Exhibit 10.19
CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED
SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
SERVICE AGREEMENT
This service agreement ("Agreement"), made and entered into as of this
1st day of August, 1998, by and between Dade Behring a Delaware corporation
("Dade Behring") having a principal place of business located at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, and OmniCell Technologies, Inc. a California
corporation ("Omnicell") having a principal place of business located at ▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Whereas, Dade Behring is, among other things, in the business of
selling services relating to the installation, repair and preventive maintenance
of medical diagnostic products, equipment, apparatus, and instruments and of
selling parts and components related thereto;
Whereas, OmniCell is in the business of selling certain products,
equipment, apparatus, and instruments related to medical supply and
pharmaceutical management;
Whereas, OmniCell and Dade Behring mutually desire for Dade Behring to
provide service and parts in connection with OmniCell's products, equipment,
apparatus, and instruments;
Now, Therefore, in consideration of the premises, mutual covenants and
other agreements contained herein, the parties hereto agree hereof, as follows;
ARTICLE I
ENGAGEMENT
Section 1.01 GRANT. OmniCell hereby grants to Dade Behring, and agrees
to cause its affiliates to grant to Dade Behring the right to service the
products, equipment, apparatus and instruments described in Exhibit A ("Current
Products"), all accessories for all Current Products, and all products and
accessories which are similar thereto and which OmniCell or any of its
affiliates may at any time hereafter sell, lease, or otherwise provide or place
(collectively, "Products"). The nature of the grants hereby given is, however,
restricted to the territory or territories ("Territory") described on Exhibit A.
Section 1.02 ACCEPTANCE. Dade Behring hereby accepts from OmniCell the
grant hereby given and agrees to exert its reasonable efforts to provide
service, or cause service to be provided, for Products in the Territory as
required herein. In providing service, Dade Behring will not be responsible for
the accuracy, completeness or timeliness of any advice or service or any return,
report, filing or other document which it provides, prepares or assists in
preparing, except to the extent that any inaccuracy, incompleteness or
untimeliness arises from the gross negligence or willful misconduct of Dade
Behring. OmniCell and Dade Behring will cooperate in planning the scope and
timing of services provided hereunder in order to minimize or eliminate
interference with the conduct of Dade Behring's business activities.
Notwithstanding any contrary indication herein, if such interference is
unavoidable, Dade Behring will apportion the available services in a fair and
reasonable manner, as determined by Dade Behring in its sole discretion.
Section 1.03 DESIGNATION. OmniCell hereby appoints, and agrees to cause
its affiliates to appoint, Dade Behring as an authorized servicer of Products in
the Territory and
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hereby grants to Dade Behring, and agrees to cause its affiliates to grant to
Dade Behring, the right to designate itself as an authorized servicer of
Products in the Territory. OmniCell agrees, and agrees to cause its affiliates
to agree, that Dade Behring may so advertise itself and. reasonably use
trademarks of OmniCell and its affiliates in so doing.
Section 1.04 "AFFILIATE" DEFINED. As used in this Agreement, an
"affiliate" is a person, firm, partnership, joint venture, corporation or entity
which, directly or indirectly, controls, is controlled by, or is under the
common control of another person, firm, partnership, joint venture, corporation
or entity.
ARTICLE II
TRAINING
Section 2.01 OMNICELL TRAINING. OmniCell will provide, at no charge for
mutually agreed upon service, products, and territories, complete specialized
training to technicians and/or technical instructors designated by Dade Behring
on how to service, repair, refurbish, and conduct preventive maintenance on all
Products, on all other matters and skills needed or appropriate for Dade Behring
to fulfill its obligations hereunder and on how to train others. It's the desire
of both parties to transition on-going training for existing mature products
from OmniCell to Dade Behring in a mutually agreed upon timeframe. OmniCell will
be responsible for new product training until such a time that both parties
agree to transition on-going training to Dade Behring. Dade Behring will
maintain records of such training sufficient for compliance with applicable laws
and governmental regulations.
Section 2.02 FREQUENCY OF TRAINING. OmniCell shall provide such
training and will coordinate attendees and training dates with Dade's designated
training coordinator. Training will begin in 1998 and will conclude when
mutually agreed upon by both Dade Behring and OmniCell.
