Certain information has been deleted from this exhibit and filed separately with
the Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 24b-2.
OEM DISTRIBUTION AGREEMENT
This Agreement is entered into as of April 7,1997 between COMPUMEDICS SLEEP PTY.
LTD. (ACN 000 000 000), a corporation organized and doing business under the
laws of the Commonwealth of Australia, with its principal place of business at 0
Xxxxxx Xxxxxx, Xxxxxxxxxx, XXX 0000, Xxxxxxxxx ("CPL"), and MEDICAL GRAPHICS
CORPORATION, a Minnesota corporation, with its principal place of business at
000 Xxx Xxxxx Xxxxxxx, Xx. Xxxx, Xxxxxxxxx 00000-0000, Xxxxxx Xxxxxx of America
("MGC").
RECITALS
1. CPL is in the business of designing, developing, marketing and distribution
of diagnostic sleep systems, and MGC has expertise in designing,
developing, marketing and distribution of cardiopulmonary diagnostic
systems; and
2. CPL and MGC desire to combine their expertise to share in the rewards
related to the OEM manufacture, sale and distribution by MGC of CPL's
diagnostic sleep systems; and
3. CPL and MGC desire to further discuss entering into an OEM agreement for
the sale and distribution, outside of the United States, by CPL of MGC's
cardiopulmonary diagnostic systems.
NOW THEREFORE, in consideration of the mutual promises hereinafter set forth,
the parties mutually covenant and agree as follows:
1. DEFINITIONS
1.1 "AGREEMENT" means this Agreement together with the Attachments which
are attached hereto and which form an integral part hereof.
1.2 "PRODUCTS" means the (a) products, software, accessories and supplies
listed on Attachment A, (b) all repair, replacement and service parts
for such products, software, accessories and supplies, (c) all
operator and service instructions, manuals and documentation relating
to the use and operation of such products, software, accessories and
supplies, and (d) any enhancements, improvements, changes, additions,
modifications and successor-generation products, software,
accessories, supplies, parts, manuals and documentation now,
heretofore or hereafter designed, manufactured, produced, fabricated,
processed, sold or distributed by CPL.
1.3 "TERRITORY" means and includes the United States of America.
1.4 "CPL CONFIDENTIAL INFORMATION" means all information, knowledge, know
how, experience, expertise and designs which have been or are in the
future disclosed by or on behalf of CPL to MGC in connection with the
Products or the business or other assets of CPL or which are
otherwise obtained by MGC in connection with the Products or the
business or other assets of CPL or which are generated by MGC in
relation to the Products or the business or other assets of CPL or
under this Agreement.
2. APPOINTMENT
2.1 RIGHTS. Subject to the terms and conditions of this Agreement, CPL
hereby appoints MGC as a distributor of Products in the Territory.
MGC acknowledges the CPL also has a distribution agreement with
ResMed Inc. for all or part of the Territory. Compumedics
acknowledges that ResMed Inc. has waived any exclusive rights to
distribute the Products in the Territory. Except as the parties
shall otherwise agree in writing, MGC shall have the right to market,
sell, promote, distribute, service and repair, and offer to sell,
service and repair, the Products in the Territory under MGC's name,
logotypes and trademarks.
2.2 NON-COMPETITION. Other than the distribution of the S-Series Product
range by ResMed, Inc. under its distribution agreement or by some
other distributor in substitution for ResMed, Inc. under a similar
distribution agreement, CPL will not appoint or authorize, or
directly or indirectly supply Products (including parts, components,
services or assistance), or future products which compete with the
Products, to any other persons who intend to, or may, or will market,
sell, promote, distribute, license the use of, service or repair the
Products in the Territory, or who have or are doing so.
MGC agrees that, during the Term of this Agreement, it is not
currently and will not directly or indirectly become involved with
the development or manufacture or distribution of sleep diagnostic
products that directly compete with the Products and without prior
written permission from CPL.
CPL agrees to forward to MGC for handling, all inquiries and sales
and marketing leads received from or relating to the purchase, sale,
distribution, use, service or repair of Products in the Territory or
which are received from persons located or otherwise doing business
in the Territory.
3. GENERAL OBLIGATIONS OF MGC
3.1 PROMOTION OF PRODUCTS. MGC agrees to promote and market the sale of
Products in the Territory in reasonable and proper ways at its own
expense.
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3.2 CUSTOMER SERVICE. MGC agrees to promptly offer to repair all
failures of Products sold by it in the Territory which are reported
by customers of MGC in good standing. Such repairs shall be
performed in accordance with CPL's instructions and training for
technical repairs, which CPL shall provide to MGC within sixty (60)
calendar days after the Effective Date. During the warranty period
only CPL agrees to provide replacement Products or repair parts for
Products to MGC at CPL's cost, including shipping costs, for Products
covered by CPL's product warranty as set forth in Paragraph 9.2
hereof. MGC may charge customers directly for all fees, costs and
expenses incurred or imposed by MGC in connection with all repairs of
the Products performed by MGC.
3.3 PRODUCT MANAGER. MGC agrees to assign a named product manager to
CPL's account to manage communications and for general liaison
proposes.
3.4 REPORTS. MGC agrees to make reports on its actual marketing and
sales activity in the territory once each quarter during the term of
this Agreement in the form as reasonably requested by CPL.
3.5 RESALE AND SERVICE PRICES. MGC may sell, license the use of, repair
and service the Products at such prices as MGC, in its sole
discretion, shall determine.
3.6 OTHER PRODUCTS. MGC intends to source and provide a full line of
sleep diagnostic and therapy products. MGC is allowed to obtain,
through agreements with other sources, such products as screeners and
sleep therapy devices. Such products cannot be a full, 16-channel
non-portable or lab-based polysomnography system. Additionally, MGC
must inform CPL, in writing, 120 days prior to the effective date of
any agreement for additional sleep diagnostic products, giving CPL
the opportunity to provide a comparable product, if it so decides.
If after the 120 day period CPL has not provided a comparable
product, MGC is free to enter into an agreement with the other source
and CPL is free to distribute any subsequently produced comparable
product in the Territory unless distributed by MGC. It is CPL's
intention to offer MGC a complete sleep diagnostic line by way of the
range of new generation S-Series wireless head-box products.
4 GENERAL OBLIGATIONS OF CPL
4.1 PRODUCTS. CPL agrees to sell Products to MGC at the prices set forth
in Attachment B of this Agreement for demonstration, resale, repair
and service purposes in the Territory, and agrees that such Products
shall perform in accordance with CPL's latest applicable published
specifications and its product warranty set forth in paragraph 9.2.
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4.2 PRODUCT LABELING. CPL agrees to manufacture Products bearing
designated MGC labeling as mutually agreed by the parties.
Labeling includes modification to appropriate software
displays as agreed to by the two parties.
4.3 DELIVERIES. CPL agrees to process orders and deliver Products in a
prompt and commercially reasonable manner; provided, that CPL shall
deliver Products, ordered in accordance with Paragraph 5.2 hereof,
not later than sixty (60) calendar days following order acceptance
unless a later delivery date is specified by MGC. All Products
shipped to MGC shall be new finished goods and CPL shall ensure that
all such Products are packaged and labeled for transportation,
distribution and sale in accordance with all applicable laws.
4.4 NOTICE OF ADVERSE EVENTS. CPL agrees to promptly notify MGC of any
reports of adverse events received by CPL from customers,
distributors or others that may have caused or contributed to death
or serious injury or that would likely cause or contribute to a death
or serious injury if the event were to reoccur from the use of
Products, or to recall, banning or other restrictions imposed upon
Products by any regulatory agency whether relating to Products sold
prior to or after the Effective Date.
