EXHIBIT 10.17
PROGRAM AGREEMENT
THIS PROGRAM AGREEMENT ("Agreement") is dated as of ___________, 1999 by and
between GENERAL ELECTRIC COMPANY, acting through GE HEALTHCARE FINANCIAL
SERVICES ("GE"), a New York corporation, with an address at Suite 300, ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, and OMNICELL TECHNOLOGIES, INC.
("OMNICELL"), a California corporation, with its principal place of business and
address at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, together with their
respective permitted successors and assigns.
OMNICELL and GE are entering into this Agreement with the principal objective of
providing a customer financing capability to support (i) the leasing of
equipment ("Equipment"), and (ii) the licensing of software products related to
the Equipment ("Software"), in each case manufactured or distributed by OMNICELL
in the United States (the "Program"). The Equipment and the license of Software
(if any) are hereinafter referred to as a "System".
NOW THEREFORE, in consideration of the above premises and of the
representations, warranties and agreements contained herein, the parties hereby
agree as follows:
1. DEFINITIONS.
a. "Agreement" means this Program Agreement and any riders, addenda,
exhibits and written amendments hereto.
b. "Application" means an application (including credit and financial
information concerning the Customer) and related documents required by
GE in accordance with this Agreement to initiate its consideration of
a proposed Transaction.
c. "Customer" means a customer of OMNICELL who is an obligor under a
Transaction or a guarantor of such Customer (other than OMNICELL).
d. "Default by GE" means a material breach by GE of any term or condition
of this Agreement or material breach of any agreement by which GE is
bound in connection with a Transaction.
e. "Default by OMNICELL" means (i) a material breach by OMNICELL of any
term or condition of this Agreement; or (ii) a material default of any
agreement by which OMNICELL is bound in connection with a Transaction
which leads to a Customer's failure to pay GE, and such failure to pay
has a reasonable opportunity of being adjudicated as a justifiable
non-payment because of OMNICELL's breach, or (iii) a material default
under any guaranty by OMNICELL hereunder.
f. "Event of Cancellation" means (i) a Material Adverse Change of
OMNICELL since the date of this Agreement or of a Customer since the
date of the related Application, or (ii) the occurrence of an event
which causes a representation made by OMNICELL or a Customer in
connection with a Transaction to be false in any material respect when
made, or (iii) a Default by OMNICELL, or (iv) notification by such
Customer to OMNICELL or to GE of its intent to cancel all or any part
of such Transaction or to refuse to accept any part of the related
System.
g. "Final Document Package" means such properly completed and duly
executed lease documentation, including a copy of the Master Rental
Agreement, a copy of the Master Service Agreement, Supplement(s) to
Rental Agreement, Supplement(s) to Service Agreement, UCCs, a purchase
order from Customer or a mutually agreeable Customer billing reference
number, a Certificate of Acceptance from the Customer, a ▇▇▇▇ of Sale
(as shown on Exhibit "F") and a Master Assignment Letter (as shown on
Exhibit "D") as GE shall require in accordance with its standard
procedures in order to finalize a Transaction and to pay the Purchase
Price of the System to OMNICELL.
h. "Lease" means a Master Rental Agreement, Schedule(s), and if
applicable, a Master Service Agreement between OMNICELL and a
Customer, which have subsequently been assigned to GE, for a specified
term during which GE shall be the owner of the relevant Equipment (not
the Software) and the Customer shall be allowed the use of such
Equipment and related Software.
i. "Material Adverse Change" means (i) a change with respect to OMNICELL
or GE from the date of this Agreement that is materially adverse to
(a) the financial condition of OMNICELL or (b) the financial condition
of GE, or (ii) as to OMNICELL or GE, its insolvency, inability to pay
debts as they mature, failure to operate as a going concern, filing by
it under Title 11 of the United States
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Code or any successor or similar federal or state statute, assignment
for the benefit of creditors, appointment of a receiver, dissolution.
j. "Net Book Value" means the total of the following amounts due or to
become due under a Transaction: (i) all accrued and unpaid sums due
under the Transaction as of the date of default thereunder; plus (ii)
the remaining payments due during the remainder of the term of the
Transaction, with each such payment discounted to its present value
from the due date thereof to the date of the default under such
Transaction at the applicable Standard Rate; plus (iii) all accrued or
unpaid property taxes due under the Transaction.
k. "Purchase Price" means the amount funded by GE to OMNICELL based on
the discounted rental payments of the Lease and, if applicable, the
Service Agreement.
l. "Remarketing Period" means a period of ninety (90) days (or such other
period as the parties may agree upon in writing for a specific System)
which shall commence upon the date that GE approves the applicable
Out-Of-Pocket Costs (as defined herein) estimated by OMNICELL with
respect to such System.
m. "Remarketing Proceeds" means the proceeds of the remarketing of a
System, minus any applicable sales taxes.
n. "Standard Rates" means the lease discount rate applicable to
Transactions as further described in Section 8.
o. "Termination Event" means a Default by GE or a Default by OMNICELL or
a Material Adverse Change of GE or OMNICELL.
p. "Transaction" means the lease of a System by GE in the form of a Lease
or other product offered under the Program.
q. "Transaction Default Amount" means: (i) the Net Book Value of the
defaulted Transaction; plus (ii) all reasonable out-of-pocket expenses
(including actual attorneys' fees, if any) incurred by GE with respect
to such Transaction prior to GE's receipt of the Transaction Default
Amount.
2. ORIGINATING TRANSACTIONS. OMNICELL agrees that during the term of this
Agreement, OMNICELL will offer to its Customers GE as OMNICELL's financing
partner; provided that nothing contained herein shall require OMNICELL to offer
financing options through GE to any prospective customer who has requested that
another company finance its acquisition of a System or who has not requested
financing or impair OMNICELL's ability to seek third party financing for any
prospective customer whose Application has been declined by GE or for which GE
requires credit support from OMNICELL nor will it require OMNICELL to propose GE
as a funding source in Transactions where the Customer is not a hospital. GE
will be given first right of refusal on all new Transactions where the Customer
is a hospital and has a Customer Credit Rating Category of "A". In cases where
the hospital is adding to an existing Lease, OMNICELL reserves the right to
place that Schedule with the original financing company.
3. DOCUMENTATION. OMNICELL will provide its sales representatives with
OMNICELL's leasing or financing documentation, in a standard form approved to by
GE, prepared by OMNICELL, suitable for the markets he or she serves. The
approved documentation for the Master Rental Agreement and Master Service
Agreement are attached to this Agreement as Exhibit "C". Notwithstanding the
foregoing, OMNICELL may use other forms for Premier, UHC and GPO and may amend
any approved documentation, with GE's consent. OMNICELL will prepare Uniform
Commercial Code Financing Statements for each Transaction and ensure they are
signed and filed with the proper authorities in a manner which ensures that GE
obtains a perfected security interest. OMNICELL will also be responsible for
completing the Uniform Commercial Code Financing Statement assigning the
financing statements naming OMNICELL as secured party to GE upon receipt of the
Purchase Price from GE. OMNICELL shall be responsible for any loss to GE arising
from Uniform Commercial Code Financing Statements which are not filed in
accordance herewith.
4. REVIEW. OMNICELL will, prior to document preparation, provide the
name, address and Taxpayer Identification Number of the prospective Customer to
GE. GE will attempt to complete its review based upon publicly available
information. If insufficient information is publicly available, in the
reasonable determination of GE, then GE may request that OMNICELL obtain
additional reasonable credit information directly from the Customer and will
notify OMNICELL within two (2) business days of its receipt of the name, address
and Taxpayer ID number of the prospective Customer if such additional
information is needed. To the extent they may legally do so, OMNICELL
representatives will assist in providing any credit information regarding a
prospective
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Customer which is reasonably requested by GE. Upon receipt thereof, GE will
review and either approve or reject the Customer, at GE's sole discretion, and
will notify OMNICELL of its determination and of the customer credit rating
category (as shown on Exhibit "E"), if applicable, to which it has assigned the
prospective Customer. It is anticipated that seventy-five percent (75%) of
Customer Credit Rating Category, as a proportion of total dollar volume, will be
classified as "A" or "B". Should the actual percentage fall below this
percentage, then the Relationship Managers will meet to discuss changes to this
Agreement they deem necessary to achieve this target. GE will complete its
review (i) within three (3) business days after receipt of all information
required to complete such review where the Transaction size is under $250,000;
within five (5) business days in the case of any Transaction where the
Transaction size is between $250,000 and $2,000,000 and within ten (10) business
days in the case of any Transaction where the Transaction size is over
$2,000,000 and (ii) as soon as practicable and in no event later than ten (10)
business days after receipt of all information required to complete such review
in the case of any Transaction where the prospective Customer is a nonhospital
healthcare provider. If GE fails to meet these time frames on a Transaction,
then OMNICELL may take that specific Transaction to another financing source. GE
may suggest alternative financing structures which enable it to approve an
Application. If GE determines that it cannot approve an Application without
credit support from OMNICELL, GE shall notify OMNICELL of such determination and
OMNICELL may, in its sole discretion, elect to provide GE with such credit
support. If OMNICELL elects to provide GE with such credit support, OMNICELL
will, prior to GE's financing of the applicable Transaction, execute a recourse
letter in the form of Exhibit "A" hereto or such other form as OMNICELL and GE
agree to from time to time. OMNICELL will advise the Customer of the approval or
rejection of the proposed Transaction, and will deliver to GE the Final Document
Package for each approved Transaction. GE will provide any notice required to be
sent to a prospective Customer under the Equal Credit Opportunity Act and/or
Regulation "B" or other applicable statute or regulation in the event of a
rejected Application.
5. CONDITIONS OF APPROVAL. All approvals given by GE shall be valid up to
ninety (90) days from the date such approval is given to OMNICELL. GE may revoke
its agreement to enter into a Transaction or to purchase the related Equipment
and finance the license of the related Software, and may transfer to OMNICELL
any right, title or interest which it acquired in such Transaction or System if
(a) GE does not receive the Final Document Package within ninety (90) days after
the date GE notifies OMNICELL of its approval of such Transaction; or (b) prior
to GE's receipt of the Final Document Package or payment of the Purchase Price,
GE determines, in its good faith judgment, that an Event of Cancellation has
occurred. Upon receipt by OMNICELL of a written revocation of its agreement to
enter into a Transaction or to purchase the related Equipment and finance the
license of the related Software, GE shall have no further liability to the
Customer or to OMNICELL in connection with such Transaction.
6. FUNDING. Provided that GE has not revoked its approval of a
Transaction pursuant to Section 5, GE will pay OMNICELL the Purchase Price of
the System, together with any amounts to be financed by GE related to the Master
Service Agreement, within five (5) business days (or such other period as the
parties mutually agree in writing) following GE's receipt of the Final Document
Package.
