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EXHIBIT 10.25
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
_______________________________________________________________
_______________________________________________________________
MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
BETWEEN ASPECT MEDICAL SYSTEMS
AND
HEWLETT-PACKARD COMPANY
Effective Date: Oct 01, 1999
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
GENERAL
This Distribution Agreement between Aspect Medical Systems (referred to
herein as "AMS"), with its principal offices at ▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ and Hewlett-Packard Company (referred to herein as "HP") with
its offices at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (the "Parties") is
effective Oct 01, 1999 ("Effective Date").
WHEREAS AMS manufactures medical products and seeks to establish a
distribution channel in certain territories, and,
WHEREAS HP manufactures and distributes medical products and seeks to
distribute additional products to its customers; and,
WHEREAS AMS desires to appoint HP as an authorized Distributor in certain
territories of certain medical products, accessories and related goods to
be supplied by AMS and HP desires to accept such appointment.
THEREFORE HP agrees to purchase and AMS agrees to sell such Products upon
the following terms and conditions:
ARTICLE 1. DEFINITIONS
The following terms have the meaning indicated here when used in this
Agreement:
"AFFILIATE": Any person, firm, corporation, other legal entity which
controls or is controlled by or under common control with either AMS or HP.
"DISTRIBUTOR": HP.
"EXHIBITS": Documents attached to, incorporated by reference in, or added
to this Agreement at a later date.
"PRICES": Net US$ prices at which AMS shall sell Products to HP as set
forth in EXHIBIT 1.
"PRODUCTS": All medical products, supplies, accessories, parts and related
goods listed in EXHIBIT 1 as well as any and all updates, enhancements,
follow-on or related products that the parties mutually agree to add to
Exhibit 1.
"TERRITORIES": Countries and locations as set forth in EXHIBIT 2.
ARTICLE 2. APPOINTMENT
2.1 AMS hereby appoints HP as a non-exclusive Distributor for the Products
in the Territories.
2.2 Distributor may make sales outside the Territories if, and only if,
prior written permission is given by AMS, which shall not be unreasonably
withheld, and the product meets the regulatory requirements of the
Territory.
2.3 AMS agrees and confirms that Distributor may sub-contract any or all of
its obligations hereunder pursuant to ARTICLE 7.
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2.4 Distributor agrees to exert its reasonable commercial efforts to
promote, sell and support the Products to ultimate users of the Products.
2.5 The obligations set forth herein are in lieu of any "best efforts" or
similar obligation.
ARTICLE 3. RELATIONSHIP
3.1 The relationship of Distributor to AMS shall be that of an independent
contractor engaged in purchasing Products from AMS for resale to
Distributor's customers.
3.2 Nothing contained in this Agreement shall be deemed to create a
partnership or joint venture between the Parties. Neither the making nor
the performance of this Agreement shall be construed in any manner to have
established a joint venture or partnership.
3.3 Neither Party shall hold itself out as the agent of the other, nor
shall they incur any indebtedness or obligations in the name of, or which
shall be binding on the other, without the prior written consent of the
other. Each Party assumes full responsibility for its own personnel under
laws and regulations of the governmental authorities of the competent
jurisdiction.
ARTICLE 4. AGREEMENT PRECEDENCE AND DOCUMENTS
4.1 This Agreement supersedes any previous communication, representations,
or agreements between the Parties, whether oral or written, regarding
transactions hereunder.
4.2 All Exhibits attached to the Agreement shall be deemed a part of this
Agreement and incorporated herein. Terms that are defined in this
Agreement, and used in any Exhibit, have the same meaning in the Exhibit as
in this Agreement. The following Exhibits are hereby made a part of this
Agreement:
Exhibit 1 - Products and Prices
Exhibit 2 - Territories
Exhibit 3 - General Provisions
Exhibit 4 - Product Support Requirements
ARTICLE 5. TERM OF AGREEMENT
The term of this Agreement shall be for the period October 01, 1999 to
September 30, 2001 inclusive. This Agreement will remain in effect until
expiry unless terminated earlier as provided in ARTICLE 6. In the event of
such expiration or any early termination, this Agreement shall continue to
apply to all orders previously accepted by AMS unless cancelled by
Distributor pursuant to ARTICLE 6.
ARTICLE 6. TERMINATION
6.1 Not withstanding ARTICLE 5 above, this Agreement is terminable by
either party at any time after the expiry of the first year with or without
cause [**].
