Manufacturing and Supply Agreement


    Exhibit
      10.1

     

     

     

    MANUFACTURING
      AND SUPPLY AGREEMENT

     

    between

     

    Combimatrix
      Corporation ("Company")

     

    and

     

    Furuno
      Electric Company, Ltd. (“MANUFACTURER”)


     

    (Dated
      as of 01 July 2006)

     

     

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    



     

    CONTENTS

     

    
      	
              Section
                1.

            	 	Purchase
              and Sale of Products	
              1

            
	
              1.1

            	 	Orders	
              1

            
	
              1.2

            	
               

            	Delivery	
              1

            
	
              1.3

            	 	Rejection of Noncomplying Products	
              2

            
	
              1.4

            	 	Schedule; Delay	
              2

            
	
              1.5

            	 	Warranty	
              2

            
	
              1.6

            	 	Location of Manufacture	
              2

            
	
              1.7

            	 	Product Records	
              3

            
	
              Section
                2.

            	 	Compensation	
              3

            
	
              2.1

            	 	Purchase Price of Products	
              3

            
	
               2.2

            	 	Invoice and Payment	
              3

            
	
               2.3

            	 	Review and Adjustment of Formula Price
              and
              Price Cap	
              3

            
	
               2.4

            	 	Taxes	
              4

            



    
      	
               Section
                3.

            	 	Consideration for Manufacturing
              Rights	
              4

            
	
               3.1

            	 	MANUFACTURER Payments	
              4

            
	
               Section
                4.

            	 	Product Processes; Changes; New
              Products	
              5

            
	
               4.1

            	 	Product Processes and
              Specifications	
              5

            
	
               4.2

            	 	Changes	
              6

            
	
               4.3

            	 	Changes Initiated by Company	
              6

            
	
               4.4

            	 	Implementation	
              6

            
	
               4.5

            	 	New Products	
              7

            


    

     

     

    
      
        i

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              Section 5.

            	 	Ownership and IPR	
              7

            
	
              5.1

            	 	MANUFACTURER-Furnished Items	
              7

            
	
              5.2

            	 	Products	
              7

            
	
              5.3

            	 	Product Processes	
              8

            
	
              5.4

            	 	Names, Trade Names and Trademarks	
              8

            
	
              5.5

            	 	Implementation	
              8

            
	
              Section
                6.

            	 	Protection of Confidential
              Information	
              8

            
	
              6.1

            	 	General	
              8

            
	
              6.2

            	 	Exceptions	
              9

            
	
              Section
                7.

            	 	Term and Termination	
              9

            
	
              7.1

            	 	General	
              9

            
	
              7.2

            	 	Optional Termination	
              9

            
	
              7.3

            	 	Termination for Material Breach or
              Default	
              9

            
	
              7.4

            	 	Termination for Act of Insolvency	
              10

            
	
              7.5

            	 	End of the Term	
              10

            
	
              Section
                8.

            	 	Indemnification	
              10

            
	
              8.1

            	 	By Company	
              10

            
	
              8.2

            	 	By MANUFACTURER	
              11

            
	
              8.3

            	 	Notice and Cooperation	
              11

            
	
              8.4

            	 	Waiver of Certain Immunities, Defenses
              and
              Protections Relating to Employee Injuries	
              11

            
	
              Section
                9.

            	 	Miscellaneous	
              11

            
	
              9.1

            	 	Independent Contractor	
              11

            
	
              9.2

            	 	Notices	
              12

            


    

     

     

    
      
        ii

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	
              9.3

            	 	Compliance With Laws	
              12

            
	
              9.4

            	 	Rights and Remedies Cumulative	
              12

            
	
              9.5

            	 	Publicity	
              12

            
	
              9.6

            	 	Nonwaiver	
              13

            
	
              9.7

            	 	Assignment	
              13

            
	
              9.8

            	 	No Third Party Beneficiaries	
              13

            
	
              9.9

            	 	Severability	
              13

            
	
              9.10

            	 	Attorneys’ Fees	
              14

            
	
              9.11

            	 	Applicable Law	
              14

            
	
              9.12

            	 	Amendments	
              14

            
	
              9.13

            	 	Entire Agreement	
              14

            


    

    
 

    
      
        iii

      

      
        
        

        
          

        

      

      
        
        

      

    

     

     

    
      	
               

              List
                of Exhibits

            
	
              Exhibit

            	 	
              Description

            	 	
              Reference

            
	
              A

            	 	
              Glossary

            	 	
              Preamble

            
	
              B

            	 	
              Product
                Description and Specifications

            	 	
              Glossary

            
	 	 	 	 	 


    

     

     

     

    
      
        iv

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    MANUFACTURING
      AND SUPPLY AGREEMENT

     

     

    This
      Agreement, dated as of 01 July 2006 is made and entered into by and between:
      Combimatrix Corporation, a Delaware corporation (“Company”); and Furuno Electric
      Company, Ltd, a Japanese corporation (“MANUFACTURER”). The definitions of
      certain terms used in this Agreement are set forth in the Glossary attached
      as
      Exhibit A.

     

    Recitals

     

    A.    Company
      develops, markets and sells electrode-containing microarray devices having
      content synthesized thereon or ready for synthesis, associated software,
      associated reagents, and associated instrumentation.

     

    B.    MANUFACTURER
      manufactures medical devices having the ability to transfer exact amounts of
      fluids.

     

    C.    Company
      desires to engage MANUFACTURER, and MANUFACTURER desires to be engaged by
      Company, to exclusively manufacture and supply a certain Synthesizer instrument
      developed under the Development Agreement dated 09 August 2004 (“BTS”) to
      Company subject to and in accordance with the terms and conditions of this
      Agreement.

     

    Agreement

     

    The
      Parties agree as follows:

    
      
         

      

      
        	Section
                1. 	
              	
                Purchase
                  and Sale of Products

              


        	 	 	 


        	 	
                1.1

              	
                Orders

              


      

       

    

    MANUFACTURER
      shall make and deliver to Company or its designee such Products as Company
      may
      from time to time order from MANUFACTURER under this Section 1. Each of
      Company’s orders under this Section 1 shall specify: (a) the name and part
      number of each Product being ordered; (b) the quantity of each Product being
      ordered; (c) the purchase price of each Product being ordered; (d) the dates
      upon which the Products are to be shipped by MANUFACTURER, (e) the destination
      to which the Products are to be shipped by MANUFACTURER; (f) the purchase order
      number and billing instructions; and (g) any additional shipping instructions
      (including, without limitation, specification of any particular carrier,
      insurance, means of shipment or packaging required by Company), provided however
      that unless otherwise approved by MANUFACTURER, Company shall not specify any
      date for delivery of any Product less than four (4) months after the date that
      Company submits the order to MANUFACTURER. 

