Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
FOR PURCHASES AND LEASES DIRECT FROM SUPPLIER
SUBJECT TO COMPETITIVE BID PROCESS
CAPITAL EQUIPMENT SUPPLIER AGREEMENT
FOR LEVEL OF CONSCIOUSNESS
BETWEEN
NOVATION, LLC
AND
----------------------
ASPECT MEDICAL SYSTEMS, INC.
----------------------
MS40292
NOVATION, LLC
CAPITAL EQUIPMENT SUPPLIER AGREEMENT
1. INTRODUCTION.
a. PURCHASING AND LEASING OPPORTUNITIES FOR MEMBERS. Novation, LLC
("Novation") is engaged in providing purchasing opportunities with respect to
high quality products and services to participating health care providers
("Members"). A list of Members entitled to participate in Novation's programs
through their membership or other participatory status in any of the following
client organizations: VHA Inc., University HealthSystem Consortium, and
HealthCare Purchasing Partners International, LLC (collectively, "Clients"), is
maintained in an electronic database ("Novation Database"). Novation is acting
as the exclusive agent for each of the Clients and certain of each Client's
subsidiaries and affiliates, respectively (and not collectively), with respect
to this Agreement. Novation and the Clients and their subsidiaries and
affiliates will not be responsible or liable for any breach of any purchasing
commitment or for any other actions of any Member other than themselves. In
addition, none of the Clients will be responsible or liable for the obligations
of another Client or its subsidiaries or affiliates or the obligations of
Novation or Supplier under this Agreement. All Clients and Members are intended
third party beneficiaries of this Agreement. All sections of this Agreement
which by their terms specifically apply to Clients will inure to the benefit of
and be enforceable by the Client. All sections of this Agreement which by their
terms specifically apply to Members will inure to the benefit of and be
enforceable by the Member.
b. SUPPLIER. Supplier is the manufacturer of the equipment ("Equipment"),
and/or parts and supplies (collectively, "Supplies"), and/or the provider of
services ("Services"), all as listed on Exhibit A. The Equipment, Supplies,
and/or Services are collectively referred to herein as "Products" and any
specifications are attached hereto as Exhibit B ("Non-Price Specifications").
2. CONTRACT AWARD.
a. LETTER OF AWARD. By executing and delivering the Letter of Award
attached hereto as Exhibit C ("Award Letter") to Supplier, Novation will have
accepted your written offer to the Invitation to Bid ("Bid"), and Novation and
Supplier therefore agree that Supplier will make the Products available for
purchase to the Members at the prices shown in Exhibit A as of the effective
date ("Effective Date") in the Award Letter in accordance with the terms of this
Agreement and for the term ("Term") stated in the Non-Price Specifications for
any renewal terms set forth in the Non-Price Specifications and the forms of
purchase, lease, license, financing or servicing agreements, if any, attached
hereto as Exhibit D (collectively, "Forms"); provided, however, that Novation's
award of this Agreement to Supplier will not constitute a commitment by any
person to purchase any of the Products. Supplier will not impose any purchasing
commitment on any Member as a condition to the Member's purchase of any Products
pursuant to this Agreement. Supplier acknowledges that, in making its award to
Supplier, Novation has materially relied on all representations, warranties and
agreements made
by Supplier as part of the Bid and that all such representations, warranties and
agreements will survive acceptance of the Bid.
b. USE OF NAMES, ETC. Supplier agrees that it will not use in any way in
its promotional, informational or marketing activities or materials (i) the
names, trademarks, logos, symbols or a description of the business or activities
of Novation or any Client or Member without in each instance obtaining the prior
written consent of the person owning the rights thereto; or (ii) the award or
the content of this Agreement without in each instance obtaining the prior
written consent of Novation.
c. OPTIONAL PURCHASING OR LEASING ARRANGEMENTS. Supplier shall reserve the
right to contract directly with each Member for Products included in this
Agreement in exceptional circumstances; provided, however, Supplier shall use
its best effort to give prior notice to Novation in writing of such exceptional
circumstances and the essential terms of such agreement. Additional value
required in such exceptional cases will be defined in an individual contract
that will, at Novation's discretion, be an exhibit to the Supplier Agreement.
Supplier shall maintain the Reporting Requirements and fees ("Fees") payable to
Novation in Sections 5 and 7 for Products purchased through such independent
contracts in recognition of the Novation contribution to and support for any
such exceptional independent arrangement required. In addition, Supplier agrees
to give Novation prior written notice and must obtain Novation's prior consent
to any proposed offer Supplier wishes to make to any Member to sell products
that are not covered by this Agreement in conjunction with Products covered by
this Agreement under circumstances where the Member has no real economic choice
other than to accept such terms.
d. MARKET COMPETITIVE PRICING AND TERMS.
- PRICING. Supplier will lower the Award Prices or increase any
discount applicable to the purchase of the Products as necessary to
assure market competitiveness, and in addition Supplier agrees to
lower the Award Prices or increase any discount applicable to the
purchase of the Products for a specific member or group of members
at all times in the event Supplier offers a lower price to any
similar competitor of such member or group of members.
- NON-PRICE TERMS. Supplier will improve non-price terms, such as
quality, technology or other non-price financial value as necessary
to assure market competitiveness, and in addition Supplier agrees to
adjust non-price terms for a specific member or group of members at
all times in the event Supplier offers more favorable non-price
terms to any competitor of such member or group of members.
If at any time during the Term Novation receives information from any source
that indicates Supplier's pricing or non-price terms are not market competitive,
Novation may provide written notice of such information to Supplier, and
Supplier will, within five (5) business days for Novation's private label
Products and within ten (10) business days for all other Products, advise
Novation in writing of all adjustments necessary to assure market
competitiveness.
2
e. NOTIFICATION OF CHANGES IN PRICING TERMS. Supplier will provide not
less than sixty (60) days' prior written notice to Novation and not less than
forty-five (45) days' prior written notice to all Members of any change in
pricing terms (such as list prices, discounts or pricing tiers or schedules)
permitted or required by this Agreement.
f. UNDERUTILIZED BUSINESSES. Certain Members may be required by law,
regulation and/or internal policy to do business with underutilized businesses
and Supplier will use its best efforts to assist Novation in helping Members
meet these requirements by using its best efforts to comply with all Novation
policies and programs with respect to such businesses. Novation, in its
discretion, may make an award and/or negotiate another agreement with a HUB in
addition to any sole or multi-source award.
g. E-COMMERCE BUSINESS. Certain Members have chosen to utilize the service
of the Marketplace@Novation(TM) through Novation's relationship with Neoforma,
Inc. ("Neoforma"), to transact business associated with this Agreement with
Supplier. To assist Novation in helping Members meet those needs, Supplier
agrees to sign, prior to the issuance of any Award Letter, and use its best
efforts to comply with the Novation E-Commerce Agreement attached hereto as
Exhibit F and use its best efforts to support Novation's programs with respect
to e-commerce.
3. PRODUCT SUPPLY.
a. DELIVERY AND INVOICING. On and after the Effective Date, Supplier
agrees to use its best efforts to promptly deliver Products ordered by the
Members to the Members, FOB destination, and will direct its invoices to the
Members in accordance with this Agreement. Supplier agrees to prepay and invoice
to Members, if any, for transporting Products to the Members. Payment terms are
net 30 (thirty) days. Within seven (7) calendar days after receipt of a purchase
order from a Member, Supplier will use its best effort to provide estimated lead
time from the date of a Member's purchase order until delivery of the Product at
the Member's location. The actual delivery lead times may be increased by the
ordering Member based on its needs.
b. RETURN OR RECALL OF PRODUCTS. Any Member, in addition to and not in
limitation of any other rights and remedies, will have the right to return
Products to Supplier, in accordance with Supplier's warranty policy as agreed to
by Novation. In addition, Supplier will reimburse Members for any cost
associated with the transporting to Supplier any Products subject to any
corrective action, withdrawal requested by Supplier or required by any
governmental entity. In the event a product recall or a court action impacting
supply occurs, Supplier will use its best effort to notify Novation in writing
within twenty-four (24) hours of any such recall or action. Supplier's
obligations in this Subsection will survive the expiration or earlier
termination of this Agreement.
c. SUPPLIES. Supplies necessary for the operation of the Equipment will be
made available by Supplier to the Members at the prices or discounts listed on
Exhibit A. All
3
warranties and guarantees will remain in force when supplies are purchased from
Supplier or an authorized representative of Supplier.
d. MANUALS/SCHEMATICS/INSPECTION PROCEDURES. Supplier will provide upon
request to the Members two complete and unabridged sets of operator service
manuals for each model of Equipment purchased or leased, including all
subassemblies and peripheral devices (including those manufactured by others).
The technical service manuals furnished to the Members will be at least as
complete and comprehensive as those furnished to Supplier's technical service
personnel and at a minimum must include theory of operation (including
software), electrical and mechanical schematics, preventive maintenance
procedure and schedules, replacement parts lists, and troubleshooting
documentation. All updates to such manuals will be provided upon request to the
applicable Members for a commercially reasonable price within two (2) weeks
after the release of such updates.
e. PRODUCT ACCEPTANCE. A period of thirty (30) days from the date of
delivery will be given to the Members for the purpose of acceptance testing of
the Equipment. Acceptance is deemed to have occurred when the Equipment is
operating in accordance with the specifications set forth in Supplier's
published documentation included in Exhibit E. Acceptance testing will include,
but not limited to, safety testing, calibration, performance testing,
documentation inspection and testing for adherence to specifications. Formal
acceptance is as defined above and invoice payment will occur according to the
terms agreed to between the Member and Supplier. If equipment fails the
acceptance testing, the Member may, at its discretion, return the Equipment to
the Supplier under warranty for repair or replacement. If the Equipment passes
the acceptance testing, the Warranty Period for the Equipment will begin per the
terms of Supplier's Warranty.
f. SITE PREPARATION. Supplier will provide the Members with a specific
description of pre-installation planning and site preparation services and site
preparation costs at the time the Member requests a quote from Supplier.
g. INSTALLATION/ASSEMBLY. When Member requests a quote from Supplier,
Supplier will provide as part of the quote a detailed description of the
installation and/or assembly requirements, including, but not limited to,
electrical, mechanical (HVAC), structural (including seismic where applicable),
and plumbing requirements. Based on past installations and a review of the
Member's site, Supplier will provide an estimate of the cost that the Member
will bear for each component of the installation and/or assembly, regardless if
supplied by Supplier or the Member. The Member will specify whether Supplier or
the Member will be responsible for the installation and/or assembly. If Supplier
is specified as having responsibility for the installation and/or assembly,
Supplier will include estimated dates and times for installation and/or assembly
as part of the agreed delivery schedule referred to in Subsection 3.a. above. If
the Member will be taking the responsibility for installation and/or assembly,
Supplier will contact the individual selected by the Member that will be
responsible for the installation and/or assembly of the Equipment.
4
h. INSTALLATION/ENVIRONMENTAL ISSUES. Supplier will bear all costs
associated with the removal of packaging, crating and other material associated
with the installation of the Equipment. Supplier, at the discretion of the
Member, will remove the retired equipment at a cost previously agreed to with
the Member, including any expenses associated with the proper disposal of
hazardous or other wastes.
i. MEMBER SERVICES. Supplier will consult with each Member to identify the
Member's policies relating to access to facilities and personnel. Supplier will
use its best effort to comply with such policies and will establish a specific
timetable for sales calls by sales representatives and, if applicable, service
calls by service representatives, to satisfy the needs of the Member. Supplier
will promptly respond to Members' reasonable requests for verification of
purchase or leasing history.
j. TRAINING. Supplier will provide in-service services for both operators
and technical service staff of the Member at the Member's site at Supplier's own
cost, unless otherwise agreed to by Novation, for the Equipment as requested by
any Member. Supplier will provide follow-up in-service training as mutually
agreed with the Member for the life of the Equipment at no additional charge
regardless of where the services are performed.
4. PRODUCT QUALITY.
a. FREE FROM DEFECTS. Supplier warrants the Products, including, but not
limited to, all attachments, subsystems and components thereof, against defects
in material, workmanship, design and manufacturing for the warranty period set
forth in Exhibit E attached hereto ("Warranty Period"). Supplier will make all
necessary arrangements to assign such warranty to the Members. Supplier further
represents and warrants that the Products will conform to the specifications,
drawings, and samples furnished by Supplier or contained in the Non-Price
Specifications and will be safe for their intended use. If any Products are
defective and a claim is made by a Member on account of such defect during the
Warranty Period, Supplier will repair or replace the Products in accordance with
the Policy in Exhibit E. The warranties contained in the Subsection will survive
any inspection, delivery, acceptance or payment by a Member. The Subsection and
obligation contained herein will survive the expiration or earlier termination
of this Agreement. The remedies set forth in this Subsection are in addition to
and not a limitation on any rights or remedies that may be available against
Supplier.
b. NEW TECHNOLOGY. During the Term, Supplier will disclose to Novation new
technology developed by Supplier which provides the same functionality as the
Products or Equipment or any component thereof. Upon introduction of the new
technology by Supplier, each Member will be provided the opportunity to upgrade
any Equipment or component purchased, leased or ordered hereunder for the new
technology in accordance with Schedule A. In the event Supplier fails to provide
such option to the Members, Supplier and Novation will enter into good faith
negotiations as to potential upgrade paths for Members to the new technology. In
the event that Supplier and Novation fail to reach an agreed upon upgrade path,
(1) Novation will have the right to terminate any or all of the Products which
have been superseded by such new technology providing the same functionality as
the Products or
5
Equipment and (2) Novation may elect at its discretion to contract with one or
more additional suppliers of comparatively similar new technology.