6.2 To the extent permitted by law, if either Party becomes insolvent, is
unable to pay its debts when due, files for bankruptcy, is subject of
involuntary bankruptcy, has a receiver appointed, or has its assets
assigned, the other Party may terminate this Agreement immediately upon
notice to the other party and may cancel any unfulfilled obligations.
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6.3 If either Party hereto shall fail to perform any of the obligations
imposed upon it under the terms of this Agreement, the other Party may
terminate the Agreement upon three months written notice. Such termination
shall be effective three months after deposit of the notice in the mail
unless the other Party cures the breach within such three month period.
6.4 Distributor shall immediately cease to be an authorized AMS distributor
upon the effective date of termination of this Agreement. Distributor shall
thereafter refrain from representing itselfas an authorized AMS distributor
and from using any AMS trademark or trade name.
6.5 [**].
ARTICLE 7. ASSIGNMENT AND MODIFICATION OF AGREEMENT
7.1 During the term of this Agreement, the rights of the Distributor under
this Agreement shall not be assigned nor shall the performance of
Distributor's duties hereunder be delegated, without the other AMS's prior
written consent which shall not be unreasonably withheld except either
Distributor may assign this Agreement (i) to an Affiliate that is an
Affiliate as of date of execution of this Agreement or (ii) to an Affiliate
whose assets consist entirely of the assets of an Affiliate or Affiliates
that were Affiliates as of the date of execution of this Agreement
(collectively the "permitted assignees").
7.2 An assignment of such rights for purpose of Section 7.1 shall include
any transaction including but not limited to, any merger, consolidation or
purchase of stock that results in a third party that is not a permitted
assignee controlling, directly or indirectly, a legal entity that holds
such rights. For purpose of this provision, the term "control" shall mean
the beneficial ownership, directly or indirectly, of fifty per cent (50%)
or more of voting shares of such entity. In the event of a change in
control by AMS, AMS shall give HP prompt notice and this Distribution
Agreement shall survive the change in control.
7.3 No sale, assignment or other transfer of any rights of a Party
hereunder shall be effective unless the purchaser, assignee or transferee
assumes such Party's obligations under this Agreement. Any assignment shall
not relieve the assigning Party of its responsibility for obligations
hereunder.
7.4 Except as set forth in Article 7.5 below, modifications of this
Agreement shall be effective and binding only if agreed in writing and
executed by respective duly authorized representative of each of the
Parties hereto.
7.5 Distributor may, at its option, delete Products from individual
Territories.
7.6 Neither Party's failure to exercise any of its rights under this
Agreement will constitute or be deemed a waiver or forfeiture of those
rights.
7.7 This Agreement may be assigned by HP to any new company that is formed
which essentially contains the elements of HP's measurement businesses.
ARTICLE 8. PRICES AND PAYMENTS
8.1 Distributor sets the end user selling prices at the sole judgement of
the Distributor.
8.2 Prices, which Distributor shall pay AMS for the Products purchased,
shall be the prices appearing in the EXHIBIT 1.
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Demonstration Prices for the AS2000 System will be $[**]. Demonstration
Prices for the BIS Sensor will be [**].
[**] the date of this Agreement. If there are additions or changes to
Products, Distributor will have the right to purchase these products and
prices will be established and Exhibits so revised.
8.3 Prices include the Product, labeling, packaging, freight, duties and
insurance to the F.O.B point of Leiden, Netherlands.
8.4 [**] under this Agreement. [**]
8.5 Orders issued by Distributor with requested or acknowledged delivery
dates within thirty (30) days after the effective date of any price change
will be billed at the lower price. This includes backlog and orders already
placed but have not received acknowledged delivery dates.
8.6 Payment shall be in U.S. dollars with a [**] discount if paid within
[**] ays fully payable without discount in net thirty days, after the later
of receipt by Distributor of an invoice or the corresponding Products.
Invoices must include details such as HP order number, HP product numbers
and quantities as reference. Distributor may deduct from AMS invoices any
monies owned to Distributor.
8.7 In competitive situations or as part of a large order, Distributor and
AMS may agree on a special price arrangement and split the cost of
additional discounts.
ARTICLE 9. SHIPMENT AND DELIVERY
9.1 Distributor will submit written (fax or electronic) orders to AMS after
receipt from the customer. Acknowledgment of delivery date will be received
by Distributor within no more than five work days. Distributor will not be
obligated to stock Products. Distributor may without charge postpone,
decrease, increase or cancel any order by notice to AMS, if such notice is
given at least ninety days prior to the delivery date. Distributor may
without charge decrease any order by a maximum of [**] by notice to AMS, if
such notice is given within ninety days prior to the delivery date.
