EXHIBIT 10.58
PURCHASE AGREEMENT NO. 470563
THIS AGREEMENT is made as of this 29th day of June, 2001, between
General Electric Company, a corporation organized under the laws of the State of
New York, acting through its GE Medical Systems business ("Buyer" or "GEMS"),
and Colorado MEDtech, Inc. ("CMED"), a corporation organized under the laws of
the State of Colorado ("Seller").
WHEREAS, Seller manufactures MR subsystem components; and
WHEREAS, Buyer wishes to have Seller use such experience and expertise
to manufacture products for Buyer in accordance with the requirements of Buyer
as more fully set forth in the terms and conditions of this Agreement, including
its Attachments and schedules.
NOW THEREFORE, Seller and Buyer agree as follows:
1. INTRODUCTION
(a) Scope. THIS AGREEMENT AND ANY ATTACHMENTS OR SCHEDULES STATE THE
TERMS AND CONDITIONS UNDER WHICH SELLER SHALL SELL TO BUYER, AND BUYER SHALL
PURCHASE FROM SELLER, THOSE PRODUCTS IDENTIFIED ON SCHEDULE 1(a) HERETO, AS WELL
AS ALL COMPONENTS, SPARE PARTS, SERVICE TOOLS, MANUALS, SOFTWARE LICENSES, DATA
AND RELATED INTERFACES WITH RESPECT THERETO (THE "PRODUCTS"). UNLESS OTHERWISE
EXPRESSLY STATED, REFERENCES TO THIS "AGREEMENT" INCLUDE ANY ATTACHMENTS OR
SCHEDULES.
(b) Parties. Seller expressly acknowledges that this Agreement is not
intended to govern or obligate any business, division or affiliate of Buyer
other than Buyer's GE Medical Systems business, and that the term "Buyer" as
used herein shall refer to the GE Medical Systems business and to no other
business, division or affiliate of General Electric Company.
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(c) Documents. The following attachments shall be considered an
integral part of this Agreement (the "Attachments"). The provisions of each
Attachment shall be incorporated by reference into and be deemed to be a part of
this Agreement:
Schedule 1(a) - Products and Prices
Schedule 3(a) - GE Offer to Extend Finished Goods Liability, dated
June 21, 2001
Schedule 3(b) - GE Purchase Order No. 806537
Schedule 8(e) - GE Purchase Order Terms and Conditions
Schedule 15 - Non-Disclosure Letter Agreement dated June 18, 2001
Schedule 19(a) - GE Medical Systems SRFD II RF Amplifier & Interface
Purchase Specification Doc. No. 2230683PSP Rev. F
Schedule 19(b) - Purchase Orders for 3 prototype units and 10
pre-production SRFDII units
2. TERM
(a) Initial Term. The term of this Agreement is from July 1, 2001
through December 31, 2002, (the "Initial Term").
(b) Extensions. Buyer and Seller may mutually agree to extend the
Initial Term for an additional 1.5 year period ending June 30, 2004 (the
"Extension Term"). In such event, the Initial Term and the Extension Term, if
any, shall be referred to herein as the "Term". Buyer must notify Seller in
writing of its intention to extend the Initial Term on or before Dec 31, 2002.
3. QUANTITIES
(a) Forecast. Buyer shall provide Seller with forecasts for required
Products. Such forecasts, however, shall not be binding in any way on Buyer. Any
such forecast may be modified at any time by Buyer in its sole discretion.
Forecasts shall not be binding until Buyer issues a signal or Purchase Order,
signed acknowledgment requesting a release, Supplier Signal or other such
binding commitment to purchase specified quantities ("Releases"). Additional
material Seller orders to GE forecasts are covered under Buyer's "Offer to
Extend Finished Goods Liability," attached as Schedule 3(a) hereto.
(b) Commitment. Buyer shall be liable to Seller for any Kanban
requirements, finished goods, work in process or ordered material that cannot be
cancelled for any
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Products included in a Release. Except as set forth in purchase orders issued
pursuant to Schedule 3(a), Buyer shall not be responsible or in any way liable
to Seller or any third party with respect to any material commitments or
production arrangements in excess of the amounts or in advance of the times
necessary to meet Buyer's delivery schedules set forth in its Releases. Except
as set forth in purchase orders issued pursuant to Schedule 3(a), Buyer may
cancel any outstanding Release at any time, in its sole discretion, and shall
only be liable for finished goods, work in process or ordered materials that
cannot be cancelled for the withdrawn Release.
4. PRICING
(a) Price Protection. The market-basket prices specified in Schedule
1(a) for the Products related to this Agreement (the "the Prices") are firm
through Dec 31, 2002 and include all packaging and bar code labeling which Buyer
may request from time to time. In no event shall the Prices be increased by
Seller without the express written consent of Buyer.
(b) Software/Firmware. The Price includes a perpetual, paid-up,
worldwide, non-exclusive, irrevocable license to Buyer and its customers or
users of Buyer's products containing Products to use, in the operation,
maintenance and repair of the Products, any software and/or firmware supplied by
Seller to Buyer.
5. RELEASES
(a) Acceptance. Seller shall be deemed to have accepted a Release upon
acknowledgement by Seller. Seller may not reject outright any Release of Buyer,
and in its acknowledgement of Buyer's Release shall confirm delivery dates or
propose alternatives to Buyer.
(b) Changes. Buyer may increase the individual weekly Release
quantities by up to ten percent (10%) and accelerate delivery dates that are
further out than twenty-five (25) days without penalty, except that Buyer shall
be liable for those Products and materials described in Section 3(b); and
further provided that no change to a Release shall be effective until
acknowledged by Seller. In the event Buyer proposes to change a Release by an
amount greater than that set forth in the prior sentence, Seller and Buyer shall
mutually determine a price and delivery adjustment to apply to the Product
falling outside of such parameters.
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6. INTELLECTUAL PROPERTY
(a) Buyer's Property. Buyer will not provide Seller with any property
under this agreement.
(b) Seller's Property. Neither this Agreement nor the sale of Products
from Seller to Buyer shall transfer title of any of Seller's intellectual
property rights to Buyer. Seller shall remain the exclusive owner of all of its
intellectual property rights (including, without limitation, any patent,
trademark, trade secret, or copyright) in and to the Products and any
documentation or training materials provided by Seller to Buyer. Buyer shall not
manufacture, duplicate, reverse engineer, or decompile the hardware, software,
or any part of the Product or information relating thereto.
(c) License. Seller grants to Buyer and its customers or users of
Buyer's products containing Products a perpetual, paid-up, worldwide,
non-exclusive, irrevocable license to use, in the operation, maintenance and
repair of the Products, any software and/or firmware supplied by Seller to
Buyer.