7. EQUIPMENT TITLES AND WARRANTIES. (a) OMNICELL hereby (i) consents to
the assignment to GE of and all warranty rights in connection with, the
Equipment related to such Transaction, (ii) agrees that, upon the acceptance of
the related System by the applicable Customer on behalf of GE, it will deliver
to GE documentation showing that title to such Equipment has passed to GE and
the related Software has been licensed to such Customer, in the case of
Equipment, free and clear of all liens, claims and encumbrances, and (iii)
agrees that GE will not be liable for any obligations of such Customer except
the obligation to pay the Purchase Price of such System upon such Customer's
acceptance. (b) OMNICELL will bear all risk of loss to the System until the date
of its acceptance by the Customer. (c) In the event any Customer returns or
fails to accept any part of the System for any reason whatsoever, GE may assign
its rights to OMNICELL and thereafter will have no further liability to OMNICELL
or to such Customer.
8. STANDARD RATES. The Purchase Price of each System will equal all
amounts owed by Customer under a Lease discounted to the present value using the
Standard Rate. The Standard Rate equals the sum of the rate shown on Exhibit B
and the Three Year Treasuries rate as of the date of funding. The Standard Rate
will be fixed based on Three Year Treasuries rate on the day of funding.
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9. SERVICE CONTRACTS. (a) OMNICELL will offer service contracts to
prospective Customers which provide for Systems service and maintenance and
updated versions of existing Software capabilities ("Service Agreements"). In
the event that a prospective Customer agrees to enter into a Service Agreement,
in conjunction with a Transaction, which OMNICELL would like GE to finance or
▇▇▇▇ and collect on OMNICELL's behalf, then OMNICELL shall notify GE of such
event and shall provide GE with a copy of the applicable Service Agreement.
Following consultation with OMNICELL, and provided OMNICELL has requested that
GE do the following, and in any event within five (5) business days, GE shall,
at its option, elect to: (i) ▇▇▇▇ and collect the Service Agreement on behalf of
OMNICELL at no charge to OMNICELL or (ii) fund OMNICELL an amount equal to
payments due under the Service Agreement over its initial term discounted from
the due date thereof to the date of payment at the Standard Rate. (b) If GE
elects to ▇▇▇▇ and collect the Service Agreement on behalf of OMNICELL, then GE
shall provide its customary billing and collections services in connection with
such Service Agreement and shall remit to OMNICELL all payments actually
collected by GE with respect to such Service Agreement on or before the tenth
day of each month following the month the money is collected. In the event that
any customer makes a single payment to GE for amounts owed under the Transaction
and amounts owed under the Service Agreement, then GE shall deduct from the
single payment the amounts it is owed under the Transaction and remit the
remaining amount to OMNICELL. GE shall have no liability or responsibility to
OMNICELL for any default by the applicable Customer under the applicable Service
Agreement or for any monies related to Service Agreements which are not actually
received by GE. (c) If GE elects to fund OMNICELL the net present value of the
payments due under the Service Agreement, then OMNICELL shall provide a contract
to the applicable Customer in which such Customer shall be required to make a
monthly payment for the System and a monthly payment for the Service Agreement.
If GE finances a Service Agreement, any payment default on the Customer's part,
whether it relates to the monthly payment for the System or the monthly payment
for the Service Agreement shall entitle GE to exercise the remedies available to
it in Section 16 hereof.
10. SYSTEM UPGRADES AND EARLY TERMINATIONS. Notwithstanding anything to
the contrary, OMNICELL reserves the right to enter into additional Supplements
with a Customer for whom GE has purchased other Supplements. (a) If any Customer
notifies GE that it wishes to have GE finance the replacement of Equipment
originally subject to a Transaction (the "Original Equipment") with new
Equipment (the "Upgrade Equipment"), or the original Software ("Original
Software") with Software which offers new capabilities (as opposed to an updated
version of existing capabilities) (the "New Software"), GE will notify OMNICELL
of the Customer's request. Following such notification, unless an Event of
Cancellation has occurred and subject to credit approval, at GE's sole
discretion, GE will finance the acquisition by such Customer of Upgrade
Equipment and New Software (if applicable) which will replace, in whole or in
part, the Original Equipment and Original Software (if applicable). (b) If the
Original Equipment and Original Software (if applicable) will no longer be used
by Customer, OMNICELL will pay GE the Net Book Value of the original Transaction
upon such Customer's acceptance of the Upgrade Equipment and New Software and GE
will pass title to the Original Equipment to OMNICELL (if applicable) and
reassign any financing statements related thereto. Thereafter, OMNICELL will
arrange with such Customer for the Original Equipment to be delivered to
OMNICELL. Upon satisfaction of the conditions set forth in Section 5 hereof, GE
will pay to OMNICELL the Purchase Price of the Upgrade Equipment and New
Software (if applicable) and will enter into a new Transaction with the
applicable Customer. GE will charge the Customer a one percent (1%) fee if the
upgrade occurs during the first twelve months of the contract. (c) If the
Upgrade Equipment and New Software (if applicable) replaces only in part the
Equipment and Software originally subject to the Transaction, that portion of
the Net Book Value of the original Transaction pertaining to Equipment and
Software which has not been replaced will be added to the Purchase Price of the
Upgrade Equipment and New Software (if applicable) to determine the payments due
during the remainder of the term of the new Transaction. OMNICELL shall have no
payment obligation to GE. (d) If any Customer notifies GE that it wishes GE to
finance its acquisition of Upgrade Equipment and New Software, GE will notify
OMNICELL of the Customer's request. If GE declines to finance the Customer's
acquisition of such Upgrade Equipment and New Software, GE will permit the
Customer to terminate the applicable Transaction without penalty upon the
payment to GE of an amount equal to the Net Book Value of the applicable
Transaction. (e) If any Customer notifies GE that it wishes to terminate any
Transaction prior to its scheduled expiration date for any reason other than an
upgrade, GE will notify OMNICELL of the Customer's request. Following such
notification, GE will permit the Customer to terminate the applicable
Transaction upon (i) the expiration of a thirty (30) day notice period and (ii)
the payment to GE of an amount equal to the Net Book Value of the applicable
Transaction, plus a fee for early termination of 5% of the amount funded if such
termination occurs in the first year, 4% of the amount funded if such
termination occurs in the second year, 3% of the amount funded if such
termination occurs in the third year, 2% of the amount funded if such
termination
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occurs in the fourth year and 1% of the amount funded if such termination occurs
in the fifth year. Upon early termination, OMNICELL may purchase the related
Equipment back from GE for one dollar ($1.00) free and clear of all liens
attributable to GE.
11. RELATIONSHIP MANAGERS. GE and OMNICELL will each appoint a
relationship manager ("Relationship Manager") to supervise the Program and to
serve as the primary management contact between GE and OMNICELL under the
Program. The Relationship Managers will be charged with managing the
relationship between OMNICELL and GE, and ensuring compliance with the terms of
this Agreement.
12. GENERAL ADMINISTRATIVE SERVICES. (a) The Program shall be administered
by GE under the name of GE Healthcare Financial Services. GE will provide
general administrative and operations services in connection with the Program,
including but not limited to, credit investigation, billing and collections and
customer service. GE will (i) maintain and operate systems which track the
status of each Application and Transaction, (ii) invoice Customers, collect
payments, process and apply funds, (iii) collect and pay all applicable
property, sales, use or similar taxes pertaining to the System and prepare and
file tax returns in connection therewith, and (b) GE personnel will be available
to answer Customer and OMNICELL inquiries relating to the Program or
Transactions on business days (via a toll free telephone line) between the hours
of 8:00 a.m. and 5:00 p.m., Central Time in the United States. Customer
inquiries received when no personnel are available will be recorded
electronically and promptly responded to. GE will conduct its communications
with Customers in a courteous, prompt and efficient manner. GE will endeavor to
resolve all Customer complaints relating to Transactions within two business
days of receipt and, failing that, will keep the affected Customer informed of
the progress toward resolution on a regular basis; provided, however, that
nothing in this Section 12 shall be deemed to require GE to resolve or endeavor
to resolve any Customer complaints relating to the System, or the maintenance or
servicing thereof, which shall remain the sole responsibility of OMNICELL. GE
shall use its best efforts to immediately notify OMNICELL in writing of all
Customer complaints relating to service, maintenance or the performance of the
System. OMNICELL will take such actions it deems reasonable and appropriate in
resolving such complaints, (c) OMNICELL hereby irrevocably appoints GE its
attorney-in-fact to endorse or sign OMNICELL's name on any and all checks
received, with regard to the Transactions and the related Systems.
13. REPORTING. GE will provide OMNICELL with periodic reports, in form and
substance reasonably acceptable to OMNICELL, on (i) delinquencies under the
Program; (ii) Application activity (including approvals, cancellations and
rejections), (iii) volume of leasing activity under the Program, and (iv) other
information reasonably requested by OMNICELL and able to be provided by GE.
14. REPRESENTATIONS AND WARRANTIES OF OMNICELL. OMNICELL hereby
represents, warrants and covenants to GE, its permitted successors and assigns,
as of the date hereof, of the Application and on each date that a Transaction is
purchased by GE, that: (a) OMNICELL is a duly organized and validly existing
corporation in its state of incorporation and has full power to enter into this
Agreement and to carry out the transactions contemplated hereby. (b) The
execution and delivery of this Agreement and the performance by OMNICELL of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. (c) This Agreement constitutes a legal, valid and binding
obligation of OMNICELL enforceable in accordance with its terms. (d) Neither the
execution of this Agreement nor the consummation of the transactions
contemplated hereby will constitute (i) a violation or default of any material
statute, rule, or decree of any court, administrative agency or governmental
body to which OMNICELL is subject, or (ii) a material default with respect to
any material indenture, loan agreement or other agreement to which OMNICELL is
bound. (e) All documents relating to a Transaction to which OMNICELL is a party
or by which it is bound will be genuine, legal, valid, and binding obligations
of OMNICELL. (f) In all documents where OMNICELL is responsible for obtaining
the Customer's signature, the signature of the named Customer is, to the best of
OMNICELL's knowledge, genuine, and the individual signing on behalf of the
Customer holds the office set forth below his signature. (g) OMNICELL will honor
any agreements made or warranties given by OMNICELL or its agents to any
Customer in connection with any Transaction, provided they are in writing and
duly executed. (h) OMNICELL has not received and kept any rent or other monies
from any Customer in respect of any Transaction (other than any required down
payments) which is owed to GE and OMNICELL will immediately remit any funds owed
to GE which it may receive. (i) GE will have good title to the Equipment free
and clear of all liens, claims, and encumbrances on the date it is accepted by a
Customer on behalf of GE. (j) Neither OMNICELL nor its agents have participated
in or have any knowledge of any fraudulent act in connection with any
Transaction or any Customer. (k) The System will be delivered to and
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accepted by the named Customer, properly installed and will be in good working
order, condition and repair, conforming to specifications, reasonable wear and
tear excepted, on the date title to said specific Equipment is transferred to
GE. OMNICELL will license, service and maintain the System in compliance with
any contracts it may have with the Customer. (l) All credit or other
information, reasonably relevant to a credit decision concerning the Customer,
known to OMNICELL and which can be lawfully provided by OMNICELL to GE will be
disclosed to GE. (m) All sales, use, or property taxes applicable to the System
assessed or imposed prior to the time GE pays the applicable Purchase Price,
will have been paid or will be timely remitted by OMNICELL to the appropriate
taxing authority and OMNICELL will on request provide GE with proof of such
payment as promptly as possible. (n) As of the date hereof, there are no suits
or proceedings pending or, to the knowledge of OMNICELL, threatened in any court
or before any regulatory commission, or other administrative or governmental
agency against or affecting OMNICELL which is reasonably likely to materially
impair OMNICELL's ability to perform its obligations hereunder or in connection
with any Transaction. (o) The financial statements of OMNICELL delivered to GE
from time to time fairly present the financial position of OMNICELL as of the
dates thereof and the results of operations of OMNICELL for the periods covered
thereby, all in conformity with generally accepted accounting principles applied
on a consistent basis, and since the date of the latest such financial
statements, there has been no Material Adverse Change of OMNICELL. (p) OMNICELL
will notify GE immediately upon becoming aware of a Material Adverse Change of
OMNICELL and will deliver to GE within one hundred twenty (120) days of the
close of each fiscal year, its audited financial statements or annual report,
and, within ninety (90) days of the close of the second fiscal quarter, its six
month unaudited interim financial report, certified by its chief financial
officer. (q) OMNICELL has evaluated the System which is subject to any
Transaction and has determined that such System will be Year 2000 Compliant.
