EXHIBIT 10.9
OEM AGREEMENT
This OEM AGREEMENT (the "Agreement") is effective as of the first day of
August, 2000 (the "Effective Date"), by and between XXXXXXX INSTRUMENT COMPANY,
a Washington corporation ("Xxxxxxx") with its principal place of business at
0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 and MORTARA INSTRUMENT,
INC., a Wisconsin corporation ("Mortara") with its principal place of business
at 0000 Xxxxx 00xx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
Whereas, Mortara desires to establish a worldwide marketing relationship
for its hardware and software Products (as defined below);
Whereas, Xxxxxxx xxxxx a broad range of devices for use by health care
and consumers and desires to add to its product line;
Whereas, Xxxxxxx and Mortara desire to enter into a definitive agreement
to which Xxxxxxx would purchase the Products from Mortara and on a non-exclusive
basis, combine and assemble them with other Xxxxxxx products and resell them to
third-party distributors and end-users through a network of Xxxxxxx sales;
Now, Therefore, in consideration of the foregoing premises and other
good and valuable consideration, the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS. As used herein, the following terms shall have the following
meanings:
1.1 "ARRHYTHMIA ANALYSIS SOFTWARE" shall mean the arrhythmia analysis
software provided by Mortara hereunder.
1.2 "COMPETITIVE CHANGE OF CONTROL" shall be deemed in effect in the event a
competitor of Mortara obtains equity ownership in Xxxxxxx in excess of
50%.
1.3 "COMBINED PRODUCT(s)" shall mean the combination, integration, and/or
bundling of the Product with Xxxxxxx products and equipment, ready for
delivery to End Users.
1.4 "CONFIDENTIAL INFORMATION" shall mean, subject to the exceptions set
forth in Section 10.2, any information received by one party from the
other party which is designated in writing as confidential, or, if
disclosed orally, identified at the time of disclosure as confidential
and followed by written confirmation of the confidential nature of such
information. Confidential Information may include know-how, data,
processes or techniques relating to the Products and any research
project, work in process, future development, scientific, engineering,
manufacturing, marketing, business plan, financial or personnel matter
relating to either party, its present or future products, sales,
suppliers, customers, employees, investors or business, and provided to
either party pursuant to this Agreement.
1.5 "END USER" shall mean an individual or entity that acquires the Product
for his or her own use and not for resale.
1.6 "FDA" shall mean the United States Food and Drug Administration, and any
successor thereto.
1.7 "FD & C ACT" shall mean the United States Federal Food, Drug and
Cosmetic Act, as amended, and applicable regulations promulgated
thereunder, as amended from time to time.
1.8 "GOOD MANUFACTURING PRACTICES" or "GMP" shall mean the good
manufacturing practice regulations promulgated from time-to-time by the
FDA for the manufacture of medical devices in the United States and
other countries. "cGMP" or "current GMP" shall mean the GMP practices in
effect at a particular
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time, including in the United States the requirements set forth in the
FDA's current Quality System Regulation, as it may be amended from time
to time.
1.9 "HARDWARE PRODUCTS" include the Receiver Carrier Cards, Receiver Cans,
Transmitters and Antenna Network Components provided by Mortara
hereunder.
1.10 "LEAD-TIMES" means the estimated purchasing lead time for the Product as
set forth in Exhibit A.
1.11 "PRODUCT(s)" shall mean the then current version of Mortara's software
and hardware products detailed in Exhibit A, together with any
commercially available documentation in electronic and hardcopy formats,
and any related technical information, updates and enhancements thereto.
The Products include Hardware Products, Product Accessories, Software
Products.
1.12 "PRODUCT ACCESSORY" shall mean those consumable item(s) provided as part
of the Products, which include patient cables and electrode assemblies.
1.13 "REGULATORY APPROVAL" shall mean, with respect to a country, all
approvals, licenses, registrations, clearances or authorizations of the
FDA or any other federal, state or local regulatory agency, department,
bureau or other government entity, necessary for the use, manufacture,
storage, import, transport and Sale of a Product in such country.
1.14 "SOFTWARE PRODUCT(s)" include software drivers and the Arrhythmia
Analysis Software provided by Mortara hereunder.
1.15 "SPARE OR REPLACEMENT PARTS" shall be defined as those parts used to
repair or replace any Product failures.
1.16 "SELL", "SALE" or "SOLD" shall mean to sell, license, lease, distribute,
market, install or otherwise dispose of and to use in connection with
those activities.
1.17 "TERRITORY" shall mean all countries of the world.
1.18 "TRANSFER FEE" shall mean the fee Xxxxxxx shall pay Mortara for each
copy of the Product distributed to End Users, except for reasonable
numbers of Product which are used by Xxxxxxx internally for development
purposes.
1.19 "TRANSMITTERS" shall mean the transmitters provided by Mortara
hereunder.
ARTICLE 2: THE PRODUCT
2.1 GRANT OF XXXXXXX RIGHTS. In consideration of the Transfer Fees set forth in
Exhibit A, and subject to and expressly conditioned upon compliance with the
terms and conditions of this Agreement, Mortara hereby grants to Xxxxxxx and
Xxxxxxx hereby accepts (a) a non-exclusive, nontransferable, worldwide license
to combine the Products with Xxxxxxx products or equipment and deliver the
Products as combined, integrated and/or bundled with Xxxxxxx products or
equipment to End Users in the Territory, and (b) a non-exclusive,
nontransferable, worldwide license to copy and distribute any related Product
software and combine related Product software with Xxxxxxx products or equipment
for distribution to End Users in the Territory.