(d) Protection of Rights. No rights are granted to Seller, by Buyer,
under any of Buyer's patents, copyrights, trade secrets or other property rights
except as may be expressly agreed to by Buyer. Seller will not use or
incorporate into Products any intellectual property of others without their
written permission. Without limiting Seller's indemnity with respect to
intellectual property, if the use of a Product or any part thereof is enjoined
by a court, Seller will, at Buyer's option and Seller's expense, either procure
for Buyer the right to continue using the Product or part, replace the same with
a non-infringing equivalent, or remove the Product, refund the purchase price
and reimburse Buyer for any related costs incurred by Buyer.
(e) Customer Copies. Unless agreed otherwise in writing by Buyer, each
Product delivered by Seller shall have associated with it a manual or other form
of documentation containing all applicable software license(s), software
documentation other than source code, spare part lists, theory of operation,
service troubleshooting diagnostics, and instructions necessary for the
installation, operation, maintenance and repair of the Product. The
documentation shall be in a format and language acceptable to Buyer, and shall
be delivered immediately to Buyer upon Buyer's request. Prices for such
documentation are listed on Schedule 1(a).
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7. INSTALLED BASE SERVICE AND REPAIR
Seller shall maintain for ten years from the last shipment of a Product
the capability to replace or repair (which may include re-engineering) the
Product and furnish documentation, spare parts, service tools and instruments
necessary to service the Product effectively.
8. COMMERCIAL TERMS
(a) Transportation. Seller shall ship Products to Buyer using Buyer's
designated carrier with transportation charges billed directly to Buyer by the
carrier. Seller shall not pay premium transportation charges unless authorized
by Buyer in writing. Seller shall list any unauthorized charges not otherwise
billed to Buyer as a separate line item on Seller's invoice. If Seller ships
Products by an unauthorized method or carrier, Seller shall pay any resulting
increased freight costs. Seller shall release rail or truck shipments at the
lowest valuation permitted and will not declare value on Products shipped.
(b) Title and Risk of Loss. Title and risk of loss will pass to Buyer
when the Products are delivered to Buyer's designated carrier. All shipments
shall be F.O.B., place of shipment.
(c) Shipments. Seller agrees to make shipments in the quantities and at
the times specified in any Release. Each shipment shall include a packing list
that contains the Purchase Order number, product identification, quantity
shipped, date of shipment and such other information as Buyer may require.
Unless otherwise expressly stated, time is of the essence. In the event any
shipment is not made on the date and in the quantity set forth on the Release,
Buyer may:
(i) return to Seller some or all of the Products in the shipment
at Seller's risk and expense, including without limitation
warehouse or handling cost;
(ii) purchase substitute products elsewhere and charge Seller with
any resulting loss; or
(iii) direct Seller to make an expedited shipment of additional or
replacement Products, with the difference in cost between any
expedited routing and the Release routing to be paid by
Seller.
Buyer shall consult with Seller prior to exercising any of the remedies
available to Buyer in this subsection.
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Seller agrees to notify Buyer immediately if Seller ever has reasonable cause to
suspect that any Product will not be delivered as ordered, or a shipment will
not be made as scheduled.
(d) Inspection And Rejection. Products are subject to Buyer's right of
inspection and rejection for compliance with applicable specifications. Unless
Buyer provides notice of rejection to Seller within a reasonable time, the
Product shall be deemed accepted. In the event that Buyer rejects the Product
pursuant to this Section 8(d), the warranty period for such particular unit
shall be extended by the period of time the particular unit is in transit and
held by Seller. The making of any payment does not restrict Buyer's right to
make a warranty claim with respect to defects in Products. Seller agrees to
provide and maintain inspection and process control systems acceptable to Buyer
with respect to the manufacture of Products, and Seller agrees to keep and make
available complete records of all of Seller's inspection work and process
control work for the life of the Products, as defined by Buyer. Buyer may
inspect the Products at any place of manufacture during production without
waiving its right subsequently to reject or revoke acceptance for undiscovered
or latent defects. Buyer's failure to inspect and accept or reject Products will
not relieve Seller from any obligations.
(e) Conflicting Terms. The provisions of this Agreement, when in
conflict or inconsistent with the terms and conditions of any purchase order or
with Buyer's Standard Terms and Conditions, shall supersede such other terms and
conditions.
9. INVOICES/PAYMENT
(a) Content of Invoice. Seller's invoices shall contain the Release
number, item number on such release, GEMS part number, invoice quantity, unit of
measure, unit price, total invoice amount, name of Seller, phone number, address
to which remittance should be sent, and such other information as may be
required by Buyer.
(b) Payment. Payment terms shall be 1% 15 net 60 days after receiving
both the Product and an invoice prepared in accordance with the terms of this
Agreement.
10. WARRANTY/REPAIR
(a) Warranty. Seller represents and warrants that the Products will:
(i) be owned by Seller and free of all liens, claims or
encumbrances;
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(ii) conform strictly to all express specifications,
drawings, plans, instructions, samples or other
descriptions; and
(iii) be free from defects in design, material and
workmanship, whether latent or otherwise for twelve
(12) months from date of delivery to Buyer.
Seller agrees to extend to Buyer's customers and Buyer (and to cooperate with
Buyer to enforce) any warranties received from Seller's suppliers.
(b) Intellectual Property Representation. Seller represents and
warrants that the Products will not knowingly infringe any U.S. or foreign
patent, registered U.S. copyright, or registered U.S. trademark of a third
party.
(c) Return of Non-conforming or Defective Product. Buyer may return any
non-conforming or defective Product to Seller. Seller will repair or replace, at
its option, any Product which Seller determines was properly used and maintained
and was not in compliance with the warranty in Section 10(a) during the warranty
period. Any product returned must have a Return Material Authorization (RMA)
number obtained from Seller to allow processing and tracking of the return. Any
such Product shall be returned to Seller's facility or authorized service
center, with all transportation charges paid by Seller as specified in the RMA
and the risk of loss passing to Seller when the Product is delivered to the
carrier of Buyer's choice. Buyer shall reimburse Seller for all shipping charges
for non-warranty returns.
(d) Limitation of Warranty. SELLER MAKES NO OTHER GUARANTEES OR
WARRANTIES WHATSOEVER, AND THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
(e) Limitation of Liability. SELLER'S MAXIMUM LIABILITY ARISING OUT OF
ITS PERFORMANCE UNDER THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT, INCLUDING
NEGLIGENCE, IS LIMITED TO THE LESSER OF $500,000 OR REFUND OF THE COMPENSATION
RECEIVED BY SELLER UNDER THIS AGREEMENT. IN NO EVENT WILL SELLER BE LIABLE FOR
ANY LOST PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF WHETHER
SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, NOR ANY CLAIM
AGAINST BUYER BY ANY OTHER PARTY.