"Year 2000 Compliant" means that the functionality and the performance of the
System will not be materially adversely affected as a result of the date change
from the calendar year 1999 to the calendar year 2000, including leap year
calculations, and that, to the extent applicable to the System's normal
operating specifications, the System will accurately accept, store, retrieve,
calculate, compare and otherwise process dates before and after January 1, 2000
in all material respects. (r) OMNICELL has a plan and organization in place to
minimize any materially adverse effects on its business operations caused by the
failure of any system or equipment which is material to OMNICELL's operations to
be Year 2000 Compliant. OMNICELL is conscientiously implementing such plan.
OMNICELL will, upon request from GE, provide GE with periodic updates on its
implementation of such plan. (s) OMNICELL will provide written notice of a
material change in a material portion of its stock or asset ownership.
15. REPRESENTATIONS AND WARRANTIES OF GE. GE hereby represents, warrants
and covenants to OMNICELL, its permitted successors and assigns, as of the date
hereof and throughout the term of any Transaction, that: (a) GE is a duly
organized and validly existing corporation and has full power to enter into this
Agreement and to carry out the transactions contemplated hereby. (b) The
execution and delivery of this Agreement and the performance by GE of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action. (c) This Agreement constitutes a legal, valid and binding
obligation of GE enforceable in accordance with its terms. (d) Neither the
execution of this Agreement nor the consummation of the transactions
contemplated hereby will constitute (i) a violation or default of any statute,
rule, or decree of any court, administrative agency or governmental body to
which GE is or may be subject, or (ii) a material default with respect to any
indenture, loan agreement or other agreement to which GE is bound. (e) GE will
honor any agreements made or express warranties given by GE or its agents to any
Customer in connection with any Transaction. (f) There are no suits or
proceedings pending or, to the knowledge of GE, threatened in any court or
before any regulatory commission, or other administrative or governmental agency
against or affecting GE which could materially impair GE's ability to perform
its obligations hereunder or in connection with any Transaction.
16. REMARKETING ASSISTANCE. (a) Upon the occurrence of a failure of a
Customer to pay GE any amounts owed GE within sixty (60) days after the
applicable due date, provided that GE has made the applicable Equipment legally
available, OMNICELL will obtain physical possession of the System and pay all
costs related to taking possession, including but not limited to deinstallation
and transportation. OMNICELL will then have a first right of refusal to purchase
the Equipment at GE's Net Book Value. Should OMNICELL choose not to purchase the
Equipment, OMNICELL will promptly provide GE with a written estimate of its
costs of repair, refurbishment, insurance and remarketing ("Out-Of-Pocket
Costs"). If GE approves such Out-Of-Pocket Costs, OMNICELL will repair and
refurbish the System, including replacing the existing Software configuration
with its most recent available Software upgrades (if necessary), and attempt to
remarket the System to a third party on a ninety (90) day basis during the
Remarketing Period. During said time, OMNICELL agrees that if it sells
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refurbished Equipment, it will sell the GE Equipment first. If the Equipment has
not been remarketed by OMNICELL within the ninety (90) day period, GE and
OMNICELL may agree to continue to have OMNICELL remarket the equipment for
additional period(s) or GE shall be able to remarket the equipment itself. GE
will not be obligated to pay actual Out-Of-Pocket Costs which exceed the
estimated Out-Of-Pocket Costs by more than five percent (5%). If GE does not
approve such Out-Of-Pocket Costs, OMNICELL will promptly cause the System to be
crated and safety delivered to a location selected by GE.
(b) In performing its remarketing responsibilities hereunder: (i) OMNICELL
will not discriminate between the System and equipment and software owned by
another party to whom OMNICELL may be bound to provide remarketing assistance;
(ii) OMNICELL will refurbish and upgrade the System and make available
maintenance service to any subsequent purchaser or lessee of the Equipment and
licensee of the Software at OMNICELL's then current market rates; (iii) OMNICELL
will grant a valid license to the Software to any subsequent purchaser or lessee
of the Equipment upon such purchaser's or lessee's acceptance of OMNICELL's
standard software license agreement; (iv) OMNICELL will not permit any lien or
encumbrance to attach to the System, and will waive any right or claim to the
Equipment which may arise in connection with its remarketing services; (v)
OMNICELL will warrant that the System that is delivered to customers will be in
good working order, condition and repair, conforming to specifications according
to OMNICELL's current warranty policy for used equipment and will meet all
applicable governmental standards; and (vi) OMNICELL will not agree to any sales
price or lease terms without GE's prior approval.
(c) If OMNICELL GE or any other party is able to remarket the System to a
third party, the Remarketing Proceeds will be distributed in the following
manner: (i) first, to OMNICELL, an amount equal to its approved Out-Of-Pocket
Costs of refurbishment and remarketing; (ii) second, to GE, an amount equal to
the applicable Transaction Default Amount; (iii) third, to GE and OMNICELL, any
excess Remarketing Proceeds in equal amounts.
17. END-OF-TERM. Upon a Transaction reaching its end-of-term, provided all
payments, late charges and property taxes have been paid, OMNICELL shall have
the option to purchase the Equipment from GE on an "as-is where-is" basis for
One Dollar ($1.00). GE makes no representations or warranties as to the
condition of the Equipment, other than the Equipment will be free of all liens
and encumbrances attributable to GE.
18. INDEMNIFICATION. (a) OMNICELL shall indemnify and hold harmless GE,
its officers, directors, employees and agents, from any losses, claims,
liabilities, demands and expenses, including reasonable attorneys' fees and
additional tax liabilities arising out of actions against GE by any party other
than a Customer resulting from (i) any breach by OMNICELL of its
representations, warranties or obligations hereunder, or (ii) any act, failure
to act, omission, representation or misrepresentation by OMNICELL, its employees
or agents in connection with any Transaction or with the sale, use, operation,
ownership, licensing, servicing or maintenance of the System, including any
strict liability therefore, or (iii) the failure of the System to meet all
federal and state standards applicable to the existence and operation of the
System, or (iv) the expiration or earlier termination of any patent or copyright
pertaining to any item of the System. (b) GE shall indemnify and hold harmless
OMNICELL, its officers, directors, employees and agents, from any losses,
claims, liabilities, demands and expenses, including without limitation
reasonable attorneys' fees and additional tax liabilities resulting from the
receipt by OMNICELL of indemnities pursuant hereto, arising out of (i) any
breach by GE of its representations, warranties or obligations hereunder or (ii)
any act, failure to act, omission, representation or misrepresentation by GE,
its employees or agents in connection with any Transaction. (c) The indemnified
party shall not be required as a condition to receipt of payments hereunder to
contest or to permit the indemnifying party to participate in any contest in
connection with the foregoing or to attempt to recover from any Customer through
legal proceedings or otherwise. (d) All indemnities and obligations under this
Section 18 shall survive the expiration or termination of this Agreement and the
expiration or termination of any Transaction, but shall not apply in the case of
the indemnified party's negligence, gross negligence or intentional misconduct.
(e) In no event shall OMNICELL or GE indemnify the other party against liability
for indirect, special, consequential or incidental damages including loss of
use, revenue or profit regardless of the form of the cause of action. The
liability of each party hereunder shall be limited to the amounts actually paid
by GE to OMNICELL with respect to each applicable Transaction or Transaction(s).
19. TERM AND TERMINATION. This Agreement shall be effective upon execution
by GE and OMNICELL and shall continue from such effective date for a period of
five (5) years, unless sooner terminated by either party upon the occurrence of
a Termination Event or without cause with ninety (90) days prior written notice.
Upon the expiration or termination of this Agreement, the obligations of the
parties with respect to Transactions not
7.
funded by GE shall cease, but all obligations with respect to Transactions which
have been funded by GE shall survive. If this Agreement is terminated upon the
occurrence of a Termination Event (other than a Termination Event caused by a
material Adverse Change), (i) GE's sole remedy, in the case of a termination
event caused by OmniCell, will be to require OMNICELL to repurchase all
remaining amounts owed to GE by a Customer on all Transactions materially
adversely affected by said Termination Event discounted to the present value
using the Standard Rate used when the Transaction was purchased by GE.
20. ASSIGNMENT OF RIGHTS. The rights and obligations of GE and OMNICELL
under this Agreement may not be assigned without the prior written consent of
the other party; provided that GE may without prior written consent assign any
of its rights hereunder or under any Transaction to an affiliate or other entity
in which a majority of the common stock is owned directly or indirectly by GE,
and OMNICELL may without prior written consent assign any of its rights to
payment hereunder to any party. GE may, in its sole discretion, securitize or
syndicate its rights under any Transaction including any recourse rights made
available by OMNICELL in connection with such Transaction.
21. CONFIDENTIALITY. From time to time GE or OMNICELL may provide
information to the other party which is plainly marked as "confidential". GE and
OMNICELL will take reasonable steps to preserve the confidential nature of such
information and to prevent its disclosure to third parties. Such information
shall not be considered confidential if (i) it is already in the public domain,
or (ii) it is obtained from an independent source who is not legally bound to
refrain from such disclosure, or (iii) it is independently developed by the
receiving party, as demonstrated by the receiving party's files and records
immediately prior to the date of disclosure. GE and OMNICELL will fulfill their
obligations hereunder if they exercise the same degree of care to preserve and
safeguard such confidential information as they use to preserve and safeguard
their own confidential information. GE and OMNICELL may disclose confidential
information to their respective affiliates, and confidential information
relating to specific Transactions may be disclosed by GE to its representatives
and agents, in the event that such Transactions are referred for collection, and
to any purchaser or administrator, in the event that such Transactions are
syndicated or securitized, provided that the receiving party agrees to be bound
by the terms hereof in writing. Nothing herein shall be deemed to prohibit
disclosure of confidential information that is required by law, so long as the
disclosing party, so far as practicable, consults with the other party prior to
such disclosure and takes such steps as the other party may reasonably request
to mitigate the effect of such disclosure.