Section 2.03 TRAINING LOCATIONS. Such training shall be provided by
OmniCell at its facility located at Palo Alto, California or other mutually
agreeable location. If it is mutually agreed to provide training at a location
other than OmniCell's headquarters, OmniCell will be responsible for shipping
expenses required to conduct such training. Dade Behring will bear the expense
of shipment of such equipment between Dade's own training facilities. Dade
Behring shall bear responsibility for all of OmniCell's equipment stored at a
Dade Behring facility.
Section 2.04 OMNICELL TRAINING AIDS, PRODUCTS. In connection with such
training, OmniCell will furnish, at no charge, all such papers, procedures,
recommended parts lists, complete parts lists, books, manuals, workbooks, videos
and all training, instruction, and presentation aids as are necessary or
appropriate and all such Products and parts in sufficient quantities as are
necessary or appropriate. OmniCell also agrees to provide, at no charge upon
Dade's request, all mutually agreed required Products and parts in sufficient
quantities as may be needed or appropriate to enable Dade Behring to provide
such training to representatives who are intended by Dade Behring to provide
service hereunder. OmniCell agrees to promptly provide Dade Behring, at no
charge, with additional, new and revised papers, procedures, recommended parts
lists, complete parts lists, books, manuals, workbooks, videos and all training,
instruction, and presentation aids as are available to OmniCell or as OmniCell
may develop, for all mutually
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agreed upon services provided. All equipment and training aids furnished by
OmniCell for training purposes will remain the property of OmniCell and will be
returned to OmniCell upon termination of this Agreement, regardless of other
claims and disputes, shipping charges billable to OmniCell, ordinary wear and
tear and damage by fire or casualty excepted. OmniCell agrees that Dade Behring
may freely reproduce any such papers, procedures, recommended parts lists,
complete parts lists, books, manuals, workbooks, videos and all training,
instruction, and presentation aids, unless such items are designated by OmniCell
as confidential, wherein such items may be reproduced for Dade's internal use
only. OmniCell agrees to pay and absorb the expenses, if any, in connection with
the repair, refurbishing, packaging and transportation of Products, parts,
papers, procedures, recommended parts lists, complete parts lists, books,
manuals, workbooks, videos and all training, instruction, and presentation aids
provided under this Section. Dade Behring shall be responsible for the cost of
any parts, tools, manuals, etc. that are lost or destroyed while in the
possession of Dade Behring or one of its employees.
Section 2.05 TRAINING COSTS. OmniCell will be responsible for the [*]
for Dade Behring technicians, trained at an OmniCell facility, at a rate of
from [*] to [*] per technician and OmniCell will work with Dade Behring on
securing the travel schedules and guidelines (i.e., OmniCell will select the
hotels and work to receive the most economical rates). Dade Behring shall be
responsible for all other per diem costs for such technicians related to such
training. Dade Behring will be responsible for all retraining costs,
replacement of equipment, tools, manuals, etc., due to the layoff or loss of
an FSR.
Section 2.06 ADDITIONAL TRAINING. Notwithstanding any contrary
indication herein, with respect to any Product or Part which is changed or
modified in any way, Dade Behring may request and, thereafter, OmniCell will
provide such training as if no prior training therefor had previously been
provided. For any product, accessory, component or part which will become a
Product or Part, Dade Behring may request such training at any time after a date
which is six months before such product, accessory, part or component becomes a
Product or Part, and OmniCell will provide such training as provided in this
Agreement.
ARTICLE III
SERVICE TO BE PROVIDED
Section 3.01 "SERVICE" DEFINED. As used in this Agreement, the word
"service", when used in connection with the Products, means Dade's duty to
OmniCell to perform in the Territory such in-warranty and out-of-warranty repair
work requested by a customer as OmniCell or any of its affiliates may have
agreed to provide, or cause to be provided to a customer, such installation work
as may be required by the complex nature of the Products, such preventive
maintenance work as OmniCell or any of its affiliates may have agreed to
provide, or cause to be provided to a customer, and such refurbishment work as
OmniCell may request on a Product for its own account; provided, however, and
notwithstanding any contrary indication herein, such "service" shall not include
any work for which OmniCell has not provided complete specialized training
throughout the Territory or any work more detailed than repairing or replacing
Product hardware only and in no event shall cover any software or hospital
network systems responsibilities, other that the simple reloading of software on
components of the Products, and
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SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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such other responsibilities as may be agreed to in writing from time to time
between Dade Behring and OmniCell.