2.2 DEVELOPMENT OF PRODUCT
2.2.1 Mortara is responsible for the development of the Product and
delivery of the Product to Xxxxxxx.
2.2.2 Validation and verification testing shall be defined and
conducted by Xxxxxxx on the Products as delivered by Mortara.
During the testing period, at its sole cost and expense, Mortara
shall
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provide Xxxxxxx with technical assistance to assist in the
validation and verification testing process.
2.2.3 Mortara agrees that the total non-recurring engineering costs
that Xxxxxxx will pay Mortara (the "NRE Costs") to support
development of the Arrhythmia Analysis Software for use in the
Products shall be [*]. Mortara will invoice Xxxxxxx for 100% of
the NRE Costs upon execution of this Agreement.
2.3 REGULATORY APPROVALS BY MORTARA. Mortara will be solely responsible for
filing, obtaining and maintaining any and all Regulatory Approvals
relating to the Transmitters provided to Xxxxxxx under this Agreement.
All Regulatory Approvals will be owned by and filed in the name of
Mortara, provided, however, that Xxxxxxx shall have the right to
reference all such Regulatory Approvals in its Product labeling. Xxxxxxx
will cooperate with Mortara, at Mortara's expense, in such manner as
Mortara may reasonably request to assist in obtaining such Regulatory
Approvals.
2.4 REGULATORY APPROVALS BY XXXXXXX. Xxxxxxx will be solely responsible for
filing, obtaining and maintaining any and all Regulatory Approvals
relating to the Combined Product. All Regulatory Approvals will be owned
by and filed in the name of Xxxxxxx. Mortara will cooperate with
Xxxxxxx, at Xxxxxxx'x expense, in such manner as Xxxxxxx may reasonably
request to assist in obtaining such Regulatory Approvals.
2.5 TECHNOLOGY ESCROW. Xxxxxxx has the right, but not the obligation, to
require Mortara to place all Product and corresponding documentation,
sufficient to manufacture and Sell the Product with Regulatory Approval,
in an escrow account upon the occurrence of any of the factors listed
below: (1) bankruptcy or insolvency of Mortara, (2) uncured breach of
the Agreement by Mortara in accordance with Article 12 of this
Agreement, or (3) if greater than 50% of the voting shares of Mortara
are transferred to a company deemed by Xxxxxxx to be a competitor of
Xxxxxxx. Within sixty (60) days of Quinton's written notice to Mortara
of Quinton's decision to require the establishment of an Escrow account:
(i) the parties will select a mutually agreed upon person or entity to
serve as the holder of a technology escrow (the "Technology Escrow
Holder"); (ii) Mortara will establish a technology escrow account with
the Technology Escrow Holder, and (iii) Mortara will negotiate and
execute an escrow agreement which will provide for the release of the
escrow contents to Xxxxxxx by the Technology Escrow Holder upon
occurrence of the following events: any breach of this Agreement by
Mortara, or failure of Mortara to do business in the normal course. Upon
execution of the escrow agreement, Mortara will place in the technology
escrow account the information and data necessary to manufacture the
Products. During the term of this Agreement Mortara shall update the
escrow contents whenever significant Product changes occur. Xxxxxxx will
bear all Escrow fees associated with establishing and maintaining the
Escrow account and has the right to audit the Escrow account to insure
completeness.
ARTICLE 3: PRODUCT FORECASTS AND ORDERS
For the initial six (6) month period following the Effective Date of the
Agreement, Xxxxxxx will provide Mortara with a firm purchase order with
scheduled Product deliveries. Quantities for this initial purchase order are
attached hereto in Exhibit A. Thereafter on a monthly basis Xxxxxxx will provide
Mortara with a rolling six month schedule of forecasted demand for the Product.
Xxxxxxx will deliver a firm purchase order for months l-3, and forecasted demand
for months 4-6. Xxxxxxx may modify forecasted order quantities in accordance
with the Production Schedule Ordering Parameters, below:
Production Schedule Ordering Parameters:
Months 1-3 Firm purchase order, schedule unchangeable
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Months 4-6 Firm forecast. Xxxxxxx may adjust deliveries +/- 30% of
forecasted deliveries.
Lead Times will be reviewed by Mortara and communicated to Xxxxxxx no less than
on a semi-annual basis, and any necessary adjustments will be mutually agreed
upon between the parties and incorporated into Exhibit A.
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Upon any termination or expiration of this Agreement, Xxxxxxx will provide
Mortara with a firm purchase order for 100% of its forecasted demand for months
4-6, with scheduled delivery dates not to exceed 180 days.
ARTICLE 4: PRICES AND PAYMENT TERMS
4.1 FEES. Transfer Fees for the Products are set forth in Exhibit A attached
hereto.
4.2 REPORTING AND PAYMENT TERMS.
4.2.1 For all Products ordered by Xxxxxxx and shipped to Xxxxxxx by
Xxxxxxx, Xxxxxxx will pay invoices received from Mortara [*]
days, FOB Milwaukee, WI.