4.5 MARKETING AND SERVICE TRAINING. CPL agrees to provide training to
MGC's designated personnel, in marketing, clinical applications,
installation, use, maintenance and repair of Products, as reasonably
required. Such training shall be free of charge and with respect to
marketing, sales and clinical application training ("MARKETING
TRAINING") shall take place in the location in the United States
reasonably designated by MGC and agreed to by CPL (it being
understood that all costs of providing the site for Marketing
Training shall be borne by MGC) and with respect to installation,
use, maintenance and repair training ("Service Training") shall take
place in the United States at such location as is mutually agreed to
by the parties (it being understood that all costs of providing the
site for Service Training shall be borne by MGC) (it being further
understood that in the case of both Marketing Training and Service
Training, costs of travel, board and lodging shall be borne by CPL
and MGC for their respective personnel). All training shall be
conducted by persons qualified to conduct such training, at such
dates and times as are mutually agreed to by CPL and MGC.
4.6 COMMUNICATIONS. CPL agrees to inform MGC of designated contacts for
communication and liaison with regard to orders and payments and
technical and applications support.
4.7 PROMOTIONAL MATERIALS. CPL shall furnish MGC a reasonable quantity
of CPL's brochures, product photos, and transparencies relating to
the Products, for use by MGC in preparing its own promotional and
advertising materials.
4
4.8 CPL SUPPORT. CPL shall provide to MGC a complete copy of the FDA
510(k) documentation for all of the Products and documentation
demonstrating approval to safety standard UL 2601.1 for medical
devices by either UL or ETL, for the Products. CPL will label the
products by attaching a UL or ETL safety label to each product
assembly. CPL shall provide engineering and service support for the
Products for the term of this Agreement, particularly in regards to
private labeling of software displays.
4.9 PRODUCT CHANGES. CPL shall provide MGC written notice at its xxxxxxx
convenience with respect to any proposed engineering change order or
other modification, or change to any of the Products ("ECO").
4.10 EXPORT DOCUMENTATION. CPL will be responsible for obtaining all
Australian licenses and permits and for satisfying all formalities as
may be required to export Products to MGC in accordance with then
prevailing legislation and regulations.
5 ORDERS, DELIVERIES AND ACCEPTANCE
5.1 MINIMUM PURCHASE. During the first year of the Term, MGC agrees to
purchase from CPL a minimum of [CONFIDENTIAL TREATMENT REQUESTED]
S-Series Product units at the prices agreed to in Attachment B of
this Agreement. MGC agrees to order [CONFIDENTIAL TREATMENT
REQUESTED] S-Series Product units as demonstration equipment within
fourteen (14) days of the Effective Date. The purchase of the
demonstration equipment will apply to the minimum purchase. MGC
agrees to purchase an additional [CONFIDENTIAL TREATMENT REQUESTED]
systems by May 30, 1997 under the standard terms of the Agreement.
In years two and three of the term of the Agreement, MGC agrees to
purchase a minimum of [CONFIDENTIAL TREATMENT REQUESTED]S-Series
Product units per term year.
To the extent MGC in good faith fails, or is unable, to meet such
minimum requirements because of (a) delay by CPL in the performance
of its obligations or deliveries of products, (b) FDA or other
governmental filings have not been made or approvals granted,
secured, or maintained, or (c) other acts or omissions of CPL, MGC
shall be excused from meeting this minimum.
Notwithstanding any provisions of this Agreement to the contrary,
failure of MGC to meet the minimum purchase requirements shall not be
deemed a breach of the agreement and will result only in the loss of
the special pricing agreed to in Attachment B. Pricing for the
S-Series Products will then, at the discretion of CPL, revert back
to the standard distributor pricing established by CPL.
5.2 ORDERS. MGC shall deliver written purchase orders for Products and
spare parts to CPL in any reasonable manner specifying the desired
date of shipment, the number
5
of Product units or spare parts to be shipped, the options to be
provided and indicating part numbers for each item at least 60 days
prior to the requested delivery date.
CPL shall acknowledge receipt and acceptance of orders in writing
within seven (7) working days. CPL's written acceptance shall
include the order origin and number, the date of receipt of the
order, the unit prices and total order price, and the scheduled
shipment date. CPL's acceptance of orders shall create a contract
for sale and purchase on terms and conditions provided for in such
purchase order, subject to the terms and conditions of this
Agreement. In the event of any conflict between the terms and
conditions of purchase orders and this Agreement, the terms and
conditions of this Agreement shall apply.
5.3 SHIPMENTS. CPL shall ship all Products and service parts ordered by
MGC, "FCA" or "Free Carrier" (as defined in the then current version
of INCOTERMS), to the destinations and via the means of
transportation specified by MGC in the order, or, if none is
specified, by an appropriate means which, in CPL's judgment, is
consistent with the requirements of the order. MGC shall bear all
transportation costs, and risk of loss and title shall pass to MGC
upon delivery to freight forwarder designated by MGC. MGC shall make
arrangement for its designated freight forwarder to accept delivery
of the Products and service parts at the premises of CPL.
5.4 IMPORT DUTIES. MGC shall pay all applicable United States import
duties for Products and service parts ordered by MGC.
5.5 ACCEPTANCE AND RETURNS. Within sixty (60) calendar days after the
Effective Date, the parties shall establish acceptance test
procedures ("ACCEPTANCE TEST PROCEDURES") for the Products, which
shall become an integral part of the Agreement. Until such written
procedures are established, CPL's published specifications for the
Products shall serve as the criteria for acceptance of Products by
MGC. The Acceptance Test Procedures may be modified by CPL at any
time.
MGC agrees to test Products in accordance with Acceptance Test
Procedures and to notify CPL of any nonconformity, damage,
discrepancy or shortages of Products within fourteen (14) calendar
days of the date of receipt of such Products by MGC. Following such
notice, CPL agrees to advise MGC within seven (7) working days of
what action it will take to promptly correct such non-conformity,
damage, discrepancy or shortage through delivery of conforming
replacement Products or components thereof, or through other
corrective actions. All shipping costs for replacement of
nonconforming products shall be borne by CPL.
6
6 PRICES AND PAYMENT
6.1 PRICE SCHEDULE. The prices to be paid by MGC for the first year of
the Term for Products are set forth in U.S. dollars in Attachment B
to this Agreement. Prices to be paid by MGC for service parts shall
be quoted in U.S. dollars, and shall not exceed the OEM price list,
published by CPL, for such parts. Shipping costs, for service parts
and supplies, not covered under CPL's product warranty, would be paid
for by MGC.
Prices for the second and subsequent years of the Term shall be as
mutually agreed, after parties take into account the variations to
the costs of manufacture of the Products and the price movements of
comparable products selling in the Territory in competition with the
Products, provided that if minimum purchases described in Paragraph
5.1 are achieved, then prices shall be lower than prices at which the
same Products are provided to another distributor in the Territory in
the same year. If minimum purchases are not achieved, then prices
shall be set to CPL's then standard distributor pricing for the
Territory.
6.2 PAYMENTS. Payments to CPL for Products and service parts ordered by
MGC shall be made in U.S. dollars by wire (telegraphic transfer) or
(ACH) Automatic Clearing House transfer to the bank(s) designated by
CPL payable within sixty (60) calendar days of invoice date from CPL.