Section 3.02 SERVICE LOCATIONS. All work will typically be provided at
the site of the product in the Territory, or at Dade's option and considering
the problem, at a specified repair depot. Premium service cities will be
activated with the mutual agreement of Dade Behring and OmniCell. Activation of
a Premium service city depends on the number of trained Dade Behring FSRs. In
some cases it may be necessary to return a Product to OmniCell for service, in
which event Dade Behring will call and arrange with OmniCell before returning a
Product to OmniCell.
Section 3.03 SERVICE LEVELS. Reference Exhibit A for service level
requirements. The maximum response time shall be within [*] for disabled
units and [*] for functioning units. For any service provided by Dade Behring
at OmniCell's request beyond the scope of the above levels, OmniCell shall
pay Dade Behring at the rate listed in Exhibit A. Dade Behring shall provide
to OmniCell monthly activity reports including parts usage.
Section 3.04 OMNICELL WARRANTIES TO CUSTOMERS. OmniCell agrees to
promptly provide Dade, at Dade's request from time to time, all information
concerning such warranties including, without limitation, (a) the name, address
and telephone number of each customer in the Territory with a Product under
warranty, showing as to each such customer the identity of each such Product and
as to each such warranty the expiration date therefor and (b) a copy of each
such warranty identified to each such Product.
Section 3.05 OMNICELL SERVICE AGREEMENTS WITH CUSTOMERS. OmniCell
agrees to promptly provide Dade, at Dade's request from time to time, all
information concerning such service agreements including, without limitation,
the name, address and telephone number of each customer in the Territory with a
Product for which OmniCell or any of its affiliates has agreed to provide, or
cause to be provided out-of-warranty repair or preventive maintenance work,
showing as to each such customer the identity of each such Product and a
complete description or copy of each such agreement including, without
limitation, the term and duration thereof and the nature and scope of the work
to be provided, provided, however, that such description and such copy need not
show the amount, if any, to be paid by such customer to OmniCell for such work.
Section 3.06 NEW PLACEMENTS, AGREEMENTS. Manufacturer agrees to
immediately (a) advise Dade Behring with respect to each Product it or any of
its affiliates sells, leases or otherwise provides or places in the Territory,
(b) with respect to each Product for which it agrees to provide service in the
Territory, provide the name, address and telephone number of the customer
therefor, and (c) provide the serial number, if any, for each such Product, and
provide a complete description or copy of each warranty or agreement relating to
each such Product including, without limitation, the term and duration thereof
and the nature and scope of the work to be provided, provided, however, that
such description and such copy need not show the amount, if any, to be paid by
such customer to Manufacturer for such work. Manufacturer agrees to provide
adequate prior notice of the delivery in the Territory to a customer of each
Product requiring installation work so that Dade Behring can properly schedule
such installation work.
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SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Section 3.07 PARTS AVAILABILITY, PRICES, PAYMENT, DELIVERY. OmniCell
agrees to continuously maintain an adequate inventory of and to promptly fill
Dade's orders for parts. OmniCell will provide Dade Behring with an initial and
ongoing inventory of such parts on consignment. It is estimated that such
adequate inventory of parts shall initially be at least $1,000 in parts for each
Dade Behring technician servicing OmniCell Products. Dade Behring agrees to
provide part(s) depot services for OmniCell at a mutually agreed starting date
and inventory quantity of depot parts. Part(s) shipping costs will be charged
back to OmniCell on a monthly basis. Warehousing and handling costs will be
mutually agreed to by Dade Behring and OmniCell.
ARTICLE IV
TECHNICAL SUPPORT
Section 4.01 TELEPHONE ASSISTANCE. During normal working hours,
OmniCell will maintain a no-charge telephone hot line staffed by OmniCell
experts on the Products to provide technical assistance to its customers and
Dade Behring technicians providing service hereunder. It is contemplated that
such normal hours shall be from [*].
Section 4.02 SERVICE MANUALS, SOFTWARE/FIRMWARE. OmniCell will promptly
provide, at no charge, to Dade Behring for each technician providing service
hereunder, for each Product a complete service manual which includes, without
limitation, operations procedures, theory of operation, installation procedures,
schematic diagrams, adjustment and calibration procedures, trouble shooting
guides, parts diagrams, and complete parts lists. All such service manuals will
be printed in English. OmniCell agrees to provide Dade, at no charge, reasonable
quantities of master sets of computer software and firmware for each Product and
all changes or modifications thereto, and OmniCell agrees that Dade Behring may
make additional copies thereof, for Dade's internal use only.