If at any time during the Term new technology (as defined by a Novation Council)
for a product becomes available from any source which provides incremental
patient care benefits and/or incremental safety benefits over technology
currently available under this Agreement, Novation shall provide written notice
of such information to Supplier and may elect to contract with a third party
vendor, or terminate the Agreement and re-bid the category so Members have
access to New Technology at all times. Such action will not constitute a breach
of this Agreement by Novation.
c. WARRANTY SERVICE. All warranty repairs will have [**] coverage at no
additional charge where the Member will be allowed to determine whether the
service response may be postponed until the following working day. During the
Warranty Period, in the event portable Equipment is inoperable for any reason,
Supplier agrees to provide a loaner of the Equipment of identical (compatible
with the system the Member is using) or superior type to the Member at its site
at no additional charge during the term of this Agreement. The loaner equipment
will be available and delivered to the Member's site within twenty-four (24)
hours of request at no charge to Member.
d. REPLACEMENT PARTS. Replacement parts supplied by Supplier at any time,
whether during or after the Warranty Period or the term of any service
agreement, will be newly manufactured parts or assemblies, unless the Member
agrees otherwise. In the case where new parts are not available, the service
representative may install rebuilt parts in order to make the unit operational.
Within [**] days after the repair, the rebuilt parts must be replaced with newly
manufactured parts. The Member may retain parts removed from the Equipment and
all parts that are not eligible for or are not returned by the Member for
Supplier credit will remain the property of the Member. In all cases where
Supplier is permitted to charge the Member for parts, Supplier will only replace
and charge for parts necessary to bring the Equipment to operating condition.
Supplier will warrant replacement parts and labor associated with such
replacement parts for [**], or the period of time set forth in Supplier's
standard warranty, whichever is longer.
e. SERVICE RESPONSE TIME. Supplier guarantees a response time of one (1)
hour by phone and for on-site as agreed to by the Member for all warranty,
contract or time and materials service calls requested by any Member during the
life of the Equipment.
f. UPTIME GUARANTEE. For any calendar quarter during the Warranty Period
and the term of any service agreement, Supplier guarantees that the Equipment
will maintain a level of uptime equal to or better than [**]%. Uptime will be
calculated using the following formula:
UPTIME = ((T - TNF) X 100)/T
where "T" is the total number of hours that the Equipment is typically used per
quarter (determined by multiplying the number of hours per day that the
Equipment is typically used by the number of days per week that the Equipment is
typically used, and multiplying the result by
6
13 weeks in a quarter), and "TNF" is the number of hours the Equipment or any
component of the Equipment is not functional during the quarter (the hours
calculated will only include those hours that the Equipment would typically be
in use). If any portion of the total functionality of the Equipment is
unavailable for operational use, the Equipment will be considered down. Downtime
scheduled for preventive maintenance or any other scheduled event, including
those for the convenience of Member, will not be included in the downtime
calculation.
Member will calculate uptime after each calendar quarter. If uptime is
less than [**]%, any lost revenue suffered by the Member for downtime beyond the
allowable [**]% during the quarter will be paid by Supplier to the Member. Lost
revenue will be calculated by multiplying the number of procedures that would
have been performed or the number of times the Equipment would have been used
during any downtime times the Member's current charge rate per procedure or per
use. The Member will give written notice to Supplier of its failure to meet the
uptime requirement and the amount of lost revenues, and Supplier will pay such
amount to the Member within thirty (30) days after receipt of the notice. In
addition, Supplier will extend the Warranty Period or the service agreement
without charge by one week for every hour the Equipment or component thereof is
not operational beyond the allowable [**]%.
g. PREVENTIVE MAINTENANCE. During the Warranty Period, Supplier will
perform preventive maintenance according to the manufacturer's recommendations
and the policies developed by the Member, at no charge to the Member. Supplier
will supply the Member with a written procedure that will be followed by
Supplier's representative during the preventive maintenance process. Reasonable
additional testing will be performed by Supplier at no charge to the Member,
upon request, to meet the requirements of procedures developed by the Member.
The frequency of preventive maintenance and tests performed will comply with the
manufacturer's recommendations, external codes (state, JCAHO, etc.), and all
internal policies developed by the Member. During the Warranty Period, Supplier
will provide preventive maintenance after hours at a cost agreed to with the
Member.
h. UPGRADES. A list of optional software available from Supplier,
including costs for the software both during the Warranty Period and after the
Warranty Period, is attached hereto as Exhibit A. Each Member will be given all
upgrades to acquired software, including any software components of Equipment,
from the date of issuance of the purchase order through the expiration of the
Warranty Period, including penalty extensions, and thereafter during the term of
any service agreement, at no charge to the Member. Arrangements will be made to
install all software upgrades within two (2) weeks after the release of any
software upgrade.
i. CUSTOMIZATION SOFTWARE. Pricing relating to the customization of
software and additional charges that the Member will incur for annual
maintenance, training, documentation, backup, etc. is attached hereto as Exhibit
A.
j. OPERATIONAL SOFTWARE. The form of software licensure agreements
available to the Members will be included as part of any quote requested by a
Member. All software necessary to operate the Equipment, unless otherwise
provided in any exhibit hereto, will be licensed to the Member upon acceptance
of the Equipment pursuant to Subsection 3.f. above.
7
All new operational software that provides additional functionality must be
submitted to Novation as an addition to Exhibit A.
k. DIAGNOSTIC SOFTWARE. All software necessary to troubleshoot and
maintain the Equipment will be supplied to the Member at no charge. The
diagnostic software will be identical to that used by Supplier's service
representative. Training for the use of diagnostic software will be included in
the service training provided by Supplier, and Supplier's telephone support will
also include assistance in diagnostic software operation. Training in the use of
diagnostic software and diagnostic software upgrades will be offered by Supplier
at no additional charge, unless previously agreed to by Novation and included as
part of Exhibit A, to the Member for the life of the Equipment within the
Member's facility. Software updates will be provided to the Member within two
(2) weeks after the update release.
l. DATA CONVERSION/INTERFACES. In the event that the Equipment requires
conversion of data at the time of installation or assembly, Supplier agrees to
perform this conversion either manually or electronically at no charge to the
Member. A schedule of Supplier's pricing for performing data conversion
thereafter during the Warranty Period and after the warranty has expired is
included in Exhibit A attached hereto. The data conversion will include all data
requested by the Member in writing. Supplier will inform Member, in writing, of
the length of time required to perform the conversion prior to the issuance of
the purchase order and will perform the conversion within such time. Supplier
will also include all interfaces requested by the Member at no charge, unless
otherwise provided in Exhibit A, to connect the Equipment to other information
systems owned by the Member and its affiliates.
m. SERVICE CONTRACT CANCELLATION. The Member reserves the right to cancel
any service agreement, without cause or penalty, with thirty (30) days prior
written notification to Supplier. Payment reimbursement will be prorated and
Supplier will separate costs for preventive maintenance and repair for the
purpose of allocating expenses. Supplier will be required to leave the Equipment
in certifiable condition as deemed by the Member. Supplier will not cancel the
contract without a minimum of sixty- (60) day's prior written notification to
the Member. Cancellation of the contract will not affect Supplier's response
time and quality of support nor result in other penalties if the Member elects
to use Supplier for time and materials repairs, perform the work in-house or
obtain service from others.
n. PRODUCT COMPLIANCE. Supplier represents and warrants to Novation, the
Clients and the Members that the Products are, if required, registered, and to
the best of Supplier's knowledge will not be distributed, sold, leased or priced
by Supplier in violation of any federal, state or local law. Supplier represents
and warrants that as of the date of delivery to the Members all Products will
not be adulterated or misbranded within the meaning of the Federal Food, Drug
and Cosmetic Act and will not violate or cause a violation of any applicable
law, ordinance, rule, regulation or order. Supplier agrees it will comply with
all applicable Good Manufacturing Practices and Standards contained in 21 C.F.R.
Parts 210, 211, 225, 226, 600, 606, 610, 640, 660, 680 and 820. Supplier
represents and warrants that it will provide adequate warnings and instructions
to inform users of the Products of the risks, if any, associated with the use of
the Products. Supplier's representations, warranties and agreements in this
Subsection will survive the expiration or earlier termination of this Agreement.
8
o. PRODUCT CONDITION. Unless otherwise stated in the Non-Price
Specifications or unless agreed upon by a Member in connection with Products it
may order, all Products will be new. Products, which are demonstrators, used,
obsolete, seconds, or which have been discontinued are unacceptable unless
otherwise specified in the Non-Price Specifications or the Member accepts
delivery after receiving notice of the condition of the Products. A description
of and pricing for demonstrators or refurbished Products is attached hereto as
Exhibit A.
5. REPORTS AND OTHER INFORMATION REQUIREMENTS. Within twenty (20) days after the
end of each full and partial calendar month during the Term ("Reporting Month"),
Supplier will submit to Novation a report in form and content reasonably
satisfactory to Novation ("Net Sales Report") and any other information during
the time period required as set forth in the Information Requirements Guidebook.
Such Guidebook may be found at the Novation website at ▇▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇.
6. OBLIGATIONS OF NOVATION.
a. INFORMATION TO MEMBERS. After issuing the Award Letter, Novation, in
conjunction with the Clients, will deliver a summary of the purchasing and/or
leasing arrangements covered by this Agreement to each Member and will, from
time to time, at the request of Supplier, deliver to each Member reasonable and
appropriate amounts and types of materials supplied by Supplier to Novation
which relate to the purchase or lease of the Products.
b. MARKETING SERVICES. Novation, in conjunction with the Clients, will
market the purchasing and/or leasing arrangements covered by this Agreement to
the Members. Such promotional services may include, as appropriate, the use of
direct mail, contact by Novation's field service delivery team, member support
services, and regional and national meetings and conferences. As appropriate,
Novation, in conjunction with the Clients, will involve Supplier in these
promotional activities by inviting Supplier to participate in meetings and other
reasonable networking activities with Members.
7. FEES.
a. CALCULATION. Supplier will pay to Novation, as the authorized
collection agent for each of the Clients and certain of each Client's
subsidiaries and affiliates, respectively (and not collectively), Fees belonging
to any of the Clients or certain of their subsidiaries or affiliates equal to
the Agreed Percentage of all Net Sales of the Products to the Members directly
or indirectly from Supplier, whether under the pricing and other terms of this
Agreement or under the terms of any other purchasing or pricing arrangements
that may exist between the Members and Supplier. As used herein, Net Sales shall
mean invoiced sales of Products less related Product returns. The "Agreed
Percentage" will be defined in the Award Letter.
b. PAYMENT. On or about the Effective Date, Novation will advise Supplier
in writing of the amount determined by Novation to be Supplier's monthly
estimated Fees. Thereafter, Supplier's monthly estimated Fees may be adjusted
from time to time upon written
9
notice from Novation based on actual purchase data. No later than the tenth
(10th) day of each month, Supplier will remit the monthly estimated Fees for
such month to Novation. On a calendar quarterly basis, the payment shall be
adjusted to reflect the reconciliation between the actual Fees payable with the
estimated Fees actually paid. Such reconciliations will be made within forty
(40) days after the close of each calendar quarter.
The check amount should be reconcilable with the Fee calculation on the
applicable sales and revenue report. The reconciliation of the previous
quarters' estimated payments should be adjusted against the appropriate monthly
estimated payment as scheduled above. Please also include this reconciliation
information on the check remittance advice.
Aspect Medical Systems will pay a [**] base fee as a contract "access" fee.
Additional fees may be earned as Novation grows its business at a greater rate
than Aspect's all other company business. The company growth numbers are
published quarterly and available to the public. Please refer to the "Fee
Schedule for Novation Contract 2004".
