FIFTH AMENDMENT TO OEM PURCHASE AGREEMENT
Exhibit 10.71
FIFTH AMENDMENT TO OEM PURCHASE AGREEMENT
This Fifth Amendment (the “Amendment”) is made as of September 7, 2007, by and between Cardiac
Science Corporation, a Delaware corporation f/k/a Cardiac Science, Inc. (“Supplier” or “Cardiac
Science” or “CSC”), a medical device developer and manufacturer of automated external
defibrillators having its principal place of business at 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxxxxx, XXX 00000, and GE Medical Systems Information Technologies, Inc., a Wisconsin
corporation d/b/a GE Healthcare (“GEMS-IT”), having its principal place of business at 0000 X.
Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
WHEREAS, CSC and GEMS-IT are parties to that certain OEM Purchase Agreement dated July 29,
2003 (“Initial OEM Purchase Agreement”), as amended by (i) Amendment One thereto dated August 10,
2004 (“Amendment One”), (ii) Second Amendment thereto dated February 14, 2005 (“Amendment Two”),
(iii) Third Amendment thereto dated June 10, 2005 (“Amendment Three”), and (iv) Fourth Amendment
thereto dated October 20, 2006 (“Amendment Four”). The Initial OEM Purchase Agreement, Amendment
One, Amendment Two, Amendment Three, and Amendment Four are collectively referred to herein as the
“OEM Purchase Agreement”.
WHEREAS, CSC and GEMS-IT desire to supplement and further amend the OEM Purchase Agreement as
set forth herein.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
1. Construction. Except as provided in this Amendment, the terms and conditions set
forth in the OEM Purchase Agreement shall remain unaffected by the execution of this Amendment. To
the extent any provisions or terms set forth in this Amendment conflict with the terms set forth in
the OEM Purchase Agreement, the terms set forth in this Amendment shall govern and control. Terms
not otherwise defined herein, shall have the meanings set forth in the OEM Purchase Agreement.
This Amendment amends the OEM Purchase Agreement and not that certain OEM Purchase and Supply
Agreement entered into by the parties on July 29, 2003.
2. Additional Definitions. As used herein:
“Transistor/Resistor Issue” refers to [**].
“Software Solution” refers to software developed by CSC that when loaded into the
OEM Product will alert the user that the OEM Product has failed as a result of the
Transistor/Resistor Issue. A high level description of the Software Solution is attached
hereto as Exhibit E.
“Replacement Costs” refers to the costs of replacement or repairing an OEM Product
unit damaged as a result of the Transistor/Resistor Issue, as set forth on Exhibit G.
“Supplemental Customer Instructions” refers to written instructions developed by
GEMS-IT and approved by CSC, and attached hereto as Exhibit F, which explains the
Transistor/Resistor Issue and the Software Solution to customers.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
pilot test phase using up to [**] units in various locations worldwide, satisfactory
completion of a field audit of CSC’s facility in Lake Forest, California, finalization of the
Supplemental Customer Instructions, full GEMS-IT regulatory approval to release the OEM Products
for commercial sale and achievement of any other steps needed to complete the GEMS-IT Milestone
known as M-4 Qualification. The date on which all steps of this evaluation process, including
achievement of M-4 Qualification, shall have been successfully completed in their entirety shall be
designated the First Delivery Date for all purposes under the OEM Delivery Agreement.
(a) | GEMS-IT will be responsible for all communications with the customer. |
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
(b) | Until cumulative Replacement Costs exceed $[**], GEMS-IT will consult with CSC but will retain full discretion as to whether a unit should be repaired or replaced without charge to the customer. | ||
(c) | After cumulative Replacement Costs exceed $[**], GEMS-IT will not repair or replace a unit without charging the customer for the full Replacement Costs unless CSC gives its prior written consent to incurring such Replacement Costs, or, absent such consent, if GEMS-IT elects in its sole discretion to absorb any Replacement Costs not paid by the customer. | ||
(d) | GEMS-IT will bear [**]% of the first $[**] of Replacement Costs, and CSC will bear [**]%. Replacement Costs in excess of the first $[**] will be borne [**]% by GEMS-IT and [**]% by CSC. | ||
(e) | If customer complaints relating to the Transistor/Resistor Issue result in repair or replacement of units at more than [**] individual customer locations cumulatively over any two consecutive calendar quarters, then the Parties agree to renegotiate in good faith GEMS-IT’s minimum purchase obligations under the OEM Purchase Agreement, taking into account the impact of the Transistor/Resistor Issue. If the Parties cannot agree on the adjusted minimum purchase obligations within 120 days after the commencement of negotiations, then either Party may initiate arbitration proceedings pursuant to Section 21.13 of the OEM Purchase Agreement. | ||
(f) | In the event GEMS-IT provides loaner units to customers whose units cannot be repaired or replaced on a timely basis as reasonably determined by GEMS-IT, CSC shall provide such loaner units at no charge to GEMS-IT or the customer. |