Section 4.03 TOOLS. OmniCell agrees to promptly provide, at no charge,
to Dade Behring for each representative providing service hereunder, any test
equipment and tools which are not necessary in providing repair work on other
instruments which Dade Behring repairs, but are necessary for the proper repair
or preventive maintenance of a Product. Dade Behring agrees that OmniCell shall
not be required hereunder to replace or repair without cost any such test
equipment or tools which are lost, stolen or damaged while in Dade's possession.
Section 4.04 WORK BY OMNICELL. Where a service problem on a Product is
not resolved after OmniCell provides technical assistance as contemplated by
Section 4.01 hereof, OmniCell will dispatch a service call to Dade Behring in a
manner to be specified by Dade. No cost or expense associated with such work by
OmniCell shall be born by Dade.
Section 4.05 OVERFLOW CALL ANSWERING. Dade Behring agrees to provide to
OmniCell at no charge overflow call answering and forwarding services. Such
overflow service shall not include providing any technical information to the
customers calling in and will be provided only during the hours identified in
Exhibit A.
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SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Section 4.06 SERVICE BULLETINS. OmniCell agrees to promptly provide, at
no charge, to Dade Behring for each technician providing service hereunder, all
service bulletins, service notes and service aids for each Product.
ARTICLE V
PAYMENT FOR SERVICES
Section 5.01 PAYMENT RATES. Reference Exhibit A for payment
information. OmniCell agrees to pay Dade Behring at the rate listed in
Exhibit A per month for each Product (frame/cabinet) covered by this
Agreement. On an annual basis, a review will be conducted by the parties.
Unfavorable cost experience related to significant changes in reliability or
serviceability will be evaluated and negotiated between Dade Behring and
OmniCell. OmniCell service parameters are based on [*] (including travel) per
service call, and an average service call failure frequency of one (1) call
every [*].
Section 5.02 UTILIZED PARTS. OmniCell agrees to promptly replace all
parts utilized in connection with training or consigned in connection with
providing services hereunder.
Section 5.03 PAYMENT. Dade Behring agrees to invoice OmniCell in detail
for the amounts to be paid by OmniCell to Dade Behring hereunder; and OmniCell
agrees to promptly pay the amount of such invoices, Net 30. OmniCell agrees that
Dade Behring may charge and OmniCell agrees to pay Dade Behring a delinquency
charge equal to the lesser of one and one-half percent per month or the highest
rate permitted by law on the undisputed past due balance, if any, of each such
invoice. Dade Behring agrees to maintain its detailed records of services
provided hereunder and further agrees to make such records reasonably available
to OmniCell at OmniCell's request. Service coverage will begin August 1, 1998.
Dade Behring will first invoice OmniCell no later than September 30, 1998, based
on the total frames installed as of August 1, 1998.
Section 5.04 CUSTOMER DATABASE. OmniCell agrees to provide Dade Behring
with an accurate listing of all of its customers and each Product
(frame/cabinet) placed by the 15th of each month during the term of this
Agreement. Such database shall be accurately updated each month. Dade Behring
shall prepare its invoice for Products placed covered by this Agreement as
contemplated by Section 5.01 above by the end of each such month. The first
customer database report is due to Dade Behring by September 15, 1998, which
will reflect all frames installed as of August 31, 1998. OmniCell will regularly
provide written notification of a new customer location to Dade, and Dade
Behring will provide written acknowledgment of its ability to provide service
for the new location within 15 (fifteen) days of receipt of OmniCell's
notification. Should this new location require training for additional FSRs,
Dade Behring and OmniCell agree to determine training requirements within 30
(thirty) days of Dade's acknowledgment of service coverage.
ARTICLE VI
MISCELLANEOUS PROVISIONS
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SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
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Section 6.01 PARTS PACKAGING. OmniCell agrees that all parts will be
individually packaged and labeled to show the name and description thereof and
comply with all laws and regulations in the Territory including, without
limitation, laws and regulations concerning hazardous materials. OmniCell agrees
to package such parts adequately to protect them from shipping damage, dust,
humidity, other atmospheric and environmental conditions, and normal shop and
field handling. OmniCell agrees to clearly and visibly show on the packaging all
special handling and environmental conditions required of each Part.
