxxxxxx
XXXXXXXXXXX
(hereinafter referred to as "TECAN")
and
ROCHE IMAGE ANALYSIS SYSTEMS
a Division of Roche Biomedical Laboratories, Inc.
000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
XXX
(hereinafter referred to as "ROCHE")
Whereas, TECAN has developed a RSP (Robotic Sample Processor) which is
manufactured and sold to ROCHE as CYTO-RICH(TM) PREPARATION SYSTEM, hereafter
called "Product".
Whereas, ROCHE will sell the Product world-wide under its name and its Trademark
with its sales force and through its distributors, but will sell product solely
in combination with disposable reagents.
Whereas ROCHE will subcontract to TECAN or it's distributors on-site warranty
and service of Product.
2
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
Now, therefore, in consideration of the mutual covenants hereinafter expressed,
the parties agree as follows:
1. DEFINITIONS
1.1 "Contract Year" shall mean a period of twelve (12) successive calendar
months during the term of this agreement or any extension thereof, the
first contract year to commence as of January 1st, 1995.
1.2 "Product" means the CYTO-RICH PREPARATION SYSTEM, as described in
Exhibit A.
1.3 "Affiliates" shall mean distributors owned by ROCHE or TECAN.
1.4 "Application" means the use of the Product, in particular the Quad-Arm
(or direct derivatives), for the preparation of cytology or histology
samples for diagnostic purposes.
2. DEVELOPMENT AND EXCLUSIVITY
2.1 TECAN shall modify the Product for ROCHE as per the specifications in
Exhibit A, to become a OEM instrument of ROCHE. The specifications
comply with the project book Ver. 1.0.
2.2 TECAN agrees not to offer directly on the basis of an OEM, PL-, or
Semi-PL-Agreement to any third party any device similar to the Product
and intended for the Application, provided that ROCHE buys from TECAN
at least the following numbers of units of the Product:
YEAR UNITS
1995 *** See Page 8
1996 ***
1997 ***
1998 ***
1999 ***
*** units over 5 years (80% achievement of the original forecast of
*** units)
ROCHE understands that TECAN might sell individual units to end-users
that may be used for purpose similar to the Application.
2.3 TECAN will supply ROCHE with the most current Integrator software
releases and furthermore confirms that the Integrator software will be
available and supported over the life cycle of the Product.
2.4 Roche assumes all responsibility for the application software
development, documentation, installation and after sales support.
3
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
3. PURCHASE OF PRODUCT, QUANTITIES AND PRICING
3.1 Subject to the terms and conditions of this agreement, ROCHE shall
purchase, and TECAN shall sell to ROCHE the Product. ROCHE shall
purchase yearly a minimum quantity of the Product hereunder in
accordance with the price schedule on Exhibit B.
3.2 For the first 12 months period ROCHE is deemed to be in the 50-99 units
price bracket. If ROCHE is over-or underachieving the target of 50-99
units, ROCHE is either reimbursed or invoiced according to the
following scheme (example):
Over achievement: Purchase of 110 units per year TECAN shall
reimburse 110 times **********************
Under achievement: Purchase of 30 units per year TECAN shall invoice
30 times ********************
The 10 units purchased at the end of 1994 from TUS are included in the
purchase quantity defining the price bracket for 1995.
3.3 For each year ROCHE and TECAN agree on the minimum quantity of units to
be purchased by ROCHE in the next 12 months period. This number
determines the valid price bracket for the next 12 months period. The
new minimum quantity has to be negotiated 60 days before the expiration
date of each 12 months period.
3.4 The prices of the Product as stated in Exhibit B are valid for the
first 12 months period, starting from January 1st, 1995 and ending on
December 31, 1995.
Prices for the following 12 months period change pursuant to the
increase in production costs for TECAN. New prices have to be
negotiated 60 days before the expiration date of each 12 months period.