Any payment for delivered Products not made when due shall bear
interest at the lesser of 8% per annum or the highest rate permitted
by applicable law.
6.3 TERMS FOR DEMONSTRATION EQUIPMENT. Payment for the demonstration
equipment will be payable by June 30, 1997.
7 CONFIDENTIAL INFORMATION
7.1 MGC shall hold the CPL Proprietary Information in strict confidence
and shall not disclose any of the Proprietary Information to any
person except in accordance with clause 7.3 or in any other case, on
receiving the prior written consent of CPL.
7.2 MGC shall only use the CPL Proprietary Information as is necessary to
carry out the distribution of the Products and in particular MGC will
not use any CPL Proprietary Information to MGC's own advantage or to
the competitive disadvantage of CPL.
7.3 MGC may disclose the CPL Proprietary Information to such persons who
must have access to the information in connection with distribution
of the Products and who have first executed a confidentiality
undertaking in CPL's favour in a form acceptable to CPL.
7
7.4 The obligations and restrictions of confidentiality imposed on MGC
under this Agreement survive termination of this Agreement for any
reason whatsoever and only terminate with respect to a part of the
information when one of the conditions of clause 7.5 applies to that
part.
7.5 The provisions of clause 7.1 and 7.2 do not apply to:
(a) information after it has entered into the public domain other
than because of a breach of confidence by MGC or a breach of this
Agreement by MGC;
(b) the use or disclosure of information after MGC has received that
information from a third party legally entitled to possess such
information and provide it to MGC where such use or disclosure
accords with the rights or permission lawfully granted to MGC by
that third person; and
(c) the disclosure by MGC of the minimum information necessary in
order to comply with any applicable law or legally binding order
of any governmental agency.
7.6 Prior to any use or disclosure in reliance on clause 7.5 (c), MGC
shall give notice to CPL of the full details of the circumstances of
the proposed use or disclosure and of the relevant information to be
used or disclosed. MGC shall give CPL a reasonable opportunity to:
(a) challenge in a court of law or other appropriate body whether the
proposed use of disclosure is in accordance with clause 7.5 (c);
(b) minimize the amount of information which is disclosed; and
(c) request that the information only be disclosed on confidential
terms.
7.7 On expiration or termination of this Agreement for any reason
whatsoever or immediately on demand by CPL, MGC shall:
(a) return to CPL all documents, reports, notes, memoranda, computer
media or other material which record, contain or relate in any
way to the CPL Proprietary Information (including all copies) and
which were provided to or obtained by MGC or prepared by MGC as a
result of or in connection with the performance of this Agreement
or the Products;
(b) delete entirely and permanently all of the CPL Proprietary
Information from every computer disk or tape or electronic
storage facility of any tape owned or used by MGC; and
8
(c) despite anything else in this Agreement seeks to make use of the
CPL Proprietary Information or any part of it for any purpose;
and shall confirm in writing promptly when it has complied with these
obligations.
8 INTELLECTUAL PROPERTY RIGHTS
8.1 NON-WAIVER. Nothing in this Agreement shall be construed as a grant
of any interest or right in the patents, technology, trade secrets,
know-how or other intellectual property of CPL including with respect
to the Products or future Products.
8.2 TRADE MARKS AND TRADE NAMES. MGC shall not acquire, and specifically
disclaims, unless otherwise specifically agreed in writing, any right
or licenses in the name "Compumedics", or the name of any CPL
affiliate, or any names or numbers related to the Products, or other
products of CPL or its affiliates, or any other CPL or affiliate
trademark or service xxxx, all of which are and shall remain the sole
and exclusive property of CPL or its affiliates; provided, however,
that CPL grants to MGC the limited right and license to use the trade
names and numbers of Products for the purposes of this Agreement.
8.3 DEFENSE OF RIGHTS. To the extent CPL becomes aware, or has reason to
believe, that any patent, copyright, trademark, trade secret or other
intellectual property right relating to any of the Products, are
being infringed or otherwise used by any other person, CPL shall
promptly notify MGC, and to the extent known of the material facts
constituting the basis thereof. CPL shall, at its own expense, act
as it sees fit to cause any such infringement or use to cease on a
basis that results in the continued exclusive availability of the
Products to MGC.
8.4 SURVIVAL. The provisions of Paragraphs 8.1 and 8.2 shall survive any
termination or expiration of the Agreement.
9 WARRANTIES
9.1 GENERAL WARRANTIES. The parties mutually warrant that they have full
power and authority to enter into this Agreement and that it does not
conflict with any other agreements to which they are a party. CPL
warrants that, to the best of its knowledge and belief, it owns or
licenses all intellectual property contained in the Products, and
that it knows of no third party claims which challenge its right to
make or sell the Products.
9
9.2 PRODUCT WARRANTY. CPL represents and warrants to MGC, for the
benefit of MGC's customers, that any Product delivered to MGC
pursuant to this Agreement at time of delivery, complies with all
laws, rules and regulations applicable to the requirements for
design, manufacturing, packaging and labeling of the finished product
in the Territory, including current FDA Good Manufacturing/Quality
System Regulations and UL 2601.1 safety approval requirements. CPL
will possess a valid 510(k) marketing clearance for the Products, and
that such Products otherwise comply with all FDA requirements
including Medical Device Reporting.
CPL further represents and warrants that Product delivered to MGC
shall be new and unused and shall be free from defects in material
and workmanship for at least 12 months from the date of installation
at a MGC customer's location.
The warranty against defects shall be in force for the shorter of the
period ending 12 months from the date the corresponding Product is
installed at a MGC customer location or for a period ending 15 months
from the date of delivery of the corresponding Product to MGC. If
MGC makes a claim with respect to this warranty it shall notify CPL
in a timely manner and CPL shall perform as described in Paragraph
3.2, provided that the failure of MGC to give timely notice shall not
affect its rights except to the extent that CPL demonstrates that a
material substantive or procedural rights was materially impaired by
such failure. CPL shall honor claims of MGC's customers under this
warranty.
9.3 MGC'S OBLIGATION. Upon installation of the Product, MGC shall
complete and return to CPL an installation report, provided by CPL.
MGC shall give written notice to GPL of defective Product and parts
covered by this warranty. MGC shall be responsible for removing the
defective Product part and returning such part to CPL, per CPL's
prearranged return authorization instructions, at CPL's expense, with
all shipping and insurance charges prepaid by CPL. All service costs
and shipping costs on the return of the Products, not covered by the
warranty, shall be paid by MGC.
9.4 SCOPE OF WARRANTY. THIS WARRANTY AND THE PROVISIONS OF SECTION 4.1
IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. EXCEPT AS PROVIDED IN PARAGRAPH 3.2 AND THIS
SECTION 9, CPL SHALL HAVE NO FURTHER OBLIGATION OR LIABILITY WITH
RESPECT TO THE PRODUCT OR ITS SALE, OPERATION AND USE, AND CPL
NEITHER ASSUMES, NOR AUTHORIZES THE ASSUMPTION OF, ANY OBLIGATION OR
LIABILITY IN CONNECTION WITH SUCH PRODUCT.
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9.5 COMPLAINTS. Each party will promptly notify the other of complaints
received concerning the Products, and MGC will, in consultation with
CPL, determine the appropriate action(s) in compliance with all
Medical Device Reporting requirements of the Safe Medical Devices Act
of 1990 and the FDA regulations promulgated thereunder. A copy of
each Medical Device Report to be submitted by CPL shall be delivered
to MGC at least two business days prior to its submission to the FDA.