    
       

       

      
        
          1

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        	 	
                1.2

              	
                Delivery

              


      

       

    

    Prior
      to
      shipment, MANUFACTURER shall inspect each Product to ensure compliance with
      the
      warranty set forth in paragraph 1.5 and compliance with performance
      specifications, which specifications are to be agreed to by the parties.
      MANUFACTURER shall properly package the Products in accordance with the
      Specifications, any instructions set forth in Company’s order and as otherwise
      required for protection against any damage or deterioration during shipment.
      MANUFACTURER shall ship all Products ordered by Company pursuant to paragraph
      1.1 in accordance with all shipping instructions set forth in Company’s order.
      Unless otherwise specified in the applicable order, MANUFACTURER shall ship
      all
      Products FOB the MANUFACTURER Facility to the shipping destination specified
      in
      the applicable order. Company shall pay or reimburse all shipping costs
      reasonably incurred by MANUFACTURER to ship any Products in accordance with
      the
      shipping instructions set forth in Company’s order, including duties and customs
      costs. Title of the Products shall pass to Company upon MANUFACTURER’s receipt
      of the payment for the said Products. Risk of loss with respect to any Product
      shall pass to Company upon loading of the Product at Manufacturer to the carrier
      in accordance with Company’s order.

     

    
      	 	
              1.3

            	
              Rejection
                of Noncomplying Products

            


    

     

    Company
      may reject any Product, within thirty (30) days after the Company’s receipt
      thereof that does not comply with the Warranty set forth in paragraph 1.5.
      Company shall not be obligated to pay any purchase price, shipping costs or
      other amounts otherwise payable to MANUFACTURER for any Products rejected in
      accordance with this paragraph. 

     

    
      	 	
              1.4

            	
              Schedule;
                Delay

            


    

     

    MANUFACTURER
      shall ship all Products ordered by Company under this Section 1 in accordance
      with the shipping schedule and instructions set forth in Company’s applicable
      order under paragraph 1.1. Should MANUFACTURER anticipate that the shipment
      of
      any Products ordered by Company be delayed by any reason, MANUFACTURER shall
      notify Company thereof immediately, and thereafter MANUFACTURER and Company
      shall discuss in good faith on the shipment date of the Products. However,
      MANUFACTURER shall not be liable for any delay in shipment due to any causes
      that are beyond the reasonable control of MANUFACTURER and that cannot be
      overcome by MANUFACTURER’s exercise of reasonable diligence, provided that
      MANUFACTURER gives Company prompt notice of any circumstances that may give
      rise
      to any delay, the anticipated duration of delay and the action being taken
      by
      MANUFACTURER to mitigate the delay and that MANUFACTURER uses its reasonable
      best efforts to mitigate the delay. 

     

    
      	 	
              1.5

            	
              Warranty

            


    

     

    MANUFACTURER
      warrants that, upon delivery, each Product shall: (a) comply with all applicable
      Specifications; (b) be free from all defects in material and workmanship; and
      (c) be free and clear of all mortgages, security interests, levies, liens and
      encumbrances. MANUFACTURER DISCLAIMS ALL OTHER WARRANTIES (INCLUDING, WITHOUT
      LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
      PURPOSE) REGARDING THE PRODUCTS AND Company HEREBY AGREES THAT NO SUCH OTHER
      WARRANTIES APPLY TO ANY PRODUCT.

     

     

    
      
        2

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    The
      Warranty period shall be “[redacted]” from the date of shipment “[redacted]”from
      the Date of Installation at a customer facility, whichever comes
      first.

     

    The
      warranty under this Section 1.5 shall be limited to free supply of replacement
      Products, parts or components to repair or replace any defective Products,
      and
      shall not apply to the defects arising from any of the foregoing:

     

    (a)
      misuse or improper use of the Products;

     

    (b)
      use
      of spare parts not supplied by MANUFACTURER;

     

    (c)
      modification or alteration without prior written permission of MANUFACTURER;
      or

     

    (d)
      the
      Products being repaired by unauthorized person. 

    
       

      
        	 	
                1.6

              	
                
                  Manufacturing
                    Hold

                

              


      

       

    

    During
      the period of “[redacted]” following the first order by Company, the Company may
      request MANUFACTURER to hold the fulfillment of a purchase order for a specified
      period of time. The maximum time period that an order may be held by the
      MANUFACTURER is “[redacted]”. The request to hold fulfillment of a purchase
      order by Company must be made before the shipping date of an order has been
      arranged by MANUFACTURER or no longer than “[redacted]” after the purchase order
      was sent by the Company.

    
      
         

        
          	 	
                  1.7

                	
                  
                    
                      Product
                        Liability

                    

                  

                


        

         

      

    

    MANUFACTURER
      shall maintain product liability insurance coverage for the Products as the
      manufacturer of the Products on such terms and conditions as MANUFACTURER deems
      suitable. Company shall maintain product liability insurance coverage as a
      distributor of the Products and other chemicals and disposable items consistent
      with the terms and conditions provided to customers. 

    
      
         

        
          	 	
                  1.8

                	
                  
                    
                      Manuals

                    

                  

                


        

         

      

    

    MANUFACTURER
      shall be responsible for the creation of and updating of a service manual with
      support from Company concerning hardware and firmware aspects of the BTS
      instrument. Company shall be responsible for the creation and updating of a
      Users Manual with support from MANUFACTURER concerning any and all external
      (to
      the BTS instrument) software aspects.

     

     

    
      
        3

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              1.8

            	
              Location
                of Manufacture

            


    

     

    Except
      as
      otherwise approved by Company in writing, MANUFACTURER shall Make all Products
      at the MANUFACTURER Facility. Upon Company’s request, MANUFACTURER shall provide
      Company safe and sufficient access to the MANUFACTURER Facility and any other
      location at which any Product may be Made as reasonably required for Company
      to
      observe, monitor and evaluate the Making of Products under this Agreement;
      provided that such access shall be during MANUFACTURER's normal business hours
      and will be conducted in a manner which does not unreasonably interfere with
      MANUFACTURER's business. MANUFACTURER shall ensure that the MANUFACTURER
      Facility and any other location at which any Product may be Made shall comply
      with any and all Governmental Requirements applicable to the Making of the
      applicable Products. 