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11. INDEMNIFICATION
(a) Seller's Indemnification. Seller agrees to defend, indemnify and
hold Buyer and Buyer's customers harmless from and against any and all claims
(including without limitation claims for infringement of intellectual property,
breach of contract, death or injury to a person or injury to property, or other
tort claims), liabilities, damages (whether direct or indirect, incidental or
consequential) and expenses (including court costs and attorneys' fees) arising
out of or relating to the breach by Seller of any covenant, representation or
warranty, or from any act or omission of Seller or Seller's agents, employees or
subcontractors. Buyer will notify Seller of any such claim, suit or proceeding
and will assist Seller (at Seller's expense) in the defense of the same.
(b) Buyer's Indemnification. Buyer agrees to defend, indemnify and hold
Seller harmless from and against any and all claims (including without
limitation claims for infringement of intellectual property, breach of contract,
death or injury to a person or injury to property, or other tort claims),
liabilities, damages (whether direct or indirect, incidental or consequential)
and expenses (including court costs and attorneys' fees) arising out of or
relating to the breach by Buyer of any covenant, representation or warranty, or
from any act or omission of Buyer or Buyer's agents, employees or
subcontractors. Seller will notify Buyer of any such claim, suit or proceeding
and will assist Buyer (at Buyer's expense) in the defense of the same.
12. COMPLIANCE
(a) General. Seller shall comply with all applicable laws and
regulations in furnishing Products. Such laws may include, but not be limited
to, United States and foreign medical device laws, labor laws, employment
opportunity laws, environmental laws and product safety laws.
(b) Product Certification. Seller shall maintain at its expense UL,
IEC, CE and CSA or equivalent listings acceptable to Buyer for all Products.
Unless otherwise agreed to in writing, if a party proposes a change in purchase
specifications pursuant to Article 13, such party shall be responsible for any
additional product certification costs that may be necessary.
(c) Product is a Component. The parties agree that the Products are
components, and not medical devices, as those terms are used in the FDA's
Quality System Regulation ("QSR"). As such, the manufacture of the Products
shall not be required to be in compliance with the QSRs. Buyer is responsible
for obtaining approval or clearance from the FDA or other governmental agencies
for products containing the Products or into
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which the Products are integrated. Buyer shall provide Seller with a copy of the
approval or clearance letter allowing commercial distribution of the products
containing the Products. Seller shall cooperate in providing, as required,
information to governmental agencies in order to obtain and maintain necessary
approvals. Buyer's documentation retention of manufacturing quality records will
be in accordance with QSRs.
(d) Buyer shall be responsible for recall and field corrective action
involving the Product or any Buyer product that contains a Product. Payment of
any costs associated with a recall or field corrective action shall be discussed
and mutually agreed-upon by the parties.
(e) Buyer will, if Buyer deems it necessary, advise Seller of any
complaints, as that term is defined in the QSRs, involving the Products, and
Seller will determine whether an investigation is needed, and, if required,
conduct an investigation.
13. CHANGES IN PURCHASE SPECIFICATIONS
(a) Buyer-Proposed Changes. Buyer may propose changes in the Products
relating to this Agreement by submitting the proposed changes (identifying those
changes which it deems mandatory to make the Product suitable for use) to the
agreement manager of Seller, utilizing the Product Change Notice (PCN). Seller
shall respond in writing to the agreement manager of Buyer within ten (10) days
after receipt of such changes with the following information, as applicable: (i)
lead time required to implement proposed changes; (ii) impact of proposed
changes on pricing of Product, including parts and tools; (iii) impact of
proposed changes on inventory, scrap material and work in process; and (iv)
non-recurring engineering charges to implement proposed changes. Within no more
than ten (10) days after Buyer receives Seller's response to Buyer's proposed
changes, the parties shall begin negotiations with respect to the changes to the
Products and any related changes to the price and delivery schedules. If the
parties fail to negotiate appropriate changes to the Agreement, the terms in
effect prior to the commencement of the negotiations shall remain in full force
and effect. Buyer shall pay for all costs Seller incurs in connection with
changes to the Products, including, without limitation, those required in order
to comply with applicable regulatory requirements. At Seller's request, Buyer
shall provide written certification that the requested change does not require
prior clearance or approval by the Food and Drug Administration (FDA). If FDA
approval or clearance is required, Buyer shall obtain the approval or clearance
before the change is implemented.
(b) Seller-Proposed Changes. Seller may not make any changes to the
Product without obtaining Buyer's written Product Change Notice (PCN). Seller
may not make
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any manufacturing process or engineering design changes to any Product delivered
to Buyer without submitting a Supplier Change Notice (SCN), at least ninety (90)
days before the change is implemented. If Seller makes any such change to a
Product without such documentation, Seller shall, in addition to any other
costs, expenses or damages incurred by Buyer, be responsible for labor and
material costs to repair or replace said Product at Buyer's facility or Buyer's
customer site regardless of whether the Product is in or out of warranty.
14. TERMINATION
If there is a material breach of any material term of this Agreement by
Seller or Buyer and Seller or Buyer, respectively, fails to correct such breach
within thirty (30) days after receiving written notice of such breach from the
other party, the other party may terminate this Agreement and all unfilled
Releases without any liability except for the price of any Products previously
delivered and accepted by Buyer (subject to any set-off available to Buyer);
provided, however, that this shall not limit Buyer's obligations under purchase
orders containing the provisions required by the document attached as Schedule
3(a). Buyer may also terminate this Agreement immediately by giving written
notice to Seller if Seller fails to meet its financial obligations as they
become due, or if any proceeding under the bankruptcy or insolvency laws is
brought against Seller, or a receiver is appointed for Seller or Seller makes an
assignment for the benefit of creditors. Any such termination shall not relieve
Seller of its obligations and Buyer shall retain all legal and equitable
remedies after such termination. A material breach by Seller shall include,
without limitation, the failure by Seller to comply with any product quality and
delivery obligations.
15. INFORMATION
The parties have entered into that certain Non-disclosure Agreement
("NDA") dated June 18, 2001, a copy of which is attached hereto, and that NDA is
incorporated herein and shall terminate three (3) years after the termination of
this Agreement.
16. AGREEMENT MANAGER/NOTICES
(a) Managers. Each party shall appoint an agreement manager as the
point of contact for all matters relating to performance of this Agreement.
Buyer's agreement manager shall be Xxxx Xxxxxx and Seller's agreement manager
shall be Xxxxxxxxxxx Xxxx.
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Either party may change its agreement manager by providing notice of such change
to the other party.
(b) Addresses. Any notice required under this Agreement shall be sent
by fax (with the original to promptly follow by applicable national mail service
or a nationally recognized overnight courier), or by a nationally recognized
overnight courier. Notices will be deemed given on the date delivered to the
recipient if sent by fax or overnight courier (it being agreed that the sender
shall retain proof of transmission or delivery, as the case may be). Notices
shall be sent to the persons identified below (or as otherwise directed in
writing by a party):
Buyer: GE Medical Systems
X.X. Xxx 000
Xxxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, W-262/548-2459
Fax: 262/000-0000
Email: xxxx.Xxxxxx@xxx.xx.xxx
Seller: CMED Imaging and Power Systems
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attention: Xxxxx Xxxx, 303/000-0000 x0000
Fax: 303/000-0000
Email: xxx@xxxx.xxx
With a copy to
Colorado MEDtech, Inc.