22. MISCELLANEOUS. (a) GE and OMNICELL acknowledge that they are separate
entities, each of which has entered into this Agreement for independent business
reasons. (b) Except as provided for herein, OMNICELL shall have no right, and
will not attempt, to accept collections, repossess or consent to the return of
the System (other than for repairs) or modify the terms of any Transaction
without the prior written consent of GE, which shall not be unreasonably
withheld. (c) Notices to OMNICELL or GE under this Agreement shall be deemed to
have been given if sent by (i) recognized overnight delivery or registered or
certified mail, return receipt requested, or (ii) by telecopy (promptly
confirmed in writing) to the Relationship Manager at the address or telecopy
number first stated above or such other address or telecopy number as such party
may have provided by notice. (d) The parties agree that this Agreement shall be
governed by and construed in accordance with the laws (other than the choice of
law provisions) of the State of New York. (e) If at any time any provision of
this Agreement is held by any court of competent jurisdiction to be illegal,
void or unenforceable, such provision shall be of no force and effect, but the
illegality or unenforceability of such provision shall not impair the
enforceability of any other provision of this Agreement. (f) This Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof. The terms may not be terminated or amended orally, but only by an
instrument duly executed by each of the parties hereto. (g) In the event there
is any conflict between this Agreement and any ancillary agreements with respect
to any Transaction or System, the terms and conditions of this Agreement shall
control. (h) THE PARTIES WAIVE, TO THE EXTENT PERMITTED BY LAW, ALL RIGHT TO
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS
HEREUNDER.
8.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective duly authorized representatives as of the date first above
written.
OMNICELL TECHNOLOGIES, INC. GENERAL ELECTRIC COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇
------------------------------ ------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇
---------------------------- ----------------------------
Title: VP & CFO Title:
--------------------------- ---------------------------
Date: June 4, 1999 Date: June 7, 1999
---------------------------- ----------------------------
9.
RIDER NUMBER ONE
TO PROGRAM AGREEMENT
DATED AS OF June 7, 1999
(THE "PROGRAM AGREEMENT"),
BY AND BETWEEN
OMNICELL TECHNOLOGIES, INC., (OMNICELL)
AND
GENERAL ELECTRIC COMPANY,
ACTING THROUGH GE HEALTHCARE FINANCIAL SERVICES (GE)
1. GRANT AND SCOPE OF TRADEMARK LICENSE.
1.1 Grant of License. Subject to the limitations set forth below, OMNICELL
grants to GE, and GE accepts, a non-exclusive, royalty-free license during the
term of the Program Agreement to use the trademarks and tradenames set forth in
Exhibit A (the "Licensed Marks") in the United States solely in connection with
GE's activities pursuant to Section 9 of the Program Agreement. GE shall not use
the Licensed Marks for any other purpose, or in any other jurisdiction without
prior written approval of OMNICELL.
1.2 Form of Use. GE shall use the Licensed Marks only in the form(s) set
forth on Exhibit A hereto or otherwise approved in writing by OMNICELL and shall
include where appropriate the designation (R) and (TM) and a statement that the
Licensed Marks are the trademarks of OmniCell Technologies, Inc. and other
proprietary notices as reasonably required by OMNICELL from time-to-time.
2. QUALITY CONTROL.
2.1 The nature and quality of all services rendered by GE in connection
with the Licensed Marks shall conform to standards set by and under the control
of OMNICELL. OMNICELL shall have the right to monitor the quality of GE's use of
the Licensed Marks, and in connection therewith, GE agrees to undertake such
steps as OMNICELL may reasonably request to assist OMNICELL in monitoring and
preserving the quality of GE's use of the Licensed Marks, including, without
limitation, providing OMNICELL with samples of GE's use of the Licensed Marks,
and, at OMNICELL's request, modifying or ceasing any use of the Licensed Marks
to which OMNICELL may object.
2.2 GE shall comply with all applicable laws and regulations and obtain
all appropriate government approvals pertaining to its activities under the
Program Agreement. GE shall not do or suffer to be done any act or thing that
would impair OMNICELL's ownership or rights in the Licensed Marks, or damage the
reputation for quality inherent in the Licensed Marks. OMNICELL has the right to
take all action which it deems necessary to ensure that GE's uses of the
Licensed Marks are consistent with the reputation for quality and prestige of
the Licensed Marks. GE agrees not to adopt or use any other trademark, word,
symbol, letter, design or ▇▇▇▇ (i) in combination with a Licensed ▇▇▇▇ in a
manner that would create a combination ▇▇▇▇ or (ii) that is confusingly similar
to a Licensed ▇▇▇▇; provided, however, that GE may use a Licensed ▇▇▇▇ with
other marks or names if such other marks or names are sufficiently separated
from the Licensed ▇▇▇▇ and sufficiently distinctive to avoid the impression by a
reasonable consumer that such other marks or their owners are associated with
OMNICELL.
3. OWNERSHIP. GE acknowledges that it has no interest in the Licensed
Marks other than the license granted under the Program Agreement and that
OMNICELL is the sole and exclusive owner of all right, title and interest in the
Licensed Marks. GE agrees that any and all of GE's uses of the licensed Marks
will inure solely to the benefit of OMNICELL and will not create any right,
title or interest for GE in the Licensed Marks other than the license granted
under the Program Agreement. GE agrees that it will not contest, oppose or
challenge OMNICELL's ownership or registration of, or register or attempt to
register, the Licensed Marks in any jurisdiction. GE shall promptly notify
OMNICELL of any adverse use by a third party of the Licensed Marks or of a ▇▇▇▇
or name confusingly similar to the Licensed Marks and agrees to take no action
with respect thereto except with the prior written authorization of OMNICELL. GE
further agrees to provide full cooperation with any legal or equitable action by
OMNICELL to protect OMNICELL's rights, title and interest in the Licensed Marks.
10.
4. LICENSE TERMINATION.
4.1 Termination of the Program Agreement. The license granted hereunder
shall terminate upon termination of the Program Agreement.
OMNICELL TECHNOLOGIES, INC. GENERAL ELECTRIC COMPANY
By: /s/ ▇▇▇▇ ▇. ▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇▇
----------------------------- -----------------------------
Name: ▇▇▇▇ ▇. ▇▇▇ Name: ▇.▇. ▇▇▇▇▇▇
--------------------------- ---------------------------
Title: CFO Title:
-------------------------- --------------------------
Date: June 4, 1999 Date: June 7, 1999
--------------------------- ---------------------------
11.
EXHIBIT "A"
OMNICELL Technologies, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
In consideration of the agreements contained in this letter and subject to
the provisions hereof, General Electric Company ("GE") has agreed to provide
financing capabilities to_______________________________________________________
_______________________ ("Customer") to rent a System from OMNICELL
Technologies, Inc. ("OMNICELL") (the "Transaction") pursuant to the Program
Agreement dated ________________ between OMNICELL and GE (the "Agreement").
GE and OMNICELL agree that if Customer fails to make payment in full of any
amount owed to GE under the Transaction within 45 days of the original due date
thereof, OMNICELL will, upon 10 days notice, pay GE _________ percent (x%) of
the Net Book Value of the Transaction (the "Recourse Amount").
OMNICELL agrees that OMNICELL's obligations to pay GE the Recourse Amount
shall not be conditioned upon, or in any way affected by: notice of debt or
obligation of the Customer to GE or of default or breach of such debt or
obligation; any requirement that GE exhaust its remedies against the Customer;
presentment, protest and demand and notice of protest and demand (or any of
them) with respect to the Transaction; any extension of time or performance to,
or any settlement or granting of any indulgence to, or any modification of any
obligation of the Customer; GE's failure to enforce any provision of the
Transaction; the acceptance, alteration, or release of any security provided by
the Customer; or the Customer's voluntary or involuntary bankruptcy, assignment
for the benefit of creditors, reorganization or similar proceedings affecting
the Customer or any of its assets, or the release of the Customer from any of
its agreements pursuant to the Transaction, by operation of law or otherwise.
Upon receipt by GE of the Recourse Amount, GE will assign the Transaction
to OMNICELL, including all rights to the Equipment and any related financing
statements.
The terms of this letter may not be amended or modified except by writing
signed by OMNICELL and GE. Defined terms shall have the meaning set forth in the
Agreement, except as expressly provided herein. This letter shall be subject to
the terms and conditions of the Agreement.
AGREED TO:
OMNICELL TECHNOLOGIES, INC. GENERAL ELECTRIC COMPANY
By:___________________________ By:___________________________
Title:________________________ Title:________________________
12.
EXHIBIT "B"
STANDARD RATE MATRIX
CUSTOMER CREDIT
RATING CATEGORY
----------------------------------------------------------
T
R A B C D
A
N ----------------------------------------------------------
S S
A I under 3.80 4.00 4.50 4.95
C Z $1 million
T E
I ----------------------------------------------------------
O
N over 3.50 3.70 4.20 4.65
$1 million
----------------------------------------------------------
13.
EXHIBIT "C"
OMNICELL
--------------------------------------------------------------------------------
OMNICELL MASTER RENTAL AGREEMENT
--------------------------------------------------------------------------------
Dated_____________, 1999 Master Rental Agreement #________________
Dear Customer: We use the words "you" and "your" to mean the Customer
indicated below. The words "we", "us", and "our" refer to OmniCell
Technologies, Inc.
--------------------------------------------------------------------------------------------------------------------
OmniCell Technologies Customer Customer
Mainz Address Billing Address Delivery Address
--------------------------------------------------------------------------------------------------------------------
Customer Legal Name:
OmniCell Technologies, Inc. ________________________________ ________________________________
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ________________________________ ________________________________
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ________________________________ ________________________________
Attn: Accounts Payable ________________________________ ________________________________
Tel: 1:▇▇▇-▇▇▇-▇▇▇
--------------------------------------------------------------------------------------------------------------------
1. Rental Terms. We agree to rent to you and you agree to rent from us certain
OmniCell System or Sure-Med System equipment (hereinafter "Equipment') and
we agree to license to you and you agree to license from us the software
(as hereinafter defined) that accompanies such Equipment, all more fully
described on the attached Supplement, and any subsequent Supplement(s) to
this Agreement entered into by you and us (hereinafter the "Supplements"),
all on the terms and conditions set forth herein. Each Supplement shall
constitute a separate and independent lease; the original for such lease
shall consist of the signed Supplement and a copy of the Master Rental
Agreement. You agree to pay to us the monthly rent shown for each unit of
Equipment for the number of consecutive months shown under "Term" on each
Supplement. For purposes of this Agreement, Equipment will also include all
replacement parts for the Equipment which you may receive under the
separate Master Service Agreement you have entered into with us in
connection with this Agreement. All Equipment we provide to you will be new
unless otherwise noted as "used" or "reconditioned" on the relevant
Supplement.