     

    
      	 	
              1.9

            	
              Product
                Records

            


    

     

    MANUFACTURER
      shall prepare appropriate records regarding each Product Made under this
      Agreement (including, without limitation, records of the MANUFACTURER Direct
      Costs and the serial code, date code, lot number, inspector, and shipment
      information relating to each Product, but excluding the costs of raw materials,
      assembly procedures and adjustment procedures). MANUFACTURER shall maintain
      such
      records for a period of “[redacted]” years after the end of the Term. Upon
      Company’s request, MANUFACTURER shall make such records available for audit,
      inspection and reproduction by or on behalf of Company. Further, MANUFACTURER
      shall provide to Company a complete bill of materials for each Product showing
      the supplier and cost of each component of any Product together with such other
      information as Company may reasonably request regarding any Product.


    
      
         

        
          	 	
                  1.10

                	
                  
                    
                      
                        Service
                          Parts 

                      

                    

                  

                


        

         

      

    

    MANUFACTURER
      will be responsible for creating a list of spare parts and a transfer price
      list. Company shall be responsible for setting up an instrument service
      infrastructure to service the installed base of BTS instruments, including
      an
      inventory of most frequently used spare parts. The MANUFACTURER inventory of
      parts shall include at a minimum an amount of commonly ordered spare parts
      sufficient to immediately meet demand based upon the installed base of BTS
      instruments in view of experience with component reliability. 

    
      
         

        
          	 	
                  1.11

                	
                  
                    
                      
                        Training

                      

                    

                  

                


        

         

      

    

    MANUFACTURER
      shall provide to Company’s personnel “[redacted]” training sessions for the
      service of the Products. MANUFACTURER shall bear the costs for trainers for
      such
      training, provided that all the traveling and lodging expenses of the Company
      trainees shall be borne by Company. Should Company require additional training,
      MANUFACTURER shall provide such additional training at the costs and expenses
      (including the costs for trainers) of Company.

    
      
         

         

        
          
            4

          

          
            
            

            
              

            

          

          
            
            

          

        

        
          	 	 	 


          	 	
                  1.12

                	
                  
                    Forecasts
                      and Order Lead Time

                  

                


           

        

      

    

    Company
      shall provide revised rolling annual forecasts of projected BTS instrument
      sales
      by Company and third party distributors every “[reacted]”. The “[redacted]”
forecasts shall each look ahead for “[redacted]” and shall not be binding.
      MANUFACTURER shall accept all orders and promise delivery within “[redacted]”
from the date that Company provides a firm order.

    
       

    

    
      	Section
              2. 	
            	
              Compensation

            


      	 	 	 


      	 	
              2.1

            	
              Purchase
                Price of Products

            


    

     

    Unless
      otherwise agreed upon by the Parties in writing, Company shall pay MANUFACTURER
      a purchase price for each Product Made and delivered under Section 1 equal
      to
      the applicable Transfer Price according to Table 1 below (FOB Japan basis),
      provided, that such Transfer Price shall be adjusted pursuant to the provisions
      of Section 2.3. The Transfer Price shall be determined at the time of the
      order.

     

    
      	
               

              Cumulative
                Number of Units Ordered

            	
               

              Transfer
                Price per unit (US$)

            
	
               

              “[redacted]”

            	
               

              “[redacted]”

            
	
               

              “[redacted]”

            	
               

              “[redacted]”

            
	
               

              “[redacted]”

            	
               

              “[redacted]”

            


    

     

    
      	 	
              2.2

            	
              Invoice
                and Payment

            


    

     

    MANUFACTURER
      shall separately invoice Company for each shipment of Products pursuant to
      and
      in accordance with this Agreement. Each of MANUFACTURER’s invoices under this
      paragraph shall specify the following with respect to the Products included
      in
      the shipment: (a) the number and date of Company’s purchase order for such
      Products; (b) the quantity of each Product; (c) the purchase price payable
      under
      paragraph 2.1; and (d) any shipping costs to be reimbursed by Company pursuant
      to paragraph 1.2. MANUFACTURER shall provide such additional documentation
      and
      information as Company may reasonably request relating to any invoice submitted
      by MANUFACTURER under this paragraph. Within “[redacted]”after receipt of any
      invoice under this paragraph, Company shall pay to MANUFACTURER the amount
      properly due and payable under the invoice in United States dollars. The terms
      and conditions in Company’s purchase order shall apply. Company and MANUFACTURER
      agree that the provisions of this Agreement prevail over the provisions of
      the
      terms and conditions in Company’s purchase order. 

     

    
      	 	
              2.3

            	
              Review
                and Adjustment of Transfer Price


            


    

     

    The
      transfer price shall be adjusted based upon a review of the exchange rate
      between the U.S. dollar and the Japanese yen. The base exchange rate “X” shall
      be determined as the exchange rate existing on 01 July 2006 according to the
      Tokyo Mitsubishi Bank. The following 01 January and 01 July (six month
      intervals) each year the exchange rate shall be determined (successive exchange
      rates) based upon the published rate of Tokyo Mitsubishi Bank. If any of the
      successive exchange rates are either more than “[redacted]” or less than
“[redacted]”(that is, a change of X of greater than or less than “[redacted]”
the transfer price shall be adjusted to be fifty percent of the exchange rate
      difference from X. As an example, if the US dollar is “[redacted]” less than its
“X” value on a successive determination date, the transfer price shall increase
      by five percent. The adjusted transfer price shall apply only to subsequent
      firm
      orders placed after the successive determination dates and not to orders that
      are in process.

     

     

    
      
        5

      

      
        
        

        
          

        

      

      
        
        

      

    

    
       

      
        
          	 	
                  2.4

                	
                  Taxes.
                    Unless otherwise agreed to in writing, each Party shall
                    be solely
                    responsible for the payment of all taxes, duties and other governmental
                    charges imposed upon it in connection with the transactions contemplated
                    hereby.

                


        

         

      

    

    
      
        	Section
                3. 	
              	
