Exhibit 10.1
THIS AGREEMENT (this "Agreement") is entered into as of this 22nd day of
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November, 2000 between AGILENT TECHNOLOGIES, INC, Inc., a Delaware corporation
(together with its subsidiaries and successors, being collectively, "Agilent"),
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and DATA CRITICAL CORPORATION, a Delaware corporation (together with its
subsidiaries and successors, being collectively, "Data Critical" and together
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with Agilent being collectively, the "Parties" and individually as a "Party").
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The parties agree as follows:
Data Critical's product, StatView(TM), allows in-hospital alarm notification of
waveforms and data from non-integrated servers attached to patient monitoring
systems using one-way UHF based wireless systems. Agilent sells a variety of
patient management central/bedside/telemetry systems to hospitals worldwide.
Agilent desires to integrate the StatView software into the Agilent(TM) Database
Server (Release D), scheduled for release [*], as a customer orderable product
option.
1. Definition/Scope of Licensed Product. The "Integrated StatView Product"
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which is the subject of this agreement shall mean the StatView software
code (consisting of the object code and interface only), administrative
module, and relevant training materials all as and to the extent described
on Exhibit A hereto. As used in this Agreement, the term "enhancement"
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shall mean, with respect to any product, any change or modification to such
product that adds, modifies or changes the functionality of such product,
which change or modification either (a) can be sold by Agilent to the
installed-base end users of the Integrated StatView Product for a material
price or fee, or (b) can be sold by Data Critical to any end users under
current service and support contracts for a material price or fee. The term
"upgrade" shall mean, with respect to any product, any "bug fixes" or other
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functionality or non-functionality changes related to such product that do
not constitute an enhancement.
2. Term. Subject to the remaining provisions of this Section 2, this Agreement
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shall remain in effect for an initial term of three (3) years from January
1, 2001 (the "Effective Date"). The Parties agree to meet prior to the end
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of the fourth quarter of the second year of this Agreement to ascertain
whether Agilent desires to extend the term for an additional year on an
exclusive or non-exclusive basis and, if so, the Parties agree to negotiate
in good faith exclusivity and minimum sales obligations, if any, terms and
pricing for the upcoming year; [*]. If no agreement is reached by the end
of the fourth quarter of the second year of this Agreement notwithstanding
such good faith negotiations, then the license granted to Agilent under
Section 3 shall become nonexclusive and Agilent shall have no minimum
obligations under Section 6 in respect of such third year of this
Agreement. Thereafter, this Agreement shall be subject to renewal annually
for additional one year terms with the consent of, and on such terms as
shall be agreed upon by, both Parties given not less than sixty (60) days
prior to the end of the current term thereof.
3. License.
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3.1 Data Critical hereby grants a worldwide license to Agilent to the
Integrated StatView Product described herein solely for use in
integrating the Integrated Statview Product into a monitoring/central
station network data server. Subject to the following, this license
shall be exclusive for the initial two (2) years of the Agreement and
shall thereafter be non-exclusive, unless otherwise agreed by the
parties pursuant to Section 2; it being acknowledged and agreed that
"exclusivity" for purposes hereof shall mean that no other alliance
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partner of Data Critical will be provided the StatView software code
for the purpose of integrating such software directly on a data server
that supports a monitoring network for one-way UHF based wireless in-
hospital alarm notification of waveforms and data. Without limiting
the foregoing, nothing herein shall be deemed to (a) [*] or (b) [*].
It being further agreed that the license contemplated herein shall
include the non-exclusive right by Agilent and/or their end-users to
use the specific UHF frequencies licensed to Data Critical by the
Federal Communications Commission ("FCC") or the Canadian equivalent
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thereof, and utilized by Data Critical for use with its StatView
product, including, where appropriate, by way of a shared license that
will be provided by Data Critical to Agilent's end users upon
Agilent's request therefor
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* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
on the same terms offered by Data Critical to its end-users. Data
Critical shall use its best commercial efforts to maintain its
existing FCC licenses for use with the Integrated StatView Product.
3.2 Except as expressly otherwise provided herein, Agilent hereby
acknowledges that this Agreement grants no, and Agilent shall claim
no, rights, title or interests in, to or under any of Data Critical's
owned, leased or licensed tangible, intangible, real or intellectual
property, other than the Integrated StatView Product and, subject to
the immediately following provision, any specific receivers or
transmitters purchased by Agilent hereunder.
3.3 Further, Agilent hereby acknowledges and agrees that no license is
being granted hereby to or in respect of any of Data Critical's
hardware or equipment.
3.4 Data Critical shall inform Agilent of those countries, other than the
United States and Canada, in which Data Critical is authorized to use
its StatView product. In the event that (a) Agilent requests the
assistance of Data Critical or the use of any information developed,
attained or provided by Data Critical in connection with acquiring the
FCC (or any similar foreign communications regulatory agency) approval
for the use of its StatView product in any country, including the
United States, in connection an application by Agilent to secure such
regulatory compliance for the Integrated StatView Product, and (b)
Data Critical provides such assistance or information, [*].
Notwithstanding anything in this Section 3.4, if Data Critical applies
for or receives a foreign regulatory license for any of its products
that might be applicable to Agilent, Data Critical will promptly
notify Agilent of same.
3.5 The rights granted hereunder will extend to Agilent Subsidiaries and,
subject to the limitations set forth below, those third party channels
of distributions used by Agilent in the United States and Canada. The
rights granted hereunder will also extend to those Subsidiaries and,
subject to the limitations set forth below, third party channels of
distribution used by Agilent outside of the United States and Canada
which, in each case, are either set forth on Exhibit B attached hereto
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or are from time to time hereafter identified to, and approved by,
Data Critical to avoid conflict with other Data Critical distributors
or partners, which approval shall not unreasonably be withheld.