4. PURCHASE AND DELIVERY, PAYMENT AND SHIPMENT
4.1 In the first month of each quarter, ROCHE will order the quantities
which will be delivered during the quarter (the Shipping Schedule) and
will forecast for the following 9 months (the Production Schedule). The
Production Schedule is to be used for planning purposes only, and
summarizes the next 9 months forecast activity. The Shipping Schedule
indicates order numbers, quantities and delivery times. The Shipping
Schedule is a committed delivery for ROCHE by TECAN.
ROCHE may order Products in excess of the Shipping Schedule at any
time. TECAN will commit best efforts to meet this supply requirement.
Each purchase order of the Shipping Schedule shall contain a
description of the Products purchased, quantity purchased, routing
instructions, destination, delivery date and confirmation price. TECAN
agrees to accept telegraphic or telefaxed purchase orders.
4
ROCHE will send the respective written purchase orders within 2 weeks
after sending the telegraphic or telefaxed purchase orders. TECAN will
meet and supply all Shipping Schedule requirements in accordance with
the delivery date(s) set forth in the applicable purchase order for
each Shipping Schedule, except in those cases where ROCHE fails to
follow the procedure set forth in Section 4.1.
4.2 According to the release point of the Product the payment shall be in
USD (for United States) or in CHF (for non US) deliveries. Payment
shall be net in the respective currency within 60 days from the date of
invoice. Delays in payment will result in the usual and applicable
interest rates.
4.3 The exchange rate for deliveries is set to CHF 1.30/USD. Exchange rate
fluctuations between the CHF and USD will be checked twice annually and
the exchange-risk is split 50:50 by ROCHE and TECAN. TECAN shall
invoice/issue credit note to ROCHE of 50% of the exchange rage
fluctuation influence on the ordered and paid instruments in USD
semi-annually. For the calculation basis we use the average exchange
rate of the previous 6 months.
4.4 Prices are quoted ex works. For deliveries to the U.S. Tecan US will
forward ROCHE the occurring CIF-costs.
4.5 Delivery times: ca. 6-8 weeks after receipt of ROCHE's Shipping
Schedule.
4.6 TECAN will ship the Product FCA Zurich airport or FCA Durham, North
Carolina depending on the release point. Shipment is done via common
carriers solely selected by ROCHE. All freight (and as applicable
world-wide duty) charges shall be paid by ROCHE. Title and risk of loss
or damage of any items delivered hereunder shall pass to ROCHE upon
delivery to the common carrier pursuant to the respective Incoterms
rules (1990).
4.7 Ordering, shipment and further logistics of the Xxxxxxx centrifuge is
co-ordinated by ROCHE. TECAN's sole responsibility regarding the
centrifuge is the warranty of the centrifuge.
5. PRODUCT CHANGES
5.1 TECAN may, from time to time, modify or update the Products, spare
parts or accessory material. All changes, having an effect on the
functionality of the Product shall be announced in writing. In these
cases, ROCHE shall have the right to reject the changes within 30 days,
in writing, with the exception of changes which are required by law.
5.2 The accepted changes shall be added as an amendment to the
specification in Exhibit A.
5.3 Enhancements in the Product, spare parts and accessory materials are
subject to TECAN's price policy.
5
5.4 Any major changes in the application software or the documentation
governing control of the Product shall be forwarded to the responsible
product manager/sales engineer at TECAN to guarantee the compliance of
the Product with the specifications in Exhibit A.
6. LEGAL AND REGULATORY RESPONSIBILITY AND LABELLING
6.1 Any product and spare parts and all documents or other items relating
hereto supplied by TECAN under this agreement shall be manufactured
(or, as applicable, prepared) in accordance with the specifications and
manufacturing practices generally accepted in its business domain.
7. QUALITY CONTROL
Every Product and spare parts shall be subject to a quality control
inspection by TECAN and non-conforming products shall not be shipped by
TECAN.
8. INSTALLATION, TRAINING, WARRANTY AND SERVICE
8.1 ROCHE will install the Product (and the Xxxxxxx centrifuge), train
customers of ROCHE with regard to the Product. TECAN will warrant the
Product (and the Xxxxxxx centrifuge) in all countries where TECAN has
its own Affiliates (Exhibit C). In countries where TECAN is represented
through an independent distributor, TECAN will do its best effort to
provide ROCHE and its distributors and customers the same after sales
support.
