EXHIBIT 10.24
OPTICAL SENSORS INCORPORATED
PURCHASE ORDER
Date: 2/21/97
SeaMED Corporation
▇▇▇▇▇ ▇.▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies/Gentlemen:
This Purchase Order, upon acceptance by SeaMED Corporation ("Contractor"),
constitutes the agreement of Optical Sensors Incorporated ("Buyer") to purchase
from and Contractor, and Contractor to manufacture and sell to Buyer, Buyer's
OpticalCam Arterial Blood Gas Monitor, Buyer's Part No. 01481 (the "Product").
Buyer's Standard Terms and Conditions of Purchase, which are attached hereto,
shall apply to this Purchase Order. The term Seller in the Standard Terms and
Conditions shall mean Contractor. If any terms of this Purchase Order are
inconsistent with the Standard Terms and Conditions, the terms of this Purchase
Order shall control.
Price
The per unit price to be paid by Buyer for the Product is set forth on Exhibit A
Buyer will pay for any additional cost due to unavailability of piece parts from
production tooling, at Contractor's cost (without any ▇▇▇▇-up), pursuant to a
separate purchase order to be issued by Buyer. [Portions of this section have
been omitted pursuant to a request for confidentiality under Rule 24b-2 of the
Securities Exchange Act of 1934, as amended. A copy of this Agreement with this
section intact has been filed separately with the Securities and Exchange
Commission.]
Quantity, Delivery Dates and Forecast
This Purchase Order covers a total of _____ units of the Product. Buyer's
Forecast of its anticipated delivery dates for the Product during 1997 is
attached hereto as Exhibit B. The delivery dates set forth in the first four
(4) months of the Forecast are firm delivery dates. The delivery dates set
forth in the remainder of the Forecast represent Buyer's current estimate of its
requested delivery dates during 1997 and are not binding in any manner, except
that Buyer will take delivery of all units of the Product covered by this
Purchase Order within eighteen (18) months of the date of this Purchase Order.
Buyer will update the Forecast monthly, provided that Buyer will not be
obligated to purchase more than ____ units of the Product, even if the Forecast
calls for more than ____ units, unless Buyer issues a subsequent Purchase Order
covering such additional units. Contractor will use its best efforts to inform
Buyer of a need to authorize procurement of long lead time materials and
outplant services for forecasted purchases that are not covered by this Purchase
Order. Contractor will not order any such materials for forecasted
quantities of Product that are not covered by this Purchase Order or any
subsequent Purchase Order without the prior written consent of Buyer. Buyer will
provide Contractor with an inventory deposit for all inventory procured and paid
for by Contractor that is held for a period in excess of sixty (60) days due to
slide in production forecast. [Portions of this section have been omitted
pursuant to a request for confidentiality under Rule 24b-2 of the Securities
Exchange Act of 1934, as amended. A copy of this Agreement with this section
intact has been filed separately with the Securities and Exchange Commission.]
Specifications
Contractor will manufacture the Product in accordance with Buyer's
specifications, number 01481 (the "Specifications"), a copy of which has been
previously provided to Contractor.
Warranty
Contractor warrants for fifteen (15) months from date of shipment to Buyer that
all Products shall be free from defects in material and workmanship, and shall
conform to applicable Specifications, drawings, samples and descriptions
referred to in this Purchase Order. Contractor warrants it has the right to
convey the Product and that the Product will be free of all liens and
encumbrances. These warranties shall survive any inspection, delivery, payment
and termination of this Purchase Order, and shall run to Buyer, its customers,
successors and assigns.
Contractor shall correct defects in Product at its facility. At Buyer's option,
Contractor shall complete an assessment of the returned Product within three
(3) days of receipt, and repair or replace all defective Product within fourteen
(14) days of receipt. If the defective Product is covered by the foregoing
warranty, Buyer will pay the cost of shipping the defective Product to
Contractor, and Contractor will pay the cost of shipping the repaired or
replaced Product to Buyer, except that if the defect is an "out-of-box" failure,
Contractor will pay the cost of shipping to and from Contractor.
Compliance
Contractor warrants that all Products will be produced, manufactured and
assembled in compliance with all applicable federal, state and local laws and
rules and regulations, including, but not limited to, the Food, Drug and
Cosmetic Act of 1938, as amended, and all regulations promulgated thereunder,
including without limitation, Good Manufacturing Practices ("GMP") for Medical
Devices (21 CFR Part 820).
Contractor represents and warrants to Buyer that Contractor's manufacturing
facility is certified "DIN EN ISO 9001/EN46001/MDD" and that Contractor has all
approvals and consents required to ▇▇▇▇ the Product with the "CE" ▇▇▇▇.