2. Additional Equipment. If you would like to add Equipment to your system, we
shall send you a Supplement listing such additional Equipment ("Additional
Equipment') and the monthly rental payment per unit. Upon execution of the
Supplement we will deliver the Additional Equipment listed thereon in
accordance with the terms of this Master Rental Agreement. All terms of
this Master Rental Agreement shall apply to Additional Equipment listed on
any mutually executed Supplement.
3. Term and Rental Payments. The initial term of this Agreement for the unit
or units of Equipment described in each Supplement shall be as set forth
therein. You understand that time is of the essence as to your performance;
You agree to pay all Rental payments in advance and no later than the date
designated by us. Rental payments due do not include any applicable taxes.
If any Taxes (as hereinafter defined) are due, we shall invoice you for
them and you agree to pay the Tax ▇▇▇▇▇▇▇▇ along with your Rental payments.
Rental payments shall begin upon the date of delivery of the Equipment
listed in each Supplement. Rental Payments will be made at such place as we
may designate in writing. You authorize us to insert for the purposes of
the Rental, the serial numbers of the Equipment, and other information into
each Supplement.
--------------------------------------------------------------------------------
You agree to all the terms and conditions of this Master Rental Agreement. These
terms and conditions are a complete and exclusive statement of our agreement
with respect to the subject matter hereof and may be modified only by a written
agreement signed by both of us and not by course of performance. Any terms and
conditions on any purchase order you submit in conjunction with this Master
Rental Agreement shall be invalid and of no force or effect to the extent such
terms and conditions contradict or are in addition to the terms of this Master
Rental Agreement. Your purchase orders shall be for reference purposes only and
shall not become a part of this Master Rental Agreement. This Master Rental
Agreement may not be terminated early. By signing this Master Rental Agreement,
each of us represents that he/she has the authority to bind our respective
parties to this Master Rental Agreement.
Accepted:
------------------------------------------------------------------------------
OMNICELL TECHNOLOGIES, INC. CUSTOMER
---------------------------------- --------------------------------
Signature Signature
---------------------------------- --------------------------------
Print Name: Print Name:
--------------------------------- --------------------------------
Title: Title:
------------------------------------------------------------------------------
(See Pages 2 & 3 for Additional Terms)
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks or trademarks of OmniCell Technologies, Inc.
14.
Master Rental Agreement Terms and Conditions
4. Default. You shall be in default of this Agreement upon any of the
following events: (A) You fail to pay any monthly payment, or any other sum
hereunder when due and such failure continues for fifteen (15) days, (B)
You materially breach any of the terms, conditions, warranties or
representations of this Agreement, or any other agreement between you and
us; (C) Any execution or writ of process is issued in any action or
proceeding to seize or detain any item of Equipment; (D) A proceeding in
bankruptcy, receivership or insolvency shall be instituted by or against
you (E) You shall enter into any agreement or composition with your
creditors, breach or default under any term of any loan or credit
agreement; (F) You become insolvent or unable to pay your debts when due;
(G) You merge, consolidate, or transfer all or substantially all of your
assets.
5. Remedies. Upon a default by you, we shall have the right to: (1) retake
immediate possession of the Equipment and the Software without any process
of law and may enter upon any premises where the Equipment may be and
remove it without notice of our intention to do so, without being liable in
any action or other proceeding by you. We may, at our option, sell or re-
rent the Equipment including the Software at any public or private sales
for cash or on credit and you shall be liable for the expense incurred in
the repossession, recovery, storage, repair, sale, re-rent, re-licensing
any court costs, in addition to any arrears in payment and the balance of
the payments provided for herein, together with reasonable attorneys fees,
less the net proceeds of disposition, if any, of the Equipment; and/or (2)
accelerate all sums payable under this Agreement and any other agreements
with us and require you to immediately pay us all sums that are already due
and the discounted value, at the discount rate of six percent (6%) as of
the date of default, of all payments that will be due under this Agreement,
plus our estimate at the time this Agreement was entered into of our
residual interest in the Equipment and Software reduced to present value at
a discount rate of six percent (6%) as of the date of default, less the net
proceed of disposition, if any, of the Equipment and Software. Such sums
shall be due and payable upon notice of acceleration and demand for payment
and if not so paid, we may institute legal proceedings against you with
your being responsible for said sums, court costs, and reasonable attorneys
fee incurred, and/or (3) exercise any other remedy available to us at law
or equity, notice thereof being expressly waived by you. Our rights
hereunder shall be cumulative. You agree that all sums due under the
calculations above shall become immediately due and payable and are to be
construed a liquidated damages rather than a penalty provision.
6. No Warranties. THE EQUIPMENT AND THE SOFTWARE IS PROVIDED TO YOU "AS IS".
WE MAKE NO WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE IN
CONNECTION WITH THIS MASTER RENTAL AGREEMENT OR THE EQUIPMENT OR THE
SOFTWARE. YOU HAVE BEEN OFFERED THE OPPORTUNITY TO ENTER INTO A SEPARATE
MASTER SERVICE AGREEMENT (THE "MASTER SERVICES AGREEMENT") WITH US
CONTAINING CERTAIN LIMITED WARRANTIES WITH RESPECT TO THE EQUIPMENT YOU
AGREE THAT YOUR OBLIGATIONS UNDER THIS MASTER RENTAL AGREEMENT ARE NOT
SUBJECT TO ANY CLAIMS OR DEFENSES WHICH YOU MAY HAVE DUE TO PERFORMANCE
UNDER THE MASTER SERVICE AGREEMENT OR THE WARRANTIES CONTAINED THEREIN.
7. Liability and Limitation of Liability. WE ARE NOT RESPONSIBLE FOR ANY
LOSSES OR INJURIES ARISING FROM THE INSTALLATION, OPERATION, CONDITION,
POSSESSION OR USE OF THE EQUIPMENT OR SOFTWARE. OUR TOTAL LIABILITY UNDER
THIS MASTER RENTAL AGREEMENT SHALL NOT EXCEED THE AMOUNT PAID BY YOU
HEREUNDER. IN NO EVEN SHALL WE BE LIABLE FOR ANY LOST PROFITS, COST OF
COVER, OR OTHER SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES ARISING OUT
OF THIS MASTER RENTAL AGREEMENT, HOWEVER CAUSED AND WHETHER ARISING UNDER
CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. TO THE EXTENT PERMITTED BY LAW,
YOU HEREBY WAIVE ANY RIGHTS NOW OR HEREAFTER CONFERRED BY STATUTE OR
OTHERWISE WHICH MAY REQUIRE US TO SELL, LEASE, LICENSE OR OTHERWISE USE ANY
EQUIPMENT OR SOFTWARE IN MITIGATION OF OUR DAMAGES.
8. Copyright Indemnity. WITH RESPECT TO THE SOFTWARE, WE AGREE TO INDEMNIFY
AND DEFEND YOU AGAINST ANY CLAIMS FOR INFRINGEMENT OF ANY U.S. COPYRIGHT
(WITH RESPECT TO THE SOFTWARE AS DEFINED IN SECTION 13), PROVIDED THAT WE
SHALL CONTROL THE DEFENSE AND SETMEMENT OF ALL SUCH CLAIMS. YOU AGREE THAT
SUCH INDEMNITY AND DEFENSE SHALL BE OUR SOLE LIABILITY TO YOU AND YOUR SOLE
RECOURSE IN THE EVENT A CLAIM OF U.S. COPYRIGHT INFRINGEMENT BASED ON THE
SOFTWARE IS BROUGHT AGAINST YOU.
9. Indemnification. You hereby assume all liability for, and agree to
indemnify and defend us and our successors, assigns, agents and employee
against any and all liabilities, losses, damages, claims and expenses
(including reasonable attorney fees) in any way relating to or arising out
of this Agreement, the Equipment, the Software or the installation, use,
possession, control, return, condition or operation of the Equipment or the
Software including without limitation, claims arising in contract or tort,
including negligence, strict liability, products liability or otherwise,
except for claim resulting from OmniCell's gross negligence or intentional
misconduct, or claims of U.S. copyright infringement as set forth in
Section 9. Your obligation to indemnify us shall survive the expiration or
termination of this Master Rental Agreement.
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System
are registered trademarks or trademarks of OmniCell Technologies, Inc.
15.
10. Insurance. You agree to assume and bear the entire risk of casualty or
damage to the Equipment from any cause whatsoever from the date of delivery
of the Equipment to your premises. No casualty or damage shall relieve you
from the obligation to make payments or to comply with another obligation
under this Agreement. You agree, at your own cost and expense, to keep the
Equipment fully insured against loss until this Master Rental Agreement is
paid in full and to have us named as sole loss payee on all such policies.
You also agree to obtain a general public liability insurance policy from
an insurance company acceptable to us and to include us as an additional
insured on the policy. You agree to provide us certificates or other
evidence of such insurance acceptable to us. You agree to have your
insurance company notify us of any significant changes in coverage during
the term of this Master Rental Agreement. If you do not provide us with
acceptable evidence of insurance, we may, but will not be required to, buy
such insurance for you and add a charge to your monthly payments which will
include the premium cost, costs associated with effecting the insurance and
a carrying charge of 1.5% per month on the unpaid premium cost, or the
highest rate allowed by applicable law whichever is lower. We are under no
obligation to obtain such insurance, and any loss resulting during a period
in which the Equipment is uninsured shall be borne by you.
11. Taxes, Assessments, And Fees. You agree to pay all licensing and
registration fees for the Equipment and the Software, all personal property
taxes assessed against the Equipment and the Software and all other taxes,
assessments, fees and penalties (local, state, and federal) which may be
levied or assessed on the ownership, leasing, rental, sale, purchase,
possession, use, installation or servicing of the Equipment (collectively,
"Taxes") excluding any Taxes on or measured solely by our net income. If
any Taxes are due, we shall invoice you and you agree to pay the Tax in a
timely manner along with your monthly rent. We may, but are not obligated
to, pay such Taxes and other amounts and may file such returns on behalf of
you if you fail to do so, and you agree to reimburse us upon demand for any
amount expended for such Taxes, including fees or penalties paid by us
hereunder. Your obligations to pay such Taxes which are due or assessed
during the term of the rental shall survive the expiration or termination o
this Master Rental Agreement.
12. Assignment. You have no right to sell, transfer, assign, sublease, or
sublicense (a) the Equipment, (b) the Software, or (c) this Master Rental
Agreement. We may sell, assign, encumber, or transfer this Master Rental
Agreement and any or all or our rights created by it subject to your right
hereunder. Any such assignment shall not relieve us of our obligations to
you and you agree not to hold any assignee liable for any of these
obligations. You agree that the rights of the new owner or assignee shall
not be subject to any claims, counter-claims, defenses, or set offs that
you may have against us including those in any Master Service Agreement.