9.6 INSURANCE. Each party warrants to the other that it is currently
insured and covenants that at all times during the term of this
Agreement it will maintain a comprehensive general liability
insurance policy which (i) sufficient to adequately protect against
risks associated with its ongoing business, including the risks which
might possibly arise in connection with the transactions contemplated
by this Agreement, and (ii) provides that it cannot be terminated or
canceled without giving the other party 30 days prior written notice.
Proof of such insurance shall be provided to one party by the other.
9.7 SERVICE SUPPORT. MGC shall be responsible for installation, operator
training and ongoing service for all Products that it shall sell
during the Term of this Agreement as provided in Paragraph 3.2. CPL
shall provide necessary technical support to MGC for the production
of new operator and service manuals.
9.8 REMEDIES FOR BREACH OF WARRANTY. The remedies provided in this
Section 9 are MGC's SOLE and EXCLUSIVE REMEDIES for the breach of
this warranty. In no event shall CPL be liable for (a) damages,
including without limitations incidental, collateral, or
consequential damages, or (b) repair or replacement costs incurred
without it prior written consent.
10 INDEMNIFICATION
10.1 INDEMNIFICATION BY MGC. MGC shall and does hereby agree to indemnify
and hold harmless CPL and its affiliates from any and all liability,
loss, cost, injury, damage, demand and expense (including, without
limitation, reasonable attorneys' fees) of any kind whatsoever
arising out of, on account of, or in connection with (a) any
instruction, specification or labeling supplied by MGC regarding the
Product, unless CPL has concurred with such instruction,
specification or labeling in writing; (b) any modification of the
Product or parts therefor by MGC not approved in writing by CPL; 1(c)
any combination of the Products by MGC with any product or
accessories without prior written approval of CPL; (d) any use of the
Product by MGC in a manner other than as prescribed in writing by
CPL; or (e) any distribution, marketing, sale, installation,
servicing or repair of the Product by MGC not consistent with any
direction received from CPL. In no event shall MGC be liable for any
special, consequential or indirect loss or damages,
11
including, but not limited to, loss of revenue, cost of capital,
claims of customers for service interruption, and costs incurred in
connection with substitute facilities or supply sources suffered by
CPL arising out of said action, including restraining orders or
injunctions. This indemnity shall not be affected or terminated by
reason of the termination or expiration of this Agreement.
10.2 INDEMNIFICATION BY CPL. CPL shall and hereby does agree to indemnify
and hold harmless MGC and its affiliates from and against any and all
liability, loss, cost, injury, damage, demand and expense (including,
without limitation, reasonable attorneys' fees) of any kind
whatsoever arising out of, on account of, or in connection with (a)
any design, assembly or manufacturing defect or failure of any
Product, and (b) any infringement of any third parties' intellectual
property rights (including, without limitation, any patent, trademark
or copyright) arising directly from the distribution of Products by
MGC in the Territory, in accordance with this Agreement, in the form
as supplied by CPL. Should any claim or allegations of infringement
be received by MGC, MGC shall immediately notify CPL and shall
cooperate (provided that such cooperation does not require MGC to
incur costs or expenses) with CPL in promptly resolving the matter.
However, in no event shall CPL be liable for any special,
consequential or indirect loss or damages, including, but not limited
to, loss of revenue, cost of capital, claims of customers for service
interruption, and costs incurred in connection with substitute
facilities or supply sources suffered by MGC arising out of said
action, including restraining orders or injunctions. This indemnity
shall not be affected or terminated by reason of the termination or
expiration of this Agreement.
10.3 COOPERATION AMONG CPL AND MGC. CPL and MGC shall fully cooperate
with each other (at the cost and expense of the party requesting the
cooperation):
(a) in the defense of any action brought by a third party against one
or the other of them or both of them based upon the claims
contemplated by paragraph 10.1 or 10.2 above; and
(b) in seeking to secure licenses from such third parties who may be
asserting that the Products or parts thereof infringe their
patent or other intellectual property rights, which licenses
shall be on terms acceptable to CPL (the relevant license fee
shall be borne by CPL).
10.4 LIMITATION OF LIABILITY
ANYTHING HEREIN TO THE CONTRARY NOTWITHSTANDING, IN NO EVENT SHALL
EITHER PARTY (CPL OR MGC) OR THEIR AFFILIATES BE LIABLE TO THE OTHER
OR ITS AFFILIATES FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY
OR PUNITIVE DAMAGES OR ANY LOST PROFITS OR LOST OPPORTUNITIES,
12
DIRECTLY OR INDIRECTLY ARISING FROM THE PERFORMANCE, FAILURE TO
PERFORM, OR BREACH OF THIS AGREEMENT.
11 REGULATORY COMPLIANCE
11.1 FDA COMPLIANCE. CPL shall be responsible to ensure that the
marketing clearance, design and production of the Products conform to
the laws and regulations administered by the U.S. Food and Drug
Administration ("FDA") including FDA Good Manufacturing (GMP) and
Quality System Regulation (QSR) requirements. MGC shall use its best
efforts to assist CPL in such compliance (provided that such
assistance does not require MGC to incur costs or expenses).
CPL appoints MGC as its agent within the Territory for collecting
Product failure data, reports of adverse events and customer
complaints involving the Products as required by the rules of the
FDA, and MGC accepts such appointment. MGC shall provide CPL with a
monthly summary of product failures known to MGC in the format which
CPL shall specify and MGC shall promptly notify CPL of all reports of
actual or threatened permanent injury or death attributed to the
Products and known to MGC and all complaints received by MGC from
customers regarding the Products.
MGC shall have the right, at its own expense, to conduct periodic
GMP/QSR inspections of CPL's manufacturing facilities to confirm
compliance with the foregoing and the representations in Paragraph
9.2. CPL will notify MGC within fourteen (14) days on any inspection
reports or warning letters received from the FDA relating to the
Products.
11.2 NON-FDA COMPLIANCE. MGC shall be responsible for complying with any
laws, regulations or rules, other than those administered by the FDA,
which may be applicable to the marketing, selling or servicing of the
Product in the Territory, with the exception of UL 2601.1 safety
approval as described in Section 4.8.
11.3 ISO 9001. MGC shall have the right, at its own expense, to conduct
periodic inspections and to gather information regarding CPL's
manufacturing practices to confirm compliance with ISO 9001
requirements.
12 TERM AND TERMINATION
12.1 TERM. This Agreement shall go into force April 1, 1997 (the
"Effective Date") and shall continue in force from the Effective Date
hereof for an "Initial Term" of three (3) years, and shall renew
automatically thereafter, year by year, for an "Extended Term" of one
year, unless sooner terminated by either party as provided herein.
13
12.2 TERMINATION WITHOUT CAUSE. Either Party may terminate this agreement
without cause by written notice to the other party given not less
than three (3) months prior to the end of the Initial Term, or three
(3) months prior to the end of the then-current Extended Term.
12.3 TERMINATION WITH CAUSE.
(a) In the event that the ability of one party (the "Changed Party")
to comply fully with the terms of this Agreement ceases or, in
the reasonable judgment of the other party, is substantially and
adversely altered, in each case, as a consequence of (i) any
action taken by governmental, judicial or any other legal
authority; or (ii) a substantial change in the financial
condition, ownership, or control of the Changed Party, the other
party shall have the right to terminate this Agreement with
immediate effect upon written notice to the Changed party.