4.2.2 For all Arrhythmia Analysis Software copied and distributed by
Xxxxxxx for Sale in connection with other Products under this
Agreement, Xxxxxxx agrees to deliver monthly reports as detailed
in Section 4.2.3 to Mortara within thirty (30) days after the
end of each month in which the Arrhythmia Analysis Software was
Sold, specifying the number of copies of Arrhythmia Analysis
Software distributed to End Users during the month just ended.
Each report shall be signed by a duly authorized representative
of Xxxxxxx and forwarded to Mortara at its then-current notice
address, addressed to the attention of Xxxxx Xxxxxxxx. All
monthly reports shall be accompanied by payment due, if any.
Xxxxxxx shall submit monthly reports even if no Arrhythmia
Analysis Software was Sold during the preceding month.
4.2.3 Monthly Reports. Quinton's monthly reports shall include "Point
of Sale" information which shall contain, at a minimum, the
following information: beginning and ending report dates, End
User purchase date, End User name, address, city, state, zip or
postal code, country, area code and phone number, End User
contact, Arrhythmia Analysis Software name ("lethal" or
"extended" version), number and description, and quantity Sold
to End User minus returns.
4.3 WITHHOLDING TAXES. Payments to Mortara hereunder shall be made without
deduction other than such amount (if any) Xxxxxxx is required by law to
deduct or withhold. Payments subject to such deductions or other
withholdings shall be increased by an amount which shall equal, as
nearly as possible, the amount required to be deducted or withheld, less
any tax benefits realizable by Mortara. Xxxxxxx shall obtain a receipt
from the relevant taxing authorities for all withholding taxes paid and
forward such receipts to Mortara to enable Mortara to claim any and all
tax credits for which it may be eligible. Xxxxxxx shall reasonably
assist Mortara in claiming exemption from such deductions or
withholdings under any double taxation or similar agreement or treaty
from time to time in force.
4.4 OTHER TAXES, TRANSPORTATION AND INSURANCE. Xxxxxxx will pay all non-U.S.
export charges, import duties, any and all sales, use, excise, value
added or other taxes or assessments imposed by any governmental
authority upon or applicable to any sale to Xxxxxxx under this
Agreement, and all costs and charges for transportation, brokerage,
handling and insurance of the Products from the point of shipment.
4.5 RECORDS, AUDIT OF SALES AND EXPENSES. During the term of the Agreement
and for one (1) year thereafter, Mortara shall have the right, at its
sole cost and expense, to audit Quinton's books and records as necessary
to verify the monthly reports issued by Xxxxxxx under Section 4.2.2
above and Quinton's compliance with the terms of this Agreement. Xxxxxxx
shall make its books and records available for inspection during
Quinton's normal business hours. Mortara shall give Xxxxxxx no less than
ten (10) days prior written notice of its desire to perform such an
audit. If any such audit should disclose that Quinton's reports
understate the actual fees payable then Xxxxxxx shall promptly pay the
amount of the discrepancy to Mortara. Should such understatement of fees
payable by Xxxxxxx be five percent (5%) or more, Xxxxxxx shall also
reimburse Mortara for any expenses incurred in conducting the audit,
including auditor's fees and reasonable travel expenses, if any, up to a
maximum of $5,000. If any such audit discloses Xxxxxxx overpaid fees to
Mortara, then the amount of overpayment shall be credited against
Quinton's next monthly payment(s). Any Xxxxxxx records, books or
accounting information received by
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Mortara or its auditors during any audit shall be treated as
Confidential Information as detailed in Article 11.
ARTICLE 5: MARKETING AND SERVICE
5.1 PROMOTION AND MARKETING. Xxxxxxx agrees to promote the Sale, marketing
and distribution of the Products in the Territory in a manner consistent
with this Agreement and generally accepted business practices.
5.2 BUSINESS MEETINGS. Mortara and Xxxxxxx will meet each year during the
term of the Agreement to review sales performance, average selling price
of Product, Quinton's gross margins on Net Sales, Mortara's Transfer
Fees for Products and other relevant issues.
5.3 PROMOTIONAL LITERATURE. Upon request, Mortara will xxxxxxx Xxxxxxx, at
Mortara's expense, with all available electronic files of Product
documentation, technical requirements and the like in order to aid
Xxxxxxx in effectively carrying out its activities under this Agreement.
Xxxxxxx shall be responsible for and have exclusive rights for the
design and production of promotional literature for the Products as
delivered by Xxxxxxx. Xxxxxxx shall include any copyright notices of
Mortara as requested in writing by Mortara.
5.4 REPLACEMENT OR SERVICE OF DEFECTIVE PRODUCTS DURING THE WARRANTY PERIOD.
Mortara will replace or repair all defective Products returned or
reported to it by Xxxxxxx at no cost during the warranty period.
5.5 END USER SUPPORT. Xxxxxxx will be responsible for direct interaction
with its End Users for warranty and non-warranty related field service
and ongoing support for the Product.
5.6 TECHNICAL SUPPORT TO XXXXXXX. At its own cost and expense, Mortara will
be responsible for providing Xxxxxxx technical service and applications
personnel with technical support for the Products, including telephone
consultation and assistance sufficient to enable Xxxxxxx to support its
End Users of the Products. In addition, Mortara agrees to provide
technical assistance to Xxxxxxx in adapting the Products, specifically,
components and algorithms, to Quinton's products.
5.7 SPARE OR REPLACEMENT PARTS. Xxxxxxx may order Spare or Replacement Parts
for the Products during the term of this Agreement at the prices listed
in Exhibit X. Xxxxxxx agrees to provide Xxxxxxx with Spare or
Replacement Parts for the Products for a period of twelve (12) months
following any expiration or termination of this Agreement.