Q1 - 2003 ACTUAL Q1 - 2004 ACTUAL GROWTH RATE
---------------- ---------------- -----------
Aspect Company $[**] $[**] [**]%
Novation Actual $[**] $[**] [**]%
Aspect Company Actual w/o $[**] $[**] [**]%
Novation
Novation Growth Rate compared
to Aspect Company w/o Novation [**]%
Fee checks must be made payable to NOVATION, LLC and sent to:
If Sent By FIRST CLASS MAIL:
NOVATION, LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-1420
If Sent Via COURIER (i.e., Federal Express, United Parcel Service,
Messenger):
THE NORTHERN TRUST COMPANY
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
RECEIPT & DISPATCH 8TH FLOOR
CHICAGO, IL 60654
ATTN: NOVATION, LLC, LOCKBOX NUMBER 1420
TELEPHONE NO. (▇▇▇) ▇▇▇-▇▇▇▇
On the airbill please remember to list the bank's telephone number, as recipient
at this location. You should also include your telephone number as the sender.
10
IMPORTANT REMINDER: ALL checks for Fees should be made payable to NOVATION, LLC,
regardless of whether they are sent first-class mail or by courier. UNDER NO
CIRCUMSTANCES SHOULD CHECKS BE MADE PAYABLE TO THE NORTHERN TRUST COMPANY.
8. COMPLIANCE WITH LAW AND GOVERNMENT PROGRAM PARTICIPATION.
a. COMPLIANCE WITH LAW. Supplier represents and warrants that to the best
of its knowledge, after due inquiry, it is, and for the Term shall use its best
efforts to be, in compliance with all federal, state and local statutes, laws,
ordinances and regulations applicable to it ("Legal Requirements") which are
material to the operation of its business and the conduct of its affairs,
including Legal Requirements pertaining to the safety of the Products,
occupational health and safety, environmental protection, nondiscrimination,
antitrust, and equal employment opportunity. In the event of Supplier's failure
to comply with the foregoing, Novation will have the right to immediately
terminate any or all of the Product(s) subject to such failure, with notice to
Supplier, or to terminate this Agreement in its entirety pursuant to Section
12.a. During the Term, Supplier will: Use its best efforts to promptly notify
Novation of any lawsuits, claims, administrative actions or other proceedings
asserted or commenced against it which assert in whole or in part that Supplier
is in noncompliance with any Legal Requirement which is material to the
operation of its business and the conduct of its affairs.
b. GOVERNMENT PROGRAM PARTICIPATION. Supplier represents and warrants that
it is not excluded from participation, and is not otherwise ineligible to
participate, in a "Federal health care program" as defined in 42 U.S.C. Section
1320a-7b(f) or in any other government payment program. In the event Supplier is
excluded from participation, or becomes otherwise ineligible to participate in
any such program during the Term, Supplier will use its best effort to notify
Novation in writing within three (3) days after such event, and upon the
occurrence of such event, whether or not such notice is given to Novation,
Novation may immediately terminate this Agreement upon written notice to
Supplier.
9. INSURANCE.
a. POLICY REQUIREMENTS. Supplier will maintain and keep in force during
the Term product liability, general public liability, and property damage
insurance against any insurable claim or claims, which might or could arise
regarding Products, purchased or leased from Supplier. Such insurance will
contain a minimum combined single limit of liability for bodily injury and
property damage in the amounts of not less than $2,000,000 per occurrence and
$10,000,000 in the aggregate and will name Novation, the Clients and the
Members, as their interests may appear, as additional insureds. Supplier will
provide to Novation in its Bid and thereafter within fifteen (15) days after
Novation's request, an insurance certificate indicating the foregoing coverage,
issued by an insurance company licensed to do business in the relevant states
and signed by an authorized agent.
b. SELF-INSURANCE. Notwithstanding anything to the contrary in Subsection
a. above, Supplier may maintain a self-insurance program for all or any part of
the foregoing liability risks, provided such self-insurance policy in all
material respects complies with the requirements
11
applicable to the product liability, general public liability and property
damage insurance set forth in Subsection a.
c. AMENDMENTS, NOTICES AND ENDORSEMENTS. Supplier will not amend, in any
material respect that affects the interests of Novation, the Clients or the
Members, or terminate said liability insurance or self-insurance program except
after thirty (30) days' prior written notice to Novation and will provide to
Novation copies of all notices and endorsements as soon as practicable after it
receives or gives them.
10. INDEMNITY. SUPPLIER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS NOVATION,
THE CLIENTS, THE MEMBERS AND THE AUTHORIZED DISTRIBUTORS, AND THEIR RESPECTIVE
OFFICERS, DIRECTORS, REGENTS, AGENTS, SUBSIDIARIES, AFFILIATES AND EMPLOYEES
(COLLECTIVELY, THE "NOVATION INDEMNITEES"), AGAINST ANY LIABILITY, CLAIM,
DAMAGE, COST, FINES, PENALTIES, LOSS OR EXPENSE (INCLUDING, WITHOUT LIMITATION,
REASONABLE ATTORNEYS', ACCOUNTANTS' AND CONSULTANTS' FEES AND COURT COSTS),
INCURRED BY OR IMPOSED UPON THEM IN CONNECTION WITH ANY CLAIMS, SUITS, ACTIONS,
DEMANDS OR JUDGMENTS ARISING OUT OF: (A) THE BODILY INJURY, PROPERTY DAMAGE OR
INJURY CAUSED BY ANY OF THE EQUIPMENT COVERED BY THE AGREEMENT, INCLUDING, BUT
NOT LIMITED TO, INDEMNITEES CLAIMS WHICH ▇▇▇▇▇ IN RELATION TO THIRD-PARTY
CLAIMS, PROVIDED THAT SUCH CLAIMS, SUITS, AND JUDGMENTS AND COSTS ("LOSSES")
ARISE FROM OR ARE RELATED TO A DEFECT IN THE DESIGN, MANUFACTURE OR REPAIR (TO
THE EXTENT THE REPAIR IS PERFORMED BY SUPPLIER OR ITS AGENTS) OF SUCH PRODUCTS
COVERED BY THE AGREEMENT OR THE USE OF SUCH PRODUCTS IN ACCORDANCE WITH ITS USER
DOCUMENTATION MOST RECENTLY PROVIDED, OR (B) THE ACTS OR OMISSIONS OF SUPPLIER
AND ITS EMPLOYEES AND AGENTS ACTING UNDER ITS CONTROL OR SUPERVISION. IF
NOVATION INDEMNITEE BECOMES AWARE OF A PRODUCT LIABILITY CLAIM WHICH MIGHT GIVE
RISE TO A RIGHT OR OBLIGATION OF INDEMNIFICATION AND DEFENSE AS PROVIDED HEREIN,
NOVATION INDEMNITEE SHALL PROMPTLY NOTIFY SUPPLIER. SUPPLIER SHALL NOT BE
RESPONSIBLE FOR LOSSES TO THE EXTENT OF A NOVATION INDEMNITEE'S IMPROPER OR
UNAUTHORIZED USE OF THE EQUIPMENT AND/OR PRODUCTS COVERED UNDER THE AGREEMENT OR
THE ACT OR FAILURE TO ACT OF A NOVATION INDEMNITEE CAUSED THE LOSS. IN ADDITION,
SUPPLIER REPRESENTS AND WARRANTS THAT SALE OR USE OF THE PRODUCTS WILL NOT
INFRINGE ANY UNITED STATES PATENT AND WILL, AT ITS OWN EXPENSE, DEFEND EVERY
SUIT WHICH WILL BE BROUGHT AGAINST NOVATION OR A MEMBER FOR ANY ALLEGED
INFRINGEMENT OF ANY PATENT BY REASON OF THE SALE OR USE OF THE PRODUCTS AND WILL
PAY ALL COSTS, DAMAGES AND PROFITS RECOVERABLE IN ANY SUCH SUIT. THIS SECTION
AND THE OBLIGATIONS CONTAINED HEREIN WILL SURVIVE THE EXPIRATION OR EARLIER
TERMINATION OF THIS AGREEMENT. THE REMEDIES SET FORTH IN THIS SECTION ARE IN
ADDITION TO AND NOT A LIMITATION OF ANY OTHER RIGHTS OR REMEDIES THAT MAY BE
AVAILABLE AGAINST SUPPLIER
NOVATION WILL INDEMNIFY, HOLD HARMLESS, AND, IF REQUESTED, DEFEND SUPPLIER, AND
ITS OFFICERS, DIRECTORS, REGENTS, AGENTS, SUBSIDIARIES, AFFILIATES AND EMPLOYEES
(COLLECTIVELY, THE "SUPPLIER INDEMNITEES"), FROM AND AGAINST ANY CLAIMS,
LIABILITIES, DAMAGES, ACTIONS, COSTS AND EXPENSES (INCLUDING, WITHOUT
LIMITATION,
12
REASONABLE ATTORNEYS' FEES, EXPERT FEES AND COURT COSTS) OF ANY KIND OR NATURE,
WHETHER AT LAW OR IN EQUITY, ARISING FROM OR CAUSED IN ANY PART BY THE BREACH OF
ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT OF NOVATION CONTAINED IN
THIS AGREEMENT. SUCH INDEMNIFICATION SHALL HOLD HARMLESS AND RIGHT TO DEFENSE
WILL NOT BE APPLICABLE TO THE EXTENT THE CLAIM, LIABILITY, DAMAGE, ACTION, COST
OR EXPENSE ARISES AS A RESULT OF AN ACT OR FAILURE TO ACT OF THE SUPPLIER
INDEMNITEES. THIS SECTION AND THE OBLIGATIONS CONTAINED HEREIN WILL SURVIVE THE
EXPIRATION OR EARLIER TERMINATION OF THIS AGREEMENT. THE REMEDIES SET FORTH IN
THIS SECTION ARE IN ADDITION TO AND NOT A LIMITATION ON ANY RIGHTS OR REMEDIES
THAT MAY BE AVAILALBLE AGAINST NOVATION
INDEMNIFICATION SHALL BE CONDITIONED ON THE INDEMNIFYING PARTY: A) RECEIVEING
PROMPT NOTICE FROM INDEMNITEE OF ANY SUIT OR PROCEEDING, B) REASONABLE
ASSISTANCE WITH RESPECT TO THE DEFENSE OF A CLAIM, C) SOLE CONTROL OF THE
DEFENSE.
SUPPLIER SHALL NOT BE REQIRED TO INDEMNIFIY FOR PATENT INFRINGEMENT WHERE: A)
THE INFRINGEMENT IS CAUSED BY USE OF ANY PRODUCT IN COMBINATION WITH A PRODUCT,
PART OR ACCESSORY NOT SUPPLIED OR AUTHORIZED BY SUPPLIER WHERE THE PRODUCT WHEN
USED BY ITSELF WOULD NOT BE INFRINGING, B) USE OF ANY PRODUCT IN A MANNER NOT
RECOMMENDED BY SUPPLIER OR FOR WHICH PRODUCT WAS NOT DESIGNED, C) ANY PRODUCT
MANUFATURED TO SPECIFICATIONS, DESIGNS OR INSTRUCTIONS OF INDEMNITEE, D) ANY
PRODUCT THAT HAS BEEN MODIFIED IN ANY WAY BY ANYONE OTHER THAN AN EMPLOYEE OR
AGENT OF SUPPLIER WHERE THE MODIFICATION HAS CAUSED THE INFRINGEMENT.
11. BOOKS AND RECORDS; FACILITIES INSPECTIONS. Supplier agrees to keep, maintain
and preserve complete, current and accurate books, records and accounts of the
transactions contemplated by this Agreement and such additional books, records
and accounts as are necessary to establish and verify Supplier's compliance with
this Agreement. All such books, records and accounts will be available for
inspection and audit by Novation representatives at any time during the Term and
for two (2) years thereafter, but only during reasonable business hours and upon
reasonable notice. Novation agrees that its routine audits will not be conducted
more frequently than twice in any consecutive twelve (12) month period, subject
to Novation's right to conduct special audits whenever it deems it to be
necessary. In addition, Supplier will make its manufacturing and packaging
facilities available for inspection from time to time during the Term by
Novation representatives, but only during reasonable business hours and upon
reasonable notice. The exercise by Novation of the right to inspect and audit is
without prejudice to any other or additional rights or remedies of either party.
The cost of any inspection or audit shall be borne solely by Novation.
12. TERMINATION. Either party may terminate this Agreement at any time for any
reason whatsoever by delivering not less than ninety (90) days' prior written
notice thereof to the other. In addition, either party may terminate this
Agreement immediately by delivering written notice thereof to the other upon the
occurrence of either of the following events:
13
(a) The other party breaches this Agreement and does not cure such
breach within thirty (30) days of receipt of such notice, except for
Supplier's monetary breach or breach of Compliance with Laws, for
which a cure period shall not be allowed; or
(b) The other party becomes bankrupt or insolvent or makes an
unauthorized assignment or goes into liquidation or proceedings are
initiated for the purpose of having a receiving order or winding up
order made against it or the other party and applies to the courts
for protection from its creditors.