(b) In the event that any material breach by one party occurs and
remains uncorrected ninety (90) calendar days after written
notice by the other party to the breaching party that such a
breach exists, the non-breaching party will have the right to
terminate this Agreement with immediate effect after such ninety
(90) day period.
12.4 EFFECT OF TERMINATION. In addition to the survival of specific
provisions as provided elsewhere in this Agreement, the following
shall apply in the event of termination:
(a) MGC's payment obligations hereunder shall survive until fully
discharged;
(b) unless CPL repurchases such Products from MGC, MGC may continue
marketing of the Product units in its inventory on a non-
exclusive basis after termination until such inventory is
exhausted; and
(c) For a period of one calendar year following the termination of
this Agreement, MGC shall have the right to continue providing
repair and replacement services to customers which have purchased
Products from MGC, and CPL shall continue to provide to MGC
repair, replacement and service parts for such Products upon the
same terms and conditions, including CPL warranty obligations and
price, as set forth in this Agreement.
13 MISCELLANEOUS PROVISIONS
13.1 FORCE MAJEURE. If the performance of any obligation hereunder
(except for the making of payments) is restricted, prevented or
interfered with by any reason or
14
force majeure, such performance shall be excused and such excuse
shall continue as long as the condition constituting such force
majeure continues, plus 30 days after the termination of such
condition; provided that the party whose performance is postponed by
such an event shall exert its best reasonable business efforts to
remove such obstacle. For the purposes of this Agreement, force
majeure is defined as follows: Causes beyond the reasonable control
of CPL or MGC, including acts of God, acts, compliance with
regulations, laws, administrative rulings, recommendations or
sanctions of any government or governmental agency (including,
without limitation, the FDA), civil commotion, destruction of
production facilities or material by fire, earthquake or storm,
epidemics and failure of public utilities.
13.2 INDEPENDENT CONTRACTORS. MGC and CPL are independent contractors
under the terms of this Agreement and neither may or shall act as an
agent or legal representative of the other for any purpose and
neither has any right or authority to assume or create any obligation
of any kind, express or implied, on behalf of the other or bind the
other.
13.3 ASSIGNMENT. Neither party shall have the right to assign or transfer
its rights under this Agreement in whole or in part, by operation of
law, or otherwise, without the prior written consent of the other
party, and any such attempted assignment without such consent shall
be void, except that MGC shall as a part of any internal business or
corporate restructuring have the right to assign this Agreement and
any rights hereunder to any affiliate of MGC or to a purchaser of the
entire business of MGC to which this Agreement pertains, or to a
purchaser of a major part of the assets of MGC's business to which
this Agreement pertains, without the prior written consent of CPL.
13.4 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the parties and supersedes and cancels all prior
agreements and understandings, if any, between the parties concerning
the subject matter hereof.
13.5 SEVERABILITY. Should any provision of this Agreement be finally
determined to contravene any applicable law or governmental
regulation, thereupon such provision shall be automatically
terminated and performance thereof by both parties waived, or should
such provision be considered by either party to be an essential
element of this Agreement, the parties hereto shall negotiate a new
lawful provision consistent with the original intent and agreement of
the parties.
13.6 GOVERNING LAW. The parties hereto agree that, to the extent that any
dispute arises out of this Agreement, any action or proceedings
initiated by MGC with respect to any such claims shall be governed in
all respects by the laws of the State of Victoria, Australia and any
action or proceedings initiated by CPL with respect to
15
any such claims shall be governed in all respects by the laws of the
State of Minnesota, excluding all choice of law rules and excluding
the United Nations Convention of the Sale of Goods.
13.7 AMENDMENT. This Agreement may only be amended or modified in
writing, signed by duly authorized persons of each party.
13.8 NOTICES. All notices and other communications hereunder shall be in
writing and shall be deemed delivered upon (a) personal delivery in
hand, (b) 24 hours after transmission by telefax, if receipt is
confirmed by telephone call to the recipient addressee, (c) 3 days
after deposit, charges prepaid, with a recognized international
courier, or (d) five (5) days after deposit in the mail, registered
or certified mail, charges prepaid, addressed to the parties at their
respective addresses specified herein:
If to MGC:
Medical Graphics Corporation
000 Xxx Xxxxx Xxxxxxx
Xx. Xxxx, Xxxxxxxxx 00000-0000
Attention: Xxxxxxxxxxx Xxxxxxxxx
Telefax: (000) 000-0000
Telephone: (000) 000-0000
if to Compumedics:
Compumedics Pty., Ltd.
0 Xxxxxx Xxxxxx
Xxxxxxxxxx XXX 0000
Xxxxxxxxx
Attention: Xxxxx Xxxxxx
Telefax: (000) 0000 0000
Telephone: (000) 0000 0000
or to such other addresses as may be specified in the same manner by
the respective party by written notice.
13.9 PROCEEDINGS. The parties hereto agree that, to the extent that any
dispute arises out of this Agreement, any action or proceedings
initiated by MGC with respect to any such claims shall be under the
jurisdiction of the courts of Victoria and the Commonwealth of
Australia, located in Melbourne, Australia. Any action or
proceedings initiated by CPL shall be under the jurisdiction of the
state and federal courts located in the State of Minnesota, U.S.A.
The parties irrevocably waive, to
16
the fullest extent permitted by law, any objection which it may now
or hereafter have to the laying of venue of any such suit, action or
proceeding brought in any such court and any claim that any such
suit, action or proceeding brought in such a court has been brought
in an inconvenient forum. The prevailing party in any such
proceeding shall be entitled to recover from the other its costs and
expenses, including reasonable attorneys' fees, incurred in
connection with such proceeding.
13.10 COUNTERPARTS. This Agreement may be executed in two or more
counterparts and each such counterpart shall be deemed an original
hereof.
SIGNATURES
For COMPUMEDICS PTY., LTD.:
By: /s/ Xxxxx Xxxxxx
------------------------------------------------------
Title: Managing Director
---------------------------------------------------
For MEDICAL GRAPHICS CORPORATION:
By: /s Xxxxxxxxxxx Xxxxxxxxxx
------------------------------------------------------
Title: Senior Vice President, Sales and Marketing
---------------------------------------------------
17
ATTACHMENT
PRODUCTS
A S-Series Unit consists of the Preamplifier Assembly, an A/D and a DSP Board,
S-Series On-line software and Replay software. The Preamplifier Assembly
includes a head box and interface cable. An additional Preamplifier Assembly
may be purchased for each S-Series system (providing 2-bed operation). On-line
and Replay software may also be purchased separately to accommodate networked,
multi-bed installations.
The Agreement also covers all future S-Series products, including S-Series
telemetry based products to be developed by CPL.
18
ATTACHMENT B
PRICING
Pricing for first year of the Term (and thereafter in accordance with paragraph
6.1).
A purchased S-Series Unit consists of the Preamplifier Assembly, an A/D-DSP
Board, S-Series On-line software and Replay software. An additional
Preamplifier Assembly may be purchased for each S-Series system (providing 2-bed
operation).
Purchase price, in U.S. dollars, charged to MGC by CPL, excluding all duties,
freight and insurance costs, which shall be paid by MGC, is as follows:
S-Series Hardware and Software
S-Series Preamplifier Assembly [CONFIDENTIAL TREATMENT REQUESTED]
A/D and DSP Boards [CONFIDENTIAL TREATMENT REQUESTED]
Combined On-line and Replay Software [CONFIDENTIAL TREATMENT REQUESTED]
Stand alone Replay Software [CONFIDENTIAL TREATMENT REQUESTED]
19
ATTACHMENT C
RETURN GOODS PROCEDURE
To be Provided by CPL.