Contractor further covenants with Buyer that Contractor will maintain such
certification during the term of this Purchase Order. Contractor will notify
Buyer of any audits of Contractor's manufacturing facility to be conducted by
TUV Product Services or any other notified body for such certification, provide
Buyer with a written
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copy of the results of such audit, to the extent that such audit relates
directly to the manufacture of the Product, and Contractor's proposed corrective
response to such audit, if any required.
Prior Letter Agreement
Buyer and Seller acknowledge and agree that Paragraphs 6(b), 6(c) and 7 of the
Letter Agreement, dated December 15, 1995, between Buyer and Seller shall apply
to the work performed under this Purchase Order and shall remain in effect so
long as Product is manufactured and delivered under this Purchase Order.
OPTICAL SENSORS INCORPORATED SEAMED CORPORATION
By /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By /s/ ▇▇▇ ▇▇▇▇
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Its President and CEO Its Senior Vice President - Operations
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OPTICAL SENSORS INCORPORATED
STANDARD TERMS AND CONDITIONS OF PURCHASE
1. Terms of Agreement. These Standard Terms and Conditions of Purchase shall be
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a part of the Purchase Order issued by Optical Sensors Incorporated (the
"Buyer") to which these Standard Terms and Conditions of Purchase are
attached, and the Purchase Order is subject to the following terms and
conditions. No waiver, alteration, or modification of the terms and
conditions set forth herein shall be valid unless expressly agreed to in
writing by the Buyer. Any different, additional or conflicting terms or
conditions set forth in the Seller's invoice or any other document issued by
the Seller are expressly objected to by the Seller; the terms of the
Purchase Order shall exclusively govern the purchase and sale of the Product
covered by the Purchase Order (the "Product").
2. Delivery Terms. The Seller shall deliver the Products at the Buyer's
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facility on the date set forth in the Purchase Order. The Products shall not
be delivered substantially before or after the delivery date without the
Buyer's prior approval. All deliveries of Products ordered by the Buyer
shall be F.O.B. the Seller's manufacturing facility, with all title and risk
of loss passing to the Buyer upon delivery of the Products at the F.O.B.
delivery point to the common carrier specified by the Buyer. Seller shall
package the Products in a manner that will prevent damage during shipping
and ship the Products in accordance with the Buyer's instructions. The Buyer
shall pay all insurance and freight costs directly to the carrier, or
reimburse the Seller for cost of such insurance and freight if paid by the
Seller, unless otherwise mutually agreed by the Buyer and the Seller. Each
shipment of Products shall include separate packing slips showing: (a)
Buyers' purchase order number; (b) the part number and revision level for
each Product shipped; (c) a description of the goods; (d) individual serial
numbers of the Product; and (e) the total quantity of Products shipped.
3. Specifications. The Seller will supply or manufacture the Product in
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accordance with the specifications, if any, provided by the Buyer. The
Seller will not make any changes in such specifications or make any changes
in any components or processes used in manufacturing the Product previously
agreed to by the Buyer without the Buyer's prior consent.
4. Acceptance of Products. The Buyer shall inspect the Products upon delivery
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and shall within thirty (30) days thereof give written notice to the Seller
of any claim that any or all of the Products do not conform to the terms or
specifications of the Purchase Order, stating the particulars to support
such claim. If the Buyer shall fail to timely give the Seller such written
notice as provided hereunder, the Products shall be deemed to conform to the
terms of the Purchase Order and the Buyer shall be deemed to have accepted
the goods, subject to any warranty covering the Product, and shall pay for
the goods in accordance with the terms of the Purchase Order.
5. Invoices. Seller's invoices shall, at a minimum, include: (a) Buyer's
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purchase order number, against which the Products were shipped; (b) the date
of shipment; (c) the part number and revision level for each Product
shipped; (c) a description of the goods; (d) the total quantity of Products
shipped; and (e) the per unit price of the Products shipped.
6. Payment Terms. Down payment, if required, shall be due upon execution by the
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Buyer of this Purchase Order and shall be returned to the Buyer if the
Purchase Order is not accepted. Payment, other than any down payment, shall
be made by the Buyer no later than thirty (30) days after receipt of invoice
from the Seller. The Buyer shall pay a late payment charge computed at the
rate of one and one-half percent (1-1/2%) per month on the unpaid amount for
each calendar month (or fraction thereof) that such payment is in default.
The Buyer shall pay any and all costs of collection including, without
limitation, reasonable attorney's fees, whether or not suit is instituted,
incurred by the Seller in the event collection of any delinquent balance is
required.