13. CONFIDENTIAL INFORMATION.
a. NONDISCLOSURE. Supplier agrees that it will:
(1) keep strictly confidential and hold in trust all Confidential
Information, as defined in Subsection 13.b. below, of Novation, the
Clients and the Members;
(2) not use the Confidential Information for any purpose other than
the performance of its obligations under this Agreement, without the
prior written consent of Novation;
(3) not disclose the Confidential Information to any third party
(unless required by law) without the prior written consent of
Novation; and
(4) not later than thirty (30) days after the expiration or earlier
termination of this Agreement, return to Novation, the Client or the
Member, as the case may be, the Confidential Information.
b. DEFINITION. "Confidential Information," as used in Subsection 13.a.
above, will consist of all information relating to the prices and usage of the
Products (including all information contained in the reports produced by
Supplier pursuant to Section 5 above) and all documents and other materials of
Novation, the Clients and the Members containing information relating to the
programs of Novation, the Clients or the Members of a proprietary or sensitive
nature not readily available through sources in the public domain.
c. HIPAA. If a Member determines, in its sole reasonable discretion, that
Supplier is a "business associate," as that term is defined in the privacy rules
promulgated pursuant to The Health Insurance Portability and Accountability Act
of 1996 ("HIPAA") codified at 42 CFR Parts 160 and 164, Supplier will negotiate
with Member a mutually acceptable written agreement which will govern Supplier's
access to "protected health information" as defined under HIPAA (a "Business
Associate Contract").
14
14. MISCELLANEOUS.
a. CHOICE OF LAW. This Agreement will be governed by and construed in
accordance with the internal substantive laws of the State of Texas and the
Texas courts will have jurisdiction over all matters relating to this Agreement;
provided, however, the terms of any agreement between Supplier and a Member will
be governed by and construed in accordance with the choice of law and venue
provisions set forth in such agreement.
b. NO ASSIGNMENT. No assignment of all or any part of this Agreement may
be made without the prior written consent of the other party. As used herein,
"assignment" shall mean a transfer by virtue of operation of law, under an order
of any court, or pursuant to any plan of merger, consolidation or sale of stock
or assets. Any assignment of all or any part of this Agreement by either party
will not relieve that party of the responsibility of performing its obligations
hereunder to the extent that such obligations are not satisfied in full by the
assignee. This Agreement will be binding upon and inure to the benefit of the
parties' respective successors and assigns.
c. NOTICES. Except as otherwise expressly provided herein, all notices or
other communications required or permitted under this Agreement will be in
writing and will be deemed sufficient when mailed by United States mail, or
delivered in person to the party to which it is to be given, at the address of
such party set forth below:
If to Supplier:
To the address set forth by Supplier in the Bid
If to Novation:
Novation
Attn: General Counsel
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Or such other address as the party will have furnished in writing in accordance
with the provisions of this Subsection.
d. SEVERABILITY. Whenever possible, each provision of this Agreement will
be interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement will be prohibited by or invalid
under applicable law, such provision will be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of such provision
or the remaining provisions of this Agreement. Each party will, at its own
expense, take such action as is reasonably necessary to defend the validity and
enforceability of this Agreement and will cooperate with the other party as is
reasonably necessary in such defense.
15
e. ENTIRE AGREEMENT. This Agreement, together with the exhibits listed
below, will constitute the entire agreement between Novation and Supplier. This
Agreement, together with the exhibits listed below and each Member's purchase
and/or lease order and/or other applicable Form will constitute the entire
agreement between each Member and Supplier. In the event of any inconsistency
between this Agreement and a Member's purchase and/or lease order and/or other
applicable Form, the terms of this Agreement will control, except that the
Member's purchase and/or lease order and/or other applicable Form will supersede
Sections 3 and 4 of this Agreement in the event of any inconsistency with such
Sections. No other terms and conditions in any document, acceptance, or
acknowledgment will be effective or binding unless expressly agreed to in
writing. Where the exhibits contradict the Agreement terms and conditions, the
Agreement will control. The following exhibits are incorporated by reference in
this Agreement:
Exhibit A Product and Service Description and Pricing
Exhibit B Non-Price Specifications
Exhibit C Award Letter
Exhibit D Forms of Purchase, Lease, License, Financing and/or Service
Agreements
Exhibit E Warranty
Exhibit F Novation E-Commerce Agreement
SUPPLIER: Aspect Medical Systesms, Inc.
ADDRESS: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------
SIGNATURE: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------------
TITLE: CFO DATE: 1-27-2005
16
EXHIBIT A
PRODUCT AND SERVICE DESCRIPTION AND PRICING
SENSOR PRICING SCHEDULE
TIER 2 TIER TIER TIER TIER TIER 7 TIER TIER TIER 10
TIER 10- 1000- 32000- 43000- 55000- 67500- 10000- 815000- 920000- 25000- TIER 11
DESCRIPTION PART # UOM LIST PRICE 999 1999 1999 4999 7499 9999 14999 19999 24999 29999 30000+
QUATRO SENSOR 186-0106 EA [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
PEDIATRIC SENSOR 186-0110 EA [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
EXTEND SENSOR 186-0160 EA [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
STANDARD SENSOR 186-0100 EA [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**] [**]
NOTES:
1. Price tiers are based on total annual volume per hospital
2. Signed Letter of Particpation (LOP) required to receive discount on Tier 2
volumes and above
2. Sensors are sold in boxes of [**] units
HARDWARE PRICING SCHEDULE
TIER 1 TIER 2 TIER 3 TIER 4
DESCRIPTION PART # UOM LIST PRICE 1 2-9 10-19 20+
A2000 XP
Monitoring System 186-0118 EA $[**] $[**] $[**] $[**] $[**]
A2000 XP
Upgrade Kit 186-0125 EA $[**] $[**] $[**] $[**] $[**]
EXHIBIT B
NON-PRICE SPECIFICATIONS
I. TERM:
Agreement term shall be from FEBRUARY 15, 2005 TO FEBRUARY 14, 2008 with two
one-year options at Novation's sole discretion.
II. FEES:
Access Fee [**]
[**]% above company average [**]
[**]% above company average [**]
[**]% above company average [**]
[**]%+ above company average* [**]
*Company average is defined as all other Aspect business, less Novation.
Novation results will then be compared to all other Aspect business. See
Attachment 1 to Exhibit B.
NOVATION(R)
The Supply Company of VHA & UHC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
P.O. Box 140909
Irving, TX 75014-0909
972/581-5000
EXHIBIT C
AWARD LETTER
January 12, 2005
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Chief Finance Officer
Aspect Medical Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SUBJECT: ACCEPTANCE OF BID (SUPPLIER AGREEMENT #MS40292)
Dear ▇▇. ▇▇▇▇▇▇▇▇▇,
Novation, LLC ("Novation"), acting in its capacity as agent for VHA, UHC, and
HPPI, respectively (and not collectively) and certain of their respective
subsidiaries and affiliates, accepts your dual source supplier proposal for
Level of Sedation Monitors in response to our Invitation To Bid for Level of
Sedation Monitors dated March 24, 2004, which was signed and dated by you on
December 2, 2004. The Supplier Agreement, to which this letter will be attached
as an Exhibit, will represent the final agreement between the parties for Level
of Sedation Monitors.
The "Agreed Percentage" for the Fee will be [**] to [**] ([**] to [**]) as
indicated in Exhibit B to the Supplier Agreement.
The term of this Agreement will be for a period of three years, effective
February 15, 2005, with two one-year renewal options at Novation's discretion.
In addition, please be advised that Novation may elect to contract with
Historically Underutilized Business (HUB) manufacturers for such products.
Novation looks forward to a successful implementation of this Agreement.
Sincerely,
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Group Senior Vice President
Novation, LLC
EXHIBIT D
FORMS OF PURCHASE, LEASE, LICENSE, FINANCING
AND/OR SERVICE AGREEMENTS
AGREEMENT NUMBER _______________ CUSTOMER PURCHASE ORDER NUMBER_______________
CUSTOMER NAME ADDRESS
Institution Name Address
CITY COUNTY STATE ZIP ATTENTION
City STATE ZIP CODE
SUPPLIER ADDRESS
Aspect Medical Systems, Inc. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇-1505 Customer Services
Term of Agreement 12 Months
186-0106 186-0110 186-0160
ANNUAL VOLUME QUATRO PEDIATRIC EXTEND
OF BIS SENSORS SENSOR SENSOR SENSOR
(CHECK BOX TO INDICATE ANNUAL VOLUME) PRICE PRICE PRICE
------------------------------------- -------- --------- --------
[ ] Up to 999 Sensors $ [**] [**] [**]
[ ] From 1,000 up to 1,999 Sensors $ [**] [**] [**]
[ ] From 2,000 up to 2,999 Sensors $ [**] [**] [**]
Product Schedule
Aspect Medical Systems, Inc. invites you to participate in Aspect's Sensor
Volume Program which is outlined above. This program is designed to offer you,
as a valued Aspect customer, a pricing program that gives you the opportunity to
LOWER YOUR BIS(R) SENSOR UNIT PRICE by exclusively using the BIS XP Monitoring
System as your consciousness monitor.
As a part of this program, Aspect will perform a periodic business review and
work with your institution to increase the adoption of BIS technology across a
wider array of BIS eligible procedures. Performance against this program will be
reviewed annually. Future price adjustments will occur automatically, and will
not require a new signed agreement. Aspect will notify customer in writing 30
days prior to any future price adjustments.
This Agreement it will automatically renew upon expiration of the initial term.
This agreement is cancelable at anytime by either party in writing with a 30 day
prior notice.
ASPECT MEDICAL SYSTEMS, INC. Institution Name
(SUPPLIER) (CUSTOMER NAME)
_______________________________ ____________________________
DATE ACCEPTED DATE
_______________________________ ____________________________
BY (AUTHORIZED SIGNER) BY (AUTHORIZED SIGNER)
____________________________
PRINT NAME
____________________________
TITLE
SENSOR VOLUME PROGRAM
[ASPECT LOGO] [NOVATION LOGO]
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Telephone ▇▇▇-▇▇▇-▇▇▇▇
NEWTON, MA 02464-1505 ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
1. PRICES AND TAXES
Except as expressly set forth on the face hereof, prices are exclusive of all
excise, sales, use, transfer and other taxes and duties imposed with respect to
the products or their sale by any federal, state, municipal or other
governmental authority, all of which taxes must be paid by the Purchaser.
Purchaser is responsible for obtaining and providing to Aspect any certificate
of exemption or similar document required to exempt any sale from sales, use or
similar tax liability.
2. TERMS AND METHOD OF PAYMENT
If Purchaser establishes and maintains open account credit with Aspect, payment
terms shall be net 30 days from date of receipt of invoice, unless otherwise
indicated on the face hereof. To the extent permitted by applicable law, overdue
payments will be subject to finance charges computed at a periodic rate of
1-1/2% per month (18% per year). Aspect reserves the right, in its sole
discretion, to require payment on a COD basis, to require full or partial
payment in advance or to revoke any credit previously extended.
3. SHIPMENT
Shipping terms are F.O.B. Shipping Point. Unless Purchaser instructs Aspect
otherwise, Aspect will select a carrier and arrange shipment and appropriate
freight, packing and related charges will be added to the invoice. Aspect will
use reasonable efforts to meet requested delivery dates, but will not be liable
for failure to do so.
4. DESTINATION CONTROL STATEMENT
These commodities, software, or technologies are exported from the United States
in accordance with the Export Administration Regulations. Diversion contrary to
U.S. law is prohibited.
5. RETURNED PRODUCTS POLICY
Aspect shall have no obligation to accept Product returns except for returns
under warranty.
6. WARRANTY
Aspect warrants to the initial Purchaser that the "Warranted Product" purchased
hereunder will be free from defects in workmanship or materials, when given
normal, proper, and intended usage for a specified period ("Warranty Period")
from the date of its initial shipment to Purchaser. "Warranted Products" consist
solely of those Aspect products for which express warranties are given and
Warranty Periods are stated in Aspect's price list or in the user manuals or
product inserts for such products. Excluded from this warranty are expendable
components and supply items such as, but not limited to, electrodes, cables, and
prep solutions. Aspect's obligations under this warranty are to repair or
replace any Warranted Product (or part thereof) that Aspect reasonably
determines to be covered by this warranty and to be defective in workmanship or
materials provided that the Purchaser has given notice of such warranty claim
within the Warranty Period and the Warranted Product is returned to the factory
with freight prepaid. Repair or replacement of Products under this warranty does
not extend the Warranty Period.
