Exhibit 10.11
FIRST AMENDMENT TO LICENSE AND DISTRIBUTION AGREEMENT
This FIRST AMENDMENT TO LICENSE AND DISTRIBUTION AGREEMENT ("First
Amendment") is made this 30th day of June, 2001 by and between AGILENT
TECHNOLOGIES, INC, a Delaware corporation (together with its subsidiaries and
successors, being collectively, "Agilent"), and DATA CRITICAL CORPORATION, a
Delaware corporation (together with its subsidiaries and successors, being
collectively, "Data Critical" and together with Agilent being collectively, the
"Parties" and each individually, a "Party"). The Parties agree as follows:
WHEREAS, Agilent and Data Critical are parties to that certain Distribution
and License Agreement dated as of November 22, 2000 (the "Agreement"). Any
capitalized terms not specifically defined herein shall have the meanings
ascribed to them in the Agreement.
WHEREAS, the parties wish to amend the Agreement and agree to certain other
terms as provided herein.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Section 4.5 of the Agreement is hereby amended by deleting the
amount "$750" therein and replacing the same with the amount "$650".
2. Section 5.1 of the Agreement is hereby amended by deleting the first
sentence thereof in its entirety and replacing the same with the following:
"Data Critical shall offer factory-only repair/replacement services, solely at
its own or licensed service facilities and solely on the terms and conditions
set forth herein (a) for the Data Critical proprietary receivers, at any time
after their initial delivery to Agilent or the end user, and (b) for the
transmitters sold by Data Critical for use with the Integrated StatView Product
after the expiration of the warranty thereon."
3. Section 5.2 of the Agreement is hereby amended by deleting such
section in its entirety and replacing the same with the following:
"(a) Subject to the foregoing, Data Critical will offer Agilent
repair/replacement services for the transmitters sold by Data Critical for
use in connection with the Integrated StatView Product based upon the
following pricing schedule (all hardware repair/replacement payment terms
are net 30 from the date of invoice to Agilent) (in each case, plus
applicable taxes and duties):
Transmitters: $300.00 per unit after the 14 month warranty period
therefor..
(b) Subject to the foregoing, Data Critical will at no charge replace
receivers sold by Data Critical to Agilent with new receivers (i) when
found to be defective upon initial receipt by Agilent, or (ii) when found
to be defective upon initial delivery to an end user. In addition for all
other failures by receivers, Data Critical will offer Agilent
repair/replacement services for the receivers sold by Data
Critical for use in connection with the Integrated StatView Product based
upon the following pricing schedule (all hardware repair/replacement
payment terms are net 30 from the date of invoice to Agilent) (in each
case, plus applicable taxes and duties):
Receivers: $200.00 per unit if failure not due to misuse or abuse; and
$100.00 per unit if returned but no failure found.
Data Critical and Agilent agree that Data Critical will have sole
discretion to determine whether receivers returned by Agilent are to be
repaired/replaced or have failed due to misuse or abuse. Misuse or abuse
will include, but will not be limited to, water damage, severe shock or
substantial case damage." For the first twelve months that Agilent ships
receivers to end customers, findings of misuse or abuse will not constitute
more than 5% of the total repair returns. Further limits on this percentage
deemed abused will be determined at the annual contract reviews.
4. Section 9.2 of the Agreement is hereby amended (a) by deleting the
phrase "its proprietary receivers and" from the first sentence thereof, (b) by
deleting the phrase ", in each case," from the first sentence thereof, and (c)
by deleting the phrase "receiver or" from the last sentence thereof.
5. After Agilent has been shipping receivers to end customers for at
least six months, Data Critical agrees to meet with Agilent to review the
performance of the receivers.
6. Each Party represents and warrants to the other Party that it has full
corporate power and authority to execute and deliver this First Amendment and to
perform the transactions contemplated hereunder.
7. The terms and provisions of the Agreement, as amended hereby, shall
remain in full force and effect. All references to the "Agreement" contained
therein shall mean the Agreement, as amended by this First Amendment.
8. The execution, delivery and effectiveness of this First Amendment
shall not operate as a waiver of any right, power or remedy of the either Party
under the Agreement or any of the other instruments, documents or agreements
related thereto, if any, nor constitute a waiver of any provision contained
therein, except as specifically set forth herein.
9. This First Amendment shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York.
10. This First Amendment may be executed in one or more counterparts, all
of which shall be considered one and the same agreement.
[Signature page follows.]
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IN WITNESS WHEREOF, each of Agilent and Data Critical has caused this First
Amendment to be signed by their respective officers duly authorized as of the
date first written above.
Agreed To:
Agilent Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 6/26/01
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Date
Title: General Manager
Data Critical Corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 6/30/01
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
Title: Executive Vice President,
Corporate Development,
Chief Financial Officer
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