20
OEM DISTRIBUTION MEMORANDUM OF UNDERSTANDING (ODMOU)
BETWEEN COMPUMEDICS SLEEP (CS) PTY LTD AND
MEDICAL GRAPHICS CORPORATION (MGC). USA
1. Compumedics grant MGC non-exclusive distribution rights of CS P-Series
products for the Hospital Products market in USA, under similar terms and
conditions to the existent MGC and CS S-Series OEM Distribution Agreement
dated April 7, 1997.
2. MGC have limited access to CS P-Series products for the USA Home Market on
a basis of supplying to valued customers or special case research reference
sites.
3. The pricing of AUD$[CONFIDENTIAL TREATMENT REQUESTED] will apply for
Special P-Series Package Pricing (which consists of 1 X P-Series plus 4X
software licenses each containing Remote, P-Manager, Replay) when orders
are greater than or equal to the following listed P-Series quantities;
2. The execution of this ODMOU will constitute an order for [CONFIDENTIAL
TREATMENT REQUESTED units for Quarter 1 of 1998. The payment terms of this
order will be extended for 30 days greater than the standard terms of
payment per the above mentioned OEM Agreement. This extended payment term
is a one of provision to allow for the delays in start-up documentation
relating to the ODMOU.
3. Quarter 2 of 1998-[CONFIDENTIAL TREATMENT REQUESTED] units
4. Quarter 3 of 1998-[CONFIDENTIAL TREATMENT REQUESTED] units
5. Quarter 4 of 1998-[CONFIDENTIAL TREATMENT REQUESTED] units
6. Quarter 5 of 1999-[CONFIDENTIAL TREATMENT REQUESTED] units
7. Quarter 6 of 1999-[CONFIDENTIAL TREATMENT REQUESTED] units
8. Quarter 7 of 1999-[CONFIDENTIAL TREATMENT REQUESTED] units
9. Quarter 8 of 1999-[CONFIDENTIAL TREATMENT REQUESTED] units
10. Quarter 9 of 2000-[CONFIDENTIAL TREATMENT REQUESTED] units
11. Quarter 10 of 2000-[CONFIDENTIAL TREATMENT REQUESTED] units
12. Quarter 11 of 2000-[CONFIDENTIAL TREATMENT REQUESTED] units
13. Quarter 12 of 2000-[CONFIDENTIAL TREATMENT REQUESTED] units
Note 1. Where each unit refers to [CONFIDENTIAL TREATMENT REQUESTED] for
Special P-Series Package which consists of Z P-Series plus 4 X software
licenses each containing Remote, P-Manager, Replay.
Note 2: Prior to the closing of each calendar month the ordering
requirements for the next month will be confirmed in writing to CS
Operational Manager to allow appropriate production planning time.
4. Where the ordering quantities do not conform to quantities as outlined in
section 3 above, then standard International prices ([CONFIDENTIAL
TREATMENT REQUESTED]% discount from list price) will apply.
5. MGC will provide master support, training and warranty for CS P-Series and
S-Series products for RM (as outlined in SMOU Agreement).
6. MGC will pay RM a [CONFIDENTIAL TREATMENT REQUESTED]% spotting fee as
determined by a separate Spotting Fee Agreement (SFMOU) between the two
Parties RM and MGC, for RM initiated S-Series and P-Series Hospital Market
leads, whcih eventuate as MGC sales.
7. RM will reciprocate section 6 above by paying MGC a [CONFIDENTIAL TREATMENT
REQUESTED]% spotting fee as determined by a separate Spotting Fee Agreement
(SFMOU) between the two Parties RM and MGC, for MGC initiated S-Series and
P-Series Home Market leads, which eventuate as RM sales.
8. MGC's compliance with the terms of this agreement will provide MGC with the
exclusive OEM distribution of any replacement product.
We the undersigned agree to points 1 to 8 above.
/s/ Xxxxx Xxxxx /s/ Xxxxx Xxxxxx
------------------------------ -------------------------------------------
Xx. Xxxxx Xxxxx Xxxxx Xxxxxx
Medical Graphics Corporation Managing Director, Compumedics Sleep Pty Ltd
Dated: 7th December, 1997 Date: 7th December, 1997
21
ADDENDUM TO OEM DISTRIBUTION AGREEMENT AND
MEMORANDUM OF UNDERSTANDING BETWEEN
COMPUMEDICS SLEEP PTY. LTD.
AND MEDICAL GRAPHICS CORPORATION
DECEMBER 1, 1998
This Addendum, dated December 1, 1998, is made by and between Medical
Graphics Corporation (MGC) and Compumedics Sleep Pty. Ltd. (Compumedics).
Provisions within supersede all other documents related to transfer pricing
for products purchased by MGC from Compumedics. This addendum serves to
modify these specific items listed. All other provisions of the Agreement
(April 7, 1997), Amendment to Agreement (June 1, 1997), and Memorandum of
Understanding (December 7, 1997) remain in effect.
1. Pricing - Effective December 1, 1998, the transfer pricing for Compumedics
products sold to MGC is as follows. Furthermore, any of these systems
which are currently on order, and have not been shipped, will be invoiced
at these prices. For any system currently on order, which has been shipped
prior to the date of this Agreement, the Old Transfer Pricing will apply.