Notwithstanding the foregoing, each third-party distributor used by
Agilent to distribute the Integrated StatView Product (whether or not
listed on Exhibit B) shall, prior to being authorized by Agilent to
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distribute the Integrated StatView Product:
(a) undertake and covenant directly with Data Critical that
neither such distributor nor such distributor's employees or
agents shall make any representation regarding the functionality
of the Integrated StatView Product, in each case that is
inconsistent with the provisions of Section 10 as set forth
below, the Secondary Nature of the StatView product, the on-
screen notifications described above, the training provided to
such persons by Data Critical, the End User Restrictions (as such
End User Restrictions are described on Exhibit E hereto) or the
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specifications for the Integrated StatView Product performance as
agreed between Data Critical and Agilent; and
(b) execute a waiver and indemnification agreement in form
and substance satisfactory to Data Critical in respect of product
liability claims;
provided, that in the case of any third-party distributor that does
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not comply with clauses (a) and (b) above, such distributor shall be
considered in good faith by Data Critical for approval (which such
approval may be withheld in Data Critical's discretion).
4. License Fees.
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4.1. Agilent shall pay Data Critical a [*] license fee for any Agilent
Information Center system in which the customer has also activated or
purchased the Integrated StatView Product, which fee shall be based on
the aggregate number of [*] licenses purchased by Agilent hereunder as
follows:
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* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
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Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
Aggregate Number of [*]
Licenses Purchased
By Agilent Under this Agreement [*] License Fee
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1-2000 $[*]
2001-4000 $[*]
4001-6000 $[*]
6001 and up $[*]
4.2. All license fees are to be paid quarterly in arrears within 30 days of
the end of the calendar quarter in which Agilent invoices the end user
customer (but in any event, not later than the quarter in which any
product utilizing the Integrated Statview Product is delivered to the
end user customer). Data Critical shall have the right to audit all
license fee computations and supporting documentation.
4.3. The above schedule of license fees shall be negotiated with respect to
years subsequent to the second effective year of this Agreement to the
extent of any renewal hereof in accordance with and subject to Section
2.
4.4. The parties agree that during the pre-release period of the Integrated
StatView Product, Agilent and Data Critical will use their best
commercial efforts to maintain a close working relationship in respect
of the Integrated StatView Product. If during such pre-release period
the parties reasonably and mutually agree that an integration issue
requires technical assistance that must be performed by Data Critical,
then Data Critical will use its best commercial efforts to provide a
solution to such integration issue within three business days and
provide Agilent with the solution for their testing and integration
prior to release of the Integrated StatView Product.
4.5. In addition to the Integrated StatView Product for which Agilent is
paying Data Critical a license fee as defined above, Data Critical
will sell Agilent the receivers and transmitted to be used with the
Integrated Software Product for the following amounts (in each case,
plus applicable taxes and duties):
Receivers $[*]
Transmitters $[*];
provided, that for all periods following the initial term of this
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Agreement, such prices shall be subject to adjustment as shall be
agreed by the parties in connection with the extension hereof; [*].
All other equipment relating the Integrated StatView Product may be
purchased by Agilent from Data Critical at the list price then in
effect with respect thereto. Payment terms for any such purchased
equipment shall be [*]. Data Critical will deliver receivers and
transmitters within [*] days of the submission of the purchase order
thereof; provided, however, that Data Critical shall use its best
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efforts to deliver such items as soon as practicable upon delivery of
an expedited request for shipment from Agilent. Data Critical further
agrees that (a) notwithstanding the foregoing, Data Critical shall not
charge Agilent a transfer price for the receivers and/or the
transmitters [*] and (b) with respect to the transmitters, Data
Critical will, at Agilent's request, allow Agilent to purchase the
transmitters [*]. Data Critical will inform Agilent if the price for
any product to be provided by Data Critical changes downward.
5. Maintenance and Repair.
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5.1. Data Critical shall offer factory-only repair/replacement services,
solely at its own or licensed service facilities, for the Data
Critical proprietary receivers and for the transmitters sold by Data
Critical for use with the Integrated StatView Product after the
expiration of the warranty thereon. Data Critical represents that it
has complete ownership and/or rights of use of the technology and
design of the Data Critical
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* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
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Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
proprietary receivers sold by it for use with the Integrated StatView
Product and all associated rights concerning the manufacture of such
receivers. [*]
5.2. Subject to the foregoing, Data Critical will offer Agilent
repair/replacement services for the receivers and transmitters sold by
Data Critical for use in connection with the Integrated StatView
Product based upon the following pricing schedule (all hardware
repair/replacement payment terms are [*]) (in each case, plus
applicable taxes and duties):
Receivers: $[*] per unit after the [*] warranty period therefor;
and
Transmitters: $[*] Per Unit after the [*] warranty period therefor.
5.3. The hardware repair and/or /replacement process established by Data
Critical pursuant to this Section 5 will involve maximum turnaround
times of [*] days based on no more than [*] Receivers per day for
repair/replacement. Over this number of Receivers will extend the
repair/replacement time to [*] days from date of receipt. [*] Further,
Data Critical understands Agilent's obligation to provide
repair/replacement service to its customers for at least [*] from its
date of purchase. Accordingly, Data Critical will provide or will make
the means available to Agilent to fulfill its obligations to its
customers to provide such service for such time by either providing
repair/ replacement service directly or through a licensed third-party
or [*].