9.2 AMS will make every reasonable effort to meet delivery within [**] days
or the date quoted or acknowledged. AMS shall give Distributor prompt
notice of any prospective failure to meet the acknowledged delivery date.
If AMS fails to deliver Products for [**] days beyond the agreed delivery
date, Distributor may cancel such orders without charge.
9.3 Distributor may request changes in delivery dates, quantity and
configuration for Products appearing on its orders at no charge provided
written notice of said changes is received by AMS at least [**] working
days prior to requested date.
9.4 Upon Distributor's request with the necessary information, AMS shall
evaluate special requests for suitability of software or suitability of a
particular hardware interface between Products and hardware/software used
by Distributor's customers and inform Distributor of the result within a
reasonable time.
9.5 AMS shall provide a packing list with Distributor's purchase order
number, HP product numbers (the HP equivalent of AMS's part numbers),
serial numbers, quantity shipped and date shipped with each unit shipped.
If applicable, the packing list should also provide lot number, batch
number or any shelf life information (ie. datecode).
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9.6 AMS shall preserve, package, handle, and pack Products so as to protect
the Products from loss or damage, in conformance with good commercial
practice, government regulations, and other applicable requirements. AMS
shall ▇▇▇▇ the exterior of the boxes with the associated Product and serial
numbers of the contents. AMS shall be responsible for any loss or damage
due to its failure to properly preserve, package, handle, or pack Products.
Distributor shall not be required to assert any claims for such loss or
damage against the common carrier involved. AMS will ship Products in the
final packaging as intended to be received by the end user as ordered
9.7 Title to Products and risk of loss or damage will pass to Distributor
when Products are delivered to the defined Distributor location specified
in EXHIBIT 3- General Provisions.
9.8 Distributor will be the exporter of record and obtains duty drawback
rights to Products. If Products delivered under this Agreement are
imported, AMS shall when possible allow Distributor to be the importer of
record. If Distributor is not the importer of record and AMS obtains duty
drawback rights to the Products, AMS shall, upon Distributor's request,
provide Distributor with documents required by the customs authorities of
the country of receipt to prove importation and transfer duty drawback
rights to Distributor
9.9 Items missing in shipment will be promptly replaced and shipped at no
charge to Distributor.
ARTICLE 10. ADVERTISING, PROMOTIONS, TRADEMARKS AND COPYRIGHTED MATERIAL
10.1 AMS agrees to provide sample quantities of current or new sales
literature, artwork, advertising materials, promotional plans and other
information or programs reasonably related to this Agreement. Distributor
specific literature and advertising will be the responsibility of
Distributor.
10.2 AMS together with Distributor will evaluate requirements and define
promotional plans to which both will adhere. AMS will also provide
recommended reference sites and will actively pursue clinical evaluations
and the development of local/country reference sites and clinical trials.
10.3 AMS hereby grants Distributor a revocable license to use any AMS
trademark or trade name associated with the Products solely in the
advertisement and promotion of the Products during the term of this
Agreement. Except as provided in this paragraph, Distributor shall have no
right, title or interest in or to any patent, trademark of trade name
belonging to AMS.
10.4 AMS hereby grants Distributor a revocable license to reproduce
materials provided to Distributor by AMS as is reasonable for promotion,
demonstration, sale and support of AMS Products, including but not limited
to posting such materials on the Internet, Intranet, or web.
ARTICLE 11. SALES AND SUPPORT
11.1 HP will provide AMS with a forecast of [**] projected sales unit
volumes. Quantities listed in such correspondence between the Parties are
only estimates made as an accommodation for planning purposes and do not
constitute a commitment to purchase such quantity. Distributor may revise
any forecasts in its sole discretion. [**] within this Agreement.
11.2 Distributor agrees to purchase demonstration Product and to maintain
trained staff capable of demonstrating and selling the Products. AMS agrees
to provide, at its costs, reasonable sales training and material and
support to the Distributor. Distributor agrees to participate in AMS's
sales and marketing meetings, Product and competitive training courses or
product launch meetings as mutually
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
agreed upon. AMS agrees to provide sales training in a mutually agreeable
location each six (6) months and upon product launch if sooner.