8.2 For service calls within the warranty period which are not related to
the Product (e.g. application software, application in general, PC or
system) TECAN's representative will charge ROCHE the incurred expenses.
8.3 If TECAN's independent distributors do not collaborate in the way
foreseen in Section 8.1 of this Agreement, TECAN offers to train
ROCHE's local distributor at TECAN AG's location free of charge. Travel
and lodging costs have to be borne by ROCHE.
8.4 The following training is provided by TECAN to ROCHE or its
distributors free of charge on a yearly basis at either TECAN CH, TECAN
US or TECAN JAPAN premises:
# Training/Year Duration
Service/Operation 2 2-3 days
8.5 TECAN warrants each Product for a period of twelve (12) months from the
date of shipment in the sense that such Product is free from defects in
workmanship and materials and is manufactured in complete conformity
with the specifications under this agreement. Disposable parts of the
Product, i.e. valves, tips, fittings, tubings and syringes, are
excluded from any warranty.
6
8.6 After the warranty period TECAN or its distributors, respectively,
offer ROCHE or ROCHE's distributors or customers, service according to
the terms specified in Exhibit D. In all other countries conditions
have to be negotiated on a local level.
8.7 ROCHE hereby indemnifies and agrees to hold TECAN harmless from and
against all claims and liabilities resulting from ROCHE's or its
distributors failure to maintain the Product according to the generally
accepted rules in the industry.
8.8 TECAN represents and warrants that Product, spare parts and accessory
materials shall be delivered free of any rights of any third party.
TECAN has good title to and has full power to sell Product, spare parts
and accessory materials to ROCHE hereunder for ROCHE's unrestricted
world-wide marketing, distribution and sale.
8.9 For a period of seven (7) years from the date of delivery of the last
unit Product shipped hereunder, TECAN agrees to maintain the ability to
deliver spare parts. The supply of service and spare parts after the
warranty period will be done on a local level between the customer of
ROCHE, respectively ROCHE and TECAN's local distributor.
8.10 ROCHE shall be responsible for its own insurance coverage against third
party claims and liabilities (including but not limited to product
liability and consequential damages).
9. TERM OF AGREEMENT
This agreement shall commence upon its execution and shall be effective
until December 31, 1995 (the initial term). This agreement shall
automatically be renewed for additional one-year terms subject to
either party's right to terminate this agreement by giving the other
party at least hundred-twenty (120) days written notice subject to
article 12 prior to the expiration date of the initial term and
thereafter to the anniversary date. (12.1)
10. TERMINATION
Both parties agree to do their best to settle any dispute arising from
this agreement amicably.
11. CONFIDENTIAL INFORMATION
Each party understands that during the course of its association with
the other, it may acquire or have access to information that is
confidential and of great value to the other ("confidential
information").
Therefore, each party ("receiving party") agrees that during the term
of this Agreement and a period of three (3) years after termination of
this agreement, it shall not use (except for the purposes set forth in
this agreement) or disclose the confidential information of the other
("the disclosing party") without the disclosing party's prior
7
written consent and each party agrees that it will impose the same
obligations on its employees who have access to such confidential
information to the extent permitted by law.
12. MISCELLANEOUS PROVISIONS
12.1 All written notices and demands required or permitted to be given or
made pursuant to this agreement shall be in English and shall
conclusively be presumed for all purposes of this agreement to be given
or made at the time the notice or demand is personally given or made,
or at the time it is sent by registered mail, or fax or courier
addressed as follows:
If to ROCHE: If to TECAN:
ROCHE IMAGE ANALYSIS SYSTEMS TECAN AG
000 Xxxxxx Xxxxx Xxxxxxxxxxxxxxx 00
Elon College, North Carolina 27244 8634 Hombrechtikon
USA SWITZERLAND
Or to such other address as to which either party may advise the other
in writing that notices should be sent.