6. Minimum Sales/Purchase Obligation. Agilent shall have an obligation to
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purchase such number of [*] licenses for the Integrated StatView Product
sufficient to provide to Data Critical the minimum aggregate [*] license
fees set forth for the periods below. Concurrent with the commencement of
this Agreement, and at the beginning of each subsequent annual term for
which minimums are owing, Agilent shall deliver to Data Critical a blanket
purchase order for the requisite number of licenses required to meet the
minimum obligations set forth below. If the actual unit sales and/or
activations of the Integrated StatView Product by Agilent to end users
during a given period do not yield the minimum aggregate [*] license fees
outlined below, Agilent shall be deemed, prior to the end of such period,
to have ordered under the blanket purchase order, and Data Critical shall
ship for delivery, such number of [*] licenses (at the respective prices
set forth in Section 4 above) for the Integrated StatView Product
sufficient to provide the shortfall between the license fees resulting from
Agilent's end user sales/activations for such period and the aggregate
minimum license fees set forth below for such period. Agilent shall make
payment for such licenses purchased pursuant to the immediately preceding
sentence within [*] after the last day of the period for which such payment
is owing. By way of example, to the extent the aggregate [*] license fees
from end user sales are less than $[*] in the second quarter of calendar
year 2001 or do not aggregate at least $[*] by the end of such calendar
year, Agilent shall purchase such amount of licenses on the last business
day of such period to provide Data Critical the minimum aggregate license
fee revenues set forth below.
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Calendar Year 2001 Q1, 2001 Q2, 2001 Q3, 2001 Q4, 0000 Xxxxxxxxx for Calendar
Year ending December
31, 2001
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Minimum [*] License $[*] $[*] (exclusive of [*] [*] $[*]
Fees Owing Q1, 2001)
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Calendar Year 2002 Q1, 2002 Q2, 2002 Q3, 2002 Q4, 0000 Xxxxxxxxx for Calendar
Year ending December
31, 2002
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Minimum [*] License [*] [*] [*] [*] $[*]
Fees Owing)
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[*]
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* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
4
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
7. Technology Review.
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7.1. [*] Nothing in this Agreement shall be deemed (a) to prohibit Data
Critical from developing and marketing any such enhanced or new
products or (b) to grant Agilent any rights thereto hereunder.
7.2. Data Critical will provide Agilent with [*] days written notice of any
proposed upgrades, patches or fixes to the Integrated StatView Product
and obtain Agilent's consent prior to making any such upgrades,
changes or fixes directly affecting the Integrated StatView Product
(unless either required by law or required to be made pursuant to the
terms hereof). Nothing in this provision shall be interpreted to
prevent or delay a Party from implementing mandatory safety or other
recalls or from making or implementing any upgrades, patches or fixes
to any product for use by any other party other than by Agilent with
respect to any StatView product.
7.3. Agilent shall give Data Critical at least [*] days' prior written
notice of any required changes to the Integrated StatView Product
resulting from any modification by Agilent to their Bedside System
technology or operations. Any such revisions or modifications to the
Integrated StatView Product or the interface to Agilent's monitoring
systems by Data Critical shall be [*], shall remain the sole property
of Data Critical and shall not, unless otherwise agreed to by the
Parties on mutually agreeable terms (which may be set forth as an
amendment hereto), constitute part of the Integrated StatView Product
licensed hereunder. [*]
8. Product Functionality. Data Critical will, [*], provide software, firmware
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code, hardware and related support necessary to integrate any updates
related to the Integrated StatView Product system.
9. Warranty.
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9.1. Disclaimer. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, DATA CRITICAL
DOES NOT MAKE ANY WARRANTY, AND DATA CRITICAL AND ITS LICENSORS HEREBY
DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT
LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SOFTWARE, HARDWARE,
DOCUMENTATION OR SERVICES TO BE PROVIDED HEREUNDER IN CONNECTION WITH
THE INTEGRATED STATVIEW PRODUCT. DATA CRITICAL FURTHER DISCLAIMS ANY
REPRESENTATION OR WARRANTY WITH RESPECT TO THE ECONOMIC OR OTHER
BENEFIT THAT AGILENT OR ANY OTHER PARTY HERETO MAY OBTAIN THROUGH ITS
PARTICIPATION IN THIS AGREEMENT.
9.2. Hardware Warranty. For a period of [*] from the shipment thereof to
Agilent, Data Critical warrants that its proprietary receivers and, to
the extent purchased directly from Data Critical, the transmitters, in
each case, sold by Data Critical for use with the Integrated StatView
Product will conform to the Data Critical documentation regarding the
Integrated Statview Product, be free from material defects in design
(to the extent such design defect would preclude its use on a stand-
alone, non-integrated basis), material and workmanship (other than any
defect resulting from or occurring as a result of the installation
thereof by Agilent), and free of all liens, encumbrances and other
claims against title (other than those in favor of Data Critical
securing payment for such products). If such a receiver or transmitter
fails to conform to these warranties, [*].
9.3. Software Warranty. Data Critical warrants for a period of [*] from the
date of installation at the customer site that the software comprising
the Integrated StatView Product that is licensed to Agilent hereunder
meets the current specifications related to functionality and
operation as set forth in Exhibit A attached hereto. If such software
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fails to conform to these warranties, Data Critical will use its best
efforts to correct the software and provide Agilent with the revision
for their testing and integration prior to
_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
5
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
Agilent reinstalling or upgrading the software at the customer site.