To request repair or replacement under this warranty, Purchaser should contact
Aspect at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇-▇▇▇-▇▇▇▇. Aspect will authorize Purchaser to return the Warranted Product
(or part thereof) to Aspect. Aspect shall determine whether to repair or replace
Products and parts covered by this warranty and all Products or parts replaced
shall become Aspect's property. In the course of warranty service, Aspect may
but shall not be required to make engineering improvements to the Warranted
Product or part thereof. If Aspect reasonably determines that a repair or
replacement is covered by the warranty, Aspect shall bear the costs of shipping
the repaired or replacement Product to Purchaser. All other shipping costs shall
be paid by Purchaser. Risk of loss or damage during shipments under this
warranty shall be borne by the party shipping the Product. Products shipped by
Purchaser under this warranty shall be packaged in the original shipping
container or equivalent packaging to protect the Product. If Purchaser ships a
Product to Aspect in unsuitable packaging, any physical damage present in the
Product on receipt by Aspect (and not previously reported) will be presumed to
have occurred in transit and will be the responsibility of Purchaser.
This warranty does not extend to any Warranted Products or parts thereof: that
have been subject to misuse, neglect or accident; that have been damaged by
causes external to the Warranted Product, including but not limited to failure
of or faulty electrical power; that have been used in violation of Aspect's
instructions; that have been affixed to any nonstandard accessory attachment; on
which the serial number has been removed or made illegible; that have been
modified by anyone other than Aspect; or that have been disassembled, serviced,
or reassembled by anyone other than Aspect, unless authorized by Aspect. Aspect
shall have no obligation to make repairs, replacements, or corrections which
result, in whole or in part, from normal wear and tear. Aspect makes no warranty
(a) with respect to any products that are not Warranted Products, (b) with
respect to any products purchased from a person other than Aspect or an Aspect -
authorized distributor or (c) with respect to any product sold under a brand
name other than Aspect.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY FOR ASPECT'S PRODUCTS, EXTENDS
ONLY TO THE PURCHASER AND IS EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED
WARRANTIES INCLUDING WITHOUT LIMITATION ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ASPECT'S MAXIMUM LIABILITY ARISING OUT OF THE
SALE OF THE PRODUCTS OR THEIR USE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT
OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED BY ASPECT IN
CONNECTION THEREWITH. ASPECT SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR
CONSEQUENTIAL LOSS, DAMAGE OR EXPENSE (INCLUDING WITHOUT LIMITATION LOST
PROFITS) DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, INABILITY TO SELL, USE OR
LOSS OF USE OF ANY PRODUCT. EXCEPT AS SET FORTH HEREIN, ALL PRODUCTS ARE
SUPPLIED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
7. SOFTWARE/FIRMWARE
Aspect retains title and all ownership and intellectual property rights to any
software and/or firmware included in the Products acquired by Purchaser
hereunder. Aspect and Purchaser intend and agree that such software/firmware is
being licensed and not sold. Aspect hereby grants to Purchaser a nonexclusive
license to use such software/firmware and related documentation in connection
with Purchaser's use of the Products. Purchaser may not modify, enhance or
otherwise change or supplement the software/firmware provided hereunder without
Aspect's written consent. The source code for the software/firmware supplied
hereunder will not be disclosed to Purchaser and Purchaser may not disassemble,
decompile or reverse engineer the software/firmware supplied hereunder.
Purchaser may not reproduce or disclose to any third party any portion of such
software/firmware and related documentation, and may transfer it only in
conjunction with a transfer of the Product and subject to these restrictions.
Certain of the software/firmware provided by Aspect may be owned by one or more
third parties and licensed to Aspect. Such third parties retain ownership of and
title to such products and such software/firmware is being sublicensed to
Purchaser. The warranty and indemnification provisions set forth herein shall
not apply to software/firmware owned by third parties and provided hereunder.
8. PATENT INDEMNITY
Aspect shall defend or settle, at its own expense, any suit or proceeding
against Purchaser in a United States court for direct infringement by the
Products of any valid United States patent, copyright or trade secret. Aspect
shall pay all damages and costs not exceeding the total purchase price of such
Products finally awarded against Purchaser in any such suit or proceeding
because of direct infringement. Aspect's obligations under this paragraph 8 are
conditioned on Aspect receiving (a) prompt notice from Purchaser of commencement
of any suit or proceeding or any claim of infringement, (b) copies of all
written communication relating to such suit or proceeding or any claim of
infringement, (c) full assistance, information, cooperation and authority from
Purchaser with respect to defense or settlement of same. Aspect shall not be
bound by any settlement made without Aspect's prior written consent. Aspect
shall have no obligations or liability to Purchaser to the extent that any
infringement or claim thereof is based upon (a) use of any Product in
combination with any product, part or accessory not supplied by Aspect where the
Product itself would not be infringing, (b) use of any Product in a manner not
recommended by Aspect or for which it was not designed, (c) any Product
manufactured in accordance with Purchaser's designs, specifications or
instructions or by any party other than Aspect, (d) any Product that has been
altered or modified in any way by anyone other
Form VPA Rev. 1.00
Page 2 of 28
December 20, 2004
SENSOR VOLUME PROGRAM
[ASPECT LOGO] [NOVATION LOGO]
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Telephone ▇▇▇-▇▇▇-▇▇▇▇
NEWTON, MA 02464-1505 ▇▇▇-▇▇▇-▇▇▇▇
Fax ▇▇▇-▇▇▇-▇▇▇▇
than an employee or agent of Aspect or (e) any claims of infringement of any
patent, copyright, or trade secret in which Purchaser or any affiliate or
customer of Purchaser has an interest or license. This paragraph 8 states
Aspect's sole and exclusive liability for any claim of any third party by way of
infringement or the like. No sale of any Product shall be construed as granting
to Purchaser any license or any other proprietary or intellectual property
rights applicable to the products. Purchaser may not alter or remove, and shall
abide by, any patent, trademark, copyright, trade secret, proprietary or other
notices contained on or in the Products.
9. USE INDEMNIFICATION
Purchaser assumes and agrees to indemnify, defend and keep harmless Aspect, its
agents and employees and any assignee of Aspect's rights, obligations, title or
interests hereunder (collectively, the "Indemnitees"), from and against any and
all claims, liabilities, damages, expenses, judgments and losses (including
reasonable attorneys' fees) arising from a) Purchaser's breach of any of its
obligations hereunder, and b) Purchaser's use and/or misuse of the products.
10. EXCUSABLE DELAYS
In the event that Aspect is prevented from performing, or is unable to perform,
any obligations hereunder due to any cause beyond Aspect's reasonable control,
and has given prompt written notice to Purchaser, Aspect shall be excused from
such performance to the extent of such prevention.
11. TERMINATION; DEFAULT
Either party may, by written notice to the other, terminate this Agreement in
any one or more of the following events: (a) failure of the other party to pay
any monies when due hereunder if such default continues for 30 days or more
after written notice to such other party; (b) material failure of the other
party to observe, keep or perform any covenant, term or condition herein, if
such default continues for 10 days or more after written notice to such other
party; or (c) the other party is insolvent or has made an assignment by
operation of law or otherwise of this Agreement or any of its rights hereunder
for the benefit of creditors. .
12. GENERAL
The rights and obligations of the parties hereunder shall be governed by and
interpreted, construed and enforced as a sealed instrument in accordance with
the laws of the State of Mississippi. No representation, promise, modification
or amendment shall be binding on either party as a warranty or otherwise unless
in writing and signed on behalf of such party by a duly authorized
representative. Purchaser may not delegate any duties or assign any rights or
claims hereunder without Aspect's prior written consent, and any such attempted
assignment shall be void. Any Purchase Order issued by Purchaser in conjunction
with this Agreement shall be for billing purposes only and shall not be
incorporated into this Agreement.
Form VPA Rev. 1.00
Page 3 of 28
December 20, 2004
EXHIBIT E
WARRANTY
Aspect warrants to the initial Purchaser that the "Warranted Equipment"
purchased hereunder will be free from defects in workmanship or materials, when
given normal, proper, and intended usage, for a specified period ("Warranty
Period") from the date of its initial shipment to Purchaser. "Warranted
Equipment" consists solely of those Aspect products for which express warranties
are given and Warranty Periods are stated in Aspect's price list or in user
manuals or product inserts for such products. Excluded from this warranty are
expendable components and supply items such as, but not limited to, electrodes,
cables, and prep solutions. Aspect's obligations under this warranty are to
repair or replace any Warranted Equipment (or part thereof) that Aspect
reasonably determines to be covered by this warranty and to be defective in
workmanship or materials provided that the Purchaser has given notice of such
warranty claim within the Warranty Period and the Warranted Equipment is
returned to the factory with freight prepaid. Repair or replacement of Equipment
under this warranty does not extend the Warranty Period.
To request repair or replacement under this warranty, Purchaser should contact
Aspect at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇-▇▇▇-▇▇▇▇ or
▇▇▇-▇▇▇-▇▇▇▇. Aspect will authorize Purchaser to return the Warranted Equipment
(or part thereof) to Aspect. Aspect shall determine whether to repair or replace
Equipment and parts covered by this warranty and all Equipment or parts replaced
shall become Aspect's property. In the course of warranty service, Aspect may
but shall not be required to make engineering improvements to the Warranted
Equipment or part thereof. If Aspect reasonably determines that a repair or
replacement is covered by this warranty, Aspect shall bear the costs of shipping
the repaired or replacement Product to Purchaser. All other shipping costs shall
be paid by Purchaser. Risk of loss or damage during shipment under this warranty
shall be borne by the party shipping the Product. Products shipped by Purchaser
under this warranty shall be packaged in the original shipping container or
equivalent packaging to protect the Product. If Purchaser ships a Product to
Aspect in unsuitable packaging, any physical damage present in the Product on
receipt by Aspect (and not previously reported) will be presumed to have
occurred in transit and will be the responsibility of Purchaser.
This warranty does not extend to any Warranted Equipment or parts thereof: that
have been subject to misuse, neglect or accident; that have been damaged by
causes external to the Warranted Equipment, including but not limited to failure
of or faulty electrical power; that have been used in violation of Aspect's
instructions; that have been affixed to any nonstandard accessory attachment; on
which the serial number has been removed or made illegible; that have been
modified by anyone other than
Aspect; or that have been disassembled, serviced, or reassembled by anyone other
than Aspect, unless authorized by Aspect. Aspect shall have no obligation to
make repairs, replacements, or corrections which result, in whole or in part,
from normal wear and tear. Aspect makes no warranty (a) with respect to any
products that are not Warranted Equipment, (b) with respect to any products
purchased from a person other than Aspect or an Aspect - authorized distributor
or (c) with respect to any Equipment sold under a brand name other than Aspect.
THIS WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY FOR ASPECT'S PRODUCTS, EXTENDS
ONLY TO THE PURCHASER AND IS EXPRESSLY IN LIEU OF ANY OTHER EXPRESS OR IMPLIED
WARRANTIES INCLUDING WITHOUT LIMITATION ANY WARRANTY AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. ASPECT'S MAXIMUM LIABILITY ARISING OUT OF THE
SALE OF THE EQUIPMENT OR THEIR USE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT
OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PAYMENTS RECEIVED BY ASPECT IN
CONNECTION THEREWITH. ASPECT SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR
CONSEQUENTIAL LOSS, DAMAGE OR EXPENSE (INCLUDING WITHOUT LIMITATION LOST
PROFITS) DIRECTLY OR INDIRECTLY ARISING FROM THE SALE, INABILITY TO SELL, USE OR
LOSS OF USE OF ANY PRODUCTS. EXCEPT AS SET FORTH HEREIN, ALL PRODUCTS ARE
SUPPLIED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED.
EXHIBIT F
NOVATION E-COMMERCE AGREEMENT
SEE ATTACHED EXHIBIT
MARKETPLACE@NOVATION
MASTER SUPPLIER AGREEMENT
This Marketplace@Novation Master Supplier Agreement ("AGREEMENT") is
entered into effective 11-20-02 ("EFFECTIVE DATE") among Aspect Medical Systems,
Inc., a Delaware corporation having its principal place of business at ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("SUPPLIER"), Novation, LLC, a Delaware limited
liability company having its principal place of business at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("NOVATION"), and Neoforma, Inc., a
Delaware corporation having its principal place of business at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ("NEOFORMA").
Novation is a contracting agent that develops and delivers supply chain
management agreements, programs and services on behalf of VHA Inc. ("VHA"),
University HealthSystem Consortium ("UHC") and their patrons.
Neoforma provides e-commerce services for the healthcare industry and, on
behalf of Novation, operates an e-commerce marketplace for the benefit of the
members of VHA and UHC and the associated healthcare organizations of Healthcare
Purchasing Partners International, LLC ("HPPI") ("MARKETPLACE@NOVATION").
Supplier wishes to participate in Marketplace@Novation and utilize certain
Marketplace@Novation services by entering into this Agreement with Novation and
Neoforma.
Novation, Neoforma and Supplier therefore agree as follows:
1. DEFINITIONS
1.1 "Affiliate" means a person or entity controlled by or under common
control with another person or entity.
1.2 "Content" means any text, graphics, logos, button icons, images, audio
clips, HTML code, java programs and other material displayed at
Marketplace@Novation.