Section 6.02 RETROFITS. The parties agree that changes, upgrades,
retrofits, exchanges, recalls and similar events with respect to any Product in
the Territory are beyond the scope of this Agreement. Nonetheless, OmniCell
agrees to advise Dade, by notice, of each such matter and provide Dade Behring
full particulars and information with such advice; OmniCell hereby grants, and
agrees to cause its affiliates to grant, to Dade Behring the right and option to
provide such additional work on such matters on the terms, conditions and
provisions hereof. Dade Behring may exercise such option by advising OmniCell,
by notice, thereof on or before the fifth business day after receiving
OmniCell's notice to Dade Behring concerning the matter.
Section 6.03 RETURN OF PARTS. Dade Behring agrees that it will, at
OmniCell's request, return to OmniCell such parts and components for any Product
which Dade Behring acquires from customers in the course of providing service
hereunder; provided, however, that no such return shall be required of any item
which is potentially hazardous.
Section 6.04 RECOMMENDATIONS. OmniCell agrees to make recommendations
to Dade Behring so that Dade Behring may more efficiently and effectively
perform hereunder including, without limitation, appropriate stocking levels for
parts, matters concerning preventive maintenance, and training.
Section 6.05 INDEMNIFICATION. OmniCell agrees to protect, defend, hold
harmless and indemnify Dade Behring from and against and in respect of any and
all damages, claims, losses, liabilities ("Losses") asserted against or incurred
by, and all expense (including, without limitation, all fees and expenses of
counsel, travel costs and other out-of-pocket costs) to the extent such Losses
or expenses result from or are caused by any fault or negligence of OmniCell or
any of its affiliates or any breach by OmniCell or any of its affiliates
hereunder.
Section 6.06 INDEMNIFICATION. Dade Behring agrees to protect, defend,
hold harmless and indemnify OmniCell from and against and in respect of any and
all damages, claims, losses, liabilities ("Losses") asserted against or incurred
by, and all expense (including, without limitation, all fees and expenses of
counsel, travel costs and other out-of-pocket costs) to the extent such Losses
or expenses result from or are caused by any fault or negligence of Dade Behring
or any of its affiliates or any breach by Dade Behring or any of its affiliates
hereunder.
ARTICLE VII
TERM, TERMINATION, PRODUCT DELETION
Section 7.01 TERM. Except as otherwise provided herein, the term of
this Agreement shall commence on August 1, 1998, and, unless sooner terminated
as provided herein, shall continue until June 30, 2000; unless terminated by
notice given by one party. This
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agreement shall continue for a period of two (2) years; unless terminated by
notice given by one party to the other on or before July 31, 1999. This
agreement shall continue from year-to-year until terminated by notice given by
one party to the other at least one (1) year prior to such termination.
Section 7.02 BREACH. In the event either party materially breaches this
Agreement and fails to cure such breach within ninety (90) days after notice
thereof, the other party may, at any time within ninety (90) days thereafter,
terminate this Agreement upon at least thirty (30) days prior written notice.
Section 7.03 NON-PAYMENT, INSOLVENCY, ETC. Either party may terminate
this Agreement immediately upon notice to the other party (a) if the other party
fails to pay any amount to the notifying party then past due and does not cure
such failure within thirty (30) days of receipt of notice from the notifying
party of such failure; (b) if the other party ceases to do business or otherwise
terminates its business operations; (c) if the other party becomes insolvent or
seeks protection under any insolvency, bankruptcy, receivership, creditors
arrangement or reorganization, composition or comparable proceeding; or (d) if
any such proceeding is instituted against the other party and is not dismissed
or withdrawn within sixty (60) days.
Section 7.04 AUTHORITY. The parties agree that upon termination Dade
Behring shall cease to be an authorized servicer of Products in the Territory,
both parties agree not to further advertise such authority and Dade Behring
agrees not to further use the trademark rights granted hereunder; provided,
however, that each party may continue to use such catalogues, brochures, and
other materials referring to such authority and using such trademarks until the
supply thereof is exhausted or they are replaced in the normal course of
business.
Section 7.05 OTHER PROPERTY. Within ninety (90) days after termination
Dade Behring agrees to return to OmniCell all of the property of OmniCell which
was furnished at no charge and which Dade Behring has in its possession together
with all copies thereof made by Dade Behring which are in Dade's possession.