In the event Data Critical cannot effect such correction to meet the
current specification (a) within [*] after Data Critical has received
notice of such defect from Agilent requesting repair of such
software, in the case of defects that either Agilent or Data Critical
reasonably determine involve patient safety issues, and (b) within
[*] after Data Critical has received notice of such defect from
Agilent requesting repair of such software, in all other cases, then
in each such case [*]. Notwithstanding anything contained in this
Agreement to the contrary, the remedy set forth in the immediately
preceding sentence shall be the exclusive remedy in respect of the
inability of Data Critical to correct any such defect.
9.4. Authority. Data Critical hereby represents and warrants to Agilent
that the execution, delivery and performance by it of this Agreement
will not violate any other distribution, partnership, OEM, alliance
or other similar agreement between Data Critical and any other party.
10. Agilent Acknowledgement and Undertaking. [*]
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11. Regulatory.
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11.1. Data Critical's non-integrated StatView system is currently being
sold pursuant to Section 510-(k) clearance from the FDA. Data
Critical will aid Agilent in developing a separate Agilent FDA (or
any equivalent foreign medical regulatory body) submission for
medical clearance for the Integrated StatView Product portion of
their integrated monitoring device, including aid in providing
product-testing data. Notwithstanding the foregoing, Agilent
acknowledges and agrees that it shall be solely responsible for
attaining and maintaining all regulatory compliance for the
Integrated StatView Product and the related hardware (including the
receivers and transmitters). Data Critical agrees to aid Agilent in
the event of a FDA (or equivalent foreign medical regulatory agency)
recall or other product failure issues relating to the Integrated
StatView Product or Data Critical's proprietary receivers. In
addition Data Critical will aid Agilent, as reasonably requested,
with post market surveillance information and related Medical Device
Records relating to the Integrated StatView Product and/or such
receivers. Agilent will provide Data Critical with any FDA (or
equivalent foreign medical regulatory agency) or customer
failure/safety information relating to the Integrated StatView
Product or the receivers used in connection therewith on a timely
basis. Notwithstanding anything contained herein to the contrary,
Agilent shall provide and make available all information obtained or
prepared by or for Agilent in connection with Agilent's application
for medical regulatory clearance of the Integrated StatView Product
abroad, and Data Critical shall have the right to use such
information for the purpose of seeking FDA, FCC (or similar foreign)
regulatory clearance in such countries of its products; provided that
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to the extent any such information consists of specific patient
information, such information shall be provided by Agilent only to
the extent, and in such form, as shall in either case, be permitted
pursuant to any applicable law.
11.2. Data Critical will immediately give notice to Agilent if any upgrade,
substitution or other change to an Integrated StatView Product or the
related transmitters or receivers is required to make that product
meet applicable safety standards or other governmental statutes,
rules, orders or regulations that are in effect as of the date of
this agreement in the United States. All affected Integrated StatView
Products, transmitters or receivers already purchased by Agilent may,
at Agilent's election, either be returned to Data Critical for
upgrade to current revisions or upgraded by Agilent in the field.
12. Data Access. [*]
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13. Research/Clinical Trial Equipment. Data Critical will provide Agilent with
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the following hardware to support R&D efforts and clinical testing [*]:
. [*] LAN Paging Transmitters;
. [*] Paging Receivers; and
. Normal and customary quantities of Transmitters and Receivers for [*]
Clinical Test Sites.
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* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
6
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
14. Marketing. Upon Agilent's submission of the 510k for the Integrated
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StatView Product by Agilent, Data Critical will provide, [*], in the United
States, the following aid to Agilent:
. Reasonable access for a reasonable duration to at least [*] to assist
in regional training and special customer presentations for the
Integrated StatView Product. Further, such product specialists will
be made available by phone and/or email at normal hours for specific
product/customer questions related to the marketing process;
. Access to Data Critical sales training curriculum on a Regional and
National basis as reasonably requested and jointly agreed;
. Trade Show support including attendance in Agilent's booth for
customer presentations;
. Marketing materials via electronic or print format for use in
developing a specification sheet, advertising or other promotional
items. This includes product pictures, training videos and listing of
key accounts; and
. Data Critical and Agilent shall collaborate on a national product
launch to educate end users as to the new StatView/Database server.
Such launch materials shall jointly discuss the StatView stand-alone
product. [*]
. Installation training for Agilent Service personnel for up to five
(5) days Regional/National training during Year 1 of the Agreement.
15. Dispute Resolution. Agilent and Data Critical will each assign an
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individual responsible for handling dispute resolution. Formal notice of
dispute can be initiated from either company and, thereby, commence a 60-
day dispute resolution process among progressively correspondingly higher
ranking members of Data Critical's and Agilent's patient monitoring group
respective management teams which shall be exhausted prior to institution
by either party of formal legal proceedings (unless such delay could
reasonably be expected to result in a bar to any claim under any applicable
statute of limitation or similar restriction). If the dispute has not been
resolved at the conclusion of the 60-day period, either Party is free to
seek redress under the terms of this Agreement through whatever proceeding
such Party deems appropriate. Nothing in this Section 15 shall preclude
either party from seeking injunctive relief to the extent permitted
pursuant to applicable law.