13. Software. Subject to the terms of this Agreement, we grant to you the right
to use one copy only of any software provided to you by us relating to the
operation, information storage and retrieval, record keeping, and
communication of the Equipment (the "Software") only in the manner
described in the written materials accompanying the Software and solely as
installed on the Equipment in object code form. You agree not to use it in
any other way. You agree that the structure and organization of the
Software are valuable trade secrets of ours and agree to protect the
Software as you would other confidential, copyrighted material. You
understand and agree that we own the Software and any copies of it and that
the Software is licensed to you only for your use in connection with the
Equipment. You agree that you will neither modify, nor alter the Software,
nor decompile, reverse engineer, disassemble or otherwise attempt to obtain
the source code of the Software, or to encourage any third party to do so.
14. Further Assurances. You agree to provide such additional documents,
instruments, and Uniform Commercial Code financing statements to assist us
in completing the transactions contemplated by this Master Rental Agreement
to protect our rights or our assignee's rights to the Equipment. You hereby
agree to authorize us to file UCC financing statements, amendments, and
assignments relating to the Equipment in any location and execute the same
as your attorney-in-fact. If we assign this Master Rental Agreement, you
agree to execute such documents as we may reasonably request confirming
your obligations under this Master Rental Agreement and you agree to make
all payments of rent and other amounts due under this Master Rental
Agreement directly to the assignee. If it is determined that the rental
payment includes interest, no such interest shall exceed the amount legally
allowed.
15. Use of Information. You agree hereby to grant to us the royalty-free right
and license to utilize the Equipment to collect information (the
"Information") with regard to the use of the Equipment by you, including
supply utilization, inventory management, and billing information provided
that we shall have no right to use any personal patient identifying
information (such as name, address, telephone number, or social security
number). You hereby agree to grant to us an irrevocable, perpetual,
royalty-free right and license to use the Information for any purpose. We
agree to keep confidential the name of your hospital in connection with the
Information unless otherwise agreed by us and you.
16. Late Charges. If any part of a payment due is more than fifteen (15) days
late, you agree to pay a late charge at the rate of 5%, or the highest rate
allowed by law, of the payment for each month or part of a month the
payment is not made.
17. Automatic Renewal. At the end of the term for each unit of equipment listed
on each Rental Supplement made part of this Master Rental Agreement, you
may choose to: (A) return the unit of Equipment and any accompanying
Software to us, or (B) enter into a new Master Rental. Agreement for the
applicable Equipment. If you do not notify us of your selection of one of
the previous two options prior to the end of any term, the Equipment will
automatically convert to a month-to-month rental agreement at the then
current month-to-month rental rate. In case of such conversion to a month-
to-month rental, all provisions of this Master Rental Agreement will remain
in full force and effect.
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System
are registered trademarks or trademarks of OmniCell Technologies, Inc.
16.
18. Ownership of Equipment. We are the owner of the Equipment and Software and
shall retain at all times title to the Equipment and the Software delivered
to you hereunder.
19. Location of Equipment. You agree to keep and use the Equipment only at your
address shown above. You agree that the Equipment shall not be removed from
that address unless you get our written permission in advance to move it.
20. Return of Equipment. If you choose to return the Equipment at the end of
this Master Rental Agreement, you agree to immediately return the Equipment
to us in a condition as good as received, allowing for normal wear and
tear, to any place in the United States we designate. You agree to prepay
all expenses of crating and shipping by means we designate and you agree to
properly insure the shipment. At our option, we will supply you with
crating and packing materials. You agree to pay monthly rental payments for
any month or part thereof until the Equipment is returned.
21. Other Rights. You agree that any delay or failure to enforce our rights
under this Master Rental Agreement does not prevent us from enforcing any
rights at a later time.
22. Freight. All shipments are FOB OmniCell Technologies, Inc.
23. California Law, Jurisdiction and Venue. This Agreement shall be construed,
governed, interpreted, and enforced in accordance with the laws of the
State of California and shall be deemed to be fully and solely executed,
performed, and/or observed in the State of California. All actions of
proceedings arising under this Agreement shall be brought in the Federal
Courts of the Northern District of California or the State Courts located
in Santa ▇▇▇▇▇ County, State of California, and the parties hereby consent
to and waive any objection to the jurisdiction of such court.
24. Notices. Any notices given under this Agreement shall be deemed received
five (5) days after the date of mailing, one (1) day after dispatch by
overnight courier service, or upon receipt if by hand delivery.
OMNICELL, MASTER RENTAL #__________________________
RENTAL SUPPLEMENT #______________________
MASTER RENTAL DATED______________________
---------------------------------------------------------------------------------------------------------------------------------
OMNICELL SUPPLEMENT TO RENTAL AGREEMENT
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
CUSTOMER
----------------------------------------------------------------------------------------------------------------------------------
ADDRESS
----------------------------------------------------------------------------------------------------------------------------------
CITY COUNTY STATE ZIP
----------------------------------------------------------------------------------------------------------------------------------
CONTACT PHONE NO.
----------------------------------------------------------------------------------------------------------------------------------
ADDRESS OF INSTALLATION: STREET CITY COUNTY STATE ZIP
----------------------------------------------------------------------------------------------------------------------------------
1. The Rental Supplement is subject to and incorporates by reference all the
terms, conditions, and agreements set forth in the Master Rental Agreement
identified above as is fully set forth at length herein. Serial numbers for
each unit of Equipment will be shown on attached Exhibit A made Part of
this Supplement.
----------------------------------------------------------------------------------------------------------------------------------
Monthly Term
Catalog Product Number of Rental Payment (Number of
Number Description Units for each unit Rental Payments)
___________________ ___________________ ___________________ ___________________ ___________________
___________________ ___________________ ___________________ ___________________ ___________________
___________________ ___________________ ___________________ ___________________ ___________________
___________________ ___________________ ___________________ ___________________ ___________________
Total Monthly Payment $ ____________________________________
----------------------------------------------------------------------------------------------------------------------------------
2. Monthly Rental payments shall be billed to Customer Purchase Order # The
terms and conditions on any such purchase order issued in conjunction with
this Supplement shall be for reference purposes only and shall not become a
part of the terms of this Supplement.
3. Customer promises to pay the monthly rent shown for each unit of Equipment
described above for the consecutive months shown under Term.
4. Customer acknowledges that they have the authority to sign this Rental
Supplement.
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System
are registered trademarks or trademarks of OmniCell Technologies, Inc.
17.
----------------------------------------------------------------------------------------------------------------------------------
ACCEPTED: CUSTOMER:
This ____ day of _________________, 19 ______ SIGNATURE:_______________________________________________________
PRINT NAME:______________________________________________________
OMNICELL TECHNOLOGIES, INC. TITLE:___________________________________________________________
-----------------------------------------------------------------
CERTIFICATE OF ACCEPTANCE OF RENETED EQUIPMENT
SIGNATURE:________________________________________________
PRINT NAME:_______________________________________________ We hereby certify that all of the Equipment referred to in the
TITLE:____________________________________________________ Supplement has been delivered to and has been received by the
Customer, that the Equipment is in good working condition and
repair and is in all respects satisfactory to the Customer, and
that the Equipment is accepted by Customer for all purposes
under the Supplement.
Signature:_______________________________________________________
Title:___________________________________________________________
Date:____________________________________________________________
----------------------------------------------------------------------------------------------------------------------------------
ASSIGNMENT ACKNOWLEDGMENT
-------------------------
We acknowledge that as of ______ there are ______ payments remaining under
this Rental Supplement and that all future Rental Payments shall be paid
directly to General Electric Company, pursuant to Master Assignment Letter made
part of the Master Rental Agreement.
Signature:_________________________________
OMNICELL
--------------------------------------------------------------------------------
OMNICELL MASTER SERVICE AGREEMENT
--------------------------------------------------------------------------------
Dated ___________, 1999 Master Service Agreement # ___________
Master Rental Agreement Dated __________ Master Rental Agreement # ____________
Dear Customer: We use the words "you" and "your" to mean the Customer
indicated below. The words "we", "us", and "our" refer to OmniCell
Technologies, Inc.
---------------------------------------------------------------------------------
OmniCell Technologies Customer Customer
Mailing Address Billing Address Delivery Address
---------------------------------------------------------------------------------
Customer Legal Name:
OmniCell Technologies, Inc. ____________________ ________________
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ____________________ ________________
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ____________________ ________________
Attn.: Accounts Payable ____________________ ________________
Tel: ▇-▇▇▇-▇▇▇-▇▇▇▇
---------------------------------------------------------------------------------
1. Definitions. All capitalized terms used but not defined herein shall have
the same definitions as in the Master Rental Agreement designated above. An
"OmniCell System" means an integrated combination of OmniCell System and/or
Sure-Med System Equipment and Software as delivered to you under the Master
Rental Agreement.
2. Master Service Agreement. Provided you timely pay the Monthly Service
Payments designated on each Supplement you execute in connection with the
Master Rental Agreement referenced above, we agree to provide service as
described in this Agreement. Service shall cover the Equipment listed on
each Supplement, the Software provided by us in connection with the
Equipment, and our side of any Hardware or Software interfaces as may be
provided by us. You agree to pay the service payment ("Monthly Service
Payment') for each item of Equipment as set forth on the executed
Supplements for the number of consecutive months shown under Term on each
Supplement.
3. Additional Equipment. Each time you add Additional Equipment to your system,
you agree to execute a Supplement prepared by us listing the Additional
Equipment and the Monthly Service Payment, if any, per unit. All other terms
of this Master Service Agreement shall apply to Additional Equipment listed
on any additional Supplements. The Monthly Service Payment for each unit of
Additional Equipment shall begin on the date of installation of each unit of
Additional Equipment, if any.
4. Terms and Payments. The term of the Master Service Agreement shall be from
the date first set forth above through the last day of the month in which
the final Monthly Service Payment is made in accordance with the Supplements
you have executed. Your Monthly Service Payments shown on each Supplement do
not include any applicable Tax. If any Taxes are due, we shall invoice you
and you agree to pay the Tax in a timely manner in addition to your Monthly
Service Payments. We may, but are not obligated to, pay such Taxes and other
amounts and may file such returns on
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks of OmniCell Technologies, Inc.
18.
behalf of you if you fail to do so, and you agree to reimburse us upon
demand for any amount expended for such Taxes, including fees or penalties
paid by us hereunder.
--------------------------------------------------------------------------------
You agree to all the terms and conditions shown above and on Pages 2, 3 & 4
of this Master Service Agreement. These terms and conditions are a complete and
exclusive statement of our agreement with respect to the subject matter hereof
and may be modified only by a written agreement signed by both parties and not
by course of performance. The terms and conditions on any purchase order you
submit in conjunction with this Master Service Agreement shall be invalid and of
no force and effect to the extent such terms and conditions contradict or are in
addition to the terms of Us Master Service Agreement. Your purchase orders are
for reference purposes only and shall not become a part of this Master Service
Agreement.