OmniCell agrees to pay to Dade Behring any reasonable transportation, freight,
crating, packaging and related expenses paid or absorbed by Dade Behring in
connection with returning such property. Upon termination of the Agreement, Dade
Behring will reimburse OmniCell for any lost tools, kits, consigned parts, and
documentation.
ARTICLE VIII
GENERAL PROVISIONS
Section 8.01 EFFECT OF TERMINATION. The termination of this Agreement
shall not relieve the parties hereto of any rights or obligations respectively
accrued by or vested in them hereunder prior to such termination or as expressly
provided herein.
Section 8.02 EXPENSES. The parties have considered the possibility that
one or both of them will incur expenses in preparing for performance of this
Agreement and that one or both of them will incur expenses and suffer losses as
a result of termination, and the parties have nevertheless agreed that neither
party shall be liable for any damages by reason of the termination of this
Agreement pursuant to its terms.
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Section 8.03 FORCE MAJEURE. Neither party shall be liable to the other
party for failure or delay in the performance of any obligation under this
Agreement during the time and to the extent such failure or delay is caused by
reason of acts of God or other cause beyond its reasonable control, including
but not limited to, acts of government, riots, war, interruption of
transportation, strikes or other labor trouble, shortages of labor, fire, storm,
flood, earthquake, inability to obtain suitable raw materials, Products, parts,
components, fuel or power or extraordinary price increases. The performance of
obligations hereunder shall be suspended during the existence of such cause, and
upon cessation of such cause, shall again be required.
Section 8.04 NONWAIVER. Failure of any party to exercise its right to
terminate this Agreement or any other rights hereunder, in case of breach by the
other party of any provision of this Agreement, shall not constitute a waiver of
any other provision of this Agreement nor of any subsequent breach of the same
provision.
Section 8.05 ASSIGNMENT. This Agreement shall not be assigned by either
of the parties to any third party without the prior written consent of the other
party, which consent shall not be unreasonably withheld or delayed; provided,
however, that either party may assign this Agreement in whole or in part to any
affiliate of such party. In addition, Dade Behring may subcontract or otherwise
delegate to any third party any obligation or performance hereunder, in which
case Dade Behring shall remain primarily responsible hereunder for any such
obligation or performance.
Section 8.06 NOTICE. Any notice required to be given hereunder by
either party to the other shall be in writing and shall be given by personal
delivery or mailed, postage prepaid, by registered or certified mail addressed
to the other party at the address noted in the initial paragraph of this
Agreement.
Section 8.07 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties with respect to the subject matter hereof and
merges all prior discussions and negotiations between them, and neither party
shall be bound by any condition, definition, warranty or representation
otherwise than as expressly provided for in this Agreement.
Section 8.08 GOVERNING LAW. The validity and construction of this
Agreement shall be governed in accordance with the internal laws of the State of
California.
Section 8.09 AMENDMENT. Every amendment of this Agreement shall be in
writing and signed by an authorized officer of both parties.
Section 8.10 SEPARABILITY. In the event any provision herein shall be
inoperative, the remainder of this Agreement shall remain in effect.
Section 8.11 COUNTERPARTS. This Agreement maybe executed in any number
of counterparts, each of which shall be deemed an original, but all such
counterparts together shall constitute one and the same instrument.
Section 8.12 NON-SOLICITATION. Neither OmniCell nor Dade Behring will
solicit for employment or otherwise seek to contract for the services of any
present employee of either
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party or employee hired by either party during the term hereof until one year
after the earlier of (a) the termination of such employee's employment; or (b)
the termination of this Agreement. No offer or other form of solicitation of
employment will be made at any time when the employment of such person is
prohibited by this Agreement. Such solicitation shall not be deemed to include
the placement of advertisements for employment in any general or industry
publications or the acceptance of unsolicited inquires from covered employees in
the normal course of business. In addition to all other courses of action and
damages the non-defaulting party may have, it is also agreed that such party
will also have the right to injunctive relief
Section 8.13 CONFIDENTIALITY. By virtue of this agreement, the parties
may have access to the Confidential information of the other party. Such
Confidential Information shall either be clearly identified as "Confidential" on
its face or indicated in writing as being "Confidential" within a reasonable
time after its disclosure. Confidential Information shall include the terms and
pricing under this Agreement. Confidential Information shall not include
information that: (a) is or becomes a part of the public domain through no act
or omission of the other party; (b) was in the other party's lawful possession
prior to the disclosure and had not been obtained by the other party either
directly or indirectly from the disclosing party; (c) is lawfully disclosed to
the other party by a third party without restriction on disclosure; or (d) is
independently developed by the other party. In addition, either party may
disclose Confidential Information to a judicial or government request,
requirement, or order which compels such disclosure under penalty of law.