0000 Xxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
Email: xxxxxxx@xxxx.xxx
17. DISPUTE RESOLUTION
Any dispute, controversy or claim relating to this Agreement (a
"Dispute") will be resolved first through good faith negotiations between the
parties. If the parties are unable to resolve the Dispute, either party may
submit the Dispute for resolution by mediation pursuant to the Center for Public
Resources Model Procedure for Mediation of
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Business Disputes as then in effect. The mediation shall be conducted in New
York City. Mediation will continue for at least thirty (30) days unless the
mediator chooses to withdraw sooner. At the request of either party, the
mediator will be asked to provide an evaluation of the Dispute and the parties'
relative positions. Each party shall bear its own costs of mediation effort. If
the Dispute cannot be resolved through mediation, either party may commence an
action to resolve the Dispute in the Commercial Division of the New York State
court in New York County, it being agreed that the parties submit to the
jurisdiction of that court. The prevailing party shall be entitled to receive
from the other party its attorneys' fees, experts' fees, costs and expenses. THE
PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO TRIAL BY JURY.
18. GENERAL MATTERS
(a) The relationship between Buyer and Seller is that of independent
contractors. Neither party shall do anything which has the effect of creating an
obligation by the other party to a third party.
(b) Seller shall not issue any press release or announcement, use any
of Buyer's products or its name in promotional activity, or otherwise publicly
announce or comment on this Agreement without Buyer's prior written consent.
(c) This Agreement may not be assigned by Seller without the express
written consent of Buyer.
(d) This Agreement may be modified only by a writing signed by the
agreement managers for both parties.
(e) The parties expressly acknowledge that the laws of the state of New
York, except its conflict of law rules, will govern this Agreement and any
dispute hereunder.
(f) All provisions relating to any warranties, covenants or
indemnification or any other provision that would inherently survive the
termination of this Agreement shall survive the termination of this Agreement.
No claim may be brought by either party more than three (3) years after
termination of this Agreement or any amendment thereto.
19. SPECIFIC MATTERS REGARDING SRFDII PROJECT
(a) Seller is currently developing a new product, referred to by the
parties as SRFDII. When delivered to Buyer, the SRFDII shall conform to the GE
Medical Systems
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SRFD II RF Amplifier & Interface Purchase Specification Doc. No. 2230683PSP Rev.
F, attached as Schedule 19(a) hereto (as modified by mutual agreement, the
"SRFDII Specifications").
(b) In consideration for (i) the pricing concessions provided by Seller
to Buyer as set forth in Schedule 1(a); and (ii) the rebates set forth in
Schedule 19(e), Buyer shall purchase from Seller:
(i) Three (3) prototype SRFDII units @ $33,000 ea.
deliverable September, 2001. For the purposes of this
Agreement, "prototype unit" shall mean a unit that
meets the basic performance specifications as set
forth by Buyer. These units shall be largely
compliant with Buyer's purchase specifications in
terms of form-factor and electrical performance. This
unit shall be built and tested by Seller under
pre-release documentation and should not be
considered "sellable" by Buyer.
(ii) Ten (10) pre-production SRFDII units @ $22,000 ea.
(delivery intended by December 31, 2001 and to be
mutually agreed to by the parties at the time Buyer
submits the purchase order). For the purposes of this
Agreement, "pre-production unit" shall mean a unit
which is in compliance with Buyer's purchase
specifications. These units shall be "sellable" by
Buyer.
(iii) Two Hundred (200) production SRFDII units @$17,500
ea. (GE is committed to receive the 200 units by
6/30/02) (delivery dates shall be mutually agreed to
by the parties at the time Buyer submits the purchase
order).
(iv) One Hundred (100) production SRFDII units @ $16,250
ea. (GE is committed to receive the 100 units by
12/31/02) (delivery dates shall be mutually agreed to
by the parties at the time Buyer submits the purchase
order).
Buyer shall add the production units referenced in this subsection to its
Release system not later than November 24, 2001.
The SRFDII prototype and pre-production units will be delivered to Buyer "as
is", and without the warranties set forth in Section 10(a) of this Agreement. At
such time as Buyer submits Releases for production units of the SRFDII as set
forth in Section 19(b)(iii) and (iv), the production SRFDII units shall be
Products under this Agreement and all provisions of this Agreement (other than
Section 19(c)) shall apply to the SRFDII.
(c) Seller agrees that its delivery of Products to Buyer under this
Agreement will meet Buyer's 90% on-time delivery requirement (excluding
Buyer-caused lateness) for the
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current basket of goods and services (does not pertain to SRFDII). "Buyer's 90%
on-time delivery requirement" shall mean a score of 90% or more on the GE
Scorecard for deliveries of all Products under this Agreement. If Seller cannot
maintain an average score of 90% over a rolling four-month period for on-time
delivery performance for Products, Buyer retains the right to cancel its
commitment to purchase SRFDII units as set forth in Section 19(b) above.
(d) Buyer agrees to exclusively use Seller's System Support Modules
("SSMs") in Seller's production of its .35 T, .70 T, 1.0 T and 1.5 T MR systems
until December 31, 2002.
(e) In consideration for Buyer's agreement to purchase the items set
forth in Section 19(b)(i)-(iv), and to reimburse Buyer for its costs associated
with designing the SRFDII into Buyer's products, Seller shall make rebates to
Buyer as set forth in Schedule 19(e) (the "Rebates"). In the event Seller does
not for any reason fully comply with its obligations under Section
19(b)(i)-(iv), Buyer will return to Seller all savings in excess of $300,000
that Buyer has received through the application of the Rebates and the pricing
reflected in Schedule 1(a).
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first written above.