5.8 DEFECT TRENDING. No less than once each quarter Xxxxxxx shall supply
Mortara with a written report detailing any commonly experienced
component failures or service problems with the Products ("Incidents").
Upon reasonable notice to Xxxxxxx from Xxxxxxx, records of Incidents
shall be made available to Mortara for inspection. Mortara agrees to use
its best efforts to promptly correct problems or defects that degrade
the use of the Product or result in an increased hazard risk.
5.9 EXPENSES. All expenses incurred by either Mortara or Xxxxxxx in
connection with the performance of its obligations hereunder will be
borne solely by the party incurring the expense. Mortara and Xxxxxxx
will each be responsible for appointing and compensating its own
employees, agents and representatives.
ARTICLE 6: MORTARA PRODUCT WARRANTY
6.1 PRODUCT WARRANTY. Mortara warrants that the Products provided to Xxxxxxx
in accordance with the terms hereof shall be (i) in compliance with and
perform in accordance with the Product specifications; (ii) developed in
compliance with the FD&C, cGMP and other applicable laws, rules and
regulations and (iii) free from defects in material and workmanship.
Hardware Products will be warranted for a period of fourteen (14) months
from the date on which the Hardware Product is delivered to Xxxxxxx;
Software
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Products and Product Accessory will be warranted for a period of ninety
(90) days from the date on which the Software Product or Product
Accessory is delivered to the End User.
6.2 EXCLUSIONS. The above warranties shall not apply to any Product which
(a) has been altered by Xxxxxxx without approval of Mortara, (b) has not
been operated, repaired or maintained in accordance with any handling,
maintenance or operating instructions supplied by Mortara or (c) has
been subjected to unusual physical or electrical stress, misuse, abuse,
negligence or accident.
6.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MORTARA
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PRODUCTS, AND MORTARA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6.4 LIMITATION OF LIABILITY. To the maximum extent permitted by applicable
law, in no event shall Mortara be liable for any special, incidental, or
consequential damages whatsoever (including, without limitation, damages
for loss of business profits, business interruption, loss of business
information, or any other pecuniary loss) arising out of the use or
inability to use the Product, even if Mortara has been advised of the
possibility of such damages. Because some States and Jurisdictions do
not allow the exclusion of limitation of liability for consequential or
incidental damages, the above limitation may not apply.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
7.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants to the other party that (i) it has the right and lawful
authority to enter into this Agreement; (ii) this Agreement is legal and
valid and the obligations binding upon each party are enforceable in
accordance with their terms except insofar as the enforceability hereof
may be limited by applicable bankruptcy, insolvency, receivership,
moratorium and other similar laws affecting the rights of the creditors
generally, or general principles of equity regardless of whether
asserted in a proceeding in equity or at law; and (iii) the execution,
delivery and performance of this Agreement does not conflict with any
agreement or understanding, oral or written, to which such party may be
bound, nor violate any law or regulation of any court, governmental body
or administrative or other agency having jurisdiction over it.
7.2 PATENTS. Mortara warrants to Xxxxxxx that (a) it is the owner of the
entire right, title and interest in the Products and has all authority
necessary to grant the licenses in and to the Products herein; and which
is necessary for the manufacture, use, offer for Sale, Sale and
importation of the Products; and (b) manufacture, use, offer for Sale,
Sale and importation of the Products has not been found to infringe, and
to the best of Mortara's knowledge is not now infringing, and has not
been the subject of any notice or allegation, received by Mortara as of
the Effective Date, of infringement of any intellectual property right
of a third party.
ARTICLE 8: INDEMNIFICATION
8.1 INDEMNIFICATION BY MORTARA. Mortara agrees to indemnify, defend and hold
Xxxxxxx harmless from and against all claims, damages, losses, costs and
expenses, including reasonable attorney's fees and court costs
(collectively "Claims"), which Xxxxxxx may incur to the extent such
Claims arise out of (i) a Product's infringement of any United States
federal or state intellectual property right of a third party, or (ii)
the death or injury of any person or damage to property resulting from
(a) Mortara's breach of its representations, warranties and covenants
contained in this Agreement (b) Mortara's design, testing or manufacture
of the Products to the extent not caused by fault attributable to
Xxxxxxx, or (c) the negligence, recklessness or willful misconduct of
Mortara or its officers, employees or agents.
8.2 INDEMNIFICATION BY XXXXXXX. Xxxxxxx agrees to indemnify, defend and hold
Mortara harmless from and against all claims, damages, losses, costs and
expenses, including reasonable attorney's fees and court
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costs (collectively "Claims"), which Mortara may incur to the extent
that such Claims arise out of (i) Quinton's breach of its
representations, warranties and covenants contained in this Agreement,
(ii) the Sale, promotion or other distribution of Products by Xxxxxxx
otherwise than in a manner consistent with the Agreement, (iii) any
representation or warranty given by Xxxxxxx with respect to the Products
(other than product warranty given by Mortara in Article 6 hereto and
other than the labeling for Products as cleared by the FDA), (iv)
repairs or services rendered by Xxxxxxx that do not comply with
Mortara's recommended guidelines, or (v) injury, illness or death of any
person to the extent such injury, illness or death to other persons
arises out of or results from the negligence, recklessness or willful
misconduct of Xxxxxxx or Xxxxxxx'x officers, employees or agents.