However, in such event, such party shall promptly notify the other party in
order to permit such party adequate time to oppose such request, requirement or
order, or to otherwise provide for the continued confidential treatment of such
Confidential Information by the governmental body seeking such disclosure. Each
party agrees that, except as directed by the other, such party will not at any
time during the term of this Agreement or for two (2) years thereafter (i)
disclose the other party's Confidential Information to any third party, or (ii)
use the other party's Confidential Information for any other purpose other than
set forth in this Agreement.
Each party agrees to take all reasonable steps to ensure that the Confidential
Information is not disclosed or distributed by its employees or agents in
violation of the terms of this Agreement. Each party shall return all
Confidential Information of the other party at the end of the term hereof at the
request of the other party. Each party acknowledges that the unauthorized use or
disclosure of a party's Confidential information would cause irreparable harm to
the other party.
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Information shall remain the property of the disclosure party and the disclosure
of Confidential Information to the other party shall not be deemed to confer
upon the other party any rights whatsoever, by license or otherwise, in respect
of any part of the Confidential Information, except as permitted herein.
In Witness Whereof, the parties have, by their duly authorized
representatives, executed and delivered this Agreement as of the date first
above written.
Dade Behring
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
[Typed Name]: ▇▇▇▇ ▇. ▇▇▇▇▇▇
as its [Title]: Corporate
OmniCell Technologies, Inc.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
[Typed Name]: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
as its [Title]: Chairman
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EXHIBIT A
New Agreement Revision
PRODUCT
The current products are: ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇,
▇▇▇▇▇, XPC100, NPC100, OX104, OX224, OX344, ▇▇▇▇-▇, ▇▇-▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇, OMD24,
OLMD24, OLL6, OSL6, TPC100, PPC100, OSL24.
TERRITORY
The territory is the 50 states of the United States and the District of
Columbia.
OVERFLOW CALL ANSWERING
Note: This service is currently not being used by OmniCell, 30 day written
notice required prior to initiating this service.
All times listed are Pacific Standard Time.
After hours support:
Monday, Tuesday, Friday: 6PM - 11PM
Wednesday, Thursday: 6PM - 5AM
Saturday, Sunday: 4PM - 11PM
Single man support:
Monday, Tuesday, Friday: 11PM - 6AM
Wednesday, Thursday: 5AM - 6AM
Saturday, Sunday: 7AM - 4PM
LEVEL OF SERVICE
PREMIUM
7 days a week, 24 hours a day, 365 days a year
[*] on-site response for inoperative "down" devices.
[*] on-site response for devices that are operating with a non-critical
problem.
[*]
|*| = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
STANDARD
7 days a week, 24 hours a day, 365 days a year
[*] on-site response for inoperative "down" devices.
[*] on-site response for devices that are operating with a non-critical
problem.
Cities NOT covered by Premium service are covered by this response schedule.
PRICING
These prices are guaranteed as listed below for designated years of the main
agreement provided the annual inflation rate, as measured by the Consumer Price
index (CPI) published by the Bureau of Labor and Statistics of the U. S.
Department of Labor, does not exceed 3.0%. If the 12 month CPI for the period
ending December 31 of such year exceeds 3.0%, these prices may be increased by
the CPI increase at the option of Dade Behring.
In addition to the standard monthly per frame service charge listed below, a
[*] per service request surcharge will be added for all service requests
performed for identified Premium service customers. On site service response is
expected to be at the [*] performance level. The premium surcharge will not
apply for service requests where on-site arrival exceeds the agreed time period.
[*] per frame per month for Standard service customers.
Special request services charged at [*] per hour for labor and travel hours.
|*| = CERTAIN INFORMATION ON THIS PAGE HAS BEEN OMITTED AND FILED
SEPERATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
Amendment to The Service Agreement
This Amendment to the Service Agreement is entered into as of November 1, 1999
between Dade Behring ("Dade"), a Delaware corporation, and OmniCell
Technologies, Inc. ("OmniCell") a California corporation.