COLORADO MEDTECH, INC. GENERAL ELECTRIC COMPANY,
ACTING THROUGH ITS GE
MEDICAL SYSTEMS BUSINESS
By: /s/ Xxxxxxx X. Xxxxx By: /s/ Xxxx Xxxxxx
--------------------- --------------------------
Name: Xxxxxxx X. Xxxxx Name: Xxxx Xxxxxx
Title: CEO Title: Global Sourcing Leader
SCHEDULE 1(a)
PRODUCTS AND PRICES
QTY. PRICE
CURRENT (7/1/01- STARTING GE
GE ITEM NO. DESCRIPTION PRICE DISCOUNT 12/31/01) 7/1/01 SAVINGS
------------ ------------------------------- ------- -------- --------- -------- --------
2160200-43 1.5T/1.0T SSM MODULE $ 7,300 5.5% 480 $ 6,899 $192,720
2255388 1.5T RFI MODULE $ 2,249 5.0% 419 $ 2,137 $ 47,094
46-305000P1 TUBE ASSY ERBTEC# 86 013 2679 $ 4,842 4.0% 74 $ 4,648 $ 14,410
2160200-10 HV POWER SUPPLY BOARD $ 3,605 4.0% 54 $ 3,461 $ 7,787
2194013 1T RFI MODULE $ 1,755 5.0% 73 $ 1,667 $ 6,423
46-305000P57 DOOR KNOB CAPACITOR $ 55.97 4.0% 2484 $ 53.73 $ 5,561
46-305000P3 TUBE ASSEMBYERBTEC# 176 1000 $ 576 4.0% 230 $ 553 $ 5,308
46-271962P1 RF AMP $19,885 4.0% 5 $ 19,090 $ 3,818
2271206 .35T RFI MODULE $ 2,249 5.0% 28 $ 2,137 $ 3,149
2244580 .7T RFI MODULE $ 1,710 5.0% 30 $ 1,625 $ 2,565
46-305000P31 SOLID ST BD ERBTEC# 86 013 2502 $ 4,378 4.0% 14 $ 4,203 $ 2,522
2160200-44 CABLE COVER $ 8.50 4.0% 5792 $ 8.16 $ 1,969
2160200-5 CPD MODULE ERBTEC PART # 550015 $ 3,130 4.0% 14 $ 3,005 $ 1,803
46-305000P30 AC SWITCHING MODULE $ 2,800 4.0% 13 $ 2,688 $ 1,478
2160200-4 1T UPGRADE $ 8,900 5.0% 2 $ 8,455 $ 1,068
46-305000P24 BLOWER ASM ERBTEC# 86 013 3001 $ 470 4.0% 56 $ 451 $ 1,060
2160200-2 1.5T UPGRADE $ 8,600 5.0% 2 $ 8,170 $ 1,032
--------
TOTAL $299,768
GE PART NO. DESCRIPTION PRICE
----------- --------------------------------------------- ---------
2160200-45 .75/.35T SSM MODULE $7,300.00
2160200-12 BUCK H BRIDGE POWER SUPPLY BOARD $2,263.00
46-305000P8 IPA INPUT BOARD ASSEMBLY $1,603.00
46-305000P60 PA LOADING CCAPACITOR 5KV VACCUUM VARIABLE $1,350.00
2124498-13 PANEL BRD ER450157 00 $ 887.00
46-305000P10 MTR 3&4 ASM ERBTEC 86 013 2903 $ 854.00
2292491 BACKPLANEINTERFACE BOARD $ 603.00
46-305000P19 PA PHS DETBDERBTEC 3486 013 3200 $ 360.00
46-305000P61 IPA TUNING CAPACITOR $ 295.00
46-305000P12 LV XFORMER $ 211.00
46-305000P17 FILTER BRD 86 013 2602 $ 180.00
2279054 PROGRAMMED PROM P/N 550061 04 $ 168.00
46-305000P63 LOAD CAP ERBTEC 86 013 2608 $ 158.00
46-179988P293 RESISTOR ERBTEC #109 5170 $ 100.00
46-305000P11 FAN ERBTEC #326 0003 $ 96.00
2160200-14 FAN ERBTEC #3260009 $ 96.00
2124497-46 CABLE D SUB MRI SERIAL PORT $ 88.00
46-305000P27 PRESUR XDUCRERBTEC# 319 9002 $ 65.00
2124498-17 MEPS FAND ER326 0007 AND 2124498 18 MEPS FAN $ 62.00
2192953 #510061 01 RF/PEN CABINET FOR MR HORIZAN $ 57.00
46-305000P25 ALUM ELC CAPER125 4125 $ 48.00
2179256 CAPACITOR ERBTEC 125 2780 $ 36.00
2280293 TRANSFORMER510218 00 $ 30.00
2124498-21 LATCH $ 27.00
46-320103P1 FIRMWARE KIT $ 22.00
2124498-14 PLUG ASM $ 22.00
2179261 CAPACITOR ERBTEC 125 2450 $ 18.00
2124498-34 AIR FILTER $ 15.00
SCHEDULE 3(a)
GE'S OFFER TO EXTEND FINISHED GOODS LIABILITY
[Letterhead of GE Medical Systems]
General Electric Company
X.X. Xxx 000, Xxxxxxxxx, XX 00000-0000
June 21, 2000
Xxxxxxxxxxx Xxxx
Colorado MEDtech
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: Offer to Extend Finished Goods Liability
Dear Xx. Xxxx:
In our ongoing commitment to improve productivity, reliability and quality, GE
Medical Systems (GEMS) is currently involved in several Six Sigma projects to
improve its forecasting and ordering processes. As part of that effort, GEMS has
chosen a few select suppliers who will receive additional ordering assurances
and commitments by GEMS if those suppliers agree to assist GEMS with its
processes. You have been chosen as one of those suppliers, and as a selected
supplier, GEMS would like to extend its liability to you on forecasted products
in order for GEMS to avoid potential shortages on those products listed in
Attachment A.
As you are aware, historically, GEMS has provided you with forecasts of required
products and has then followed those forecasts with firm commitments for
delivery. As a result, GEMS has only been liable for products ordered as part of
the firm commitments and not as a result of the long-term forecasts. According
to suppliers we have surveyed, this process can result in shortages and delayed
delivery dates due to the suppliers' longer lead times for second tier supplier
parts. In order to avoid shortages and missed delivery dates due to these
reasons, GEMS is committing to its total forecasted product quantities through
June 30, 2002.
GEMS has issued purchase order 806537 to you as a firm commitment pursuant to
which GEMS shall purchase from you the quantities specified in Attachment A to
this letter. This commitment by GEMS serves to authorize your firm to commit to
both the materials and capacity required to ensure product availability through
June 30, 2002.
-2-
Purchase order 806537 shall incorporate by reference the following:
ADVANCE FUNDING AUTHORIZATION FOR ELECTRONIC ASSEMBLY PROCUREMENTS
THIS PURCHASE ORDER IS FUNDED IN AN AMOUNT OF $7,627,235 AS
AUTHORIZATION TO CMED TO 1) ADVANCE ORDER COMPONENT PARTS, 2) ADDRESS
CAPACITY CONSTRAINTS, AND 3) FACILITATE THE SUBSEQUENT MANUFACTURE OF
THE ASSEMBLIES DELINEATED HEREIN PER THE SIGNAL REQUIREMENTS. THIS PO
REPRESENTS A "SNAPSHOT" OF THE SUPPLIER SIGNAL SYSTEM FORECAST AS OF
THE DATE HEREIN AND DEFINES OUR COMMITMENT IN TERMS OF THE QUANTITIES
FOR EACH ASSEMBLY SPECIFIED THROUGH MARCH 31, 2002. THIS PO REFLECTS
THE PROJECTED DELIVERY PROFILE AND WILL BE ADJUSTED THROUGH SIGNAL
UPDATES. THE PRODUCTS LISTED HEREIN WILL BE DELIVERED AND INVOICED AS
PART OF COMPLETED ASSEMBLIES AS SIGNALED THROUGH THE GEMS SUPPLIER
SIGNAL SYSTEM. GEMS SHALL BE LIABLE FOR THE TOTAL AMOUNT OF FINISHED
GOODS LISTED IN THE PO AS SET FORTH IN THE OFFER TO EXTEND FINISHED
GOODS LIABILITY BETWEEN GEMS AND CMED DATED JUNE 21, 2001.