8.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION, LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF. Each party acknowledges that the foregoing
limitations are an essential element of the Agreement between the
parties and that in the absence of such limitations the pricing and
other terms set forth in this Agreement would be substantially
different.
8.4 INDEMNIFICATION PROCEDURE. The party seeking indemnification under this
Article 8 (the "Indemnified Party") shall (i) give the other party (the
"Indemnifying Party") written notice of the relevant Claim and the
related facts with reasonable promptness after becoming aware of same,
(ii) reasonably cooperate with the Indemnifying Party, at the
Indemnifying Party's expense, in the defense of such claim, and (iii)
give the Indemnifying Party the right to control the defense and
settlement of any such claim, except that the Indemnifying Party shall
not enter into any settlement that affects the Indemnified Party's
rights or interest in any intellectual property the Indemnified Party
controls, without the Indemnifying Party's prior written approval. The
Indemnified Party shall have no authority to settle any claim on behalf
of the Indemnifying Party.
8.5 INSURANCE. Mortara shall maintain, during the term of this Agreement and
for a period of five (5) years after expiration or termination of this
Agreement, comprehensive general liability insurance, including full
products liability coverage, with an insurance carrier with a rating of
VII A Best or better, and coverage limits of not less than $l,000,000
per occurrence and at least $2,000,000 aggregate coverage for claims of
bodily injury and property damage arising out of any loss. Such policy
or policies shall include Xxxxxxx as named insured in such policy or
policies. Such policy or policies shall also expressly cover any
liability Mortara may incur as Indemnifying Party under this Agreement.
ARTICLE 9: PRODUCT RECALLS, ADVERSE EVENTS
9.1 PRODUCT RECALL. In the event that any governmental agency or authority
issues a recall or takes similar action in connection with the Products,
or in the event either party determines that an event, incident or
circumstance has occurred which may result in the need for a recall or
market withdrawal, the party with such information shall, within
twenty-four (24) hours, advise the other party of the circumstances by
telephone or facsimile. Xxxxxxx shall have the right to control the
arrangement of any Product recall, and the parties will cooperate with
each other in implementing such recall. Specifically, the parties shall
cooperate in the event of a Product recall with respect to the
reshipment, storage or disposal of recalled Products; the preparation
and maintenance of relevant records and reports; and notification to any
recipients or End Users.
9.2 ADVERSE EVENTS. Each party shall advise the other party, by telephone or
facsimile, within such time as is required by the FDA (with respect to
the severity of an adverse event) after it becomes aware of any
complaints, adverse event reports or safety issues potentially caused by
use of the Products or to which the use of the Products may have
contributed as well as any Product malfunction or any other reportable
events under 21 CFR 803-804 or similar laws and regulations in other
countries. Such advising party shall provide the other party with a
written report delivered by confirmed facsimile of any such reports,
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stating the full facts known to it, including but not limited to,
customer name, address, telephone number and serial number, if any, of
the Products involved.
ARTICLE 10: CONFIDENTIAL INFORMATION
10.1 NONDISCLOSURE OBLIGATIONS. During the term of this Agreement, and for a
period of three (3) years after termination hereof, each party will
maintain all Confidential Information in trust and confidence and will
not disclose any Confidential Information to any third party or use any
Confidential Information for any unauthorized purpose. Each party may
use such Confidential Information only to the extent required to
accomplish the purposes of this Agreement. Confidential Information
shall not be used for any purpose or in any manner that would constitute
a violation of any laws or regulations, including without limitation the
export control laws of the United States. Confidential Information shall
not be reproduced in any form except as required to accomplish the
intent of this Agreement. Each party will use at least the same standard
of care as it uses to protect proprietary or confidential information of
its own, which shall at minimum be a reasonable standard of care. Each
party will promptly notify the other upon discovery of any unauthorized
use or disclosure of the Confidential Information. All information that
is to be held confidential shall be given only to individuals who are
made aware of the confidential nature of the information and who have
signed a confidentiality agreement or who have a fiduciary
responsibility to the disclosing party and who have a need to know.
10.2 EXCEPTIONS. Confidential Information shall not include any information
which: (i) is now, or hereafter becomes, through no act or failure to
act on the part of the receiving party, generally known or available;
(ii) is known by the receiving party at the time of receiving such
information, as evidenced by its written records; (iii) is hereafter
furnished to the receiving party by a third party, as a matter of right
and without restriction on disclosure; (iv) is independently developed
by the receiving party without any breach of Section 10.1; (v) is the
subject of a written permission to disclose provided by the disclosing
party; or (vi) is of such inconsequential nature as to render it
valueless. The parties agree that the material financial terms of this
Agreement will be considered the Confidential Information of both
parties. However, each party shall have the right to disclose the
material financial terms of this Agreement to any potential acquirer,
merger partner, or other bona fide potential financial partner, subject
to a requirement to secure confidential treatment of such information
consistent with the Agreement or if it is prudent or proper to make such
disclosure to comply with applicable government regulations; provided
that the disclosing party shall utilize reasonable efforts to not
publicly disclose such information to the extent legally permitted and
practicable.