                Consideration
                  for Manufacturing Rights

              


        	 	 	 


        	 	
                3.1

              	
                
                  MANUFACTURER
                    Payments.
                    MANUFACTURER shall pay to Company the sum “[redacted]” after the sale of
                    the “[redacted]” BTS instrument (Product) under this Agreement. In
                    addition, MANUFACTURER shall pay to Company “[redacted]” after the sale of
                    the “[redacted]”BTS instrument (Product) under this Agreement. The
                    payments under this section 3.1 are unrefundable once
                    made.

                

              


        	 	 	 


        	 	3.2	
                Exclusive
                  Manufacturing Rights.
                  Company grants to MANUFACTURER the exclusive right to manufacture
                  the BTS
                  instrument, as described in the Specification herein, for the term
                  of this
                  Agreement.

              


        	 	 	 


        	 	3.3	
                Third
                  Party Distributors.
                  The Company shall control Product distribution and the selection
                  of third
                  party distributors of the Product.


              


      

    

     

    
      
        
          	Section
                  4. 	
                	
                  Product
                    Processes; Changes;
                    New
                    Products

                


          	 	 	 


          	 	
                  4.1

                	
                  
                    
                      Product
                        Processes and
                        Specifications

                    

                  

                


        

      

    

     

    Any
      Specifications and Product Processes that are not set forth or referenced in
      the
      applicable Supplement shall be subject to Company’s approval. Prior to the first
      Making of any Product, MANUFACTURER shall prepare and submit to Company’s
      approval for any such Specifications and Product Processes that are required
      for
      the Making of the applicable Product. MANUFACTURER shall provide such
      information as Company may request regarding Product Processes. Company will
      promptly review and either approve or disapprove MANUFACTURER's proposal for
      any
      such Specifications and Product Processes. If Company disapproves any of the
      Specifications or Product Processes proposed by MANUFACTURER, MANUFACTURER
      shall
      revise them taking into account the reasons for Company’s disapproval, and
      resubmit the same to Company. The parties will repeat this process until Company
      approves the required Specifications and Product Processes. If the Parties
      do
      not agree upon any such Specifications or Product Processes that are required
      for the Making of the applicable Product within “[redacted]” after submitted by
      MANUFACTURER or such later date as may be agreed upon by the Parties, then
      either Party may terminate the Supplement for such Product by giving the other
      Party at least “[redacted]” advance written notice of such termination.
      MANUFACTURER shall be solely responsible for the Specifications and Product
      Processes, notwithstanding any approval by Company. MANUFACTURER shall ensure
      that each Product is Made in accordance with the applicable Specifications
      and
      Product Processes. 

     

     

    
      
        6

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              4.2

            	
              Changes

            


    

     

    The
      Parties may make such changes in the Specifications and Product Processes as
      they may mutually agree upon from time to time. Neither Party shall have the
      right to make any unilateral change in the Specifications or Product Processes.
      If the BTS instrument is changed significantly or if improved features are
      added, the transfer price shall be renegotiated in view of any added costs
      or
      reduced costs of the BTS instrument.

     

    
      	 	
              4.3

            	
              Changes
                Initiated by Company

            


    

     

    Company
      may make changes in the Specifications by giving MANUFACTURER reasonable advance
      written notice of the change, provided that any of the following changes shall
      be subject to MANUFACTURER’s approval, which shall not be unreasonably withheld
      or delayed: (a) any change that requires any resources (including, without
      limitation, IPR) that are not provided by Company or commercially available
      to
      MANUFACTURER; (b) any change that causes a material increase in the
      MANUFACTURER’s costs to Make the applicable Product; or (c) any change that
      affects compliance with any Governmental Requirement (e.g.,
      by
      requiring either Party to obtain or modify any approval, consent, authorization
      or other action of any governmental authority having jurisdiction).

     

    
      	 	
              4.4

            	
              Implementation

            


    

     

    In
      the
      event of any change in the Specifications or the Product Processes pursuant
      to
      this Section 4, the Parties shall amend the Product Documentation or Product
      Process Documentation as reasonably required to reflect the change. Further,
      if
      any such change causes an increase or decrease in the MANUFACTURER’s costs to
      make any Product, then the price for such Product shall be discussed in good
      faith and agreed upon between the parties hereto. 

     

    
      	 	
              4.5

            	
              New
                Products

            


    

     

    The
      Parties may, from time to time, add new Products to the scope of this Agreement
      by executing a new Supplement for each such new Product. 

     

     

    
      
        7

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        
          
            	Section
                    5. 	
                  	
                    Ownership
                      and IPR

                  


            	 	 	 


            	 	
                    5.1

                  	
                    
                      
                        
                          MANUFACTURER-Furnished
                            Items

                        

                      

                    

                  


          

        

      

    

     

    MANUFACTURER
      hereby reserves ownership of all tooling, equipment and related items furnished
      and used by MANUFACTURER in performing services under this Agreement, together
      with all IPR associated with ownership of such items. 

     

    
      	 	
              5.2

            	
              Products

            


    

     

    Except
      for the license granted under this paragraph or otherwise agreed upon by the
      Parties in writing after the date of this Agreement: (a) Company reserves any
      and all IPR that Company may have or acquire in or to the Products, the
      Specifications and the Product Documentation; and (b) MANUFACTURER hereby
      assigns and transfers to Company any and all IPR that MANUFACTURER may have
      or
      acquire in or to any of the Products, the Specifications or the Product
      Documentation in connection with MANUFACTURER’s activities under this Agreement.
      Company hereby grants to MANUFACTURER a royalty-free, nonexclusive license,
      without any right to sublicense, to Use the Specifications, Product
      Documentation and Product IPR to Make Products for Company pursuant to and
      in
      accordance with this Agreement. 

     

    
      	 	
              5.3

            	
              Product
                Processes

            


    

     

    Except
      for the licenses granted under this paragraph or otherwise agreed upon by the
      Parties in writing after the date of this Agreement: MANUFACTURER reserves
      any
      and all IPR that MANUFACTURER may have or acquire in or to the Product Processes
      and the Product Process Documentation; and Company reserves any and all IPR
      that
      Company may have or acquire in or to any of the Product Processes. 