RECITALS
A. OmniCell and Dade entered into a Service Agreement on August
1, 1998.
B. OMNICELL and Dade now desire to amend that agreement to
include the servicing of the Sure-Med product line recently acquired by
OmniCell.
C. Except as noted below, all provisions of the prior Agreement
remain in force throughout the term of the Agreement.
AGREEMENT
NOW, THEREFORE, the parties agree to amend the Service Agreement as follows:
1. ADDITION OF EXHIBIT C. OmniCell and Dade agree to include as
an amendment to the original Agreement, Exhibit C, which
describes the Level of Service, Pricing, Measurements, Parts,
and Training relating to Dade's servicing of OmniCell's
Sure-Med product line.
2. MODIFICATION OF JULY 30, 1999 AGREEMENT. OmniCell and Dade
agree that item 2 of their Agreement dated July 30, 1999 is
voided and superceded by Exhibit C.
In witness Whereof, the parties have, by their duly authorized
representatives, executed and delivered this Amendment as of the date first
written above.
Dade Behring OMNICELL
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------- --------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: President, ISD Title: Vice President of Customer
Service
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
EXHIBIT C
LEVEL OF SERVICE
STANDARD
Applies to all Sure-Med accounts not located in identified Premium cities. 7
days a week, 24 hours a day, 365 days a year [*] on-site response for an
inoperative "down" device [*] on-site response for devices that are operating
with a non-critical problem
PREMIUM
Applies to Sure-Med accounts located within cities identified as
Premium cities by Exhibit A of the contract. 7 days a week, 24 hours a day,
365 days a year [*] on-site response for an inoperative "down" device [*]
on-site response for devices that are operating with a non-critical problem
Dade shall have the option and incentive to respond to any standard service
event on an accelerated basis. A premium shall be incurred if Dade is on-site
at a standard service account within [*] for an inoperative "down" device or
[*] for a device that is operating with a non-critical problem.
PRICING
STANDARD
Reimbursement for a service event responded to within the
appropriate [*] timeframe shall be [*] per event.
PREMIUM
For premium city accounts, if the response time is within the [*] timeframe,
reimbursement for that service event shall be [*]. For standard service
accounts, if the response time is within the [*] timeframe, an additional [*]
shall be billed by Dade in addition to the standard reimbursement for that
service event.
FAILURE TO MEET RESPONSE TIME REQUIREMENT
For premium city events, if Dade fails to respond on-site within the
appropriate [*] timeframe, reimbursement for the call shall be limited to [*].
Beginning February 1, 2000, if Dade fails to respond on-site within the
appropriate [*] timeframe for standard service events, the reimbursement
shall be based on the overall on-site standard service compliance ratio for
the previous month.
If the ratio is [*] or greater, reimbursement shall be [*]
If the ratio is [*], reimbursement shall be [*]
ADDITIONAL UNITS
In the event that OmniCell dispatches Dade to service more than one
instrument for a given service call, the reimbursement for each subsequent
instrument shall be [*].
ADDITIONAL SERVICES
In the event that outside, additional services are required to complete the
repair of the refrigeration system of a Sure-Med product, those additional
charges will be billed to OmniCell.
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED.
MEASUREMENTS
OmniCell shall have the responsibility to monitor and measure on-site compliance
by Dade. Dade shall have the right to audit and present evidence of compliance
for those events classified as non-compliance by OmniCell.
PARTS
Dade Behring shall maintain an inventory of parts to support the Sure-Med
products. For all Dade owned parts consumed during a service event, Dade shall
▇▇▇▇ OmniCell the [*] of the part plus [*].
OmniCell shall maintain an inventory of Sure-Med parts to support the service
efforts of Dade. Parts supplied by OmniCell are at [*] cost to Dade and Dade
shall not ▇▇▇▇ OmniCell for the [*].
All parts consumed during a service event shall be recorded in the service
report.
TRAINING
OmniCell shall be responsible for training Dade employees on Sure-Med products.
The training will be conducted at OmniCell's Waukegan, IL facility, or a
mutually agreed upon location.
Dade shall be responsible for [*] incurred by its employees in the course of
attending training for Sure-Med products.
[ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY
BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE
406 OF THE SECURITIES ACT OF 1933, AS AMENDED.