Exhibit 10.38


 


Term Sheet


 


Service and Support Agreement


 


Ciphergen Biosystems, Inc. (“CBI”)


and


Applied Biosystems/MDS SCIEX (“ABI”)


 


NOTE: Information in this document marked
with an "[*]" has been omitted and filed separately with the
Commission. Confidential treatment has been requested with respect to the
omitted portions.


 


It is recognized by CBI and ABI that there
may be many customers who would like to utilize CBI’s ProteinChip® Array
technology in combination with Applied Biosystems/MDS SCIEX QqTOF systems, and
it would be in both parties interest to provide such a product offering to the
market. It is recognized that neither CBI nor ABI plan to or are authorized to
actively promote such a product offering; however, in those instances where
customer interest exists, both parties would like to cooperate in providing
initial and on-going service and support to purchasers.


 


For the purpose of this agreement QqTOF shall
mean the Applied Biosystems/MDS SCIEX QSTAR, the Applied Biosystems/MDS SCIEX
QSTAR Pulsar and the Applied Biosystems/MDS SCIEX QSTAR Pulsar i.


 


This term sheet is based on the following
understanding regarding the current business of both CBI and Applied
Biosystems/MDS SCIEX:


 


a)             CBI
has developed an ion source interface that enables samples contained on CBI’s
ProteinChip Array to be ionized by laser desorption ionization (LDI) and read
by ABI’s QSTAR mass spectrometer (the “ProteinChip Interface”). The ProteinChip
Interface needs to be modified for use with the QSTAR Pulsar MS system and
QSTAR Pulsar i MS System. Currently, CBI is not selling this interface to
the MS market.


 


b)            Applied
Biosystems/MDS SCIEX manufactures and markets mass spectrometers and software
that are combined into MS systems for use in all markets and applications.


 


The purpose of this business arrangement is
to allow CBI to develop and sell, at its expense, the ProteinChip Interface to
those customers who would be interested in CBI’s ProteinChip Array technology
in conjunction with QqTOF systems.


 


To achieve this objective, CBI and Applied
Biosystems/MDS SCIEX intend to conclude a definitive agreement, including the
following terms:


 


1.                                       CBI shall at
its expense install, support and service the ProteinChip Interface for the
QqTOF system. CBI shall warrant the ProteinChip Interface and the mechanical,
electrical and software interface with the QqTOF system. CBI’s response by
phone or on-site visit by a service technician to any customer support problem
shall be no less than the response times provided in ABI’s own service
guidelines.


 


 


 

















 


2.                                       CBI shall at
its expense train customers on the use of the ProteinChip Interface and
ProteinChip Technology.


 


3.                                       ABI shall at
its expense install, support and service the QqTOF system, according to ABI’s
existing service guidelines. Subject to CBI’s obligations set forth below and
also in Paragraphs 1 and 5, ABI shall maintain the warranty of the QqTOF
systems when a ProteinChip Interface is installed.


 


If the service problem is
suspected to be within the QqTOF Systems, CBI agrees to remove the Protein Chip
Interface and re-install the ion source originally shipped with the QqTOF
system to enable ABI to service the instrument system. Once the problem is
fixed, CBI will re-install the Protein Chip Interface. ABI shall supply
adequate training and documentation to CBI people to re-install the ion source
originally shipped with the QqTOF systems.


 


4.                                       ABI shall at
its expense train customers on the use of the QqTOF system, in accordance with
ABI’s normal practices.


 


5.                                       CBI shall
indemnify ABI for all losses due to personal injury or damage to QqTOF
instruments or customer property that may be caused by the ProteinChip
Interface.


 


6.                                       CBI will be
responsible for CE and CSA regulatory compliance. ABI agrees to use its
reasonable best efforts to assist CBI in obtaining CE and CSA compliance.


 


7.                                       In partial
consideration of ABI’s obligations under this agreement, CBI shall pay ABI
$[*] (US) for each ProteinChip Interface it installs on an ABI QqTOF
system.


 


8.                                       During the term
of this agreement, ABI agrees to inform CBI as promptly as is reasonable of any
hardware and software change that materially impacts the design and operation
of the ProteinChip Interface to the QSTAR Pulsar platforms, in order to allow
CBI to make appropriate ProteinChip Interface modifications.


 


9.                                       Mutual
confidentiality obligations in accordance with the NDA signed by ABI and CBI
effective January 1, 2001 shall govern the exchange of information between
the parties during the term of this agreement, which obligations shall extend
for five years after the termination of this agreement. CBI agrees not to
divulge any information concerning, including the identity of, ABI’s QqTOF
system customers to any third party without ABI’s prior written consent.


 


10.                                 The term of the
agreement shall be 2 years. After termination, CBI will continue service
and support of the ProteinChip Interface in accordance with CBI’s standard
practices, but not less than for 5 years. ABI shall continue service and
support of the QqTOF devices in accordance with ABI’s standard practices, but
no less than 5 years.


 


 


[*] Certain information on this page has been
omitted and filed separately with the Commission. Confidential treatment has
been requested with respect to the omitted portions.


 


 

















 


IN WITNESS WHEREOF, the Parties hereto have
caused their duly authorized representatives to execute this Term Sheet.


 


Effective Date of this Agreement:        April 2, 2001


 


 


	
  Ciphergen Biosystems, Inc.

  	
   

  	
  Applied Biosystems, Inc.

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Martin Verhoef

  	
   

  	
  By:

  	
  /s/ Laura Lauman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Name:

  	
  Martin Verhoef

  	
   

  	
  Name:

  	
  Laura Lauman

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title:

  	
  Vice President Sales and
  Marketing

  	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  	
   

  	
   

  	
  LC/MS