     

    
      	 	
              5.4

            	
              Names,
                Trade Names and Trademarks

            


    

     

    This
      Agreement does not grant, create, assign or transfer to either Party any license
      or other right with respect to any name, trade name or trademark of the other
      Party. The foregoing shall not be interpreted or construed as prohibiting either
      Party from disclosing the existence of this Agreement or the fact that the
      other
      Party is a party to this Agreement.

     

    
      	 	
              5.5

            	
              Implementation

            


    

     

    Each
      Party shall take such action (including, without limitation, the execution,
      delivery and filing of documents and the provision of information, documents
      and
      testimony) as the other Party may reasonably request to effect, perfect,
      evidence or protect the Parties’ respective IPR and other property as described
      in this Section 5, provided that the requesting Party shall pay or reimburse
      all
      of the costs reasonably incurred by the other Party in taking any action
      requested pursuant to this paragraph.

     

     

    
      
        8

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        
          
            
              	Section
                      6. 	
                    	
                      Protection
                        of Confidential
                        Information

                    


              	 	 	 


              	 	
                      6.1

                    	
                      
                        
                          
                            
                              General

                            

                          

                        

                      

                    


            

          

        

      

       

    

    In
      the
      performance of this Agreement, either Party may disclose to the other Party
      certain Confidential Information. In such event, the Recipient shall protect
      such Confidential Information of the Discloser against any unauthorized Use
      or
      Distribution to the same extent that the Recipient protects its own Confidential
      Information of a similar nature against unauthorized Use or Distribution (but
      in
      no event using less than commercially reasonable efforts to protect the
      Confidential Information), provided that the Confidential Information of the
      Discloser is conspicuously marked or otherwise identified as confidential or
      proprietary upon receipt by the Recipient or the Recipient otherwise knows
      or
      has reason to know that the same is Confidential Information of the Discloser.
      For purposes of the foregoing, the Specifications and Product Documentation
      shall be presumed to be Confidential Information of Company without any
      particular marking or other identification as being confidential or proprietary.
      Without limiting the foregoing: (a) the Recipient shall Use such Confidential
      Information solely for the purposes for which it has been disclosed by the
      Discloser; (b) the Recipient shall disclose such Confidential Information only
      to those of its employees, agents, consultants and other representatives who
      have a need to know the same for the purposes described in (a) above, and who
      understand and acknowledge their obligation and willingness to preserve and
      hold
      such Confidential Information in strict confidence; (c) the Recipient shall
      not
      copy or authorize the copying of any Confidential Materials, except as required
      for the purposes described in (a) above or otherwise authorized by the Discloser
      in writing; and (d) any copy of any Confidential Materials that is Made or
      authorized by the Recipient shall contain all copyright, confidentiality or
      other proprietary notices contained on such document as delivered by the
      Discloser.

     

    
      	 	
              6.2

            	
              Exceptions

            


    

     

    Paragraph
      6.1 shall not be interpreted or construed to restrict or prohibit any Use:
      (a)
      that is reasonably necessary or appropriate in connection with the Recipient’s
      performance of its obligations or exercise of its rights under this Agreement
      or
      any other agreement between the Parties; (b) required by applicable law
      (e.g.,
      pursuant to applicable securities laws or legal process), provided that the
      Recipient uses reasonable efforts to give the Discloser reasonable advance
      notice thereof and to limit the extent the Confidential Information is
      disclosed; (c) made with the consent of the Discloser or (d) are generally
      available in the public domain.

    
       

      
        
          
            
              
                	Section
                        7. 	
                      	
                        Term
                          and
                          Termination

                      


                	 	 	 


                	 	
                        7.1

                      	
                        
                          
                            
                              
                                General

                              

                            

                          

                        

                      


              

               

            

          

        

      

    

    The
      Term
      shall commence as of the date of this Agreement and shall continue unless and
      until terminated pursuant to paragraph 7.2, 7.3 or 7.4 of this
      Agreement.

     

     

    
      
        9

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              7.2

            	
              Optional
                Termination

            


    

     

    Either
      Party may terminate the Term by giving the other Party written notice of
      termination under this paragraph; provided, however, that no termination under
      this paragraph shall be effective prior to the later of: (a) “[redacted]”; or
      (b) the expiration of “[redacted]” after receipt of the notice of termination.


     

    
      	 	
              7.3

            	
              Termination
                for Material Breach or
                Default

            


    

     

    If
      either
      Party commits a material breach of or default under this Agreement, then the
      other Party may give notice that the breach or default has occurred (including,
      but not necessarily limited to, a statement of the facts relating to the breach
      or default, the provisions of this Agreement that are in breach or default,
      and
      the action required to cure the breach or default) and that the Term shall
      terminate pursuant to this paragraph if the breach or default is not cured
      within “[redacted]” after receipt of notice (or such later date as may be
      specified in such notice). If the specified breach or default is not cured
      within “[redacted]” after receipt of such notice (or such later date as may be
      specified in such notice), then the Term shall terminate. 

     

    
      	 	
              7.4

            	
              Termination
                for Act of Insolvency

            


    

     

    If
      an Act
      of Insolvency occurs with respect to either Party, then the other Party may
      terminate the Term by giving written notice of such termination.

     

    
      	 	
              7.5

            	
              End
                of the Term

            


    

     

    Should
      this Agreement be terminated by either party pursuant to paragraphs 7.2, 7.3
      or
      7.4, the following shall apply, unless otherwise agreed by the Parties: (a)
      the
      Parties shall cooperate to effect an orderly, efficient, effective and
      expeditious termination of their respective activities under this Agreement;
      (b)
      MANUFACTURER shall deliver to Company any and all Company-Furnished Items and
      any other property of Company then in MANUFACTURER’s possession or control; and
      (c) Sections 2, 6, 7.5, 8 and 9 shall survive. In the event the MANUFACTURER
      terminates this Agreement due to a breach by Company under paragraph 7.3,
      MANUFACTURER may cancel any outstanding orders without any cost, penalty or
      liability to MANUFACTURER.

    
      
         

        
          
            
              
                
                  	Section
                          8. 	
                        	