GEMS will continue to update the Supplier Signal System forecast each month as
part of its normal course of business. If at any time GEMS anticipates that the
total requirements for any assembly(ies) on Attachment A exceed the current
commitment level, you will be so notified and discussions will ensue to
determine, jointly, the best course of action.
This PO represents the total amount of products GEMS-MR plans on purchasing from
CMED and this PO is not to be shipped or billed against.
In return for this commitment by GEMS, you agree to the total quantity and
nominal weekly run rate identified under Attachment A, with material to be
delivered as pulled by weekly signals which will be within a +/- 25% band around
the nominal weekly run rate. To ensure that this objective is achieved, you
shall provide ongoing, bi-weekly feedback on the following performance
objectives: order placement and receipt (specifically for long lead time
components) proactive identification of obsolescence issues, and identification
of capacity constraints and the actions taken to resolve them.
In return for the commitment by CMED, GEMS shall purchase and take into
inventory by or before June 30, 2002 the quantity of remaining products listed
on Attachment A not previously purchased under purchase order No. 806537.
We are confident that such a firm commitment on our part will enable you to
successfully meet the end-of-year challenges ahead of us. Should you have any
questions with respect to the above, please contact me at your earliest
convenience.
Best regards,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Global Sourcing Leader--MR/CT Subsystems
Enclosures
-3-
ATTACHMENT A
Blanket Purchase Order Schedule
GE Part No. Description Current Price 12 Month Qty Total Spend
----------- ----------- ------------- ------------ -----------
2160200-43 1.5T/1T SSM 7300 750 5,475,000
2255388 1.5T RFI Module 2249 475 1,068,275
2160200-2 1.5T Upgrade kits 8170 0 --
2160200-45 .35T/.7T SSM 7300 100 730,000
2194013 1T RFI Module 1667 80 133,360
2244580 .7T RFI Module 1625 70 113,750
2271206 .35T RFI Module 2137 50 106,850
---------
7,627,235
SCHEDULE 3(b)
PURCHASE ORDER NO. 806537
[GE logo] Purchase Order No. 806537
Purchase Order Change Number 1
From: GE Medical Systems
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx, XX 00000
To: Colorado MEDtech, Inc.
000 X. Xxxxxx Xxxx X
Xxxxxxxx, XX 00000
Payment terms: Net 60 days
Transportation
F.O.B. Shipping Point
Shipping terms: collect
Title passage: buyers dock
Tax %: 0.0
Document issue date: 06-26-01
Note: This is a change to the above referenced purchase order
Change purchase order: order special charges
Set up charge: 7627235.00
Note: Acceptance of this order is expressly limited to the terms and conditions
of purchase printed on reverse side.
Xxxx Xxxxxx
Buyer
-2-
[GE logo] Purchase Order No. 806537
Purchase Order Change Number 11
From: GE Medical Systems
Xxxx Xxxxxx Xxx 000
Xxxxxxxxx, XX 00000
To: Colorado MEDtech, Inc.
000 X. Xxxxxx Xxxx X
Xxxxxxxx, XX 00000
Payment terms: Net 60 days
Transportation
F.O.B. Shipping Point
Shipping terms: collect
Title passage: buyers dock
Tax %: 0.0
Document issue date: 06-27-01
Note: This is a change to the above referenced purchase order
Change Item number 01
Delivery schedule
Remarks
Quantity: 1 pc
Description: 2160200-43 Rev 003
SSM
System Support Module
Erbtec #550020
Price: 7300.00 Ea
Received 06-25-02
The terms of the attached offer to extend finished goods liability dated
June 21, 2001 are incorporated by reference into this purchase order.
Xxxx Xxxxxx
Buyer
-3-
[Letterhead of GE Medical Systems]
General Electric Company
X.X. Xxx 000, Xxxxxxxxx, XX 00000-0000
June 21, 2000
Xxxxxxxxxxx Xxxx
Colorado MEDtech
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Re: Offer to Extend Finished Goods Liability
Dear Xx. Xxxx:
In our ongoing commitment to improve productivity, reliability and quality, GE
Medical Systems (GEMS) is currently involved in several Six Sigma projects to
improve its forecasting and ordering processes. As part of that effort, GEMS has
chosen a few select suppliers who will receive additional ordering assurances
and commitments by GEMS if those suppliers agree to assist GEMS with its
processes. You have been chosen as one of those suppliers, and as a selected
supplier, GEMS would like to extend its liability to you on forecasted products
in order for GEMS to avoid potential shortages on those products listed in
Attachment A.
As you are aware, historically, GEMS has provided you with forecasts of required
products and has then followed those forecasts with firm commitments for
delivery. As a result, GEMS has only been liable for products ordered as part of
the firm commitments and not as a result of the long-term forecasts. According
to suppliers we have surveyed, this process can result in shortages and delayed
delivery dates due to the suppliers' longer lead times for second tier supplier
parts. In order to avoid shortages and missed delivery dates due to these
reasons, GEMS is committing to its total forecasted product quantities through
June 30, 2002.
GEMS has issued purchase order 806537 to you as a firm commitment pursuant to
which GEMS shall purchase from you the quantities specified in Attachment A to
this letter. This commitment by GEMS serves to authorize your firm to commit to
both the materials and capacity required to ensure product availability through
June 30, 2002.
Purchase order 806537 shall incorporate by reference the following:
-4-
ADVANCE FUNDING AUTHORIZATION FOR ELECTRONIC ASSEMBLY PROCUREMENTS
THIS PURCHASE ORDER IS FUNDED IN AN AMOUNT OF $7,627,235 AS
AUTHORIZATION TO CMED TO 1) ADVANCE ORDER COMPONENT PARTS, 2) ADDRESS
CAPACITY CONSTRAINTS, AND 3) FACILITATE THE SUBSEQUENT MANUFACTURE OF
THE ASSEMBLIES DELINEATED HEREIN PER THE SIGNAL REQUIREMENTS. THIS PO
REPRESENTS A "SNAPSHOT" OF THE SUPPLIER SIGNAL SYSTEM FORECAST AS OF
THE DATE HEREIN AND DEFINES OUR COMMITMENT IN TERMS OF THE QUANTITIES
FOR EACH ASSEMBLY SPECIFIED THROUGH MARCH 31, 2002. THIS PO REFLECTS
THE PROJECTED DELIVERY PROFILE AND WILL BE ADJUSTED THROUGH SIGNAL
UPDATES. THE PRODUCTS LISTED HEREIN WILL BE DELIVERED AND INVOICED AS
PART OF COMPLETED ASSEMBLIES AS SIGNALED THROUGH THE GEMS SUPPLIER
SIGNAL SYSTEM. GEMS SHALL BE LIABLE FOR THE TOTAL AMOUNT OF FINISHED
GOODS LISTED IN THE PO AS SET FORTH IN THE OFFER TO EXTEND FINISHED
GOODS LIABILITY BETWEEN GEMS AND CMED DATED JUNE 21, 2001.