You agree that this Master Service Agreement cannot be terminated except as
provided for in this Master Service Agreement. This Master Service Agreement may
not be terminated early. By signing this Master Service Agreement each of us
represents that he/she has the authority to bind our respective parties to this
Master Service Agreement.
Accepted:
--------------------------------------------------------------------------------
OMNICELL TECHNOLOGIES, INC. CUSTOMER
_________________________________________ ___________________________________
Signature Signature
_________________________________________ ___________________________________
Print Name: Print Name:
_________________________________________ ___________________________________
Tide: Title:
--------------------------------------------------------------------------------
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks of OmniCell Technologies, Inc.
19.
Master Service Agreement Terms and Conditions
5. Installation. Under this Agreement you are entitled to installation by us
of any Equipment for which you pay a Monthly Service Payment. You agree to
execute an OmniCell Installation Worksheet prior to any Equipment
installation. We shall make reasonable commercial efforts to complete the
installation of such Equipment in a timely manner upon receipt of
confirmation that the Equipment has arrived at your location. Prior to
arrival of the Equipment at your location, you agree to provide adequate
space for the Equipment under conditions suitable to the proper functioning
of the Equipment. In addition, you agree to provide clear commercial power
including our specified Uninterrupted Power Supply ("UPS") and the
necessary communication cable (telephone extension cable and ▇▇▇▇ or Local
Area Network ("LAN") connection and ▇▇▇▇) to each location where the
Equipment will be placed. You agree to provide a dedicated direct inward
dial (DID) communication line for remote access for service ("RAS") at the
location of the server(s). If this dedicated RAS line is not provided,
service will be charged at twice the quoted monthly fee amount. We shall
provide all installation personnel, tools, equipment, and material
necessary to install the Equipment and will install it in a workmanlike
manner.
6. Master Service. During the term of this Master Service Agreement, we shall
perform service to keep the Equipment, the Software and our portion of any
Software or Hardware interfaces in good working order based on the specific
needs of the item of Equipment or Software as determined by us. Master
Service will include adjustments and replacements of parts as we deem
necessary. If we are unable to repair an item of Equipment, we will replace
it. Replacement parts will be furnished on an exchange basis. In the event
any Equipment shall, for any reason, become disabled, you agree to
immediately advise us of the disability, specifying where the Equipment is
located, the nature of the disability and any known cause. Any repairs or
adjustments to the Equipment must be performed by an individual
specifically trained in the application and use of the OmniCell System.
During normal business hours we will use our good faith efforts to respond
to emergency service requests. THIS MASTER SERVICE AGREEMENT DOES NOT
ASSURE UNINTERRUPTED OR ERROR FREE SERVICE.
We shall provide service whether or not the Equipment has been used
properly in applications for which it was intended, provided that in the event
that the Equipment requires service due to misapplication, abuse, misuse,
alteration, or unauthorized repair or installation, Customer agrees to be
charged for the service at our minimum charge, plus our hourly rate after the
first four (4) hours of service and the list price for any replacement parts
required. We will charge at our rates and charges in effect at the time such
service is performed. Additionally, in the event you require any Additional Fee-
Based Services as described in the Master Services Agreement Plans, you agree to
be charged according to the corresponding schedule of charges. For any Software
service performed without a functional RAS line in place, Customer agrees to be
charged twice the quoted monthly fee amount, plus twice our hourly charge after
the first four (4) hours of service. We will charge at our rates and charges in
effect at the time such service is performed. You agree to provide us with entry
and access during normal business hours to the location of the Equipment for
purposes of providing service and repair.
7. Interfaces. You agree to provide service for your side of any Software or
Hardware interfaces.
A. Software and Service at No Charge. OmniCell agrees to provide the
following initial interface Software and services at no charge to you
within the first twelve (12) months from the date of this Master
Service Agreement.
I. ADT Interface: We will provide at no charge, Software which will run
on the OmniCell System and will receive Admitting Discharge Transfer
("ADT") messages from your ADT/Patient Management system. These ADT
messages will be processed by the OmniCell System to update patient
information in the OmniCell database. The format of the ADT interface
messages and the communications mechanism will be mutually agreed upon
by us, the ADT/Patient Management system vendor, and you. Software
installation, software set-up, and up to 20 hours of testing are
included as part of our side of the ADT interface We are not
responsible for producing and transmitting ADT interface records from
the ADT system. We are only responsible for receiving ADT interface
records and processing the records on the OmniCell System. We are not
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks of OmniCell Technologies, Inc.
20.
responsible for development, installation, set-up, or testing of the
ADT system side of the ADT interface.
II. Patient Charge Interface: OmniCell will provide at no charge, Software
which will run on the OmniCell System and will produce interface
records for each chargeable transaction that occurs on the OmniCell
System. These patient charge interface records will be transmitted to
the Customer's Patient Accounting system in real-time, or as a daily
batch. The format of the Patient Charge interface messages, and the
communications mechanism will be mutually agreed upon by us, the
Patient Accounting system vendor, and you. Software installation,
software set-up, and up to 20 hours of testing are included as part of
our side of the Patient Charge interface. We are not responsible for
the processing of the Patient Charge interface record which occurs on
the Patient Accounting system. We are not responsible for
development, installation, set-up, or testing of the Patient
Accounting system side of the Patient Charge interface.
III. Supply Inventory Replenishment Interface: We will provide at no
charge, Software which will run on the OmniCell System and will
produce interface records indicating the quantities of items that are
required to replenish each Omni Supplier. Supply Inventory
Replenishment Interface for Sure-Med System will be provided at an
additional charge. These Supply Inventor. Replenishment interface
records will be transmitted to your Materials Management system in
real-time, or in batches. The format of the Supply Inventory
Replenishment interface messages, and the communications mechanism
will be mutually agreed upon by us, the Materials Management system
vendor, and you. Software installation, software set-up, and up to 30
hours of testing are included as part of our side of the Supply
Inventory Replenishment interface. We are not responsible for the
processing of the Supply Inventory Replenishment interface records
which occurs on the Materials Management system. We are not
responsible for development, installation, set-up, or testing of the
Materials Management system side of the Supply Inventory Replenishment
interface.
B. Chargeable Software and Service. We will charge you for the following
Software and services:
I. Interface Modifications: If you request changes to an interface after
initial installation, testing, and your acceptance of that interface,
a fee will be charged to you for those modifications. "Modifications"
includes, but is not limited to: a) change in record format; b) change
in communications mechanism; c) addition of new record types; and, d)
addition of new processing functionality.
II. Additional Interfaces: Any interfaces in addition to the ADT
Interface, Patient Charge Interface, and Supply Inventory
Replenishment Interface, and including initial interfaces not written
within the first twelve (12) months described in Section A above will
be charged to you at a rate of $5,000 per interface. The
specifications for each interface will be mutually agreed upon by us,
the vendor responsible for the other side of the interface, and you.
III. Replacement of an Existing Interface: If an existing interface
between the OmniCell System and one of your Hospital Information
System ("HIS") systems must be replaced by a new interface, the
implementation of the replacement interface will be charged to you at
a rate of $5,000. The specifications for the replacement interface
must be collectively agreed upon by us, the vendor responsible for the
other side of the interface, and you.
8. Training. You agree to select, and we shall provide training in the
management, maintenance and use of the Equipment to, one of your employees
who is qualified to act as "System Administrator." The System Administrator
is responsible for administering and managing the performance of the
Equipment, including maintaining the files and monitoring the performance
of the Equipment. The System Administrator shall be responsible for
reviewing and evaluating all end-user requests for service and informing us
of any problems which the System Administrator cannot resolve. We shall
provide training at our Headquarters location for one System Administrator
in the system management and use of the Equipment. System
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks of OmniCell Technologies, Inc.
21.
Administrator Training shall be concluded within ninety (90) days from the
initial installation date of the Equipment at your location. We shall also
provide reasonable enduser training for each location of Equipment.
9. Subcontracting. We may subcontract any part of our obligations under this
Master Service Agreement, provided that any such subcontracting shall not
relieve us of our obligations or duties under this Agreement.
10. Limited Warranties. We hereby warrant that, if the Equipment is defective
in workmanship or materials, or if the Software we provide is defective
during the term of this Agreement, we shall repair or replace, at our
option, the defective part, parts, Software or Equipment, and you agree
that such repair or replacement shall be your sole remedy and recourse in
the event of such defect. THE WARRANTY GRANTED HEREIN DOES NOT COVER ANY
PRODUCTS THAT YOU MAY USE, CREATE, OR INSTALL THAT IS NOT PROVIDED BY US.
THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED,
INCLUDING WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, USE AND FITNESS
FOR A PARTICULAR PURPOSE. THIS WARRANTY SHALL BE VOID AND OF NO FORCE OR
EFFECT IF WE DETERMINE THAT ANY EQUIPMENT OR SOFTWARE DEFECT IS DUE TO YOUR
MISUSE OR NEGLECT OR ANY UNAUTHORIZED REPAIRS OR TAMPERING WITH THE
EQUIPMENT OR SOFTWARE.
11. Limitation of Liability. OUR TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT
EXCEED THE AMOUNT PAID BY YOU HEREUNDER. IN NO EVENT SHALL WE BE LIABLE FOR
ANY LOST PROFITS, COST OF COVER, OR OTHER SPECIAL, CONSEQUENTIAL, OR
INCIDENTAL DAMAGES ARISING OUT OF THIS AGREEMENT, OR YOUR USE OF OR ANY
MALFUNCTION OF THE EQUIPMENT OR SOFTWARE, HOWEVER CAUSED AND WHETHER
ARISING UNDER CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF WE
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING
THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
12. Default You shall be in material default of this Agreement if: (a) you are
in default under the Master Rental Agreement referenced above; (b) you fail
to pay any Monthly Service Payment when due and fail to cure such failure
to pay within fifteen (15) days after receipt of notice from us; (c) you
breach any material provision of this Agreement and such default is not
cured within fifteen (15) days after receipt of notice from us. In the
event you fail to cure any default within the prescribed period, if any, we
shall have the right, in addition to any other rights and remedies which
may be available to us at law or in equity, to accelerate all sums due us
under this Agreement and/or terminate this Agreement and cease providing
Master Service to you. For purposes of this Section, notice shall be deemed
given five (5) days after the date of mailing, one day after dispatch by
overnight courier service or upon receipt if by hand delivery.
13. California Law, Jurisdiction and Venue. This Agreement shall be construed,
governed, interpreted, and enforced in accordance with the laws of the
State of California and shall be deemed to be fully and solely executed,
performed, and/or observed in the State of California. All actions or
proceedings arising under this Agreement shall be brought in the Federal
Courts of the Northern District of California or the State Courts located
in Santa ▇▇▇▇▇ County, State of California, and the parties hereby consent
to and waive any objection to the jurisdiction of such court.
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks of OmniCell Technologies, Inc.
22.