                          Indemnification

                        


                  	 	 	 


                  	 	
                          8.1

                        	
                          
                            
                              
                                
                                  
                                    By
                                      Company

                                  

                                

                              

                            

                          

                        


                

                 

                
                  Company
                    shall defend and indemnify MANUFACTURER from and against any
                    and all claims that
                    may arise out of or in connection with any: (a) property damage
                    or bodily injury
                    (including death), if and to the extent the same is attributable
                    to the fault,
                    negligence or strict liability of Company, or any employee, subcontractor
                    or
                    supplier of Company, or any other Person acting under the direction
                    or
                    supervision of Company or its subcontractors or suppliers (other
                    than
                    MANUFACTURER or MANUFACTURER’s employees, subcontractors or suppliers);
“[redacted]” Without limiting the foregoing, Company shall pay or reimburse
                    any
                    and all costs and expenses (including, but not limited to, reasonable
                    attorneys’
fees) incurred in connection with the defense, settlement or
                    satisfaction of any
                    such claim (including, but not limited to, any damages, liabilities
                    or losses
                    based upon any such
                    claim).

                

              

            

          

        

      

    

     

     

    
      
        10

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              8.2

            	
              By
                MANUFACTURER

            


    

     

    MANUFACTURER
      shall defend and indemnify Company from and against any and all claims that
      may
      arise out of or in connection with any: (a) property damage or bodily injury
      (including death), if and to the extent the same is attributable to the fault,
      negligence or strict liability of MANUFACTURER, or any employee, contractor
      or
      supplier of MANUFACTURER, or any other Person acting under the direction or
      supervision of MANUFACTURER or its subcontractors or suppliers (other than
      Company or Company’s employees, subcontractors or suppliers); “[redacted]”
Without limiting the foregoing, MANUFACTURER shall pay or reimburse any and
      all
      costs and expenses (including, but not limited to, reasonable attorneys’ fees)
      incurred in connection with the defense, settlement or satisfaction of any
      such
      claim.

     

    
      	 	
              8.3

            	
              Notice
                and Cooperation

            


    

     

    If
      any
      Party desires to enforce any other Party’s obligations under paragraphs 8.1 or
      8.2 with respect to any claim thereunder, the enforcing Party shall: (a) give
      the other Party written notice of such claim promptly after the Party seeking
      to
      enforce such obligations receives notice of the same; (b) cooperate with the
      other Party in connection with the defense, settlement and satisfaction of
      such
      claim (at the other Party’s reasonable expense); and (c) not settle such claim
      without the prior written consent of the other Party, which consent shall not
      be
      unreasonably withheld.

     

    
      	 	
              8.4

            	
              Waiver
                of Certain Immunities, Defenses and Protections Relating to Employee
                Injuries

            


    

     

    In
      connection with any action to enforce a Party’s obligations under paragraphs 8.1
      or 8.2 above with respect to any claim arising out of any bodily injury
      (including death) to an employee of such Party, such Party waives any immunity,
      defense, or protection under any workers’ compensation, industrial insurance, or
      similar laws. This paragraph shall not be interpreted or construed as a waiver
      of a Party’s right to assert any such immunity, defense or protection directly
      against any of its own employees or such employee’s estate or other
      representatives.

    
       

      
        
          
            
              
                	Section
                        9. 	
                      	
                        Dispute
                          Resolution

                      


                	 	 	 


              

               

              
                9.1
                  First
                  Stage Consultation. All disputes, controversies and differences that
                  may arise between the Parties hereto in respect of any Agreement
                  shall try to be
                  settled amicably through mutual consultation within “[redacted]” of a written
                  settlement request of either Party.

              

              
                	 	
                         

                      	
                        
                          
                            
                              
                                 

                              

                            

                          

                        

                      


              

               

            

          

        

      

    

     

    
       

       

      
        
          11

        

        
          
          

          
            

          

        

        
          
          

        

      

       

      
        
          9.2 
            ICC
            Arbitration.  Any
            disputes arising out of or in connection with any Agreement, including
            any
            question regarding its existence, validity, breach, violation or termination,
            shall be exclusively and finally settled under the Rules of Conciliation
            and
            Arbitration of the International Chamber of Commerce effective January
            1st
            1998 in
            the then applicable form (“ICC Rules”) by three arbitrators (the “Arbitral
            Tribunal”) appointed in accordance with the said ICC Rules. Such arbitration
            shall take place in (a) Seattle, Washington, United States of America,
            if
            initiated by MANUFACTURER,
            or (b)
            Osaka, Japan, if initiated by Company. Any award granted by the Arbitral
            Tribunal shall be final, binding and enforceable against the Parties.
            The
            arbitration shall at all times be held in the English language, provided,
            however, that (i) a Party may submit documents in the Japanese language
            and such
            submitted documents will only be translated into the English language
            if the
            Arbitral Tribunal or a Party so requests, and (ii) that the cost of translation
            of any such Japanese language documents shall be at the sole expense
            of the
            Party submitting such documents. Discovery shall only be admissible to
            the
            extent permitted and not prohibited under Article 20 of the ICC-Rules
            and agreed
            upon by the Parties who shall cooperate with one another at the outset
            of the
            proceeding to define the extent of discovery reasonably needed to complete
            the
            proceeding. The procedural law of the State of Washington shall otherwise
            be
            applied to any proceedings held in connection with said arbitration.
            Judgment
            upon an award rendered by the Arbitrators shall be binding and may be
            entered in
            any court with appropriate jurisdiction, and the Parties consent to jurisdiction
            therein for the purpose of such enforcement. Notwithstanding anything
            to the
            contrary contained in this Agreement or elsewhere, each of the parties
            hereby
            acknowledges and expressly agrees that any breach by it of this Agreement,
            which
            does or may result in loss of confidentiality of the Confidential Information,
            would cause irreparable harm to the other party for which money damages
            would
            not be an adequate remedy. Therefore, each of the Parties hereby agree,
            that in
            the event of any breach of this Agreement by it, the non-breaching Party
            will
            have the right to seek injunctive relief in a court of competent jurisdiction
            against continuing or further breach by the breaching Party, without
            the
            necessity of proof of actual damages, in addition to any other right
            which
            either Party may have under this Agreement, or otherwise in law or in
            equity.

        

      

    

    
       

      
        
          
            
              
                	Section
                        10. 	
                      	