12.2 This agreement shall be binding upon and relate to the benefit of the
parties hereto, their successors and assignees. This agreement shall be
assignable by either party only with the prior written consent of the
other, except that either party may assign this agreement without the
consent of the other to a wholly owned subsidiary or to the purchaser
or all its stock or assets of its business to which this agreement
relates.
This Agreement supersedes earlier contracts between TECAN's Affiliates
and ROCHE regarding the Product.
13. GOVERNING LAW AND ARBITRATION CLAUSE
13.1 This agreement shall be governed by, and construed in accordance with,
the laws of Switzerland.
8
13.2 Any disputes or controversies arising out of or in connection with this
agreement, including disputes on its conclusion, binding effect,
amendment and termination, shall be resolved to the exclusion of the
ordinary courts by a sole arbitrator in accordance with the
International Arbitration Rules of the Zurich Chamber of Commerce.
Arbitration shall be conducted in the English language.
Hombrechtikon, January 13, 1995 Elon College,
TECAN XX XXXXX IMAGE ANALYSIS
SYSTEMS
/s/Xxxxx Xxxxxxx /s/ Xxxxx Xxxxxxxxx /s/ X. Xxxxxx
---------------------------------------------- -----------------------
Xxxxx Xxxxxxx Xxxxx Xxxxxxxxxx Xxxxxx Xxxxxx
S&M Manager F&A Manager General Manager
Addendum to Article 2.2
The ten units purchased at the end of 1995 from TUS are included in the purchase
quantity specified for 1995.
9
EXHIBIT A
(this is an extract from the Project Book, all information in the Project Book
supersedes the information in this exhibit)
ROCHE CYTO-RICH PREPARATION SYSTEM Part. No. _______ includes:
Description: Part Number:
1 Specimen tray
1 RSP 5051 including: 505100
1 1000 (micron symbol)l DiTi C option 520041
1 Additional 465 Dilutor 520022
4 5 ml syringes 300206
1 QUAD ______
1 Alignment rack for QUAD ______
1 Waste station including: ______
1 Tip rack ______
1 Waste / wash station ______
1 Tip loading rack ______
1 Slide rack adapter plate ______
4 Slide rack ______
1 Vacuum pump set including: ______
1 Waste bottle ______
1 Tubing Kit ______
1 Tube evacuator ______
1 Tubing Kit ______
1 Solenoid Valve Kit ______
1 Operating manual ______
1 Misc. hardware set including: ______
1 1 to 4 distribution block (Vacuum) ______
1 Special tubing guide ______
1 Waste bottle ______
The Cyto-Rich system does not include the controlling PC, nor the application
software written in Integrator.
The ROCHE CYTO-RICH PREPARATION SYSTEM is white including the safety guard and
instead of the TECAN-Logo the ROCHE-Label is placed.
10
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
EXHIBIT B
Price list of Products for 1995
PRODUCT PRICE BRACKET PRICE PER UNIT
CHF
25 - 49 ********
50 - 99 ********
> 100 ********
Prices are valid for purchase quantity within a 12 months period. The exchange
rate for 1995 is set to CHF 1.30/USD for deliveries to the U.S.
Prices include service and support duties as specified in article 9.1.
11
EXHIBIT C
Countries where TECAN is represented through it's own Affiliates:
United Kingdom
France
Germany
Italy
Japan
Singapore
Switzerland
Austria
U.S.A.
12
"Portions of this agreement have been deleted pursuant to a request for
confidential treatment. Such portions are indicated by asterisks."
EXHIBIT D
Conditions for subcontracting service in countries where TECAN is represented
through its own Affiliates. Service contracts are in the respective language of
the country.
******************************************************************************
******************************************************************************
************************
SERVICE CONTRACT WILL COVER:
- Interaction within 1 - 3 days, depending on the country
- Parts, labour and travelling
- 2 preventative maintenance visits per year
SERVICE CONTRACT DOES NOT COVER:
- Disposables (valves, tips and tubings)
- Faults occurred due to a misuse of equipment
- ROCHE's application software and ROCHE's confirmed reagent related problems