PS~QUEST (S-SERIES) PRICING MGC/COMPUMEDICS OLD TRANSFER NEW TRANSFER CHANGE
PART NUMBERS PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------------
SLEEP SYSTEM HARDWARE 790146-00 & [CONFIDENTIAL TREATMENT REQUESTED]
700965-001
Preamplifier Model 111, with 11 AC-isolated SYS-SLPOEMITEM2
preamplifier boards for EEG, ECG, EMG, EOG;
specific boards for microphone, respiratory
effort, airflow, SAO, and patient position;
Patient Interface Box
Preamplifier Model 121, 18-Channel with 6 AC- Pending [CONFIDENTIAL TREATMENT REQUESTED]
isolated preamplifier boards for EEG, ECG, EMG,
EOG; specific boards for microphone,
respiratory effort, airflow, SAO, and patient
position; Patient Interface Box
Preamplifier Model 121, 24-Channel with 11 AC- 790146-101/ [CONFIDENTIAL TREATMENT REQUESTED]
isolated preamplifier boards for EEG, ECG, EMG, SYS-SLPOEMITEM3
EOG; specific boards for microphone,
respiratory effort, airflow, CPAP pressure,
SAO, and patient position; Patient Interface
Box
One (1) A-to-D & DSP Board Set 753074-001 SW- [CONFIDENTIAL TREATMENT REQUESTED]
SYS-SLPITEM17
SLEEP SYSTEM SOFTWARE
22
PS~QUEST (S-SERIES) PRICING MGC/COMPUMEDICS OLD TRANSFER NEW TRANSFER CHANGE
PART NUMBERS PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------------
PS-Quest Workstation Software with License: 790133-001 SW- [CONFIDENTIAL TREATMENT REQUESTED]
Polygraph, Replay and Data Manager for Windows PKCMWWKSTN200EM
NT
PS-Quest Reader Station Software with License: 790134-001 [CONFIDENTIAL TREATMENT REQUESTED]
Replay and Data Manager for Windows NT SW-PKCMWREAD2.00EM
PS-Quest Viewing Station Software with License: 790141-001 [CONFIDENTIAL TREATMENT REQUESTED]
Replay and Data Manager for Windows NT SW-PKCMWREADL200EM
Time-Synchronized Video Monitoring Software for 149028-001 [CONFIDENTIAL TREATMENT REQUESTED]
PS-Tracker Reader Station
SLEEP SYSTEM HARDWARE
PS~Tracker Main Unit (18 channels), Patient 790143-001 [CONFIDENTIAL TREATMENT REQUESTED]
Interface Box and cable, 2-Ni-MN batteries & SYS-PS2ITEM1B
charger, 20MB memory card, protective leather
case, carrying case, D.C. power supply, serial
lead, oximeter probe and PS~Tracker Sensor Pak
(includes reusable sensors and probes)
PS~Tracker Main Unit (18 channels), Patient 790143-001 [CONFIDENTIAL TREATMENT REQUESTED]
Interface Box and cable, 2-Ni-MN batteries & SYS-PS2ITEM4-1U &
charger, 20MB memory card, protective leather SYS-PS2ITEM1B
case, carrying case, D.C. power supply, serial
lead, oximeter probe and PS~Tracker Sensor Pak
(includes reusable sensors and probes) with
PS~Tracker Reader Station Software with License
and Operator Manuals: Portable Manager,
Portable Monitoring, Replay/Analysis and Data
Manager for Windows 95
SLEEP SYSTEM SOFTWARE
PS~Tracker Reader Station Software with License 790143-001 [CONFIDENTIAL TREATMENT REQUESTED]
and Operator Manuals: Portable Manager, SW-PKCMWREAD2.00EM+
Portable Monitoring, Replay Analysis and Data SYS-PS2ITEM4A+
Manager for Windows 95 SYS-PS2ITEM4B
PS~Tracker Software with License and Operator 000000-000 [CONFIDENTIAL TREATMENT REQUESTED]
Manuals: Portable Manager and Portable SYS-PS2ITEM4A+
Monitoring SYS-PS2ITEM4B
23
PS~QUEST (S-SERIES) PRICING MGC/COMPUMEDICS OLD TRANSFER NEW TRANSFER CHANGE
PART NUMBERS PRICE PRICE
---------------------------------------------------------------------------------------------------------------------------------
PS~Tracker Physician Viewing Station Software 790141-001 [CONFIDENTIAL TREATMENT REQUESTED]
with License: Replay and Data Manager for SW-PKCMWREADL2.00EM
Windows 95
Time-Synchronized Video Monitoring Software for 149028-001 [CONFIDENTIAL TREATMENT REQUESTED]
PS~Tracker Reader Station
2. Territory - MGC maintains exclusive distribution rights for all S~Series
products in all hospital, clinics, physician offices, and free-standing
sleep centers in the United States. Additionally, MGC has exclusive rights
to sell the P-series in the hospital marketplace and non-exclusive rights
to sell the P-series in clinics, physician offices, and free-standing sleep
centers.
3. TERM AND TERMINATION - This Agreement remains in effect per the original
Agreement (April 6, 2000) and MOU (December 6, 2000). It shall renew
automatically thereafter, year by year, for an "Extended Term" of one year,
unless sooner terminated by either party as provided herein.
(a) In the event that either MGC or Compumedics fails to comply fully
with the terms of this Agreement, the other party shall have the
right to terminate this Agreement with immediate effect upon
written notice to the other.
(b) In the event MGC does not meet agreed upon sales minimums for any
90 day period, Compumedics may cancel the Agreement upon 90 day
written notice. Minimum sales volume is as follows:
Period November 19, 1998 to June 30, 1999 - $[CONFIDENTIAL
TREATMENT REQUESTED] million USD inclusive of current back
orders.
Period July 1, 1999 to December 31, 1999 - $[CONFIDENTIAL
TREATMENT REQUESTED] million USD
4. EFFECT OF TERMINATION - In addition to the survival of specific provisions
as provided elsewhere in this Agreement, the following shall apply in the
event of termination:
(a) MGC's payment obligations hereunder shall survive until fully
discharged;
24
(b) Unless Compumedics repurchases such Products from MGC, MGC may
continue marketing of the Product units in its inventory on a
non-exclusive basis after termination until such inventory is
exhausted; and
(c) For a period of one calendar year following the termination of
this Agreement, MGC shall have the right to continue providing
repair and replacement services to customers which have purchased
Products from MGC, and Compumedics shall continue to provide to
MGC repair, replacement and service parts for such Products upon
the same terms and conditions, including Compumedics warranty
obligations and price, as set forth in this Agreement.
5. CUSTOMER SUPPORT FOR P~SERIES SYSTEMS NOT SOLD BY MGC - MGC will provided
training, installation, technical phone support, and warranty repair for
future customers of Compumedics products sold through other distribution in
the United States per the following:
- Training - $[CONFIDENTIAL TREATMENT REQUESTED] per 3 day class. Up
to 3 persons can attend the class per customer site. (Expense for
travel are the customers responsibility as are not included in the
price.
- Installation, technical phone support, and warranty repair -
$[CONFIDENTIAL TREATMENT REQUESTED] per P~System. Support will be
provided for only Compumedics hardware and software. Support is NOT
included for computer hardware or software networking, or any
peripherals.
6. CUSTOMER SUPPORT FOR RESMED P~SYSTEMS SOLD PRIOR TO THIS AGREEMENT - MGC
will provide technical phone support and warranty repair for customers that
purchased P-Series systems from Resmed Corporation and those customers
provided equipment for the Sleep Heart Health Study (SHHS) at the service
rates stated below:
- Phone support - $[CONFIDENTIAL TREATMENT REQUESTED] per occurrence
- Repair - $[CONFIDENTIAL TREATMENT REQUESTED] per hour plus parts
- Loaner - $[CONFIDENTIAL TREATMENT REQUESTED]/month plus shipping
(minimum 30 days)
Invoicing will be to Compumedics for warranty service. Customer may choose
to have service contract quoted from MGC.
7. ESTABLISHMENT OF COMPUMEDICS USA BASE - MGC will make available to
Compumedics suitable office and other space at current commercial rates
which will be utilized for Compumedics USA business manager. The
Compumedics Business Manager will maintain a demand management plan
specific to MGC ordering requirements and
25
maintain a sales office to provide support for MGC and all other
distribution outlets in the United States. At an appropriate time and at
a sole discretion of Compumedics this office can be moved from MGC upon 30
days written notice.
We understand and agree to all points stated above.
/s/ Xxxxxxx Xxxxxx
------------------------------------- --------------------------------------
Xxxxxxx Xxxxxx, CEO Date
CEO, Medical Graphics Corporation
/s/ Xxxxx Xxxxxx
------------------------------------- --------------------------------------
Xxxxx Xxxxxx, Managing Director Date
Compumedics Sleep Party
26
ADDENDUM TO OEM DISTRIBUTION AGREEMENT AND
MEMORANDUM OF UNDERSTANDING BETWEEN
COMPUMEDICS SLEEP PTY. LTD.
AND MEDICAL GRAPHICS CORPORATION
MARCH 8, 1999
This Addendum is made by and between Medical Graphics Corporation (MGC) and
Compumedics Sleep Pty. Ltd. (Compumedics). Provisions within supersede all
previous documents related to transfer pricing for products purchased by MGC
from Compumedics. This addendum serves to modify these specific items listed.