1.3 "Contract Portfolio" means a catalog of Products for which Novation
has contracted with Supplier for the benefit of the members of VHA and UHC and
the associated healthcare organizations of HPPI.
1.4 "EDI Standards" means the standard format for Electronic Data
Interchange (EDI) generally accepted and used in North America, as may change
from time to time.
1.5 "Information" means the information and data maintained and stored by
Neoforma, which shall include at a minimum (i) any and all information and data
collected, developed, and/or stored by Neoforma relating to Members and (ii) any
and all information and data relating to use of or transactions at
Marketplace@Novation by Members.
1.6 "Invoicing Data" means the following data for purchases made by
Members from Supplier: Supplier identification, buyer identification, GPO (e.g.,
Novation) contract identifier,
invoice number, invoice date, purchase order number, Supplier product number,
product description, manufacturer, manufacturer part number, quantity, unit of
measure, unit price, taxes, freight, price adjustments, and total cost, in
electronic form in accordance with EDI Standards or such other standards as
mutually agreed to by the parties.
1.7 "Marketplace@Novation" means the e-commerce marketplaces created
specifically for and accessible only to the members of VHA and UHC and the
associated healthcare organizations of HPPI.
1.8 "Marketplace Transactions" means either the purchase of a Product by a
Member through Marketplace@Novation or the delivery of information to
Marketplace@Novation regarding the purchase of a Product by a Member through any
other means.
1.9 "Members" means at any date those members of VHA and UHC and the
associated healthcare organizations of HPPI entitled to purchase Products at the
Marketplace@Novation pursuant to a Marketplace@Novation participation agreement
with Neoforma.
1.10 "NeoFormat" means the format in which Product Data is to be sent to
Neoforma.
1.11 "Non-Contract Products" means any Product offered by Supplier other
than through a Contract Portfolio. For purposes of clarification, a Product may
be offered by Supplier both as a Non-Contract Product and through one or more
Contract Portfolios, but will be considered a Non-Contract Product when
purchased other than through the Contract Portfolio.
1.12 "Products" means all equipment, products, supplies and services,
information and content provided by Supplier and available for purchase, rental
or lease by Members at Marketplace@Novation or through the Services.
1.13 "Product Data" means information describing the manufacturer and
distributor product numbers, features, functions and pricing of Supplier's
Products, including images, specifications, shipping weight, shipping
dimensions, associated products, maintenance and warranty information,
equivalent products and other information, to be offered at Marketplace@Novation
or through the Services.
1.14 "Services" means either (i) the provision of services to establish
electronic connectivity between Supplier and Marketplace@Novation such that
Supplier may receive and accept purchase orders from Members for Products
through Marketplace@Novation, (ii) the hosting of Supplier's catalog of Products
on Marketplace@Novation, or (iii) the provision of Marketplace Transactions
reports to Supplier. Supplier must comply with the requirements and obligations
of this Agreement and its Schedules to use the Services.
2. SERVICES
2.1 Neoforma shall provide the Services to Supplier, subject to the terms
and conditions of this Agreement and the applicable Schedules. Neoforma and
Supplier shall use commercially reasonable efforts to make available to Supplier
some or all of the Services within
sixty (60) days of the Effective Date. Supplier hereby designates the following
person as its primary integration contact:
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Director of Information Technologies
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
3. OWNERSHIP AND LICENSE
3.1 Neoforma owns and will continue to own the Content Compilation, as
defined in section 14.1 and subject to the terms and conditions contained in
Section 14.1. Any reproduction, transmission or display of the Content
Compilation by Supplier or any third party is strictly prohibited.
3.2 For the term of this Agreement, Neoforma grants Supplier permission to
access and use the Services and Marketplace@Novation in accordance with the
terms of this Agreement.
3.3 Supplier. For the term of this Agreement and subject to Section 14.1,
Supplier grants a non-exclusive license to Neoforma to use, copy, modify,
display, perform and create derivative works of Supplier's Product Data solely
for the purpose of digitizing, categorizing and formatting such information for
placement at Marketplace@Novation, in accordance with the terms of this
Agreement and the Schedules attached hereto provided that Neoforma shall not
modify the substance of any of Supplier's Content without Supplier's prior
written approval.
4. SUPPLIER DATA
4.1 Supplier is solely responsible for all Product Data and any other
Content it supplies to Neoforma for inclusion at Marketplace@Novation, including
updating such Product Data and Content in accordance with the applicable
Schedule hereto. Neoforma will not be responsible for the accuracy or legality
of information provided by Supplier for publication at Marketplace@Novation or
through the Services, and if Neoforma reasonably believes that any Product Data
or Content provided by Supplier to Neoforma (a) infringes any third party
rights, including, but not limited to intellectual property, publicity or
privacy; (b) is defamatory, trade libelous, threatening or harassing; or (c) is
obscene, indecent or contains pornography, Neoforma may at any time at its sole
discretion and upon written notice to Supplier, remove such Product Data and/or
Content from Marketplace@Novation, and/or exercise its rights under Section
16.2, Termination. Supplier shall have ten (10) days after receiving such notice
to provide Neoforma with updated Product Data or Content that (a) does not
infringe any third party rights, including, but not limited to intellectual
property, publicity or privacy; (b) is not defamatory, trade libelous,
threatening or harassing; or (c) is not obscene, indecent or contains
pornography. If Supplier does not provide such updated Product Data and/or
Content within this cure period, then and only then may Neoforma have the
ability to exercise its rights under Section 16.2.
4.2 Supplier shall make its Product Data available to Neoforma for listing
at Marketplace@Novation in accordance with the applicable Schedules hereto.
4.3 The Product Data provided by Supplier shall include the manufacturer
and distributor Product numbers, manufacturer, extended units of measure,
Product descriptions and the specific terms and conditions of Supplier's sale of
Products to Members, subject to the terms and conditions of any contract between
Supplier and a Member or Novation with respect to any Product ("SUPPLIER TERMS
AND CONDITIONS"). Neoforma does not set, approve, control or endorse the
Supplier Terms and Conditions.
4.4 For all Marketplace Transactions, to the extent Supplier sells
Products directly to Members, Supplier shall provide Neoforma with its Invoicing
Data on a monthly basis regarding such sales in a form mutually agreed upon by
Supplier's and Neoforma's primary integration contacts which will be hosted and
made available at Marketplace@Novation for use by Members in accordance with
Neoforma's Data Confidentiality and Privacy Policy. If Supplier provides
Invoicing Data to Novation pursuant to a Novation Supplier Agreement it has
entered into with Novation, Novation may provide such Invoicing Data to Neoforma
for use by Neoforma as set forth in this Section 4. Novation may also provide to
Neoforma information Supplier provides to Novation pursuant to any such Novation
Supplier Agreement.
4.5 Supplier shall update Product Data from time to time and at least
quarterly in accordance with Neoforma's then current policies and procedures for
accessing and updating Product Data. Supplier shall update Product Data,
including pricing information, hospital-specific pricing information for
Non-Contract Products, Product identifications, Product numbers, extended units
of measure, names and descriptions, and the Supplier Terms and Conditions, as
required to ensure that at all times such Product Data is accurate, including
removal of any discontinued or recalled Products.
4.6 Neoforma will not be responsible for the fulfillment of or payments
for orders for Products. Supplier acknowledges that a Member makes an offer for
a Product through Marketplace@Novation when it places an order for such Product.
Supplier shall respond to an order for a Product within two (2) business days of
placement of such order by either accepting or rejecting such order. Supplier
shall have the right, in its sole discretion, to accept or reject any order.
Supplier acknowledges all orders made by Members for Products and accepted by
Supplier will be accepted based on prices (if listed) and Product Data
(including any posted terms and conditions relating to purchase of such
Products) as they appear at Marketplace@Novation at the time of such order,
provided that such prices and Product Data is consistent with the prices and
Product Data that was provided by Supplier to Neoforma and is consistent with
the Novation Supplier Agreement. Notwithstanding the foregoing, nothing in this
Section 4.6 will affect the Supplier's rights and obligations vis-a-vis the
party placing the order.
4.7 Neoforma will not be responsible for ensuring that a sale to a Member
is authorized and in compliance with laws and that a Member has complied with
any licensing or other governmental requirements or for fulfillment, billing or
collections to Members. Supplier shall provide credential and licensure
verification, fulfillment, billing and collections to Members who have purchased
from Marketplace@Novation. Supplier shall have the final authority to refuse to
ship Products when it believes, in its sole discretion, that the party placing
the order does not have the necessary license or other government required
permission or authority to receive the Product ordered or that such sale is
otherwise not to an authorized
Member or not in compliance with applicable laws. Supplier shall communicate to
any such party the reasons for a refusal to ship an ordered Product.
Notwithstanding the foregoing, nothing in this Section 4.7 will affect the
Supplier's rights and obligations vis-a-vis the party placing the order.
4.8 Supplier shall be responsible for all customer support after the point
when an order is made by a Member and transmitted from Neoforma to Supplier.
4.9 Neoforma may use Information to facilitate transactions conducted
through Marketplace@Novation, to allow access to and fulfill contractual
obligations to Novation and Members, and to conduct its business, all of which
shall be in accordance with Neoforma's Data Confidentiality and Privacy Policy,
and to create and sell aggregated reports on Marketplace@Novation activities,
provided that such reports do not contain data that has been combined or
compiled in such a way that an individual, either by name or by other
designation, can be identified.
5. SYSTEM INTEGRITY
5.1 Supplier and Neoforma shall use then current industry standard state
of the art anti-virus software and procedures to prevent any software routine or
any other device including but not limited to any viruses, Trojan horses, worms,
time bombs, or cancelbots, from interfering or attempting to interfere with the
proper working of Marketplace@Novation.
6. FEES
6.1 Contingent upon Neoforma providing Supplier the Services in accordance
with the terms of this Agreement, Supplier shall pay the fees and other amounts
detailed in the Schedules attached hereto ("FEES") upon receipt of an invoice
provided by Novation to Supplier in accordance with Schedule A hereto. Payments
not received within thirty (30) days of the date of receipt of the invoice shall
bear interest at the lesser of twelve percent (12%) per annum or the maximum
rate allowed under applicable law. The Fees are non-cancelable and
non-refundable. All Fees are payable in U.S. dollars and shall be sent to
Novation as Neoforma's agent, shall be in return for the provision of the
Services by Neoforma in accordance with the terms of this Agreement and shall
satisfy any and all of Supplier's payment obligations to Neoforma. Novation
shall remit to Neoforma the Fees according to procedures mutually agreed to
between Neoforma and Novation.
7. TAXES
7.1 Supplier bears sole responsibility for payment and/or collection from
Members of all local, state, national or foreign taxes (including without
limitation, sales, use, value added and other taxes which may apply), license,
fees, export/import fees and any other similar obligations relating to any sale
of a Product listed at Marketplace@Novation. In no event will Neoforma bear any
such responsibility.
8. RIGHTS TO AUDIT AND INSPECTION INFORMATION
8.1 During the term of this Agreement, and subject to Section 10.1,
Novation may provide Neoforma with such information provided by Supplier to
Novation pursuant to any Novation Supplier Agreement between Supplier and
Novation, as is necessary for Neoforma to confirm Supplier's compliance with
this Agreement.
9. PRIVACY
9.1 Supplier will have the ability to access that portion of
Marketplace@Novation which displays its Products, using a user ID and password
and otherwise in accordance with Neoforma's then current policies and procedures
for accessing and updating Product Data. Such user IDs and passwords shall be
maintained as confidential and shall not be distributed or disclosed to third
parties. Supplier shall, through an authorized officer of Supplier, notify
Neoforma of the need to change or discontinue the user ID or password. Supplier
shall discontinue any user IDs and passwords that are no longer active. Supplier
shall review Marketplace@Novation Data Confidentiality and Privacy Policy
("PRIVACY POLICY"), which may be viewed at ▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇ and may
be amended from time to time by Neoforma and Novation; provided, that notice of
any amendment will be provided to Supplier by posting an announcement of such
amendment on ▇▇▇▇://▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇, except that the Privacy Policy can
not be amended to include any further obligations of Supplier, unless required
under law or agreed to in writing by Supplier. If at any time Supplier is not in
compliance with the Privacy Policy, Neoforma may terminate this Agreement and
Supplier's access to Marketplace@Novation and ability to sell Products at
Marketplace@Novation as provided in Section 16.2 of this Agreement. Neoforma
agrees to be bound by the terms of the Privacy Policy.