GEMS will continue to update the Supplier Signal System forecast each month as
part of its normal course of business. If at any time GEMS anticipates that the
total requirements for any assembly(ies) on Attachment A exceed the current
commitment level, you will be so notified and discussions will ensue to
determine, jointly, the best course of action.
This PO represents the total amount of products GEMS-MR plans on purchasing from
CMED and this PO is not to be shipped or billed against.
In return for this commitment by GEMS, you agree to the total quantity and
nominal weekly run rate identified under Attachment A, with material to be
delivered as pulled by weekly signals which will be within a +/- 25% band around
the nominal weekly run rate. To ensure that this objective is achieved, you
shall provide ongoing, bi-weekly feedback on the following performance
objectives: order placement and receipt (specifically for long lead time
components) proactive identification of obsolescence issues, and identification
of capacity constraints and the actions taken to resolve them.
In return for the commitment by CMED, GEMS shall purchase and take into
inventory by or before June 30, 2002 the quantity of remaining products listed
on Attachment A not previously purchased under purchase order No. 806537.
We are confident that such a firm commitment on our part will enable you to
successfully meet the end-of-year challenges ahead of us. Should you have any
questions with respect to the above, please contact me at your earliest
convenience.
Best regards,
/s/ Xxxx Xxxxxx
Xxxx Xxxxxx
Global Sourcing Leader--MR/CT Subsystems
Enclosures
- 5 -
ATTACHMENT A
Blanket Purchase Order Schedule
GE Part No. Description Current Price 12 Month Qty Total Spend
----------- ----------- ------------- ------------ -----------
2160200-43 1.5T/1T SSM 7300 750 5,475,000
2255388 1.5T RFI Module 2249 475 1,068,275
2160200-2 1.5T Upgrade kits 8170 0 --
2160200-45 .35T/.7T SSM 7300 100 730,000
2194013 1T RFI Module 1667 80 133,360
2244580 .7T RFI Module 1625 70 113,750
2271206 .35T RFI Module 2137 50 106,850
---------
7,627,235
SCHEDULE 8(e)
GE PURCHASE ORDER TERMS AND CONDITIONS
CONTRACT FORMATION
These Terms and Conditions, the provisions of any document referring to these
Terms and Conditions, any attachments thereto, and any samples, drawings or
specifications referred to therein, shall collectively constitute the "Purchase
Order". This Purchase Order shall constitute our offer to purchase from you the
products and services order ("Products"). We may revoke this offer at any time
before your acceptance. Upon acceptance, you agree to sell and deliver Products
to us in accordance with this Purchase Order. You shall be deemed to have
accepted this offer by sending us a written acknowledgement, by delivering any
Product ordered, or by commencement of work on Products to be specially
manufactured for us.
WE HEREBY OBJECT TO AND REJECT THE PROVISIONS OF ANY ACKNOWLEDGEMENT, ORDER
ACCEPTANCE OR INVOICE WHICH ARE INCONSISTENT WITH OR IN ADDITION TO THE
PROVISIONS OF THIS PURCHASE ORDER. THIS PURCHASE ORDER SHALL BE THE COMPLETE AND
EXCLUSIVE CONTRACT BETWEEN US WITH RESPECT TO THE PRODUCTS AND MAY BE MODIFIED
ONLY IN WRITING SIGNED BY OUR AUTHORIZED REPRESENTATIVE AND BY YOU. NO PRIOR
PROPOSAL, QUOTATION, STATEMENTS, FORECASTS, COURSE OF DEALING OR USAGE OF TRADE
WILL BE PART OF THE CONTRACT BETWEEN US.
COMMERCIAL TERMS
Price. Prices for Products are not subject to increase, except as may be
permitted below under "Changes". Price covers the net weight of material, and no
extra charges of any kind (including charges for containers, insurance, packing,
crating, storage, handling or cartage, interest charges, service charges and the
like) will be allowed. Unless prohibited by law, you will separately indicate on
your invoice any tax that is required to be imposed on the sale of Products.
Transportation. You agree to ship Products to us using our designated carrier
with transportation charges billed directly to us by the carrier. We will not
pay premium transportation charges unless authorized by us in writing. You will
list any unauthorized charges not otherwise billed to us as a separate line item
on your invoice. If you ship Products by an unauthorized method or carrier, you
will pay any resulting increased freight costs. You will release rail or truck
shipments at the lowest valuation permitted and will not declare value on
Products shipped.
Title and Risk of Loss. Title and risk of loss will pass to us when the Products
are delivered to our designated carrier. All shipments shall be F.O.B., place of
shipment.
Invoices. Your invoices shall contain the Purchase Order number, item number,
quantity, unit of measure, unit price, total invoice amount, and such other
information as may be required by the Purchase Order or other written
instructions from us.
-2-
Payments. If an invoice is issued in accordance with the requirements of this
Purchase Order,, unless agreed in writing or otherwise, we will pay the invoice
within sixty (60) calendar days following receipt of both the Product and the
invoice. Under no circumstances will we pay late fees, interest, carrying or
other charges.
Set-Off. We may set-off any amount owed to us from you or any of your affiliates
against any amount payable at any time by us to you.
COMPLIANCE
You represent and warrant that your performance will comply with all applicable
laws and regulations, including those prohibiting bribery or similar payments or
practices, and those related to environmental protection, health and safety. You
further represent and warrant that: (i) you and your suppliers will not use
child, forced or prison labor in connection with the manufacture and supply of
Products; (ii) you and your employees will not offer gifts, bribes, kickbacks,
free travel or other cash or non-cash incentives to our employees; and (iii)
your delivery of Products constitutes your certification that you have complied
with all applicable requirements. You will provide us all information necessary
to enable us to comply with the laws and regulations applicable to our use of
Products.
Without limiting the generality of the foregoing, you represent and warrant tat
the Products and their manufacture will comply with all applicable medical
device laws and regulations, including without limitation good manufacturing
practices.
OTHER TERMS
Our Property. All tools, dies, drawings, plans, data, manufacturing aids,
testing or other equipment or materials, inventions, technology, secrets or
other proprietary information, and all intellectual property rights in the
foregoing, which we furnish to you, or which is developed or acquired at our
expense in the performance of work hereunder, shall be our property. You hereby
assign and agree to assign to us, and to cause your employees to assign to us,
in each case without additional compensation, all such property. All such
property shall be safely maintained separate from your property, and marked
"Property of General Electric Company". You agree not to substitute any property
for our property and not to use such property except for performance of work
hereunder or as authorized by us. You also agree to insure any tangible property
at full replacement cost. Tangible property will be held at your risk and
subject to removal at our written request (in which event you will redeliver
such property to us at your expense in the same condition as originally received
by you, reasonable wear and tear excepted).