All other provisions of the Agreement (April 7, 1997), Amendment to Agreement
(June 1, 1997), and Memorandum of Understanding (December 7, 1997), and the
Memorandum of Understanding (September 1998) remain in effect.
1. Pricing - Effective January 1, 1999 the transfer pricing for Compumedics
products sold to MGC is as follows.
PS~QUEST (S-SERIES) PRICING MGC/COMPUMEDICS OLD TRANSFER NEW TRANSFER CHANGE
PART NUMBERS PRICE PRICE
----------------------------------------------------------------------------------------------------------------------------------
SLEEP SYSTEM HARDWARE 790146-001/ [CONFIDENTIAL TREATMENT REQUESTED]
0000-0000-00
Preamplifier Model 111, with 11 AC-isolated
preamplifier boards for EEG, ECG, EMG, EOG;
specific boards for microphone, respiratory
effort, airflow, SAO, and patient position;
Patient Interface Box
Preamplifier Model 121, 19-Channel with 14 AC- 790607-202 [CONFIDENTIAL TREATMENT REQUESTED]
isolated preamplifier boards for EEG, ECG, EMG, 0000-0000-00
EOG; nasal pressure; Patient Interface Box
Preamplifier Model 121, 24-Channel with 20 AC- 790146-101 [CONFIDENTIAL TREATMENT REQUESTED]
isolated preamplifier boards for EEG, ECG, EMG, 0000-0000-00*
EOG; Nasal pressure; Patient Interface Box
One (1) A-to-D & DSP Board Set 753074-001 [CONFIDENTIAL TREATMENT REQUESTED]
ASY-COMA2D008 &
ASY-XXXXXX000
Inductive Cards, Ver 9, Isolated 0000-0000-00 [CONFIDENTIAL TREATMENT REQUESTED]
SLEEP SYSTEM SOFTWARE
PS-Quest Workstation Software with License: 440130-001/ [CONFIDENTIAL TREATMENT REQUESTED]
Polygraph, Replay and Data Manager for Windows 790133-001
NT
27
PS~QUEST (S-SERIES) PRICING MGC/COMPUMEDICS OLD TRANSFER NEW TRANSFER CHANGE
PART NUMBERS PRICE PRICE
----------------------------------------------------------------------------------------------------------------------------------
PS-Quest Reader Station Software with License: 440130-002/ [CONFIDENTIAL TREATMENT REQUESTED]
Replay and Data Manager for Windows NT 0000-0000-00
PS-Quest Viewing Station Software with License: 440130-103 [CONFIDENTIAL TREATMENT REQUESTED]
Replay and Data Manager for Windows NT 0000-0000-00
Time-Synchronized Video Monitoring Software for 149028-001/ [CONFIDENTIAL TREATMENT REQUESTED]
PS-Tracker Reader Station 0000-0000-00
SLEEP SYSTEM HARDWARE
PS~Tracker Main Unit (18 channels), Patient 790140-001 [CONFIDENTIAL TREATMENT REQUESTED]
Interface Box and cable, 1-Ni-MN batteries & 0000-0000-00
charger, 20MB memory card, protective leather
case, carrying case, serial lead, oximeter
probe and PS~Tracker Sensor Pak (includes
reusable sensors and probes)
PS~Tracker Main Unit (18 channels), Patient 790140-001 & [CONFIDENTIAL TREATMENT REQUESTED]
Interface Box and cable, 1-Ni-MN batteries & 440130-102/
charger, 20MB memory card, protective leather 0000-0000-00 &
case, carrying case, serial lead, oximeter 0000-0000-00
probe and PS~Tracker Sensor Pak (includes
reusable sensors and probes) with PS~Tracker
Reader Station Software with License and
Operator Manuals: Portable Manager, Portable
Monitoring, Replay/Analysis and Data Manager
for Windows 95
PS~Tracker Screener Unit (10 Channels), Patient PENDING/ [CONFIDENTIAL TREATMENT REQUESTED]
Interface Box and cable, 1-Ni-MN battery & 0000-0000-00*
charger, 20 MB memory card, Protective leather 0000-0000-00*
case, carrying case, serial lead, oximeter
probe and Sensor Pack with (1) PS~Tracker WITH PH
Reader Station Software with License and 0000-0000-00*
Operator Manuals: Portable manager, Portable
Monitoring, Replay/Analysis and Data Manager
for Windows 95
SLEEP SYSTEM SOFTWARE
PS~Tracker Reader Station Software with License 440130-102/ [CONFIDENTIAL TREATMENT REQUESTED]
and Operator Manuals: Portable Manager, 0000-0000-00
Portable Monitoring, Replay Analysis and Data
Manager for Windows 95
PS~Tracker Physician Viewing Station Software 440130-103 [CONFIDENTIAL TREATMENT REQUESTED]
with License: Replay and Data Manager for 0000-0000-00
Windows 95
28
PS~QUEST (S-SERIES) PRICING MGC/COMPUMEDICS OLD TRANSFER NEW TRANSFER CHANGE
PART NUMBERS PRICE PRICE
----------------------------------------------------------------------------------------------------------------------------------
Time-Synchronized Video Monitoring Software for 149028-001 [CONFIDENTIAL TREATMENT REQUESTED]
PS~Tracker Reader Station 0000-0000-00
2. MEDICAL GRAPHICS PURCHASES: MGC will purchase the minimum quantities of
product from Compumedics as defined as follows: During the period from
November 19, 1998 to June 30, 1999 MGC will purchase a minimum of
[CONFIDENTIAL TREATMENT REQUESTED] million USD of product. This includes
undelivered product ordered prior to November 19, 1998 and Product ordered
after November 19, 1998.
3. CUSTOMER SUPPORT FOR P-SERIES SYSTEMS NOT SOLD BY MGC: MGC will provide
training, technical phone support, and warranty repair for future customers
of Compumedics products sold through distribution, other than MGC, in the
United States, when specifically requested in advance in writing by
Compumedics, at the following at a rate:
- Training - $[CONFIDENTIAL TREATMENT REQUESTED] per customer per three
day class. Up to three persons can attend the class per customer
site. (Expenses for travel are the customer's responsibility and are
not included in the price.)
- Installation, technical phone support, and warranty repair -
$[CONFIDENTIAL TREATMENT REQUESTED] per P~System. Support will be
provided for all Compumedics products, including hardware and
software. Computers and peripherals will be that which is covered by
the manufacturer's warranty, managed by Medical Graphics service
department.
- Medical Graphics services will be provided at the request of
Compumedics by way of signed purchase order from Compumedics prior to
the commencement of service by Medical Graphics.
- Compumedics will provide MGC with name and pertinent account
information on a monthly basis. MGC will invoice Compumedics monthly
for services provided. Payment will be made due on a net 60 basis.
Payment for warranty will be made on a quarterly basis for each
account.
4. CATALOG PRICING: All transfer pricing not specifically addressed in this
document will be as per the International Price List dated December, 1998.
The effective date for this pricing is April 1, 1999. Any other change in
price requires 90 day written notice by Compumedics.
29
WE THE UNDERSIGNED AGREE TO ALL POINTS STATED ABOVE.
/s/ XXXXXXX XXXXXX
------------------------------------------- ---------------------------------
XXXXXXX XXXXXX, CEO DATE
MEDICAL GRAPHICS CORPORATION
/s/ XXXXX X. XXXXX
------------------------------------------- ---------------------------------
XXXXX X. XXXXX, CEO DATE
COMPUMEDICS US
30
