CONSIDERATION, EXCEPT THAT EITHER PARTY MAY ASSIGN THIS SUPPLY
AGREEMENT TO AN AFFILIATE WITHOUT THE NEED FOR CONSENT OF THE OTHER PARTY, BUT
WILL PROVIDE NOTICE OF THE ASSIGNMENT NO LATER THAN THIRTY (30) DAYS AFTER SUCH
ASSIGNMENT. FOR CLARITY, COMBIMATRIX WILL PROVIDE WRITTEN NOTICE AND OBTAIN
ILLUMINA'S CONSENT BEFORE ASSIGNING THIS SUPPLY AGREEMENT TO ANY PARTY,
INCLUDING AN AFFILIATE, THAT WOULD GIVE ILLUMINA THE RIGHT TO [ * ]
8
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. "[ * ]" BRACKETED ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
[ * ] IS IN EFFECT AT THE TIME OF THE ASSIGNMENT.
10.3
ANY PURPORTED ASSIGNMENT OR DELEGATION OTHER THAN IN
ACCORDANCE WITH THIS SECTION IS VOID AND INEFFECTIVE FOR ALL PURPOSES.
11.
CONFIDENTIALITY OF AGREEMENT TERMS.
11.1
SUBJECT TO CONTRARY LAW, REGULATION, OR COURT ORDER,
THE PARTIES AGREE TO MAINTAIN THE TERMS OF THIS SUPPLY AGREEMENT IN CONFIDENCE,
EVEN IF NOT TANGIBLY MARKED WITH A CONFIDENTIAL MARKING, UNDER THE TERMS AND
CONDITIONS OF ARTICLE 5.
12.
WARRANTIES; LACK OF WARRANTY
12.1
CombiMatrix represents and warrants the following:
(i) it is duly authorized to grant the rights and licenses it grants to Illumina
and its Affiliates under this Supply Agreement, (ii) it is the owner of the
Patent Rights and Know How Rights, and (iii) as of the Effective Date,
CombiMatrix does not have rights (by ownership or license) to any intellectual
property other than Patent Rights and Know How Rights, wherein such intellectual
property would be infringed by the practice by Illumina, its Affiliates, or its
customers of the rights granted under Section 3.2 of this Supply Agreement.
12.2
EXCEPT AS EXPRESSLY STATED IN THIS SUPPLY AGREEMENT,
INCLUDING EXHIBIT C, COMBIMATRIX MAKES NO WARRANTIES OR REPRESENTATIONS
WHATSOEVER, INCLUDING, WITHOUT LIMITATION, EXPRESS OR IMPLIED WARRANTIES OF
NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ALL
SUCH WARRANTIES AND ANY RELATED WARRANTIES ARE EXPRESSLY DISCLAIMED.
13.
PARAGRAPH HEADINGS; INTERPRETATION; COUNTERPARTS.
13.1
PARAGRAPH HEADINGS ARE INSERTED HEREIN SOLELY FOR
CONVENIENCE AND SHALL NOT BE CONSTRUED AS PART OF THIS SUPPLY AGREEMENT.
13.2
THE TERMS "SHALL" AND "WILL" ARE USED SYNONOMOUSLY;
ANY USE OF "FOR EXAMPLE" IS UNDERSTOOD TO BE A NON-LIMITING EXAMPLE; ANY USE OF
"INCLUDING" IS UNDERSTOOD TO BE FOLLOWED BY "BUT NOT LIMITED TO" EVEN IF THAT
PHRASE IS NOT WRITTEN; THE SINGULAR AND PLURAL TERMS ARE SYNONOMOUS EXCEPT AS
THE CONTEXT OTHERWISE REQUIRES; THE SUPPLY AGREEMENT SHALL NOT BE INTERPRETED
FOR OR AGAINST EITHER PARTY MERELY BECAUSE A PARTY DRAFTED THIS SUPPLY
AGREEMENT.
13.3
THE PARTIES MAY EXECUTE THIS SUPPLY AGREEMENT IN
COUNTERPARTS, AND EACH COUNTERPART IS DEEMED AN ORIGINAL, AND ALL COUNTERPARTS,
AS A COLLECTIVE, CONSTITUTE ONE AGREEMENT.
9
CONFIDENTIAL MATERIAL OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION. "[ * ]" BRACKETED ASTERISKS DENOTE SUCH OMISSIONS.
CONFIDENTIAL
14.
WAIVER.
14.1
NO TERM OR CONDITION OF THIS SUPPLY AGREEMENT IS
DEEMED TO HAVE BEEN WAIVED, AND THERE IS NO ESTOPPEL AGAINST THE ENFORCEMENT OF
ANY PROVISION OF THIS SUPPLY AGREEMENT, EXCEPT