16. Confidentiality; Non-Solicitation.
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16.1. In connection with this Agreement, any Party (the "Disclosing Party")
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or such Party's agents may from time to time provide the other Party
(the "Receiving Party") or such other Party's agents or advisors
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certain information concerning the Disclosing Party's operations,
businesses, properties, finances or other information. Such
information [*] may include, but is not limited to: business plans;
employee and customer information; vision statements; business cases
and concepts; business and financial summaries; accounting, pricing
and cost information; manufacturing capabilities; agreements with
third parties; services; reports; organization charts; documentation;
minutes; recommendations; budgets; memoranda; technology;
specifications; processes; data; procedures; patents; patent
applications; research; product plans; products; developments;
inventions; processes; designs; drawings; engineering; formulae;
markets; software (including source and object code); hardware
configuration; computer programs; or algorithms of the Disclosing
Party; provided that any and all information described on Exhibit D-1
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shall in all events be Confidential Information [*]. All such
information disclosed by the Disclosing Party and/or its agents or
advisors to the Receiving Party and/or its agents or advisors,
whether before or after the date of this Agreement and whether oral
or written in whatever form provided is hereinafter referred to as
"Confidential Information". Such Confidential Information shall
remain the sole property of the Disclosing Party and shall be used
and handled by the Receiving Party in accordance with the terms and
conditions set forth in this Agreement. The parties agree that any
and all information described on Exhibit
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_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
7
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
D-2 which may have been disclosed prior to the Effective Date of this
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Agreement is deemed to be Confidential Information, [*].
16.2. Notwithstanding anything to the contrary herein, the term
CONFIDENTIAL INFORMATION shall not include any such information that
(a) is or becomes generally available to the public other than as a
result of an unauthorized disclosure by the Receiving Party or its
agents or advisors, (b) was known by the Receiving Party or its
agents or advisors on a non-confidential basis prior to the date
hereof, (c) becomes available to the Receiving Party or its agents or
advisors from a source other than the Disclosing Party or its agents
or advisors from a source not known by the Receiving Party or such
agents or advisors to be subject to an agreement or obligation of
confidentiality, or (d) is required to be disclosed by the Receiving
Party by operation of law or under subpoena. The fact that any
information included in the Confidential Information becomes known by
or is otherwise available to the Receiving Party or its agents or
advisors pursuant to any of clauses (a)-(d) above shall not relieve
the Receiving Party of its obligation hereunder with respect to all
other Confidential Information covered hereby.
16.3. The Receiving Party shall not use the Confidential Information for
any purpose other than as contemplated pursuant to this Agreement.
The Receiving Party shall (a) restrict disclosure of the Confidential
Information solely to those of the Receiving Party's employees with a
need to know such Confidential Information and (b) use, and require
employees of the Receiving Party to use, at least the same degree of
care to protect the Confidential Information as is used with the
Receiving Party's confidential and proprietary information; provided
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that such standard shall be at least ordinary care. In addition, the
Receiving Party shall not, directly or through any person or entity,
in any form or manner, prepare derivative works of, decompile,
reverse engineer, disassemble or otherwise attempt to derive source
code or object code from any Confidential Information.
16.4. In consideration of the agreements of the parties set forth in this
Agreement, Agilent hereby agrees that without Data Critical's prior
written consent for a period of eighteen months from and after the
termination of this Agreement, [*].
16.5. The provisions of this Section 16 and the parties obligations
hereunder shall survive until [*] years after the termination of this
Agreement.
16.6. The Parties each hereby (a) acknowledges that the remedies at law for
the breach of by the other of its covenants, representations, and
warranties contained in this Section 16 may be inadequate and (b)
hereby consents to and agrees that the non-breaching party shall be
entitled to seek injunctive relief for any such breach by the other
party of the provisions of this Section 16. Nothing contained in the
preceding sentence shall be construed as limiting the Disclosing
Party's right to any other legal or equitable remedies including the
recovery of damages.
17. Non-Compete. During the Term of this Agreement, Agilent will not offer for
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sale, lease or license or integrate their own or any other vendor's
competing one-way UHF based wireless in-hospital alarm notification of
waveforms and data for use in a monitoring/central station network data
server.[*] This Section 17 shall not preclude Agilent from offering for
sale, lease or license its telemetry, M3/M4 wireless connectivity,
WaveViewer or other products, either current or proposed, that use, record
or display wave forms or related alarm notifications (but do not provide
such alarm notifications with waveforms).
18. Information. Agilent will keep all necessary records to comply with all
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applicable laws, rules and regulations relevant to the Integrated StatView
Product. Agilent will seek counsel from and consult with Data Critical in
the event that Agilent is considering a product recall, and will ensure all
relevant information is made available promptly to Data Critical. Each
Party agrees to give the other reasonable notice of a recall of the
Integrated StatView Product or the StatView product. In connection with any
such recall, the Parties shall make reasonable efforts to consult on all
communications and/or publications concerning such recall. Each of the
Parties agrees to make reasonable efforts to consult the other in
connection with any regulatory action regarding
_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
8
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
the Integrated StatView Product and to provide the other with such
information as the other shall reasonably request in connection with such
proceedings.
19. Intellectual Property Protection.
---------------------------------
19.1. Data Critical's Duty To Defend. Except as provided below, Data
Critical will defend and hold harmless Agilent and its Subsidiaries,
Subcontractors and customers from any claim that the Integrated
StatView Product, including the software and documentation relating
thereto, or a Data Critical Xxxx, Data Critical's proprietary
receivers, or any Data Critical proprietary product provided as part
of Data Critical's repair or replacement services constitutes an
unauthorized use or infringement of any third party's intellectual
property rights, other than any such claim asserting that the
combination of the Integrated StatView Product with the Agilent
product (as distinguished from the Integrated StatView Product
separately) constitutes such an unauthorized use or infringement.
Subject to the limitations herein (including Data Critical's rights
to assume the defense thereof), Data Critical will pay all costs,
damages and expenses (including reasonable attorneys' fees) incurred
by Agilent, its Subsidiaries, Subcontractors or customers in
connection with any such claim. Data Critical shall have the right to
assume the defense of and/or settle any such claim; provided, that
--------
Data Critical shall not agree to any settlement of any such claim
which does not include a full release of all liabilities of any
indemnified party under this Section 19.1. The operation of this
Section shall also be subject to the limitations on liability and
remedies set forth in Sections 19.3 and 25 below.