Master Service Agreement Plans
Basic Service Plan
----------------------------------------------------------------------------------------------------------------------------------
Basic Service Plan Disabled System Hardware or Software Malfunction
----------------------------------------------------------------------------------------------------------------------------------
Phone Support 24 Hours/Day 24 Hours/Day
7 Days/Week 7 Days/Week
----------------------------------------------------------------------------------------------------------------------------------
Response Time 30 Minutes 30 Minutes
Phone: (Monday-Friday 5 AM - 6 PM PST) (Monday-Friday 5 AM - 6 PM PST)
2 Hours 2 Hours
(Monday-Friday 6 PM - 5 AM PST & (Monday-Friday 6 PM -5AM PST &
Saturday- Sunday) Saturday-Sunday)
----------------------------------------------------------------------------------------------------------------------------------
On-Site: 24 Hours 48 Hours
----------------------------------------------------------------------------------------------------------------------------------
On-Site Availability (if necessary) 24 Hours/Day 9 AM - 5 PM
7 Days/Week Monday-Friday
----------------------------------------------------------------------------------------------------------------------------------
Repair/Replacement Parts Included Included
----------------------------------------------------------------------------------------------------------------------------------
Remote Software & Interface Diagnostics Included Included
----------------------------------------------------------------------------------------------------------------------------------
System Administrator Training $1,000/Attendee (Travel and e~= not
included)
----------------------------------------------------------------------------------------------------------------------------------
Extended Service Plan
----------------------------------------------------------------------------------------------------------------------------------
Extended Service Plan Disabled System / Hardware or Software Malfunction
----------------------------------------------------------------------------------------------------------------------------------
Phone Support 24 Hours/Day
7 Days/Week
----------------------------------------------------------------------------------------------------------------------------------
Response Time 30 Minutes
Phone: (Monday-Friday 5 AM - 6 PM PSI)
2 Hours
(Monday-Friday 6 PM - 5 AM PST & Saturday-Sunday)
----------------------------------------------------------------------------------------------------------------------------------
On-Site: 24 Hours
----------------------------------------------------------------------------------------------------------------------------------
On-Site Availability (if necessary) 24 Hours/Day
7 Days/Week
----------------------------------------------------------------------------------------------------------------------------------
Repair/Replacement Parts Included
----------------------------------------------------------------------------------------------------------------------------------
Remote Software & Interface Diagnostics Included
----------------------------------------------------------------------------------------------------------------------------------
Interface Support (ADT, Billing & Inventory) Included
----------------------------------------------------------------------------------------------------------------------------------
Back-up Server Included
----------------------------------------------------------------------------------------------------------------------------------
Annual System Checkup Included
----------------------------------------------------------------------------------------------------------------------------------
3 Days System Optimization Consulting Included
----------------------------------------------------------------------------------------------------------------------------------
System Administrator Training * 2 attendees at no charge per every 20 frames purchased (Travel and expenses
not include)
----------------------------------------------------------------------------------------------------------------------------------
Additional Fee-Based Services
----------------------------------------------------------------------------------------------------------------------------------
Additional Fee-Based Services Minimum Charge 1st four (4) hours Additional Charge
----------------------------------------------------------------------------------------------------------------------------------
Relocation & All Services associated with Relocation $ 675 $150/Hour
----------------------------------------------------------------------------------------------------------------------------------
Reconfiguration & Rearrangement of OmniSuppliers $ 675 $150/Hour
----------------------------------------------------------------------------------------------------------------------------------
Field Installation of Product Modules & Module Conversions $ 675 $150/Hour
----------------------------------------------------------------------------------------------------------------------------------
Data Management & Data Manipulation of OmniCenter $ 675 $150/Hour
----------------------------------------------------------------------------------------------------------------------------------
Re-Training $ 675 $150/Hour
----------------------------------------------------------------------------------------------------------------------------------
System Administrator Functions $ 675 $150/Hour
----------------------------------------------------------------------------------------------------------------------------------
Inventory Management Consulting $1,250 $250/Hour
----------------------------------------------------------------------------------------------------------------------------------
Backup Server S 15,000 with $120/month service
fee
----------------------------------------------------------------------------------------------------------------------------------
Annual System Checkup $1,200/OmniSupplier Unit
----------------------------------------------------------------------------------------------------------------------------------
3 Days System Optimization Consulting $ 6,000
----------------------------------------------------------------------------------------------------------------------------------
OmniCell Full-time System Administrator Requires extended service plan As quoted
----------------------------------------------------------------------------------------------------------------------------------
Interfaces: Modification of existing Interfaces $1,000- - $3,000
New Interface $5,000
New Interface Maintenance $50/Month
----------------------------------------------------------------------------------------------------------------------------------
* All customers must identify at least one individual. the System Administrator,
who will assume ongoing responsibility for OmniCell equipment Training is
completed in a two to three day session at an OmniCell facility
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks or trademarks of OmniCell Technologies, Inc.
23.
OMNICELL
--------------------------------------------------------------------------------
OMNICELL SUPPLEMENT TO SERVICE AGREEMENT
--------------------------------------------------------------------------------
MASTER SERVICE AGREEMENT # __________
SERVICE SUPPLEMENT # ________________
DATED ___________________
Dear Customer: In this Supplement to Master Service Agreement (this
"Supplement"), we use the words "you" and "Your" to mean the Customer indicated
below. The words "we", "us", and "our" refer to OmniCell Technologies, Inc.
----------------------------------------------------------------------------------------------------------
OmniCell Technologies Customer Customer
Mailing Address Billing Address Delivery Address
----------------------------------------------------------------------------------------------------------
Customer Legal Name:
OmniCell Technologies, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Accounts Payable
Tel.: ▇▇▇-▇▇▇-▇▇▇▇
----------------------------------------------------------------------------------------------------------
1. Service Agreement. We agree to provide service to you on the Equipment
listed below. You promise to pay to us the monthly service fee shown for
each unit of Equipment for the number of consecutive months shown under the
Term below.
2. Terms and conditions. You agree that all of the terms and conditions
contained in the Master Service Agreement identified above between you and
us will apply to this Supplement, except as stated in Section 3 below.
3. Term and Service Fee. The term and monthly service payment for each unit of
Equipment on this Supplement shall be as shown above. You agree to pay the
service fee payments on their due dates.
----------------------------------------------------------------------------------------------------------
Equipment
----------------------------------------------------------------------------------------------------------
Monthly Service
Catalog Product Number of Payment Term (Number of
Number Description units for each unit Service Payments)
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
________________ ________________ ________________ ________________ ________________
Total Payment $___________________
----------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------
OmniCell Service Plan: Basic Service Plan Extended Service Plan
----------------------------------------------------------------------------------------------------------
By signing this Service agreement, each of us represents that he/she has the
authority to bind our respective parties to this Service agreement Accepted:
Accepted:
OMNICELL TECHNOLOGIES, INC. CUSTOMER
----------------------------------- -----------------------------------
Signature Signature
----------------------------------- -----------------------------------
Print Name: Print Name:
----------------------------------- -----------------------------------
Title: Title:
--------------------------------------------------------------------------------
Omnicell OmniSupplier, OmniCT, OmniCenter, the OmniCell logo, and Sure-Med
System are registered trademarks or trademarks of OmniCell Technologies, Inc.
24.
EXHIBIT "D"
OMNICELL
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. ▇▇▇-▇▇▇-▇▇▇▇
MASTER ASSIGNMENT LETTER
Re: Master Rental No.__________
Dear Customer,
We are assigning the right to payments under your Master Rental Agreement with
us to General Electric Company. This assignment includes all present Rental
Supplements between us and any future Rentals Supplements you may enter into
(collectively "Rentals"). All payments made on and after this date under the
Rentals should be paid to General Electric Company at the address as indicated.
Please be advised that General Electric Company is only being assigned the
rights to payments under your Rentals and is not undertaking any of our
obligations thereunder. We remain solely liable for all obligations as the
renter under the Rentals, all warranties as manufacturer and/or supplier, all
claims under any service contract or any other matters concerning the Rentals or
the equipment. You acknowledge that any claims against us under the Rentals or
as vendor or supplier of the equipment or under any service contract shall be
made solely against us and not General Electric Company and that General
Electric Company shall not be subject to any claims, damages, liabilities, or
offsets against any payments due under any Rentals for any reason whatsoever.
Payments under all Rentals should be remitted to General Electric Company to the
address referenced on the invoices.
Thank you for your attention in this regard. Please acknowledge this assignment
by signing and returning a signed copy of this letter to us.
Very truly yours,
OmniCell Technologies, Inc.
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
ACKNOWLEDGED:
By:_____________________________
Title:__________________________
25.
EXHIBIT "E"
CUSTOMER CREDIT RATING CATEGORY
Rating Requirements:
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"A" Fund balance greater than $30 million
Net income greater than $4 million
Cash on hand greater than $5 million
(An "A" can be moved down to a "B" if the current
ratio is less than 1:1 and the debt ratio is
greater than 5:1)
"B" Fund balance greater than $20 million
Net income greater than $2 million
Cash on hand greater than $3 million
(A "B" can be moved up to an "A" if the current
ratio is greater than 3:1 and the debt ratio is
less than 1:1 or a "B" can be moved down to a "C"if
the current ratio is less than 1:1 and the debt
ratio is greater than 5:1)
"C" Fund balance greater than $15 million
Net income greater than $1 million
Cash on hand greater than $2 million
(A "C" can be moved up to a "B" if the current
ratio is greater than 2:1 and the debt ratio is
less than 2:1 or a "C" can be moved down to a "D"
if the current ratio is less than 1:1 and the debt
ratio is greater than 5:1)
"D" Fund balance less than $15 million
Net income less than $1 million
Cash on hand less than $2 million
(A "D" can be moved up to a "C" if the current
ratio is greater than 2:1 and the debt ratio is
less than 2:1)
26.
EXHIBIT "F"
▇▇▇▇ OF SALE
OmniCell Technologies, Inc. ("Seller") in consideration of:
________________________________________________________________________________
paid by General Electric Company ("Buyer"), receipt of which is acknowledged,
hereby grants, sells, transfers and delivers to the Buyer the Master Rental
Agreement and Supplement No. To Rental Agreement, along with the OmniCell System
or Sure-Med System equipment ("Equipment"), as described below:
Master Rental Agreement Number:_________________________________________________
Master Rental Agreement Date:___________________________________________________
Supplement to Rental Agreement:_________________________________________________
Customer Name:__________________________________________________________________
Buyer shall have all rights and title to the Equipment, but shall have no rights
in any related software.
Seller warrants and represents to Buyer that the title to be conveyed is good,
its transfer is rightful and the Equipment is, has been, or shall be delivered
free from any interest or other lien or encumbrance.
IN WITNESS WHEREOF, Buyer and Seller have executed this ▇▇▇▇ Of Sale this day of
___________________.
Seller: Buyer:
OMNICELL TECHNOLOGIES, INC. GENERAL ELECTRIC COMPANY
By:_____________________________ By:_____________________________
Title:__________________________ Title:__________________________
27.