10.3 AUTHORIZED DISCLOSURE. Notwithstanding any other provision of this
Agreement, each party may disclose Confidential Information if such
disclosure is in response to a valid order of a court or other
governmental body of the United States or any political subdivision
thereof; provided, however that the responding party shall first have
given notice to the other party hereto and shall have made a reasonable
effort to obtain a protective order requiring that the Confidential
Information so disclosed be used only for the purposes for which the
order was issued; is otherwise required by law; or is otherwise
necessary to secure financing, prosecute or defend litigation or comply
with applicable governmental regulations, including regulatory filings,
or otherwise establish rights or enforce obligations under this
Agreement, but only to the extent that any such disclosure is necessary.
10.4 PUBLICITY. All public announcements and press releases regarding the
subject matter of this Agreement shall be made only after mutual
agreement by the parties as to the content and timing thereof. Any such
announcements or communications shall be made only with the prior
approval of the other party hereto, which shall not be unreasonably
withheld, except as otherwise required by applicable law or legal
process.
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ARTICLE 11: COMPLIANCE WITH LAWS
11.1 MANUFACTURING AND SHIPPING. Xxxxxxx and Mortara each shall be
responsible for complying with all applicable legal and regulatory
requirements of the United States and any other state or local
regulatory agency department, bureau, commission, council or other
governmental entity regarding the manufacture and shipment obligations
hereunder. Each party shall promptly notify the other of new
instructions, regulations or specifications of which it becomes aware
which are relevant to the manufacture and distribution of the Products
under this Agreement and which are required by the FDA, or other
applicable laws or governmental regulations and shall confer with each
other with respect to the best means to comply with such requirements.
Each party shall assist the other in obtaining and maintaining all
approvals and authorizations of any governmental agencies necessary for
the manufacture, use, marketing, distribution or sale of Products, and
will promptly notify the other party of any comments, responses or
notices that a party receives from any governmental authorities which
relate to the regulatory status of the Product.
11.2 MARKETING AND SALES. Xxxxxxx shall comply with all applicable laws,
regulations and orders of any governments or government agencies
worldwide and with all other governmental requirements applicable to its
promotion, marketing and sales activities with respect to the Products,
including obtaining import approvals or other permits, customs
clearances, or authorizations for the shipment and Sale of Products. In
connection with Quinton's compliance with this Section 11.2, Xxxxxxx
will provide Mortara with all information it reasonably requests,
including but not limited to distribution records, copies of any filings
made in connection therewith and any promotional literature, sales
literature, books, catalogues and the like prepared in connection with
the Products. Mortara will, at Quinton's expense, xxxxxxx Xxxxxxx with
such assistance and cooperation as may reasonably be requested in
connection with compliance with such governmental requirements.
11.3 FACILITIES APPROVAL. Mortara shall be responsible for obtaining and
maintaining all necessary plant inspection standards, plant licenses
registrations or permits to enable the development of the Products.
ARTICLE 12: TERM, TERMINATION, AND EFFECT OF TERMINATION.
12.1 TERM. Except as provided in Sections 12.2 and 12.3, this Agreement and
the licenses and rights granted hereunder will be effective for a term
of five (5) years.
12.2 TERMINATION FOR BREACH. Either party may terminate this Agreement upon
written notice to the other party if (i) the other party commits any
material breach of this Agreement which the other party fails to cure
within thirty (30) days following written notice from the non-breaching
party specifying such breach; (ii) the other party permanently ceases to
conduct business; or (iii) the other party (a) becomes insolvent, (b)
makes an assignment for the benefit of creditors, (c) commences any
dissolution, liquidation or winding up, (d) has a receiver, trustee,
conservator or liquidator appointed for all or a substantial part of its
assets, or (e) has a petition filed by or against it under the
Bankruptcy Code of 1978, as amended, 11 U.S.C. Section 101 et seq., or
under any state insolvency laws providing for the relief of debtors, and
such petition is not dismissed within sixty (60) days of its filing.
12.3 TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement at
its election and in its sole discretion without cause upon twelve (12)
month written notice to the other party.
12.4 SURVIVING OBLIGATIONS. Termination or expiration of this Agreement will
not (i) affect any rights of either party which may have accrued up to
the date of such termination or expiration, (ii) relieve either party of
its obligations under Article 6 (Mortara Product Warranty), Article 7
(Representations and Warranties), Article 8 (Indemnification) or Article
11 (Confidential Information), or (iii) relieve Xxxxxxx of its
obligation to pay to Mortara sums due prior to termination or expiration
of this Agreement, including the NRE costs noted in Article 2 and
Product orders noted in Article 3. Likewise, Mortara will
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maintain its obligations to fulfill all Product orders that may remain
unfilled at the time of such termination or expiration.
12.5 EFFECT OF TERMINATION.
12.5.1 Upon the termination of this Agreement for whatever reason,
Xxxxxxx will cease to act as a sales representative and
distributor of the Products, except that Xxxxxxx shall have the
right to continue to fulfill its support and maintenance
obligations related to the Products to its installed End User
base. Xxxxxxx will return to Mortara all price lists, catalogs,
sales literature, operating and service manuals, advertising
literature and other materials relating to the Products
originally provided by Mortara to Xxxxxxx, less one (1) copy for
the purpose of fulfilling its support and maintenance
obligations. Notwithstanding the foregoing, Xxxxxxx will have
the following rights: (i) for a period not to exceed one hundred
eighty (180) days, to sell any Products remaining in inventory,
and to fulfill firm orders received from End Users and
previously delivered to Mortara, and (ii) in the event this
Agreement is terminated by Xxxxxxx pursuant to Section 12.2, to
sell any Products for an additional two hundred seventy (270)
days solely with respect to the fulfillment of firm standing
orders as proven by documentation presented to Mortara.