19.2. Agilent's Duty To Notify. Agilent will give Data Critical prompt
written notice of any such claim or action, and will give Data
Critical the authority, information, and reasonable assistance (at
Data Critical's expense) necessary to defend. If Data Critical does
not diligently pursue resolution of the claim nor provide Agilent
with reasonable assurances that it will diligently pursue resolution,
then Agilent may, without in any way limiting its other rights and
remedies, defend the claim.
19.3. Remedies For Infringing Products. If the use of the Integrated
StatView Product or any proprietary receiver provided by Data
Critical for use in connection therewith is enjoined on the basis
that it allegedly or actually infringes upon the intellectual
property rights of another party (the "Infringing Product") (it being
-------------------
agreed that any such product will not be deemed an Infringing Product
to the extent its use would not have been so enjoined absent its
integration into Agilent's products), Data Critical will, at its sole
expense and option, either:
(a) [*];
(b) [*];
(c) [*]; or
(d) [*].
19.4. Trademark Issues. In respect of any Data Critical trademarks,
tradenames, tradestyles, or service marks utilized by Agilent under
or pursuant to this Agreement, Agilent agrees to adhere to Data
Critical's quality standards for such marks and styles and not to
modify, enhance or otherwise vary any such xxxx or style without the
prior written consent of Data Critical. Agilent further agrees not to
file or utilize any trademark, tradename, tradestyle or service xxxx
that would be confusingly similar to StatView or any other such xxxx,
name or style of Data Critical's to which Agilent has access pursuant
to or in connection with this Agreement.
20. Governmental Compliance. Data Critical agrees to comply with all federal,
-----------------------
state, local and foreign laws, rules, and regulations applicable to its
performance of this Agreement or to the Integrated StatView Products and
the related proprietary receivers, to the extent relating solely to Data
Critical's use of such products, and the non-
_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
9
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
compliance with which would have a material adverse effect on the ability
of Data Critical to perform its obligations under this Agreement.
21. Events of Default.
-----------------
21.1. Notice Of Breach. If either Party is in Default (as defined below) of
this Agreement, the non-defaulting party may, by written notice to
the breaching party terminate this Agreement.
21.2. Default. For purposes of Section 21.1 above, the term "Default" means
-------
any:
(a) Proceeding, whether voluntary or involuntary, in bankruptcy or
insolvency instituted by or against a Party and which if
instituted against such Party, such proceedings have not been
released or stayed within [*] after the institution thereof or
any relief sought thereunder has been granted;
(b) Appointment, with or without a Party's consent, of a receiver or
an assignee for the benefit of creditors and which if such
appointment has been made without the consent of such Party,
such appointment have not been rescinded or stayed within [*]
after the institution thereof or any relief sought thereunder
has been granted;
(c) Failure by Data Critical to make a delivery of any Integrated
StatView Products or any material amount of the related hardware
in accordance with the requirements of this Agreement and such
failure continues unremedied for [*] after written notice
thereof to Data Critical by Agilent; provided that such failure
has not been caused by any force outside of the control of Data
Critical (including product or material shortages, work
stoppages (other than for non-payment of wages), strikes or acts
of God or other force majeure) that has not continued for more
than [*] after such failure giving rise to such claim of
Default;
(d) Failure by Data Critical to replace or repair any material
amount of any non-complying products in a timely manner as
required by this Agreement and such failure continues unremedied
for [*] after written notice thereof to Data Critical by
Agilent; provided that such failure has not been caused by any
force outside of the control of Data Critical (including product
or material shortages, work stoppages (other than for non-
payment of wages), strikes or acts of God or other force
majeure) that has not continued for more than [*] after such
failure giving rise to such claim of Default;
(e) Failure of Agilent to make the payments required under Section 6
of this Agreement and such failure continues unremedied for [*]
after written notice thereof to Agilent by Data Critical; the
failure by either Party to make any other payment required to be
made by it hereunder, including failure by Agilent to pay for
any license sold and not encompassed within the minimum
sales/purchase obligations of Section 6, within [*] after
Agilent's receipt of written notice of such failure given by or
on behalf of Data Critical (it being agreed that such written
notice may be in the form of an invoice noting a past due
balance, a second notice, or any other similar notice); [*]; or
(f) Any other failure by a Party to comply in any material respect
with any material provision of this Agreement, which failure
shall continue unremedied for [*] after receipt of written
notice thereof from the non-defaulting Party.
22. Remedies.
--------
22.1. In the case of termination of this Agreement for any reason (other
than a termination by Data Critical for non-payment of license fees
by Agilent), by any party, all orders issued prior to the expiration
of this Agreement must be fulfilled pursuant to and subject to the
terms of this Agreement, even if the delivery dates are after
expiration.
_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
10
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
22.2. In the case of termination of the Agreement by Data Critical as the
result of Agilent's breach of this Agreement, Data Critical shall be
entitled [*] (in addition to all other amounts previously owing by
Agilent); Data Critical shall have no ongoing obligations, and
Agilent shall have no further rights, hereunder (in each case, other
than contemplated pursuant to Section 26.9). In addition to the
foregoing, with respect to any amounts not paid when due by Agilent,
such amounts shall accrue interest [*] for each day outstanding until
such amounts are paid in full.