10. CONFIDENTIALITY
10.1 Except as expressly set forth in the Privacy Policy, (a) Novation,
Neoforma and Supplier shall regard and preserve as confidential all information
related to the business of each other disclosed pursuant to this Agreement, and
(b) no party to this Agreement shall disclose to any other party or use for its
benefit any information relating to the business of the other parties to this
Agreement without first obtaining the prior written consent of the party to whom
the information belongs. This confidentiality obligation does not apply to (a)
information that is publicly known prior to the disclosure or becomes publicly
known through no wrongful act of the receiving party; (b) information that was
in lawful possession of the receiving party prior to disclosure and was not
received as a result of any breach of confidentiality; (c) information that was
independently developed by the receiving party outside the scope of this
Agreement; (d) information which the receiving party is required to disclose
pursuant to a court order or regulatory agency request; or (e) the existence,
but not the terms or conditions, of this Agreement. In the event of a request
for disclosure pursuant to subsection (d), immediate notice of such request
shall be provided by the party receiving the request to the party whose
information is subject to the request to provide an opportunity to oppose such
request for disclosure. Except as otherwise limited, Neoforma shall be entitled
to share (1) with Novation any and all Information and (2) Information, except
pricing Information, regarding the sale of Products distributed but not
manufactured by Supplier to Members with the manufacturer of
such Product if such manufacturer is a party to a Marketplace@Novation Master
Supplier Agreement with Neoforma.
11. REPRESENTATIONS AND WARRANTIES
11.1 Neoforma represents and warrants that (i) it has full power and
authority to enter into this Agreement and the applicable Schedules; (ii) it has
all rights, titles, licenses, permissions and approvals necessary to perform its
obligations under this Agreement and the applicable Schedules and to grant to
Supplier all licenses and rights granted hereunder, and that such licenses do
not and will not infringe or otherwise violate any copyright, trade secret,
trademark, patent or other proprietary right of any third party; (iii) that it
has and will maintain the capability to provide the Services and to create and
host Marketplace@Novation during the term of this Agreement and all applicable
Schedules; (iv) it has complied and shall continue to comply with all
legislation, laws, statutes, ordinances, rules and regulations regarding the
Services and Marketplace@Novation; (v) it will not use Marketplace@Novation to
violate antitrust laws and will not use Marketplace@Novation to engage in any
price fixing or enter into any agreement in restraint of trade; and (vi) it is a
valid licensee of all Content.
11.2 Supplier represents and warrants that (i) it has full power and
authority to enter into this Agreement and the applicable Schedules, (ii) it has
full power and authority to sell the Products to be sold by it at
Marketplace@Novation and will not offer for sale counterfeit or stolen items,
(iii) it is the sole owner or is a valid licensee of all Content provided by or
on behalf of Supplier for inclusion at Marketplace@Novation and has secured all
necessary licenses, consents and authorizations with respect to use of such
Content and all elements thereof to the full extent contemplated herein, (iv) no
part of any Content provided by or on behalf of Supplier for inclusion at
Marketplace@Novation violates or infringes upon the patent rights, copyrights,
trade secrets, trademarks or other proprietary rights of any person or entity or
constitutes defamation, invasion of privacy or the violation of the rights of
any person or entity, (v) it has complied and shall continue to comply with all
legislation, laws, statutes, ordinances, rules and regulations regarding the
Products and their sale or transfer, and its actions in relation to
Marketplace@Novation and the Services (including, without limitation, those
governing medical devices, pharmaceuticals, export control, consumer protection,
unfair competition or false advertising), and (vi) it will not use
Marketplace@Novation to violate antitrust laws and will not use
Marketplace@Novation to engage in any price fixing or enter into any agreement
in restraint of trade.
11.3 EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED HEREIN, (A) NEOFORMA
SUPPLIES MARKETPLACE@NOVATION AND THE SERVICES "AS IS" AND WITHOUT ANY WARRANTY
OR CONDITION, EXPRESS OR IMPLIED; (B) NEOFORMA SPECIFICALLY DISCLAIMS ANY AND
ALL IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE
PRACTICE; (C) NEOFORMA DOES NOT GUARANTEE CONTINUOUS, UNINTERRUPTED ACCESS TO
MARKETPLACE@NOVATION AND THE SERVICES, AND OPERATION OF THE MARKETPLACE@NOVATION
MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF NEOFORMA'S CONTROL; AND
(D) SALE OF PRODUCTS TO MEMBERS IS AT SUPPLIER'S RISK.
11.4 BY USING THE SERVICES AND MARKETPLACE@NOVATION, SUPPLIER REPRESENTS
AND WARRANTS THAT IT CAN FORM LEGALLY BINDING CONTRACTS UNDER APPLICABLE LAW.
FURTHERMORE, SUPPLIER REPRESENTS AND WARRANTS THAT THE INDIVIDUAL EXECUTING THIS
AGREEMENT HAS AUTHORITY TO BIND SUPPLIER AS SELLER AND THAT BY DOING SO IS NOT
BREACHING OR IN CONFLICT WITH ANOTHER AGREEMENT OR OBLIGATION.
12. INDEMNIFICATION
12.1 Subject to Section 12.3, Neoforma shall defend and/or settle at its
own expense any third party claims or actions, arising from (i) any breach by
Neoforma of any of its representations or obligations set forth in this
Agreement and the applicable Schedules, (ii) any misrepresentation or omission
in any Supplier Content arising from modifications or omissions to such Content
by Neoforma; and (iii) actual or alleged infringement of a copyright, trade
secret, trademark, patent or other proprietary right of a third party arising
out of Supplier's use of Marketplace@Novation and the Services as permitted
under this Agreement and the applicable Schedules, and shall indemnify and hold
harmless Supplier and its respective officers and directors from and against any
loss, liability, cost or expense (including reasonable attorney's fees)
resulting from any such claim or action, and its settlement or compromise.
12.2 Subject to Section 12.3, Supplier shall defend, and/or settle at its
own expense, any third-party claims or actions, arising from (i) any breach by
Supplier of any of its representations or obligations set forth in this
Agreement and the applicable Schedules, (ii) any misrepresentation or omission
in any Content provided by or on behalf of Supplier in connection with the
Services or at Marketplace@Novation, and (iii) any claims brought by a third
party, having a basis in contract or tort, in law or in equity, relating to any
Products listed or sold by Supplier through Marketplace@Novation or otherwise
relating to Supplier's use of Marketplace@Novation or the Services, including
but not limited to, interference with contract or prospective economic
advantage, breach of contract, misrepresentation, gross negligence, products
liability, strict products liability or the failure to transfer good title to
any products sold by Supplier at Marketplace@Novation, and shall indemnify and
hold harmless Neoforma, its Affiliates, and their respective officers and
directors from and against any loss, liability, cost or expense (including
reasonable attorneys' fees) resulting from any such claim or action, and its
settlement or compromise.
12.3 The party seeking indemnification under subsection 12.1 or 12.2, as
the case may be ("INDEMNIFIED PARTY"), shall give prompt written notice to the
other party ("INDEMNIFYING PARTY"). In addition, the Indemnified Party shall
allow the Indemnifying Party solely to direct the defense and settlement of any
such claim, with counsel of the Indemnifying Party's choosing, and shall provide
the Indemnifying Party, at the Indemnifying Party's expense, with information
and assistance that is reasonably necessary for the defense and settlement of
the claim. The Indemnified Party reserves the right to retain counsel, at the
Indemnified Party's sole expense, to participate in the defense of any such
claim. The Indemnifying Party shall not settle any such claim or alleged claim
without first obtaining the Indemnified Party's prior written consent, which
consent shall not be unreasonably withheld, if the terms of such settlement
would adversely affect the Indemnified Party's rights under this Agreement and
the applicable Schedules.
12.4 The remedy provided under this Section 12 will be the Supplier's and
Neoforma's sole and exclusive remedies in relation to claims and actions
alleging intellectual property infringement.
13. LIMITATION OF LIABILITY
13.1 WITH THE EXCEPTION OF NEOFORMA'S AND SUPPLIER'S OBLIGATIONS UNDER
SECTION 12 IN NO EVENT WILL (A) NEOFORMA OR SUPPLIER BE LIABLE TO THE OTHER OR
(B) SUPPLIER BE LIABLE TO NOVATION FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL,
SPECIAL OR PUNITIVE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE SCHEDULES
ATTACHED HERETO OR THEIR TERMINATION, WHETHER LIABILITY IS ASSERTED IN CONTRACT
OR IN TORT, (INCLUDING NEGLIGENCE) AND IRRESPECTIVE OF WHETHER SUCH PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE.
13.2 NEOFORMA DOES NOT AND CANNOT CONTROL THE FLOW OF DATA TO OR FROM
MARKETPLACE@NOVATION AND OTHER PORTIONS OF THE INTERNET. ACTIONS OR INACTIONS OF
THIRD PARTIES BEYOND NEOFORMA'S CONTROL MAY RESULT IN SITUATIONS IN WHICH
SUPPLIER'S CONNECTION TO THE INTERNET, AND/OR ACCESS TO MARKETPLACE@NOVATION MAY
BE IMPAIRED, DISRUPTED OR DAMAGED. NEOFORMA CANNOT GUARANTEE THAT SUCH EVENTS
WILL NOT OCCUR, AND ACCORDINGLY DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM
OR RELATED TO SUCH EVENTS.
14. INTELLECTUAL PROPERTY RIGHTS
14.1 Each party owns and shall retain all right, title to and interest in
its names, logos, trademarks, service marks, trade dress, copyrights and
proprietary technology, including, without limitation, those names, logos,
trademarks, service marks, trade dress, copyrights and proprietary technology
currently used or which may be developed and/or used by it in the future
("MARKS"). Neoforma is authorized to use Supplier's Marks during the term of
this Agreement as necessary to provide the Services under this Agreement, and
all such use inures to the benefit of Supplier. To the extent that Neoforma
modifies Product Data or other Content provided by Supplier pursuant to this
Agreement and the applicable Schedules pursuant to Section 3.3, Supplier hereby
acknowledges that Neoforma will be the copyright owner of the derivative or
modified works that it creates pursuant to and subject to the license granted in
Section 3.3 (whether in graphical, narrative or any other form) ("Content
Compilation"), and subject in all respects to Supplier ownership of the
underlying information and to the copyright of third parties, provided that
Neoforma shall have no right to use, modify, perform, transmit, display or
create Derivative Works of the Content Compilation except for the express
purpose of fulfilling its obligations under this Agreement. Any reproduction,
transmission or display of the Content Compilation by Supplier or any third
party is strictly prohibited.
15. NO AGENCY; DISCLAIMER
15.1 Supplier and Neoforma are independent contractors, and no agency,
partnership, broker-dealer, distributor, joint venture, employee-employer or
franchiser-franchisee relationship is intended or created by this Agreement and
the applicable Schedules. Neoforma provides a forum for buyers and Supplier to
conduct transactions and is not involved in the actual transaction between
buyers and Supplier. Neoforma does not have any responsibility whatsoever with
regard to the actual fulfillment of any orders made by buyers, including but not
limited to the shipment of the Products ordered or purchased at
Marketplace@Novation. Neoforma has no control over the price, contract terms,
quality, safety, conformance or legality of the Products listed at
Marketplace@Novation, the truth or accuracy of the listings, or other
information at Marketplace@Novation including but not limited to Invoicing Data,
or the ability of Supplier to sell items or the ability of buyers to buy items.
Neoforma has no control over whether the offer or sale of Products by Supplier
or the purchase of Products by a buyer is in compliance with applicable laws or
whether Supplier or any buyer has any required license or other government
permission or authority for any such offer, sale or purchase. Neoforma cannot
and does not control whether or not buyers will complete the purchase of items
they have ordered, and is not responsible for payment or collection of orders
placed by Member buyers at Marketplace@Novation. NEOFORMA MAKES NO
REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AS TO THE
QUALITY OR CREDITWORTHINESS OF ANY BUYER.
16. TERM AND TERMINATION
16.1 Term. The term of this Agreement will commence on the Effective Date
and shall continue for a period of three (3) years. This Agreement will
automatically renew for additional one-year terms unless written notice of
termination is provided by the terminating party to the non-terminating party
not less than ten (10) days prior to the expiration of the then-effective term.
Unless otherwise indicated in the applicable Schedule, the term of each Schedule
hereto shall be the same as the term of this Agreement.
16.2 Termination. Any party hereto shall have the right to terminate this
Agreement or any Schedule attached hereto in the event of a material breach of
the terms hereof or thereof by another party which is not cured within thirty
(30) calendar days following receipt of written notice specifying the breach.
16.3 Termination by Neoforma. If Neoforma receives excessive complaints
from Members about Supplier's compliance with the Supplier Terms and Conditions
or the service provided by Supplier relating to Products, Neoforma may provide
Supplier with notice of its receipt of such complaints and the opportunity to
respond to and cure the source of such complaints. Supplier will use
commercially reasonable efforts to satisfactorily respond to or cure the source
of such complaints within thirty (30) calendar days following receipt of such
notice. If Supplier fails to comply with this Section 16.3, Neoforma, at its
sole discretion, may terminate this Agreement or any Schedule attached hereto in
accordance with Section 16.2.