11.3 Distributor agrees to maintain trained staff capable of supporting the
Products. AMS agrees to provide, at no charge, reasonable service training
and support. Distributor agrees to participate in AMS's service training
programs. AMS undertakes to provide initial technical service training
prior to the time both Parties agree that distribution into the Territory
is to commence. Thereafter Distributor will send technicians to update
technical knowledge as mutually agreed upon.
11.4 AMS shall provide documentation to enable Distributor to establish the
support plan and deliver support services for the Products and Territories.
The product support plan shall prepared by both Parties and agreed upon
prior to the time distribution is to commence. AMS shall support the
Distributor with service information, parts (as provided in Section 11.5),
training and technical and clinical assistance and back-up support by
letter, fax, e-mail or telephone as appropriate.
11.5 Distributor agrees to purchase necessary spare parts and test
equipment to support systems installed in Territories. Spare parts to
support in-warranty repairs will be replaced for Distributor at no cost.
Out-of-warranty spare parts are at Distributor's cost.
11.6 Distributor shall use its reasonable efforts to handle and resolve
feedback from its customers. AMS shall have ultimate responsibility for
resolution of Product related issues. Problems that can not be resolved
locally will be escalated in accordance with ARTICLE 26.
ARTICLE 12. QUALITY ASSURANCE
12.1 AMS agrees to maintain ISO9001, EN46001 and Directive 93/42/EEC Annex
II certification status and compliance with the Food and Drug
Administration's (FDA) Quality System Regulation, the Medical Device
Directive and/or appropriate regulations that apply to countries within and
outside the European Union. As manufacturer, AMS will comply with all
applicable regulations and standards that pertain to manufacturers for
Products and Territories set forth herein.
12.2 Distributor will, from time to time, inform AMS of applicable
regulations in the Territories and AMS shall ensure that Products comply
with all such regulations.
12.3 Upon request, AMS agrees to furnish to Distributor any information
required to enable the Distributor to comply with all applicable
regulations and standards that pertain to distributors for Products and
Territories set forth herein.
12.4 If the Products and/or Territories covered in this Agreement are
modified, then AMS will maintain compliance with local regulations where
Products are manufactured and where Products are sold prior to the time
that both Parties agree that the distribution is to commence.
ARTICLE 13. MODIFICATION OF PRODUCTS
13.1 All Products marketed by Distributor shall be sold only in the form as
packaged by AMS. Distributor shall not alter or change Product or its
package, prior to sale.
13.2 AMS shall not, without the Distributor's prior written consent, make
any process or design changes affecting regulatory status or Product
specifications of Products in the Territories
13.3 AMS will affix "Distributed by Hewlett-Packard" labels as requested
by Distributor.
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13.4 AMS shall provide Distributor written notice of all Product
discontinuances [**] months prior to the last order date.
13.5 AMS agrees [**].
ARTICLE 14. EXPORT CERTIFICATION, PRODUCT REGISTRATION AND LOCALIZATION
14.1 Upon request, AMS shall provide at its own costs and expenses export
certificates issued by US Government and other documents that are necessary
for import and sale of the Products in the defined Territories. As required
by governments of any Territory, AMS agrees to site inspections of AMS's
factory.
14.2 AMS shall obtain and maintain at its costs all such Product
registrations that are necessary for demonstration and sale of Products as
required by law in the defined Territories.
14.3 AMS shall comply with all applicable regulatory requirements for
Product localization, including labeling and documentation as required in
countries agreed to by AMS and HP.
14.4 Upon mutual agreement, Distributor may provide Product registration
and/or localization assistance. In the case of documentation localization,
all master documentation is maintained and controlled, for the purpose of
quality system compliance, by AMS.
ARTICLE 15. IMPORT LICENSES AND EXPORT CONTROLS
15.1 AMS shall be responsible for obtaining and maintaining any export
license(s) required for delivery of the Products to Distributor under this
Agreement.
15.2 Upon Distributor's request, AMS shall provide an appropriate
certification stating the country of origin for Products, sufficient to
satisfy the requirements of (i) the customs authorities of the country of
ultimate destination, (ii) any applicable export licensing regulations,
including those of the United States, and (iii) requirements for duty
drawback.
15.3 AMS shall ▇▇▇▇ every Product (or the Product's container if there is
not room on the Product itself) with the country of origin. AMS shall, in
marking the Products, comply with the requirements of the customs
authorities of the country of ultimate destination. For each shipment of
Products of US origin issue a certificate specifying the US Export Control
Classification Number (ECCN number). Products must not be resold, exported
or re-exported in violation of the US Export Administration Act.