22.3. In the case of termination of the Agreement by Agilent as the result
of Data Critical's breach of this Agreement, Data Critical shall be
obligated as follows:
(a) At all times when Data Critical is continuing its operations,
[*].
(b) At any time when Data Critical has discontinued its operations,
[*].
22.4. The parties agree and acknowledge that damages resulting from Data
Critical's intentional breach of the exclusivity provision in Section
3.1 may result in irreparable and immeasurable harm to Agilent.
"Intentional breach" for purposes of this Section 22.4 and Section
------------------
23.4 means any deliberate act by Data Critical to breach the
exclusivity provision in Section 3.1 through a proactive effort by
Data Critical to provide information or assistance to a third party
with a view towards integration of the StatView software code, rather
than, for example, the reverse engineering or decompiling of such
software code and subsequent integration by such third party. In case
of such intentional breach, in addition to the rights set forth above
and subject to Section 23.4, Agilent shall have the following rights:
(a) Agilent shall be entitled to injunctive relief preventing Data
Critical from licensing the Integrated StatView Product to any
other party, Data Critical shall terminate the licenses or
contract with the third party, and Data Critical shall seek an
injunction against the third party to prevent the third party
from marketing or using the Integrated StatView Product;
(b) Data Critical shall pay Agilent [*]; and
(c) [*]
23. Indemnification.
---------------
23.1. Subject to Sections 9.3, 19, 23.4 and 25, Data Critical shall
indemnify and hold harmless Agilent, its officers, directors, and
employees from any claims, losses, reasonable attorneys fees,
damages, liabilities, costs, expenses, or suits for injury to any
person, damage to loss of property or any other claim (collectively,
"Losses") to the extent that it is determined by a court of competent
------
jurisdiction to be the result of or arising out of or related to (a)
the failure of the Integrated StatView Product and related receivers
to perform in accordance with the specifications therefor (other than
any such failure which results from the integration of such product
into the Agilent product, the disabling of the Reminder Notification,
the workmanship of Agilent or its agents or the interaction of the
Integrated StatView Product with any other component of the
integrated product) or (b) any other act or omission of Data Critical
(other than as set forth in clause (a) immediately above) in
connection with this Agreement and/or the transactions contemplated
hereby.
23.2. Subject to Section 25, Agilent shall indemnify and hold harmless Data
Critical, its subsidiaries and their respective officers, directors,
employees and agents (the "Data Critical Indemnified Parties") from
---------------------------------
any Losses to the extent that it is determined by a court of
competent jurisdiction in a proceeding to which Agilent is a party,
to be the result of or arising out of or related to (a) any Agilent
product (other than for which Data Critical is obligated to indemnify
Agilent pursuant to clause (a) of Section 23.1), (b) the failure of
Agilent to comply with the requirements of Section 10 of this
Agreement, (c) the breach of the provisions of the following
paragraph, (d) [*], or (e) any other act or omission of Agilent or
its distributors
_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
11
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
(other than as set in clauses (a), (b), (c) or (d) immediately above)
in connection with this Agreement and/or the transactions
contemplated hereby.
23.3. Within ten days of receipt of notice of any third-party claim that
may give rise to Losses of Data Critical, Agilent shall notify Data
Critical in writing of such third-party claim. Unless Agilent is also
party to such claim and either Agilent or Data Critical determines in
good faith that joint representation would be inappropriate, Data
Critical will be entitled to elect to participate in the joint
defense of such claim and, to the extent that it determines there
exists a reasonable probability that such claim or a compromise,
settlement or adjudication thereof may result in monetary damages for
which it would not be entitled to indemnification from Agilent, then
Data Critical may, by written notice to Agilent, assume the exclusive
right to defend, compromise, or settle such third-party claim;
provided, that no compromise or settlement of such third-party claims
--------
may be effected by Agilent without the prior written consent of Data
Critical unless (a) there is no finding or admission of any violation
of law or any violation of the rights of any person and no effect on
any claims that may be made against Data Critical, and (b) the sole
relief provided is monetary damages that are paid in full by Agilent
or its affiliates, and (c) Agilent acknowledges that it shall not
seek indemnification or contribution from Data Critical for any sums
paid in connection with such compromise or settlement. [*]
23.4. In the case of any breach by Data Critical of the exclusivity
provision in Section 3.1, which breach is not an intentional breach
(as defined in Section 22.4), Data Critical shall immediately use its
best efforts to cure such breach and shall seek redress and
recompense through reasonably available legal and equitable means,
including but not limited to a suit for immediate injunctive relief
and monetary damages against such third party. Any damages recovered
by Data Critical from the third party whose act has caused or
resulted in such breach shall be equally shared by Data Critical and
Agilent, after deduction for the costs and expenses of Data Critical
in recovering such damages and curing said breach. Notwithstanding
any other provision in this Agreement, any breach by Data Critical of
the exclusivity provision in Section 3.1, which breach is not an
intentional breach (as defined in Section 22.4) shall be deemed to
not be a breach of this Agreement and shall not give rise to a right
of Agilent for indemnification or damages other than as set forth in
this Section 23.4.
24. Insurance Coverage.
------------------
24.1. Each party will maintain Comprehensive or Commercial General
Liability Insurance (including but not limited to premises and
operations, products and completed operations, broad form contractual
liability, broad form property damage and personal injury liability)
with a minimum limit of $[*] combined single limit per occurrence for
claims of bodily injury, including death, and property damage that
may arise from use of the Integrated StatView Product or acts or
omissions of such party under this Agreement. Each policy obtained by
such party will name the other party, its officers, directors and
employees as additional insureds. Such insurance will apply as
primary insurance and no other insurance will be called upon to
contribute to a loss covered thereunder. In addition, such policies
will permit such party to waive, on its own behalf and on behalf of
its insurers, any rights of subrogation against the other party. Such
insurance policies will be written with appropriately licensed and
financially responsible insurers, and will provide for a minimum of
30 days written notice to Agilent of any cancellation or reduction in
coverage.