12.5.2 Upon the termination of this Agreement by any material breach by
Xxxxxxx, or from Quinton's inability to conduct its normal
business (Section 12.2 (ii) and (iii) above) Xxxxxxx shall
provide to Mortara upon the effective date of termination, the
following information: (i) the location of all Products sold by
Xxxxxxx during the term of this Agreement; (ii) the Incident
files related to the Products; and (iii) a copy of Quinton's End
User list for the Products compiled during the term of this
Agreement, including names, addresses, telephone numbers and
purchase history.
12.6 CHANGE OF CONTROL. Xxxxxxx shall provide Mortara with prompt written
notice in the event of any Competitive Change of Control, and Mortara
shall have the right to terminate this Agreement upon thirty (30) days
advance written notice to Xxxxxxx. In the event Mortara elects to
terminate this Agreement under this Section 12.6, Mortara shall have the
right but not the obligation, to: (i) require Xxxxxxx to immediately pay
any outstanding NRE Costs (as defined in Section 2.2..3), and / or (ii)
require Xxxxxxx to satisfy its obligation to accept delivery of any
Product(s) ordered under any then current Xxxxxxx purchase order.
12.7 NO LIABILITY FOR TERMINATION. Neither party will have any obligation to
the other by reason of the terminating party's termination permitted by
this Agreement. Each party hereby agrees not to assert any claim by
reason of such termination of this Agreement. Neither party, by reason
of the termination of this Agreement, will be liable to the other
because of any damages, expenditure, loss of profits, or prospective
profits of any kind or nature, sustained or arising out of such
termination or for any investments related to the performance of this
Agreement or the goodwill created in the course of the performance under
this Agreement.
12.8 ACCRUED OBLIGATIONS. No termination of this Agreement will in any manner
whatsoever release, or be construed as releasing, any party from any
liability to the other arising out of or in connection with a party's
breach of, or failure to perform any covenant, agreement, duty or
obligation contained in this Agreement. Neither party will be relieved
from any obligations vested prior to the date of termination of this
Agreement.
ARTICLE 13: MISCELLANEOUS.
13.1 GOVERNING LAW AND VENUE. This Agreement shall be construed and
controlled by the laws of the State of Washington, U. S. A. (excluding
its conflict of law rules) and by the laws of the Unites States of
America, excluding the United Nations Convention on Contacts for the
International Sale of Goods (which the parties hereby agree shall not
apply). In the event Mortara files a claim against Xxxxxxx in connection
with this Agreement, such claim will be filed in the state and federal
courts sitting in
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Snohomish County, Washington. In the event Xxxxxxx files a claim against
Mortara in connection with this Agreement, such claim will be filed in
the state and federal courts sitting in Milwaukee County, Wisconsin.
13.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Exhibits hereto, set
forth and constitute the final, complete and entire agreement between
the parties hereto with respect to the subject matter hereof, supersede
any and all prior agreements, understandings, promises and
representations made by either party to the other concerning the subject
matter hereof and the terms applicable hereto and are intended as a
complete and exclusive statement of the terms of the agreement between
the parties. This Agreement may not be released, discharged, amended or
modified in any manner except by a writing signed by duly authorized
officers of both parties.
13.3 NO AGENCY; NO JOINT VENTURE; INDEPENDENT CONTRACTOR. Each party will act
as an independent contractor under the terms of this Agreement. Neither
party is, and will not be deemed to be, employee, agent, co-venturer or
legal representative of the other party for any purpose. Neither party
will be entitled to enter into any contracts in the name of, or on
behalf of the other party, nor will either party be entitled to pledge
the credit of the other party in any way or hold itself out as having
authority to do so.
13.4 WAIVER. No waiver of any right under this Agreement will be deemed
effective unless contained in a writing signed by the party charged with
such waiver, and no waiver of any right arising from any breach or
failure to perform will be deemed to be a waiver of any future such
right or of any other right arising under this Agreement.
13.5 HEADINGS. The headings of the several Articles and Sections herein are
inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
13.6 ASSIGNMENT. Neither party may assign, in whole or in part, this
Agreement nor any right or obligation arising under it without the prior
written consent of the other, such consent not to be unreasonably
withheld; provided, however, that either party may assign or transfer
its rights and obligations arising under this Agreement to a purchaser
of all or substantially all of the stock or assets of such party or to
an entity into which such party is merged, or to a wholly-owned
subsidiary of such party, without the consent of the other party.
13.7 SEVERABILITY. If any provision of this Agreement is or becomes or is
deemed invalid, illegal or unenforceable in any jurisdiction, such
provision will be construed or deemed amended to conform to applicable
laws so as to be valid, legal and enforceable and to conform to the
maximum extent possible to the intention of the parties including,
without limitation, by deleting such provision.
13.8 RESTRICTED RIGHTS. Any software Product which Xxxxxxx distributes or
licenses to or on behalf of the United States of America, its agencies
and/or instrumentalities, shall be provided with RESTRICTED RIGHTS in
accordance with DFARS 252.227-7013(c)1(ii), or as set forth in the
particular department or agency regulations or rules, or particular
contract which provide Mortara equivalent or greater protection.