ARTICLE 16. WARRANTY AND LIMITATION OF REMEDIES
16.1. The Products listed on the attached Exhibits are covered by a [**]
written warranty starting from the date of delivery of the Products to
Distributor (the "User Warranty"). Such Products shall be referred to as
the "Warranty Products".
16.2 Distributor will supply a copy of the User Warranty with each Warranty
Product sold herein.
16.3 If Distributor finds that any Product is defective prior to its sale
by Distributor, Distributor shall contact an authorized AMS representative
and describe the defect. AMS will grant approval, provide the values for
customs purposes, and a return authorization number for repair or
replacement of the
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Product. Distributor undertakes to quote the authorization number on all
documentation that accompanies Products being returned. Distributor should
ensure that equipment is suitably packed for export and that accurate
values, as specified by AMS, are used in documentation. These defective
units will be promptly replaced at no charge to Distributor.
16.4 After AMS approves the return of the defective units, AMS will inform
Distributor as to the return location and send return labels to Distributor
or advise all details by electronic means.
16.5 AMS shall be entitled to verify the reason for the return and to
determine in its discretion whether to replace (rather than repair) the
unit. AMS shall not repair or replace units free of charge if the failure
is due to any of the following reasons:
i Damage from abuse or misuse;
ii Attempted repair by unauthorized service center; or
iii Repossession
16.6 For any Product repaired or replaced under warranty, the warranty
period will terminate at the end of the original warranty period as
provided in Article 16.1 or no less than six (6) months after the repair or
replacement.
16.7 AMS warrants that no Product provided hereunder shall be adulterated
or misbranded, with the meaning of the Federal Food, Drug, and Cosmetic
Act.
16.8 AMS warrants that the Products provided herein will be "Year 2000
Compliant". Year 2000 Compliant Products will perform without error, loss
of data or loss of functionality arising from any failure to process,
calculate, compare or sequence date data accurately. In addition, Year 2000
Compliant Products will not cause any associated products or systems in
which they may be used to fail in any of the ways described above.
16.9 AMS warrants that that all Products shall (i) conform strictly to its
specifications, , (ii) be free from defects in design, material, and
workmanship when used for their proper and intended purposes, and (iii) be
free from all liens, encumbrances, and other claims against title.
16.10 In addition to warranties specified above, where an exceptionally
high failure rate occurs [**]. Product Support Requirements), AMS
undertakes to apply additional resources to return the failure rate to
normal as soon as reasonably practicable. AMS shall reimburse Distributor
for costs incurred by Distributor in case of such abnormal failures.
Failure is defined as a situation where the end user cannot fully utilize
the Product.
ARTICLE 17. IN-WARRANTY REPAIR
17.1 AMS shall cover parts costs and Distributor shall cover labor costs
for field repair during the warranty period as set forth in ARTICLE 16.1.
In such case, Distributor may purchase replacement parts for no charge from
AMS.
17.2 If Warranty Products are returned to AMS, then parts and labor costs
for returned Products are covered by AMS. Distributor or its customer must
pay for transportation, insurance and handling charges of shipment of
Product to AMS for repair or replacement. Repaired or replaced Warranty
Products will be returned to sender at AMS's expense
17.3 Distributor shall perform installation services at Distributor's
expense.
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ARTICLE 18. OUT OF WARRANTY REPAIR
18.1 Distributor or its customer shall bear all shipping charges for
out-of-warranty repairs.
18.2 Repairs made by AMS outside of the warranty period shall be billed at
the AMS repair charge set forth in EXHIBIT 1. Such out-of-warranty repairs
will have a [* *] parts warranty.
18.3. Out of warranty repairs performed by AMS will be formed at AMS's
facility set forth in EXHIBIT 3.
18.4 AMS shall provide technical support and make out of warranty repair
parts for the Products available to Distributor, at Distributor's cost, for
a term of [* *] after Distributor ships the last Product. If unable to
provide such service and support, AMS shall provide Distributor with a
mutually agreeable alternative. In the case of termination of this
Agreement on any grounds other than a breach of this Agreement by
Distributor, AMS shall at the request of Distributor guarantee a continued
supply of Product and its updates or supply sufficient data regarding
product reliability to allow for the possible incremental purchase of
Product for the Distributor's standard [*] support life.