                        Miscellaneous

                      


                	 	 	 


                	 	
                        10.1 

                      	
                        Independent
                          Contractor

                      


                	 	
                         

                      	
                        
                          
                            
                              
                                
                                  
                                     

                                  

                                

                              

                            

                          

                        

                      


              

            

          

        

      

    

    Each
      Party is an independent contractor in the performance of this Agreement. Without
      limiting the generality of the foregoing, each Party shall properly withhold
      and
      pay, or ensure that a Third Party properly withholds and pays for, all federal
      income, workers’ compensation, employer’s liability, pension, deferred
      compensation, welfare, insurance and other employee taxes or benefits payable
      to
      or on behalf of any Person engaged by such Party to perform any of its
      obligations under this Agreement. Neither Party shall have, by virtue of this
      Agreement, any right, power or authority to enter into any contract or to assume
      or incur any other commitment or obligation in the name of or on behalf of,
      to
      act as the agent or representative of, or to otherwise bind the other Party.
      This Agreement shall not be interpreted or construed to create or evidence
      a
      partnership, joint venture or franchise among the Parties or as imposing any
      partnership, joint venture or franchise obligation or liability on either
      Party.

     

     

    
      
        12

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              10.2

            	
              Notices

            


    

     

    Any
      notice required or permitted under this Agreement shall be given in writing
      and
      shall be deemed effectively given upon personal delivery to the Person to be
      notified, upon receipt of an electronic facsimile transmission, or upon deposit
      with the United States Post Office, postage prepaid, registered or certified
      with return receipt requested. Any notice to a Party shall be addressed to
      such
      Party at the address specified below, and to the attention of the individual
      designated. 

     

    
      	 	If to MANUFACTURER:	
              Furuno
                Electric Company, Ltd.

              2-20,
                Nishinomiyahama

              Nishinomiya-City,
                662-0934, JAPAN

              Attention:
                Shun-ichi Nishi

            
	 	 	 
	 	If to Company:	
              Combimatrix
                Corporation

              6500
                Harbour Heights Parkway

              Mukilteo,
                Washington 98275 US

              Attention:
                Legal Department

            


    

     

    Any
      Party
      may from time to time change such address or individual by giving the other
      Parties notice of such change in accordance with this paragraph. 

     

    
      	 	
              10.3

            	
              Compliance
                With Laws

            


    

     

    In
      performance of this Agreement, each Party shall comply with all applicable
      Governmental Requirements.

     

    
      	 	
              10.4

            	
              Rights
                and Remedies Cumulative

            


    

     

    Any
      right
      or remedy afforded to either Party under any provision of this Agreement on
      account of any breach or default by the other Party is in addition to, and
      not
      in lieu of, any and all other rights and remedies afforded to such Party under
      any other provision of this Agreement, by law or otherwise on account of such
      breach or default.

     

    
      	 	
              10.5

            	
              Publicity

            


    

     

    Neither
      Party shall issue any press release or similar publicity regarding this
      Agreement without the prior approval of the other Party. MANUFACTURER shall
      not
      use the name or any trade name or trademark of Company as a reference or in
      any
      sales, marketing or other promotional material without the prior written consent
      of Company.

     

    
      	 	
              10.6

            	
              Nonwaiver

            


    

     

    The
      failure of either Party to insist upon or enforce strict performance of any
      provision of this Agreement, or to exercise any right or remedy under this
      Agreement, shall not be interpreted or construed as a waiver or relinquishment
      to any extent of such Party’s right to assert or rely upon any such provision,
      right or remedy in that or any other instance; rather, the same shall be and
      remain in full force and effect.

     

     

    
      
        13

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              10.7

            	
              Assignment

            


    

     

    Neither
      Party shall assign (voluntarily, by operation of law or otherwise) this
      Agreement or any right, interest or benefit under this Agreement without the
      prior written consent of the other Party, which consent shall not be
      unreasonably withheld. However, either Party may assign all of its rights,
      interests and benefits under this Agreement, without the prior written consent
      of the other Party, to any successor of the assigning Party’s entire business
      (e.g.,
      by way
      of a merger, consolidation or other corporate reorganization or any sale other
      transfer of all or substantially all of the assets of the assigning Party),
      provided that the successor assumes or is otherwise bound by all of the
      assigning Party’s obligations and liabilities under this Agreement. No
      assignment, with or without such consent, shall relieve the assigning Party
      from
      any of its obligations or liabilities under this Agreement, whether arising
      before or after the assignment. Subject to the foregoing, this Agreement shall
      be fully binding upon, inure to the benefit of and be enforceable by the Parties
      and their respective successors and assigns.

     

    
      	 	
              10.8

            	
              No
                Third Party Beneficiaries

            


    

     

    This
      Agreement is for the benefit of, and shall be enforceable by, the Parties only.
      This Agreement is not intended to confer any right or benefit on any Third
      Party. No action may be commenced or prosecuted against a Party by any Third
      Party claiming as a third-party beneficiary of this Agreement or any of the
      transactions contemplated by this Agreement.

     

    
      	 	
              10.9

            	
              Severability

            


    

     

    This
      Agreement shall be enforced to the fullest extent permitted by applicable law.
      If any provision of this Agreement is held to be invalid or unenforceable to
      any
      extent, then: (a) such provision shall be interpreted, construed or reformed
      to
      the extent reasonably required to render the same valid, enforceable and
      consistent with the original intent underlying such provision; (b) such
      provision shall be void to the extent it is held to be invalid or unenforceable;
      (c) such provision shall remain in effect to the extent that it is not invalid
      or unenforceable; and (d) such invalidity or unenforceability shall not affect
      any other provision of this Agreement or any other agreement between the
      Parties. If the invalidity or unenforceability is due to the unreasonableness
      of
      the scope or duration of the provision, then the provision shall remain
      effective for such scope and duration as may be determined to be
      reasonable.

     

    
      	 	
              10.10

            	
              Applicable
                Law

            


    

     

    This
      Agreement shall be interpreted, construed and enforced in all respects according
      to the laws of the state of Washington without reference to its choice-of-law
      rules to the contrary, except to the extent preempted by the laws of the United
      States. 

     

     

    
      
        14

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      	 	
              10.11

            	
              Amendments

            


    

     

    No
      amendment, modification or waiver of any provision of this Agreement shall
      be
      valid unless set forth in a written instrument signed by the Party to be bound
      thereby.

     

    
      	 	
              10.12

            	
              Entire
                Agreement

            


    

     

    This
      Agreement (including, without limitation, Exhibits A through B) sets forth
      the
      entire agreement, and supersedes any and all prior proposals, understandings
      and
      agreements between the Parties with regard to the Making of Products by
      MANUFACTURER. 