13.9 EXPORT. Xxxxxxx acknowledges that the Product is subject to the export
control laws and regulations of the United States, and any amendments
thereof. Xxxxxxx confirms that with respect to the Product, it will not
export or re-export them, directly or indirectly, to (i) any countries
that are subject to United States export restrictions; (ii) any End User
who Xxxxxxx knows or has reason to know will utilize them in the design,
development or production of nuclear, chemical or biological weapons; or
(iii) any end user who has been prohibited from participating in United
States export transactions by any federal agency of the United States
government. Xxxxxxx further acknowledges that the Product may include
technical data subject to export and re-export restrictions imposed by
United States law.
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13.10 BENEFITS OF THIS AGREEMENT. Except as expressly provided for herein,
nothing in this Agreement will be construed to give to any person or
entity other than Xxxxxxx and Mortara any legal or equitable right,
remedy or claim under this Agreement. This Agreement will be for the
sole and exclusive benefit of Xxxxxxx and Xxxxxxx and shall be binding
upon and inure to the benefit of their respective successors and
permitted assigns.
13.11 NOTICES. Notices, consents and the like required or permitted hereunder
will be in writing and will be sent to the addresses set forth below or
to such other addresses as the parties may hereafter specify, and will
be deemed given on the earlier of (a) physical delivery (or refusal to
accept same) to a party, including confirmed delivery by facsimile or
telex; (b) upon delivery (or refusal to accept same) after sending by
expedited courier; (c) or upon delivery (or refusal to accept same) by
certified mail, return receipt requested. Copies of notices will be sent
to the appropriate address as set forth below:
TO MORTARA: Mortara Instrument, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
TO XXXXXXX: Xxxxxxx Instrument Company
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Contracts Administration
13.12 FORCE MAJEURE. Neither of the parties hereto will be liable for any
failure or delay in performance hereunder where such failure or delay is
due, in whole or in part, to any cause beyond its reasonable control,
including but not limited to Acts of God, fire, flood, warfare, labor
disputes or other similar catastrophic events. If a force majeure
prevents Mortara from supplying, for a period in excess of ninety (90)
days, Products to Xxxxxxx pursuant to a purchase order accepted by
Xxxxxxx, Xxxxxxx shall have the rights set forth in Section 2 hereof.
13.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be an original and all of which will
constitute together but one and the same document.
In Witness Whereof, the parties have executed this Agreement on the date first
above mentioned.
XXXXXXX INSTRUMENT COMPANY MORTARA INSTRUMENT, INC.
/s/ Xxxx Xxxxxx /s/ Xxxxxx Xxxxxxx
-------------------------------------- --------------------------------------
Authorized Signature Authorized Signature
Xxxx Xxxxxx Xxxxxx Xxxxxxx
-------------------------------------- --------------------------------------
Printed Name Printed Name
Executive Vice President, COO and CFO VP Sales and Marketing
-------------------------------------- --------------------------------------
Title Title
8/1/00 8/1/00
-------------------------------------- --------------------------------------
Date Date
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EXHIBIT A
PRODUCTS, FEES AND QUANTITIES
INITIAL
TRANSFER LEAD ORDER
PRODUCT QUANTITY FEE TIME QUANTITY
------- -------- -------- -------- --------
Receiver Carrier Cards*
Includes Windows NT driver license [*] [*] 4 months [*]
2.45 gHz Down Converter Unit 16 Channel [*] [*] 4 months [*]
Receiver Cans* [*] [*] 4 months [*]
[*] [*] 4 months
[*] [*] 4 months
[*] [*] 4 months
Transmitters**
Includes patient cable and AA batteries [*] [*] 4 months [*]
[*] [*] 4 months
[*] [*] 4 months
[*] [*] 4 months
Arrhythmia Analysis
Software License fees for each Receiver Can
Lethal [*] [*] N/A [*]
Extended [*] [*] N/A [*]
Antenna Network Components:
Antenna Network Amplifier AN-915 [*] [*] 4 months [*]
000 Xxx 0/0 Xxxxxxxxxx Xxxxxxx [*] [*] 1 month [*]
BNC Male to TNC Female Coupler [*] [*] 1 month [*]
50-Ohm BNC Male Terminator [*] [*] 1 month [*]
Antenna Network Power Supply [*] [*] 1 month [*]
4' RG58C/U BNC M - BNC M Cable [*] [*] 1 month [*]
8m RG58 BNC M - BNC M Cable [*] [*] 1 month [*]
15m RG58 BNC M - BNC M Cable [*] [*] 1 month [*]
4-way 915 MHz Power Splitter w/BNC Connectors [*] [*] 1 month [*]
8-way 915 MHz Power Splitter w/BNC Connectors [*] [*] 1 month [*]
DC Block w/ BNC Connectors for 915 MHz [*] [*] 1 month [*]
Power Supply DC Linear Antenna Network [*] [*] 1 month [*]
*Receiver Carrier Cards and Receiver Cans will be provided as individual parts
to be assembled, calibrated and tested in custom configurations by Xxxxxxx.
**Transmitters to be provided as complete units with cable harnesses by Mortara,
private labeled by Mortara for Xxxxxxx, including a Mortara label e.g. 'Mortara
Inside' or 'Powered by Mortara'. All decisions regarding product labeling and
trademarking for the Combined Products will be the responsibility of Xxxxxxx.
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