ARTICLE 19. COMPLAINTS, QUALITY RECORDS AND RECALLS
19.1 Distributor will notify, in writing, AMS's quality assurance
department of all Product complaints or any regulatory/conformance issues
that may affect the marketability of Products. AMS shall notify the
appropriate regulatory agent(s) if required and shall conduct any safety
investigations or other necessary follow-up activities. Distributor will
provide any information essential to such activities. AMS will promptly
notify Distributor if corrective action is necessary in the Territory.
19.2 Distributor shall keep records of the names and addresses of customers
and Product serial numbers for the active Product life to enable
Distributor to notify customers of Product safety information. Distributor
shall maintain the following information when distributing AMS's Products:
- Name and address of initial consignee
- Identification of device and quantity of devices shipped
- Date of shipment
19.3 Upon request, Distributor will supply AMS a quarterly report of
repairs, maintenance or service activity for Products. The report will
include the product number, serial number, fault found, action taken and
date of the activity.
19.4 In the event of any recall of a Product required by a governmental
agency for safety or efficacy reasons, or requested by Aspect at its sole
discretion, which is the result of AMS's failure to supply Products that
(1) conform in all material respects to the applicable published
specifications or (2) are free from defects in material and workmanship
(when given normal, proper and intended usage), AMS agrees to repair or
replace at its own costs all Products subject to the recall and previously
delivered to Distributor. AMS also agrees to consult with Distributor to
establish a reasonable process for managing the recall and Aspect shall be
responsible for all reasonable out-of-pocket expenditures incurred by
Distributor (including, but not limited to shipping costs, labor and travel
costs) that are consistent with the recall process agreed to by the
Parties.. In the event the recall is not required by a governmental agency
for safety or efficacy reasons, but is instead requested by AMS at its sole
discretion, AMS will be responsible for determining the scope of the
recall, including the number of units, timeframe for the recall, and
criteria for completion. Distributor agrees to maintain all necessary sales
records to facilitate the recall.
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ARTICLE 20. PRODUCT STEWARDSHIP
20.1 AMS shall accept back, free of charge, any material including the
Products and packaging returned freight prepaid by Distributor from any
country that legally requires product take back from the user at the end of
product life.
20.2 AMS shall, upon request, provide available environmentally related
information regarding materials included in Products and packaging that AMS
ships to Distributor including material safety data sheets.
ARTICLE 21. FORCE MAJEURE
No Party to this Agreement shall be liable for failure or delay of
performance of any of its obligations hereunder if such failure or delay is
due to causes beyond its reasonable control including, without limitation,
natural disasters, fires, earthquake or storm, strikes, failures of public
utilities or common carriers, acts of war, or intervention, acts restraints
or regulations of any governmental authority including compliance with any
order of any governmental considerations; provided that any such delay or
failure shall be remedied by such Party as soon as possible after removal
of the cause of such failure. A Party suffering such delay or which expects
to suffer such delay shall promptly notify the other Party in writing of
the cause and expected duration of such delay. In the event a delay lasts
or is expected to last more than sixty (60) days the other Party shall have
the option to terminate this Agreement upon written notice.
ARTICLE 22. CONFIDENTIALITY
Both Parties agree to keep in confidence the terms and conditions of this
Agreement.
ARTICLE 23. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
AMS shall, except as otherwise provided below, defend or settle any claim
made or any suit proceeding brought against Distributor and its
subsidiaries, assigns, subcontractors, and customers so far as it is based
on an allegation that any Product furnished herein infringes a patent,
utility model, industrial design, copyright, trade secret, mask work of
trademark of the United States, or of the country where the Product is
sold, if notified promptly in writing and given information, assistance and
the sole authority to defend or settle same (at AMS's expense), and AMS
shall pay all damages and costs finally awarded in any such suit or
proceeding against Distributor. In case said Product is in such suit held
to infringe and the use or sale of said Product is enjoined, or in the case
of a settlement as referred to above, AMS shall have the option at its own
expense, to procure for Distributor the right to continue using or selling
said Product, or replace same with a non-infringing Product, or modify same
so it becomes non-infringing; in the event that none of the previous
options are commercially feasible, then AMS shall grant a refund to
Distributor of the price paid by Distributor for any of such Products
returned to AMS by Distributor. Notwithstanding anything to the contrary
above, in no event shall AMS have any liability under this Section 23 for
any such claims resulting from (a) modifications to the Products by anyone
other than AMS where the unmodified Products do not infringe, (b) the
combination of the Products with other products not provided by AMS, or (c)
use of the Products for purposes for which they were not intended. The
foregoing states the entire liability of AMS for infringement by Products
furnished herein.