7. Cancellation and Returned Goods. The parties agree that an acceptance of the
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Products by the Buyer shall be deemed to have been made with knowledge of
any alleged defects that inspection during the period designated above would
have revealed. Following inspection and written notice by the Buyer as set
forth hereunder, if any of the goods shall prove defective due to faults in
manufacture or fail to meet the written specifications, the Seller shall
repair or replace, at its option, any non-conforming goods within the time
period specified in the Purchase Order, or if no such time period is
specified, within a reasonable time. If the Buyer cancels all or any portion
of an order, the Buyer shall pay cancellation charges which shall include
all direct costs (which the Seller cannot recover from its suppliers)
incurred by the Seller in obtaining raw materials and components in order to
fulfill the Purchase Order until the time of the Buyer's written request for
cancellation. The Buyer shall have no other liability to the Seller for
cancellation. Such cancellation charges shall not include lost profits or
incidental or consequential damages:
8. Taxes. The Buyer shall be responsible for and shall pay or reimburse the
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Seller for all taxes, duties, assessments and other governmental charges,
however designated, associated with the purchase of Products hereunder, the
payment of any amounts by the Buyer to the Seller, or taxes based on the
Products or their use which are or may be imposed under or by any federal,
state or local taxing authority; provided, however, that the Seller shall
not responsible for any taxes based upon Seller's income.
9. Confidential Information. The Seller acknowledges and agrees that any
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specifications and all related writings, drawings, artwork, computer
assisted designs and similar works shall be deemed "Confidential
Information." The Seller further acknowledges and agrees that any other
information which is disclosed by Buyer in any tangible form and is clearly
labeled or marked as confidential, proprietary or its equivalent, or
information which is disclosed orally or visually, is designated
confidential, proprietary or its equivalent at the time of its disclosure
and is reduced to writing and clearly marked or labeled as confidential,
proprietary or its equivalent within thirty (30) days of disclosure shall be
deemed "Confidential Information." All Confidential Information shall be the
exclusive property of Buyer, and Buyer retains all right, title and
interest, including copyright, relating to "Confidential Information." The
Seller agrees not to use any Confidential Information for any purpose other
than as permitted or required for performance by the Seller under the
Purchase Order and not to disclose or provide any Confidential Information
to any third party and to take all necessary measures to prevent any such
disclosure by its employees, agents, contractors or consultants. Upon
request of the Buyer or completion of the Purchase Order, the Seller shall
return all such Confidential Information to the Buyer. The return of
Confidential Information shall be complete in every respect, so as to permit
an experienced manufacturer to manufacture, assemble, maintain and service
the Product and shall include a full drawing package in reproducible form
and any revisions or updates, including but not limited but not limited to,
GSF Autocad files, fabrication drawings, approved supplier list, test
specifications, tooling specifications and drawings, manufacturing assembly
instructions, routings, quality assurance protocols, test equipment,
specifications and drawings and engineering change notice history, device
master files, and device history records.
10. Indemnification. The parties agree to indemnify and hold each other, their
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affiliated entities, and their respective officers, directors, shareholders,
employees an agents, harmless from and against all claims, losses, damages,
liability, costs and expenses (including, without limitation, attorneys'
fees and legal costs and disbursements) arising out of or related to a
breach of the Purchase Order.
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11. Notices. Notices and communications under the Purchase Order shall be
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deemed given to either party at the address set forth on the Purchase Order:
(a) upon the expiration of five (5) business days after the date of deposit
in the U.S. mail if sent by registered mail, return receipt requested; or
(b) upon the next business day if sent by recognized overnight supplemental
delivery service; (c) the same business date if notice is delivered
personally or (d) upon electronic confirmation of transmission if sent by
facsimile.
12. Assignment. Seller may not assign or transfer the Purchase Order or any
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interest herein or any rights or duties hereunder without the prior written
consent of Buyer.
13. Governing Law. The Purchase Order shall be interpreted and construed in
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accordance with the laws of the State of Minnesota.
14. Entire Agreement. This Purchase Order, including these Standard Terms and
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Condition and all attachments and specifications, constitutes the complete
and final agreement between the parties and supersedes all prior
negotiations and agreements between the parties concerning its subject
matter.
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EXHIBIT A
[The material in Exhibit A has been omitted, in its entirety, pursuant to a
request for confidentiality under Rule 24b-2 of the Securities Exchange Act of
1934, as amended. A copy of this Agreement with this Exhibit intact has been
filed separately with the Securities and Exchange Commission.]
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EXHIBIT B
[The material in Exhibit B has been omitted, in its entirety, pursuant to a
request for confidentiality under Rule 24b-2 of the Securities Exchange Act of
1934, as amended. A copy of this Agreement with this Exhibit intact has been
filed separately with the Securities and Exchange Commission.]
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