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
6. Indemnification. CSC shall defend, indemnify, and hold harmless GEMS-IT and its
Affiliates from and against any losses, expenses, and liability to third parties (including
attorney fees) for any and all claims of personal injury and/or damages arising out of the
Transistor/Resistor Issue, provided that: (a) GEMS-IT promptly notifies CSC in writing of any claim
or threatened claim against GEMS-IT and its Affiliates, provided that delay in notification shall
not affect CSC’s indemnification obligations hereunder except to the extent that such delay
prejudices CSC’s ability to defend such claim; (b) in the case of claims seeking solely monetary
relief, GEMS-IT and its Affiliates permit CSC to have sole control of the defense and settlement of
such claim or threatened claim with legal counsel selected by CSC but subject to GEMS-IT’s
approval, which will not be unreasonably withheld (provided that CSC shall not enter into any
settlement that does not include a general release of all claims against GEMS-IT and its
Affiliates, or that includes any admission of liability on the part of GEMS-IT or any of its
Affiliates, or that otherwise adversely affects GEMS-IT and its Affiliates without GEMS-IT’s prior
written consent, which shall not be unreasonably withheld, delayed or conditioned); (c) in the case
of claims seeking injunctive or other equitable relief, CSC shall not have the right to control the
defense and settlement of such claims without the consent of GEMS-IT in its sole discretion, and
GEMS-IT shall have no obligation to consent to any settlement that includes injunctive relief
applicable to GEMS-IT or any of its Affiliates and (d) GEMS-IT and its Affiliates reasonably
cooperate with CSC in connection with such matters,. The indemnification provided in this Section
shall not apply to any claim to the extent it results from any modifications of the OEM Products
made by GEMS-IT or any third party without CSC’s authorization or consent. CSC’s agreement to
provide a defense under this Section
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
includes the hiring of counsel; therefore, costs and expenses to be borne by CSC do not
include separate attorneys’ fees incurred by GEMS-IT and its Affiliates in defense of any claim
after CSC has acknowledged its indemnification obligation with respect to such claim and has
properly assumed the defense thereof in accordance with the terms hereof, or unless CSC has
requested in writing the additional assistance of counsel.
8. Governing Law. The validity, construction, performance and enforceability of this
Amendment shall be governed in all respects by the laws of the State of New York, without reference
to the choice-of-law provisions thereof.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
the invalid provision with a valid provision which corresponds as far as possible to the
spirit and purpose of the invalid provision.
Cardiac Science Corporation | GE Medical Systems Information Technologies, Inc. | |||||||
By:
|
/s/ Xxxxx Xxxxx | By: | /s/ Xxxxxxxx Xxxxx | |||||
Name: Xxxxx Xxxxx | Name: Xxxxxxxx Xxxxx | |||||||
Title: Senior Vice President, Sales, Marketing and Service, North America | Title | : Vice President & General Manager Cardiology Systems |
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Exhibit C
Supplier’s Prices
Responder 2000 | Powerheart ECD | |||
GEMS-IT OEM Products | Price | Price | ||
OEM Product basic version package
|
$[**] | $[**] | ||
OEM Product pacing version package
|
$[**] | $[**] | ||
OEM Product pacing & SpO2 version package
|
$[**] | $[**] |
Each Responder 2000 package includes one (1) each of:
• | OEM Product defibrillator | ||
• | Pair of external defibrillation paddles | ||
• | Rechargeable battery | ||
• | Roll of Thermal Paper | ||
• | User Manual |
Each Powerheart ECD package includes one (1) each of:
• | OEM Product defibrillator | ||
• | Pair of external defibrillation paddles | ||
• | Power Cord | ||
• | Rechargeable battery | ||
• | Roll of Thermal Paper | ||
• | User Manual |
Powerheart ECD pricing includes provision of a [**] year warranty, while Responder 2000 pricing
includes provision of a [**] year warranty.
Powerheart ECD pricing includes a $[**] Kitting Fee for Supplier stocking and kitting of optional
accessories to be bundled with the OEM Product package. This Kitting Fee is included in the
Powerheart ECD price regardless of whether a specific purchase order requires optional accessories.
Optional accessories are to be purchased from the GEMS-IT approved suppliers at GEMS-IT pricing
and inventoried at the Supplier. These accessories will be listed on the Purchase Order from
GEMS-IT at the time of customer order and Supplier will be reimbursed for the cost of the items,
without additional xxxx-up, according to the terms and conditions of the agreement. At its sole
discretion, GEMS-IT may choose to take over this kitting responsibility from Supplier after first
giving Supplier (90) days notice of its intent, at which time the Kitting Fee would be
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
removed from the Powerheart ECD product price. Kitting of optional accessories is not provided by
Supplier for the Responder 2000.