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
ARTICLE 24. INDEMNITY AND LIMITATION OF LIABILITY
24.1 AMS shall indemnify Distributor and its Affiliates from and against
any and all liabilities, claims, demands, damages, costs and expenses or
money judgements (including legal fees) incurred by or rendered against any
of them from third party claims or actions for personal injury or property
damage which arise out of a defect due to defective design, parts,
packaging, labeling, faulty workmanship of Products of which AMS is the
manufacturer or is the Party responsible for failure to warn except to the
extent that such personal injuries or property damage arise out of
Distributor's (or its Affiliates) negligence or breach of this Agreement
(as set forth in herein).
24.2 EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR
PUNITIVE DAMAGES OF ANY KIND WHATSOEVER INCLUDING BUT NOT LIMITED TO LOST
PROFITS, IN CONJUNCTION WITH OR ARISING OUT OF THE PERFORMANCE UNDER THIS
AGREEMENT OR THE USE OR PERFORMANCE OF PRODUCTS AND SUPPORT SERVICES EVEN
IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CONSEQUENTIAL LOSS FOR THE PURPOSES OF THIS AGREEMENT SHALL MEAN AND
INCLUDE WITHOUT LIMITATION OF THE GENERAL STATEMENT EARLIER APPEARING, IN
EACH CASE WHETHER ARISING IN TORT OR CONTRACT AND INCLUDING IN EACH CASE
NEGLIGENCE:
(a) LOSS OF PROFITS;
(b) LOSS OF CONTRACTS;
(c) LOSS OF ANTICIPATED SAVINGS;
(d) LOSS OF DATA;
(e) LOSS OF BUSINESS;
(f) LOSS OF GOODWILL;
(g) LOSS OF REVENUE;
(h) LOSS OF ORDERS; AND LOSSES ARISING PRIOR TO THE COMMENCEMENT
OF THE CONTRACT ARE ALSO EXCLUDED.
24.3 The above limitation of liability shall not apply to damages with
respect to the indemnity for the infringement of intellectual property
rights as provided in Article 23.
24.4 This indemnity shall not be affected or terminated by reason of
termination or expiration of this Agreement.
ARTICLE 25. INSURANCE
Upon request, AMS shall provide evidence of product liability, general
liability and property damage insurance against an insurable claim or
claims, which might or could arise regarding AMS products purchased from
AMS. Such insurance will contain a minimum limit of liability for bodily
injury and property damage of not less than [**] US$.
ARTICLE 26. CONFLICT RESOLUTION
26.1 The appointed representatives set forth in EXHIBIT 3- General
Provisions shall address conflicts that arise relative to this Agreement.
If these representatives can not resolve such conflicts, then AMS and the
Distributor shall promptly establish a review board comprised of
appropriate members of management from AMS and the Distributor to resolve
the conflict.
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
26.2 In the event that the review board of the Parties does not resolve a
dispute within thirty (30) days from the date of escalation, then the
Parties agree to consider seriously the use of mediation. Such mediation
process shall be non-binding and voluntary. The Parties shall agree on the
procedural aspects of the mediation, including the venue, during the time
that the mediation is being considered.
26.3 If the Parties do not attempt to resolve a dispute through the
foregoing mediation process or upon failure of or withdrawal from such
mediation process, then either of the Parties may elect to pursue any
remedies available at law.
26.4 The laws of Commonwealth of Massachusetts, USA, will govern any
disputes arising in connection with this Agreement. AMS and HP hereby
consent to the jurisdiction and venue of the courts located in the
Commonwealth of Massachusetts.
ARTICLE 27. ADMINISTRATION AND NOTICES
Any notices pursuant to this Agreement shall be sent to the address(s)
specified Exhibit 3- General Provisions.
By signing this document, the Parties below indicate their Agreement with
and acceptance of this Agreement, including all Exhibits.
ARTICLE 28.
Within [**] days following the [**] Aspect [**]. In the event that [**].
The Parties will agree [**]. HP will be responsible for providing Aspect
with documentation,[**], the locations of such modules, and the dates of
installation.
SIGNATURES
For Aspect Medical Systems For Hewlett-Packard Company
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------- ------------------------------
Authorized Representative Signature Authorized Representative Signature
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and CFO Title: Vice-President of Medical
Products Group Worldwide
Sales and Marketing
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Authorized Representative Signature
Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: Medical Supplies General
Manager.