24.2. If any policies have "claims made" coverage, each party will maintain
such coverage with the other party named as an additional insured for
a minimum of three years after termination of this Agreement. Any
such coverage must have a retroactive date no later than the date
upon which work commenced under this Agreement.
25. LIMITATION OF LIABILITY. UNLESS OTHERWISE STATED IN THIS AGREEMENT,
-----------------------
NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL OR CONSEQUENTIAL DAMAGES OF
THE OTHER ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR IN
FURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS
OF WHETHER SUCH
_______________________
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment filed with the Securities and Exchange Commission. The
omitted portions of this exhibit have been filed separately with the SEC.
12
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY,
EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26. Miscellaneous
-------------
26.1. Notices. All notices to be given under this Agreement must be in
writing addressed to the receiving party's designated recipient
specified in Exhibit F. Notices are validly given upon (a) receipt,
---------
in the case of personal delivery, (b) the earlier of confirmed
receipt by the receiving party or three days after deposit in the
U.S. mail certified, postage prepaid, properly addressed to the
receiving party, (c) the next business day after timely deposit with
a national overnight courier service for next day delivery, postage
prepaid, properly addressed, or (d) upon receipt of electronic
confirmation of a facsimile. Either Party may change its address for
purposes of notice by giving notice to the other party in accordance
with these provisions.
26.2. Exhibits. Each Exhibit attached to this Agreement is deemed a part of
this Agreement and incorporated herein wherever reference to it is
made.
26.3. Independent Contractors. The relationship of the Parties established
under this Agreement is that of independent contractors and neither
party is a partner, employee, agent or joint venturer of or with the
other.
26.4. Assignment. Neither this Agreement nor any right, license, privilege
or obligation provided herein may be assigned, transferred or shared
by either party without the other party's prior written consent;
provided, however, that the rights and obligations of either party
-------- -------
under this Agreement may be assigned to any person or entity
succeeding to all or substantially all of the business and assets of
the assigning party by way of merger, consolidation, amalgamation,
acquisition of stock (or other similar transaction) or the purchase
of all or substantially all of the assigning party's assets
(collectively, an "Acquisition"); provided, further, that such
----------- -------- -------
acquiring person or entity has assumed in writing or by operation of
law all of the assigning party's obligations under this Agreement.
Each party agrees to give the other party prior notice of any
Acquisition and to make any such agreement subject to the conditions
set forth in this Section. This Agreement will be binding on the
successors and permitted assigns of the parties and the name of the
party appearing herein will be deemed to include the names of such
party's successors or permitted assigns to the extent necessary to
carry out the intent of this Agreement. It is hereby acknowledged by
both parties that Agilent has announced a pending sale of the
Healthcare Solutions Group (including the Patient Monitoring
Division) to Philips Electronics, and subject to the satisfaction of
the conditions set forth in this Section, Data Critical hereby
consents thereto.
26.5. No Waiver. The waiver of any term, condition, or provision of this
Agreement must be in writing and signed by an authorized
representative of the waiving party. Any such waiver will not be
construed as a waiver of any other term, condition, or provision
except as provided in writing, nor as a waiver of any subsequent
breach of the same term, condition, or provision.
26.6. No Publication. Except as may otherwise be required (or reasonably
believed by a Party to be required) by law, neither party may
publicize or disclose to any third party the terms of this Agreement,
without the written consent of the other party, which consent shall
not be unreasonably withheld or denied. Agilent agrees that
notwithstanding the foregoing, Data Critical shall be permitted to
issue a press release announcing the entering into of the
arrangements contemplated by this Agreement; provided, that such
--------
press release shall be provided to Agilent for its review and
approval (not to be unreasonably withheld or delayed).
26.7. Severability. If any provision in this Agreement is held invalid or
unenforceable by a body of competent jurisdiction, such provision
will be construed, limited or, if necessary, severed to the extent
necessary to eliminate such invalidity or unenforceability. The
parties agree to negotiate in good faith a valid, enforceable
substitute provision that most nearly effects the parties' original
intent in entering into this Agreement. The other provisions of this
Agreement will remain in full force and effect.
13
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
26.8. Governing Law. The Agreement shall be governed by, and construed and
enforced in accordance with the laws of the State of New York.
26.9. Survival. Notwithstanding anything contained herein to the contrary,
Sections 5, 6, 9, 15, 16, 18, 22, 23, 25 and this Section 26 shall
survive the termination of this Agreement.
26.10. Integration. This Agreement is the only agreement between the
parties, and constitutes the entire agreement between the parties,
concerning the Integrated StatView Product, and the hardware and
products related thereto.
14
Agilent Technologies and Data Critical Corporation
License and Distribution Agreement
Agreed To:
Agilent Technologies, Inc.
By: /s/ Xxxx Xxxxx November 22, 2000
--------------------------- -----------------
Name: Xxxx Xxxxx Date
Title: General Manager
Data Critical Corporation
By: /s/ Xxxx Xxxxxx November 29, 2000
--------------------------- -----------------
Name: Xxxx Xxxxxx Date
Title: Senior Vice President
and General Manager
By: /s/ Xxxx Xxxxx November 29, 2000
--------------------------- -----------------
Name: Xxxx Xxxxx Date
Title: President & CEO
15