Responder 2000 Power Cords will be purchased by GEMS-IT from the Supplier, at a price of $[**]
each. Responder 2000 Power Cord purchase orders will be placed as bulk orders separate from OEM
Product purchase orders. Kitting of the correct power cord for a Responder 2000 customer order will
be the responsibility of GEMS-IT.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Exhibit E
See attached document entitled “Exhibit E — Overview”. References in the attachment to “Responder
2000” or “R2K” shall include all OEM Products.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Exhibit E — Overview
[**]
[**] | Designates information (3 pages) that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Exhibit F
See attached documents entitled “Technical Bulletin” and “Additional Information for Pilot Shipment
Customers”. References in the attachment to “Responder 2000” shall include all OEM Products.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Technical Bulletin
[**]
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
![]() |
||
GE Medical Systems Information Technologies |
Additional information for Pilot Shipment Customers
Keep this with your Operator’s Manual Responder 2000 (0000000-001, -008)
(English / German)
(English / German)
ECG Monitoring
PRECAUTION: Electrosurgery equipment may cause interference in the Responder 2000 if
operated on or nearby the patient. Disconnect Responder 2000 from the patient before using
electrosurgery equipment.
Printing
Storage Instructions for GE Thermal Recording Paper 2026327-001
To avoid deterioration or fading of patient data and traces, follow these precautions:
- | Store in cool, dark and dry locations. | |
Temperature must be below 77°F (25°C). Relative humidity must be between 45% and 65%. | ||
- | Avoid exposure to bright light or UV sources such as sunlight, fluorescent, and similar lighting. | |
- | Store separately in manilla folder to assure maximum trace and patient data image life. | |
- | Do not store with carbon and carbon- less forms, plastic document protectors, or pressure sensitive tapes or labels. |
The image lifetime under these conditions is 5 years.
Recommended Maintenance and Care
The manufacturer of the Responder 2000 does not require periodic inspection nor maintenance of the
product in addition to that indicated in the Operators Manual. However, local regulations may
require periodic inspection and maintenance of such medical devices.
To assist in meeting these requirements, inspection and maintenance of the Responder 2000 can be
carried out by GE Medical Systems within the framework of a service contract.
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
PRECAUTION: Do not shock into devices with highly non-linear resistance versus the voltage, (e.g.
an overvoltage protector). This may damage the Responder 2000.
Do not use the XXXXXXX Test Lamp 301 495 00 for testing. This test lamp includes an overvoltage protector. Shocking into it may damage the Responder 2000.

Contact Information / Customer Service
Responder 2000 is manufactured by:
Manufacturing: Cardiac Science Corporation
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000, XXX
Manufacturing: Cardiac Science Corporation
000 Xxxxxxx Xxxxxxx
Xxxxxxxxx, XX 00000, XXX
Authorized European Representative:
MDSS GmbH
Xxxxxxxxxxxx 00
X-00000 Xxxxxxxx
Xxxxxxx
Tel: x00 000 00 00 00 00
Fax: x00 000 00 00 00 00
MDSS GmbH
Xxxxxxxxxxxx 00
X-00000 Xxxxxxxx
Xxxxxxx
Tel: x00 000 00 00 00 00
Fax: x00 000 00 00 00 00

0086
Distributor:
GE Medical Systems Information Technologies, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 XXX
Tel.: 000 000 0000 (USA only)
Fax: 000 000 0000
Canada Tel: 000 000 0000
GE Medical Systems Information Technologies, Inc.
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, XX 00000 XXX
Tel.: 000 000 0000 (USA only)
Fax: 000 000 0000
Canada Tel: 000 000 0000
GE Medical Systems Information Technologies GmbH
Xxxxxxxxx Xxx. 0, X-00000 Xxxxxxxx, Xxxxxxx
Tel.: x00 000 0000 0
Fax: x00 000 0000 000
Xxxxxxxxx Xxx. 0, X-00000 Xxxxxxxx, Xxxxxxx
Tel.: x00 000 0000 0
Fax: x00 000 0000 000
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |
Exhibit G
Replacement Costs are as follows:
Domestic Customers (located in the United States and Canada)
• | $[**] per unit for each domestic unit repaired plus up to 11/2 (1.5) hours of labor at CSC’s prevailing hourly rate (currently $[**] per hour). | ||
• | $[**] per unit for each unit replaced. | ||
• | Costs associated with shipping the repaired or replaced unit from CSC back to GEMS-IT at any location designated by GEMS-IT. | ||
• | $[**] per unit for costs incurred by GEMS-IT for shipping units to and from the customer location and to CSC, handling and other logistics. |
International Customers
• | $[**] per unit for each international unit repaired. For all international repairs, CSC will ship the part (Item #2029882-001 — “Therapy Board with Cable Kit”) to GEMS-IT and GEMS-IT will be responsible for performing the repair service with up to 11/2 (1.5) hours of labor at GEMS-IT’s prevailing hourly rate (currently €[**] per hour). | ||
• | $[**] per unit for each unit replaced. | ||
• | Costs associated with shipping the repaired or replaced unit from CSC back to GEMS-IT at any location designated by GEMS-IT. | ||
• | $[**] per unit for costs incurred by GEMS-IT for shipping units to and from the customer location and to CSC, handling and other logistics. |
[**] | Designates information that has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. |