Foreign Purchases. Unless agreed otherwise, you shall be the importer of record.
If you are the importer of record, we will not be a party to the importation,
our name will not appear as importer of record on any document, and the
transactions contemplated hereby will be consummated after importation occurs.
At our request, you will state the country of origin on products, packaging or
your invoices, and provide acceptable documentation establishing the country of
origin, including without limitation certificates of origin for Products subject
to the NAFTA preferential duty provisions. If for any reason we are the importer
of record, you
-3-
represent and warrant that all sales made under this Purchase Order will be at
not less than fair value under the United States Anti-Dumping Law.
Audit Rights. At our request, you will allow us to audit without charge and to
copy at our expense any documents you have relating to the performance of your
obligations under this Purchase Order or other applicable legal requirements.
Trademarks. The names and trademarks of each party shall remain their sole and
exclusive property. If you place one of our trademarks on any Product, or if a
Product is unique to us, such Product will not bear your name or trademark and
will not be sold to anyone else.
Publicity. You may not, without our prior written consent, advertise or publish
the fact that we have contracted to purchase goods or services from you,
disclose information relating to this Purchase Order, or use our name or
trademarks, or the names or trademarks of any of our affiliates or customers.
Work on Our Premises. If you work on our premises or the premises of our
customer, you will comply with any applicable site rules and regulations. Except
to the extent a claim is due solely and directly to our negligence or our
customer's negligence, you will indemnify us and the customer from any claim
which may result in any way from any act or omission of you or your agents,
employees or subcontractors while on our premises or the premises of our
customer.
Insurance. You agree to maintain such public liability insurance (including
without limitation workers compensation, employer's liability, comprehensive
general liability, product liability and property damage insurance) as will
adequately protect us in the event of any liability arising under this Purchase
Order and, upon our request, you will provide us with evidence of such
insurance.
Remedies. The rights and remedies herein are cumulative and in addition to all
other rights and remedies available at law or in equity.
Waiver and Invalidity. Any waiver or renunciation of a claim or right arising
out of breach must be in writing and signed by the injured party. Any failure to
enforce any provision of the Purchase Order may not be construed as a waiver of
such provision or any other provision nor of the right to enforce such
provision. The invalidity, in whole or in part, of any provision hereof shall
not affect the remainder of the provisions.
Assignment. You may not assign any right or delegate any duty hereunder without
our prior written consent. Any attempted assignment or delegation by you will be
void.
Independent Contractor. You will be considered an independent contractor for all
purposes, and shall not be deemed to be our agent, employee or subcontractor
under any circumstance.
Headings. The headings on these Terms and Conditions are for convenience only
and may not be used in the interpretation thereof.
SCHEDULE 15
NON-DISCLOSURE LETTER AGREEMENT
[Letterhead of GE Medical Systems]
General Electric Company
XX Xxx 000
Xxxxxxxxx, XX 00000-0000
Date: June 18, 2001
Address:
Xxxxxxxxxxx Xxxx
Colorado MedTech
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Dear Xx. Xxxx:
Discussions are to be entered into between representatives of Colorado
MEDtech, Inc. ("CMED") and General Electric Company (GE) relating to MR
subsystems. Both GE and CMED representatives now believe there is a need to
exchange certain information which is considered to be proprietary to the
respective parties (Proprietary Information). Each party is willing to disclose
its Proprietary Information as necessary under the terms and conditions set
forth below.
1. All information disclosed or furnished by one party to the
other which the disclosing party deems to be proprietary shall
be in writing and clearly identified on its face as being
proprietary. Oral disclosures deemed to be proprietary shall
be confirmed in writing as proprietary within 30 days by the
disclosing party. The receiving party agrees that for a period
of three (3) years it shall not disclose such Proprietary
Information to any third party nor use such Proprietary
Information for any purpose other than to evaluate its
interest in the mutual business described above. The receiving
party shall protect the information with the same degree of
care as it applies to protect its own Proprietary Information.
2. Notwithstanding the provisions of Paragraph 1 above, the
receiving party shall have no obligations with respect to any
information which (i) is or becomes known within the public
domain through no act of the receiving party in breach of this
Agreement, (ii) was in the possession of the receiving party
prior to its disclosure or transfer hereunder and the
receiving party can so prove, (iii) is independently developed
by the receiving party and the receiving party can so prove,
or (iv) is received from another source without any
restriction on use or disclosure.
-2-
3. Except for the obligations of the parties with respect to
Proprietary Information disclosed prior to expiration or
termination, this Agreement shall (unless extended by mutual
agreement) expire or terminate at the earliest of the
following events:
(a) One (1) year after the effective date of the Agreement, or
(b) Thirty (30) days after written notice of termination
provided by either party to the other.
Upon such expiration or termination either party may request
from the other party that any and/or all of its documents
containing Proprietary Information be returned, and the other
party shall so return such documents forthwith. The receiving
party may retain a copy of the Proprietary Information for
archival purposes.
4. No rights to any patents are provided or are to be implied by
any provision of this Agreement.
5. Nothing in this Agreement shall be construed as precluding the
receiving party at any time from independently developing
ideas, negotiating with, or entering into any agreement with
others relating to the general subject matter of this
Agreement; subject, however, to the provisions of paragraphs 1
and 2 hereof with respect to disclosure and use of
information.
6. This letter contains the sole and entire agreement between the
parties relating to the subject hereof and any representation,
promise, or condition not contained herein, or any amendment
hereto shall not be binding on either party unless set forth
in a subsequent written agreement signed by an authorized
representative of the party to be bound thereby.
7. This Agreement shall be construed in accordance with the laws
of the State of
New York without regard to choice of law
provisions.
If the foregoing provisions are acceptable to you, please signify your
acceptance by signing and returning the enclosed duplicate copy of this letter.
This Agreement shall apply in lieu of and notwithstanding any specific legend or
statement associated with any particular document or information exchanged.
Very truly yours,
GENERAL ELECTRIC COMPANY
By: /s/Xxxx Xxxxxx
--------------------------
Title: Global Sourcing Leader
----------------------
-3-
Date: 6/18/2001
----------------------
ACCEPTED AND AGREED TO BY
Colorado MEDtech, Inc.
By: /s/ Xxxxx X. Xxxxxx
--------------------------------------
Title: Vice President of Corporate Affairs
Date: 18 June 01
SCHEDULE 19(e)
CASH REBATE SCHEDULE
DATE AMOUNT
-------- ---------
7/31/01 $ 50,000
8/31/01 $ 50,000
9/30/01 $ 50,000
10/31/01 $ 50,000
11/30/01 $ 50,000
12/7/01 $ 50,000
--------
TOTAL $300,000