16.4 Termination by Supplier. If Supplier receives excessive complaints
from Members about access to or performance of Marketplace@Novation or the
service provided by
Neoforma relating to Marketplace@Novation, Supplier may provide Neoforma with
notice of its receipt of such complaints and the opportunity to respond to and
cure the source of such complaints. Neoforma will use commercially reasonable
efforts to satisfactorily respond to or cure the source of such complaints
within thirty (30) calendar days following receipt of such notice. If Neoforma
fails to comply with this Section 16.4, Supplier, at its sole discretion, may
terminate this Agreement or any Schedule attached hereto in accordance with
Section 16.2.
16.5 Schedules. Upon termination of this Agreement for any reason, all
Schedules entered into pursuant to this Agreement shall also terminate.
17. GENERAL PROVISIONS
17.1 No Waiver. The failure of a party to this Agreement to require or
enforce strict performance by the other party of any provision of this Agreement
or any Schedule hereto or to exercise any right under this Agreement or any
Schedule hereto shall not be construed as a waiver or relinquishment to any
extent of such party's right to assert or rely upon any such provision or right
in that or any other instance.
17.2 Entire Agreement. This Agreement and any applicable Schedule hereto
represents the entire agreement, and supersedes any and all prior agreements or
understandings of the parties written or oral with respect to the subject matter
hereof. This Agreement and the Schedules hereto may only be modified, or any
rights under it waived, by a written document executed by the duty authorized
representative of both parties. In the event of any conflicts or inconsistencies
between the terms of this Agreement and any Schedules, the terms of the
applicable Schedule will control.
17.3 Applicable Law; Jurisdiction. This Agreement and the Schedules hereto
shall be interpreted, construed and enforced in all respects in accordance with
the laws of the State of California without reference to conflict of law
principles.
17.4 No Diversion. With respect to a buyer who seeks to purchase a Product
through the Marketplace@Novation, as evidenced by the buyer's selection of an
item for purchase or quotation at the Marketplace@Novation, Supplier shall not
take any action to divert the purchase of that Product through means other than
the Marketplace@Novation.
17.5 Non-Exclusivity. Supplier and Neoforma agree that this Agreement and
the Schedules hereto are non-exclusive and that each party is free to contract
and deal with competitors of the other.
17.6 Assignment. This Agreement and the Schedules hereto shall not be
assigned by a party to this Agreement without the prior written consent of the
other parties, except that no such consent will be required in connection with
an acquisition, merger, reorganization or sale of all, or substantially all the
assets to which this Agreement relates of a party to this Agreement. Neoforma
may assign the Agreement and the Schedules hereto to an Affiliate of Neoforma.
The parties further agree that an Affiliate of Neoforma may provide services
under this Agreement, provided that such Affiliate is subject to the provisions
of Section 10.1 of this Agreement, and Neoforma remains responsible for the
performance of such Affiliate. Subject to the foregoing,
this Agreement will bind and inure to the benefit of the parties' successors in
title and permitted assigns. Any attempt to assign this Agreement other than as
permitted above will be void.
17.7 Schedules. The Schedules applicable to this Agreement are attached
hereto, refer explicitly to this Agreement, and are dated and signed by both
parties.
17.8 Notices. Any notice required or permitted by this Agreement shall be
in writing and shall be deemed given if sent by prepaid registered or certified
United States mail, return receipt requested (if available), overnight mail with
a nationally recognized overnight mail courier, or sent by facsimile or similar
communication, and confirmed by such mail, postage prepaid, addressed to the
other party at the address shown below or at such other address for which such
party gives notice hereunder. Notices will be deemed given three (3) business
days after deposit in the U.S. Mail, one (1) business day after deposit with an
overnight mail courier, or when confirmation of receipt is obtained if sent by
facsimile or similar communication, as applicable.
If to Supplier:
Aspect Medical Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Vice President & CFO
With a copy to:
Aspect Medical Systems, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇, Area Vice President
If to Novation:
Novation, LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
If to Neoforma:
Neoforma, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
17.9 Force Majeure. No party to this Agreement shall be considered in
default in the performance of any obligation hereunder to the extent that the
performance of such obligation is prevented or delayed by fire, flood,
explosion, strike, war, insurrection, embargo, government requirement, civil or
military authority, act of God, failure of the Internet or any other event,
occurrence or condition which is not caused, in whole or in part, by that party,
and which is beyond the reasonable control of that party. The parties shall take
all reasonable action to minimize the effects of any such event, occurrence or
condition.
17.10 Survival. The following sections will survive termination or
expiration of this Agreement: 3.1, 6.1, 7.1, 8.1, 10.1, 11, 12, 13, 14.1, 15.1
and 17.
17.11 Execution in Counterparts, Facsimiles. This Agreement may be
executed in one or more counterparts, each of which shall be deemed an original
and all of which together shall constitute one and the same instrument. This
Agreement shall become binding when any one or more counterparts hereof,
individually or taken together, bear the signature of the parties to this
Agreement. For the purposes hereof, a facsimile copy of this Agreement,
including the signature pages hereto, shall be deemed an original.
17.12 Novation Participation in this Agreement. Novation shall be a party
to this Agreement solely for the purposes of Sections 4.4, 6.1, 8.1, 10.1, 13.1,
16.2 and 17.1 through 17.12.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
NEOFORMA, INC., SUPPLIER,
a Delaware corporation a Delaware corporation
By: /s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Title: CFO
-------------------------------
Title: Vice President,
Commerce Supplier Relations Date: 11-26-02
Date: 12/03/02
NOVATION, LLC
a Delaware limited liability company
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President,
Commerce Supplier Relations
Date: 12/03/02
SCHEDULE A TO MASTER SUPPLIER AGREEMENT - CONTRACT SUPPLIERS
1. LISTING OF NOVATION CONTRACT PORTFOLIO PRODUCTS
1.1 Supplier shall provide Neoforma with a list of all Products that
Supplier offers through the Novation Contract Portfolio ("INITIAL NOVATION
CONTRACT PORTFOLIO CATALOG"). To the extent that Novation and Supplier contract
for additional Products to be offered to Novation Members through the Novation
Contract Portfolio, Supplier will provide Neoforma with a list of such
additional Products. Supplier shall provide Neoforma with the Product Data for
Contract Portfolio Products in the manner and format set forth in the NeoFormat
specifications provided by Neoforma to Supplier (a current copy of which has
been provided to Supplier); provided that pricing information for Novation
Contract Portfolio Products will be provided by Novation and reviewed and
approved by Supplier.
1.2 Subject to Sections 3.2 and 14 of the Master Supplier Agreement,
Neoforma may digitize, categorize and format the Product Data for the Initial
Novation Contract Portfolio Catalog and post such Product Data at
Marketplace@Novation in accordance with Neoforma's standard practices for
digitization, categorization and formatting of Product Data, and Neoforma shall
digitize, categorize, format and post Product Data for additional Novation
Contract Portfolio Products offered by Supplier from time to time in accordance
with Neoforma's then-current standard practices.
1.3 Novation shall have the right to review all Product Data with respect
to Novation Contract Portfolio Products prior to the posting of such Product
Data at Marketplace@Novation.
1.4 Notwithstanding Section 4.5 of the Master Supplier Agreement, Supplier
shall not revise pricing information for Novation Contract Portfolio Products
without the prior approval of Novation. Supplier shall provide thirty (30) days
written notification to Novation in advance of any price changes of Novation
Contract Portfolio Products posted at Marketplace@Novation.
2. LISTING OF NON-CONTRACT PRODUCTS
2.1 Supplier shall provide Neoforma with an initial list of all Products
that Supplier wants to offer at the Marketplace@Novation as Non-Contract
Products ("INITIAL NON-CONTRACT CATALOG") and may request to offer additional
Products at Marketplace@Novation as Non-Contract Products. Supplier shall
provide Neoforma with the Product Data with respect to such Non-Contract
Products as is set forth in the NeoFormat specifications provided by Neoforma to
Supplier from time to time (a current copy of which has been provided to
Supplier). Supplier shall provide such Product Data in the manner and format set
forth in such specifications.
2.2 Supplier shall consult with Neoforma on a quarterly basis about
revising the Non-Contract Products offered at Marketplace@Novation to meet the
needs of Members.
2.3 Subject to Sections 3.2 and 14 of the Master Supplier Agreement,
Neoforma may digitize, categorize and format the Product Data for the Initial
Non-Contract Catalog and post such Product Data at the Marketplace@Novation in
accordance with Neoforma's standard practices for digitization, categorization
and formatting of Product Data and Neoforma shall digitize, categorize, format
and post Product Data for additional Products to be offered by
Supplier at Marketplace@Novation as Non-Contract Products in accordance with
Neoforma's then-current practices.
3. FEE FOR SERVICES. Supplier shall pay to Neoforma the following monthly
Fees for the Services:
Base
Services # of Users Annual Sales
---------------- ----------------- ---------------------------
- TPR Cost per user = <$[**] mm
- Order $[**]
Manager
- Report
Manager
- PUM
- LOP/LOC
NeoConnect Connection Charge Line Charge
---------------- ----------------- ---------------------------
$[**] per member 2 Transaction Sets
(850/855)
-$[**] per line
3 Transaction Sets
(850/855/856/810
whose 3)
-$[**] per line
4 Transaction Sets
*850/855/856/810
)
-$[**] per line
Sourcing Catalog Pricing Structure Tier - Base Novation Annual Fee
---------------- ----------------- ----------- -------------------
Novation Contract <[**] Items $[**]
and NonContract [**] Items $[**]
[**] Items $[**]
[**] Items $[**]
[**] Items $[**]
[**]> Items $[**]
Sourcing Catalog Pricing Structure Tier - Advanced Novation Annual Fee
---------------- ----------------- --------------- -------------------
Novation Contract <[**] Items $[**]
and NonContract [**] Items $[**]
[**] Items $[**]
[**] Items $[**]
[**] Items $[**]
[**]> Items $[**]
4. INVOICING AND PAYMENT; COMMENCEMENT OF FEES
Novation shall invoice for Fees described in Sections 4 and 5 above
approximately 60 days from the end of each billing month. Such Fees shall be
based on the Net Sales Report submitted to Novation's Purchase Reporting System
by Supplier. The Net Sales Report shall contain the Supplier's monthly Contract
Sales as agreed to and in the Novation Supplier Agreement. The first invoice
shall be based on the applicable Net Sales Report period that is sixty (60) days
after the Effective Date.
For example:
November 1, 2001 Effective Date of Master Supplier Agreement - Novation will
create the first Fees invoice from the January 2002 Supplier Net Sales Report.
November 15, 2001 Effective Date of Master Supplier Agreement - Novation will
create the first Fees invoice from the February 2002 Supplier Net Sales Report.
Supplier hereby designates the following as its primary billing/invoicing
contact and bill/invoice to address:
Name/Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Operations Controller
Company: Aspect Medical Systems, Inc.
Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇: ▇▇▇▇▇▇
▇▇▇▇▇: ▇▇ ▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇
Payment is due thirty (30) days after receipt of the invoice by Supplier. Fee
checks for the Fees to shall not be combined with other Novation fees.
Fee checks shall include the following information:
MONTH/
INVOICE NUMBER AGREEMENT NUMBER YEAR TOTAL
-------------- ---------------- ------ -----
-------------- ---------------- ------ -----
Fee checks shall be made payable to NOVATION, LLC and sent to:
If Sent Via COURIER (i.e., Federal Express,
If Sent By FIRST CLASS MAIL: United Parcel Service, Messenger):
----------------------------- -------------------------------------------
Novation, LLC The Northern Trust Company
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-1420 Receipt & Dispatch 8th Floor
Chicago, IL 60654
ATTN: NOVATION, LLC, LOCKBOX NUMBER 1420
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
The airbill shall list the bank's telephone number, as recipient at this
location, and include SUPPLIER'S telephone number as the sender.
Supplier may call Novation E-Commerce Supplier Relations at (▇▇▇) ▇▇▇-▇▇▇▇ for
invoicing issues or Novation Accounting at (▇▇▇) ▇▇▇-▇▇▇▇ for payment issues.
Other Information that Supplier may need in sending Fees to Novation include the
following:
Bank Routing Numbers for Electronic Funds Transfer (EFT): ▇▇▇▇▇▇▇▇▇
Bank Account Number: [**]
Federal Tax ID: [**]
Account Name: Novation, LLC
ACCEPTED BY: ACCEPTED BY:
SUPPLIER NEOFORMA, INC.
/s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ ------------------------------
Authorized Signature Authorized Signature
▇▇▇▇▇ ▇▇▇▇▇▇, Vice President
▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, CFO E-Commerce Supplier Relations
------------------------ ------------------------------
Printed Name and Title Printed Name and Title
11-26-02 12/03/02
------------------------ ------------------------------
Date Date