     

    IN
      WITNESS WHEREOF, the Parties have entered into and signed this Agreement as
      of
      the date first set forth above.

     

    


    
      	
               

              CombiMatrix
                Corporation:

               

               

              By:
                /s/ Amit
                Kumar                                  

              President

            	
               

              Furuno
                Electric:

              
              

               

              By:
                /s/ Hidetoshi
                Tanigaki                          

              Managing
                Director

            


    

     

    


    
      
        15

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    Exhibit
      A

     

    Glossary

     

     

    Whenever
      used in this Agreement with the initial letter capitalized, the following terms
      shall have the following specified meanings:

     

    “Act
      of Insolvency”
      means
      the occurrence of any of the following: (a) the filing of a petition by or
      against a Party to have such a Party adjudged as bankrupt or a petition for
      reorganization or arrangement of such Party under any Debtor Relief Law (unless,
      in the case of a petition filed against such Party, the same is dismissed within
      “[redacted]” after it is filed); (b) the making of any general assignment
      or general arrangement for the benefit of a Party’s creditors under any Debtor
      Relief Law; (c) the appointment of a trustee or receiver to take possession
      of all or substantially all of a Party’s assets under any Debtor Relief Law
      (unless such possession is returned to such Party within “[redacted]” after such
      appointment); (d) the attachment, execution or other judicial seizure of
      all or substantially all of a Party’s assets (unless the same is released within
“[redacted]”; or (e) the dissolution or liquidation by or of a Party, or
      the adoption of any plan of dissolution or liquidation, if such Party does
      not
      continue as a viable business in altered form.

     

    “Confidential
      Information”
      means
      any information that is proprietary or confidential or that a Party is obligated
      to keep confidential (e.g.,
      pursuant to a contractual or other obligation owing to a Third Party).
      Confidential Information may be of a technical, business or other nature
      (including, but not limited to, information that relates to a Party’s
      technology, research, development, Products, customers, employees, contractors,
      marketing plans, finances, contracts, legal affairs or business affairs).
      However, Confidential Information does not include any information that: (a)
      was
      known to the Recipient prior to receiving the same from the Discloser in
      connection with this Agreement; (b) is independently developed by the Recipient;
      (c) is acquired by the Recipient from another source without restriction as
      to
      Use or disclosure; or (d) is or becomes part of the public domain through no
      fault or action of the Recipient.

     

    “Confidential
      Material”
      means
      any document, diskette, tape, writing, prototype or other tangible item (whether
      in handwritten, printed, coded, magnetic, electronic or other form or media)
      that contains, displays, embodies or manifests any Confidential
      Information.

     

     “Debtor
      Relief Law”
      means
      any bankruptcy, moratorium, insolvency, reorganization, liquidation,
      conservatorship, or similar law, now or hereafter in effect, for the relief
      of
      debtors and that affects the rights of creditors generally.

     

    “Discloser”
      means a
      Party that discloses Confidential Information to the other Party.

     

     

    
      
        A-1

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Governmental
      Requirement”
      means
      any law, rule, regulation, order, judgment, decree, standard or other
      requirement of any legislative, administrative, judicial, military, civil or
      other authority having jurisdiction.

     

    “MANUFACTURER
      Facility”
      means
      the MANUFACTURER Production and testing facilities specified in the
      Supplement.

     

    “IPR”
      means
      any patent, copyright, trademark, service mark, trade name, trade secret, mask
      work, moral right or other intellectual property right under the laws of any
      jurisdiction, whether registered, unregistered, statutory, common law or
      otherwise (including, without limitation, any rights to sue, recover damages
      or
      obtain relief for any past infringement, and any rights under any application,
      assignment, license, legal opinion, or search). 

     

    “Make”
      (or any
      conjugation thereof as the context may require) means to manufacture, fabricate,
      assemble, produce or otherwise make (or any conjugation thereof as the context
      may require).

     

    “Party”
      means
      MANUFACTURER, Company or any Person that acquires all of the right, title or
      interest of MANUFACTURER or Company in this Agreement in accordance with
      paragraph 9.7.

     

    “Person”
      means
      any individual, corporation, limited liability company, partnership, trust,
      association, governmental authority or other entity.

     

    “Product”
      means
      the BTS instrument to be Made by MANUFACTURER for Company under this Agreement,
      as more particularly described in the Specifications of Exhibit B.

     

    “Product
      Documentation”
      means
      the designs, drawings, plans, bills of materials, specifications and other
      documentation (whether in handwritten, printed, coded, magnetic, electronic
      or
      other form or media) that defines or otherwise describes any Product, all as
      set
      forth or referenced in the applicable Supplement or otherwise agreed upon by
      the
      Parties.

     

    “Product
      Processes”
      means
      the methods, techniques, procedures and processes Used by MANUFACTURER in the
      Making of Products.

     

    “Product
      Process Documentation”
      means
      the designs, drawings, plans, bills of materials, specifications and other
      documentation (whether in handwritten, printed, coded, magnetic, electronic
      or
      other form or media) developed by or for either Party that defines or otherwise
      describes the Product Processes, all as set forth or referenced in the
      applicable Supplement or otherwise agreed upon by the Parties.

     

    “Recipient”
      means a
      Party that receives Confidential Information from the other Party.

     

    “Specifications”
      means
      the descriptions, criteria, designs, drawings, specifications and other
      requirements relating to the size, form, fit, functionality, performance,
      durability, quality, color, composition and other characteristics of the
      Products, all as set forth or referenced in Exhibit B, the Product Documentation
      or otherwise provided by Company and MANUFACTURER in writing and accepted by
      both Company and MANUFACTURER. The Specifications may be supplemented by the
      Parties as provided herein.

     

     

    
      
        A-2

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Term”
      means
      the period of time set forth in Section 6.

     

    “Third
      Party”
      means
      any Person that is not a Party.

     

    “Use”
      (or any
      conjugation thereof as the context may require) means employ, consume,
      incorporate, manipulate, operate, perform, copy, duplicate, display, publish,
      disclose or otherwise use (or any conjugation thereof as the context may
      require).

     

    


    
      
        A-3

      

      
        
        

        
          

        

      

      
        
        

      

    


     

    Exhibit
      B

     

    Product
      Description and Product Specifications

     

     

    1. “[redacted]”

     

    2. “redacted]”

     

     

     

     

    B-1