AN EXCLUSIVE OR NON-EXCLUSIVE
BASIS IN ACCORDANCE WITH SECTION 8 ABOVE.
HOEFER WILL DURING THE INITIAL TERM
OF THIS AGREEMENT DEDICATE NOT LESS THAN A MONTHLY AVERAGE (CALCULATED OVER THE
INITIAL TERM) OF AN AGGREGATE OF THREE FULL TIME EQUIVALENT EMPLOYEES WITHIN ITS
RESEARCH AND DEVELOPMENT DEPARTMENT TO UPDATING EXISTING PRODUCTS AND DEVELOPING
NEW PRODUCTS.
(H)
HOEFER SHALL, AS REASONABLY REQUESTED, PERFORM MAINTENANCE, SERVICE AND
REPAIR ACTIVITIES FOR PRODUCTS AT HOEFER'S THEN CURRENT RATES AND TERMS FOR SUCH
SERVICES AND AT LEVELS CONSISTENT WITH PRIOR PRACTICE.
IF HOEFER DOES NOT
CURRENTLY PROVIDE SUCH SERVICES AS OF THE DATE THEY ARE REQUESTED, HOEFER WILL
PROVIDE THEM TO AB AT HOEFER'S THEN CURRENT RATES AND TERMS.
(I)
HOEFER SHALL MAKE AVAILABLE SPARE PARTS FOR PRODUCTS FOR A PERIOD OF NOT
LESS THAN SEVEN (7) YEARS FOLLOWING THE DATE THE RELEVANT PRODUCT IS
DISCONTINUED BY HOEFER; PROVIDED THAT AB SHALL IMMEDIATELY NOTIFY HOEFER IN THE
EVENT THAT ITS COMMITMENTS TO ITS CUSTOMERS TO MAKE SPARE PARTS AVAILABLE FOR
DISCONTINUED PRODUCTS PROVIDE FOR A SHORTER PERIOD, AND IF ANY SUCH COMMITMENTS
PROVIDE FOR A SHORTER PERIOD, THE TERM OF HOEFER'S APPLICABLE OBLIGATION SET
FORTH IN THIS SECTION 10.1(I) WILL BE AUTOMATICALLY REDUCED TO SUCH SHORTER
PERIOD IN ACCORDANCE WITH SUCH
15
notice.
Both parties accept and agree that the price of spare parts for
discontinued Products may increase at a higher rate than the caps on price
increases contemplated in Section 5.3 and thus, if Hoefer's costs for such spare
parts increase at a rate greater than the caps on price increases set forth in
Section 5.3, Hoefer and AB will negotiate the transfer price for such spare
parts in good faith.
(J)
HOEFER SHALL COMPLY WITH ALL APPLICABLE EXPORT CONTROL LAWS AND REGULATIONS
RELATING TO HOEFER'S EXPORT OF PRODUCTS PURSUANT TO THIS AGREEMENT AND SHALL
PROVIDE INFORMATION AND DOCUMENTATION REASONABLY NECESSARY OR USEFUL TO ASSIST
AB IN COMPLYING WITH ITS OBLIGATIONS UNDER APPLICABLE EXPORT CONTROL LAWS AND
REGULATIONS; PROVIDED THAT AB REIMBURSE HOEFER FOR ANY AND ALL REASONABLE
OUT-OF-POCKET EXPENSES INCURRED BY HOEFER IN CONNECTION WITH PERFORMING THE
FOREGOING OBLIGATIONS.
(K)
HOEFER SHALL MAKE CHANGES TO THE PACKAGING AND LABELING OF THE PRODUCTS AS
MIGHT BE REASONABLY REQUESTED BY AB; PROVIDED THAT AB SHALL REIMBURSE HOEFER FOR
ANY AND ALL REASONABLE OUT-OF-POCKET EXPENSES INCURRED BY HOEFER IN CONNECTION
WITH PERFORMING THE FOREGOING OBLIGATIONS (OTHER THAN ANY EXPENSES INCURRED BY
HOEFER TO MODIFY ITS MANUFACTURING PROCEDURES TO REMOVE HOEFER TRADEMARKS FROM
PRODUCTS SUPPLIED TO AB PURSUANT TO THIS AGREEMENT), INCLUDING THE COST OF ANY
MATERIALS HOEFER HAS TO SCRAP AS A RESULT OF THESE CHANGES.
11.
Duties of AB.
11.1
DUTIES OF AB.
WITHOUT LIMITING ANY OF ITS
OBLIGATIONS OTHERWISE SET FORTH IN THIS AGREEMENT, AB SHALL, EXCEPT AS OTHERWISE
PROVIDED BELOW, AT ITS SOLE EXPENSE, PERFORM THE FOLLOWING DUTIES:
(A)
AB SHALL USE COMMERCIALLY REASONABLE EFFORTS TO MARKET, PROMOTE AND SELL
THE PRODUCTS.
FOR PURPOSES OF THIS SECTION 11.1(A), "COMMERCIALLY REASONABLE
EFFORTS" SHALL MEAN THE (I) LISTING AND DISPLAYING OF THE PRODUCTS