Effective Date Oct 01, 1999
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
EXHIBIT 1 - PRODUCTS AND PRICES
The following Exhibit is attached to and form part of the Distribution
Agreement between AMS and Hewlett-Packard Company
Technical descriptions of Product are specified in AMS documents numbered:
075-0002 (Operator's Manual) and 070-0015 (Service Manual)
--------------------------------------------------------------------------------------------------------------
PART DESCRIPTION ESTIMATED YEARLY LEAD PRICE
--------------------------------------------------------------------------------------------------------------
AMS# 186-0075 A-2000 Monitoring System; [**] [**] [**]
--------------------------------------------------------------------------------------------------------------
AMS# 186-0100 BIS Sensor [**] [**] [**]
--------------------------------------------------------------------------------------------------------------
SERVICE REPAIR PARTS PRICES: (note: boards & displays are needed for
support strategy Exh. 4)
PART DESCRIPTION LEAD TIME PRICE
--------------------------------------------------------------------------------------------------------------
186-0067 BIS Sensor Interface Cable [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
150-0037 Pole Clamp Assy [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
185-0071 A-2000 Signal Converter [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
140-0017 Main PCB Rev 3 Board [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
140-0018 Interconnect Board - Rev 2 [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
195-0020 Power Boards Rev 2 [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
465-0012 Assembly EL Display [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
Replacement Service Manual [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
070-0015 Replacement Operators Manual [**] [**]
==== ====
--------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
EXHIBIT 2 - TERRITORIES
The following Exhibit is attached to and form part of the Distribution Agreement
between AMS and Hewlett-Packard Company
Herein, the Territories are established for the above referenced Agreement.
------------------------
REGIONS
------------------------
[**]
====
------------------------
[**]
------------------------
[**]
------------------------
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
EXHIBIT 3 - GENERAL PROVISIONS
The following Exhibit is attached to and form part of the Distribution Agreement
between AMS and Hewlett-Packard Company
Any notice pursuant to this Agreement should be sent certified mail to the
Address(s) below:
Hewlett-Packard Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇-▇▇▇▇
AMS's address
Ship-to address for Products from AMS to HP:
Invoice-to address for Products from AMS to HP:
For information concerning this Agreement, contact the appropriate person below:
----------------------------------------------------------------------------------------------
AMS COMPANY ROLE: NAME: LOCATION: PHONE NUMBER:
----------------------------------------------------------------------------------------------
SALES MANAGER [**] [**] [**]
----------------------------------------------------------------------------------------------
QUALITY/ REGULATORY [**] [**]
ASSURANCE MANAGER
----------------------------------------------------------------------------------------------
SERVICE TECHNICAL [**] [**] [**]
SUPPORT MANAGER
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
HP ROLE: NAME: LOCATION: PHONE NUMBER:
----------------------------------------------------------------------------------------------
ALLIANCE MANAGER [**] [**] [**]
----------------------------------------------------------------------------------------------
QUALITY/REGULATORY [**] [**] [**]
ENGINEER
----------------------------------------------------------------------------------------------
SERVICE TECHNICAL [**] [**] [**]
SUPPORT MANAGER
----------------------------------------------------------------------------------------------
ORDER FULFILLMENT [**] [**] [**]
ENGINEER
----------------------------------------------------------------------------------------------
PRODUCT MANAGER [**] [**] [**]
----------------------------------------------------------------------------------------------
PROGRAM MANAGER [**] [**] [**]
----------------------------------------------------------------------------------------------
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MEDICAL PRODUCTS DISTRIBUTION AGREEMENT
EXHIBIT 4 - PRODUCT SUPPORT REQUIREMENTS
The following Exhibit is attached to and form part of the Distribution
Agreement between Aspect Medical Systems and Hewlett-Packard Company
The following Exhibit establishes the support requirements for the A-2000
Monitoring System covered by this Agreement.
1. GENERAL SUPPORT STRATEGY: The support strategy [**].
2. [**].
3. [**].
4. [**].
5. AVERAGE PARTS COSTS PER FAILURE: The average parts cost per repair (board
swap) is the price of the power board in Exhibit 1.
6. GUARANTEED PARTS AVAILABILITY: AMS will provide spare parts within 48 hours
of receipt of order.
7. GUARANTEED RESPONSE TIME: AMS will provide response to escalated customer
issues within [**] for safety-related issues or [**] otherwise.
8. REPAIR PARTS INVENTORY: AMS recommends spare parts stock of 2 boards and 2
displays for every 20 monitors sold.
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