EXHIBIT 10.25
OEM AGREEMENT
This OEM AGREEMENT (the "Agreement") is effective as of the 1st day of
October, 2001 (the "Effective Date"), by and between XXXXXXX INC., a Washington
corporation ("Xxxxxxx") with its principal place of business at 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000 and MORTARA INSTRUMENT, INC., a Wisconsin
corporation ("Mortara") with its principal place of business at 0000 Xxxxx 00xx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
Whereas, Mortara desires to establish an exclusive worldwide marketing
relationship for its Products in the Territory (as defined in Exhibit B);
Whereas, Xxxxxxx xxxxx a broad range of devices for use by health care
and consumers and desires to add to its product line;
Whereas, Xxxxxxx and Mortara desire to enter into a definitive
agreement to which Xxxxxxx would purchase the Products from Mortara and on an
Exclusive basis (as defined below), combine and assemble them with other Xxxxxxx
products and resell them to third-party distributors and end-users through a
network of Xxxxxxx sales and distribution channels. Now, Therefore, in
consideration of the foregoing premises and other good and valuable
consideration, the parties hereby agree as follows:
ARTICLE 1 DEFINITIONS
DEFINITIONS. As used herein, the following terms shall have the following
meanings:
1.1 "COMPETITIVE CHANGE OF CONTROL" shall be deemed in effect in the event
a competitor of one party obtains equity ownership in the other party
in excess of 50%.
1.2 "CONFIDENTIAL INFORMATION" shall mean, subject to the exceptions set
forth in Section 9.2, any information received by one party from the
other party which is designated in writing as confidential, or, if
disclosed orally, identified at the time of disclosure as confidential
and followed by written confirmation of the confidential nature of such
information. Confidential Information may include know-how, data,
processes or techniques relating to the Products and any research
project, work in process, future development, scientific, engineering,
manufacturing, marketing, business plan, financial or personnel matter
relating to either party, its present or future products, sales,
suppliers, customers, employees, investors or business, and provided to
either party pursuant to this Agreement.
1.3 "END USER" shall mean an individual or entity that acquires the Product
for his or her own use and not for resale.
1.4 "EXCLUSIVE" shall mean the distribution of Products in the Territory to
End Users but does not include exclusive access to the underlying
technology of the Products which Mortara is free to license to other
companies in the form of product offerings for patient monitoring and
research organizations. Mortara maintains the right to supply existing
Products, including ECG Management systems, directly to research
organizations, Datex-Ohmeda in conjunction with monitoring system sales
and to the Federal Aviation Administration.
1.5 "FDA" shall mean the United States Food and Drug Administration, and
any successor thereto.
1.6 "FD & C ACT" shall mean the United States Federal Food, Drug and
Cosmetic Act, as amended, and applicable regulations promulgated
thereunder, as amended from time to time.
1.7 "FINAL ACCEPTANCE" shall mean Xxxxxxx has completed its functional
testing (as defined in Section 2.5.2) on any Product provided by
Mortara under this Agreement.
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1.8 "GOOD MANUFACTURING PRACTICES" or "GMP" shall mean the good
manufacturing practice regulations promulgated from time-to-time by the
FDA for the manufacture of medical devices in the United States and
other countries. "cGMP" or "current GMP" shall mean the GMP practices
in effect at a particular time, including in the United States the
requirements set forth in the FDA's current Quality System Regulation,
as it may be amended from time to time.
1.9 "PRODUCT(S)" shall mean the then current version of Mortara's Software
described in Section 1.11 and detailed in Exhibit A, as combined,
integrated and/or bundled with Xxxxxxx products and equipment ready for
delivery to End Users, together with any commercially available
documentation in electronic or hardcopy formats, and any related
technical information.
1.10 "REGULATORY APPROVAL" shall mean, with respect to a country, all
approvals, licenses, registrations, clearances or authorizations of the
FDA or any other federal, state or local regulatory agency, department,
bureau or other government entity, necessary for the use, manufacture,
storage, import, transport and Sale of a Product in such country.
1.11 "SOFTWARE" includes the ECG Management Software currently sold by
Mortara under the product name E-Scribe, encompassing the E-Scribe/NT
Enterprise Server and Workstation applications and accessories,
including any updates and enhancements. Such updates and enhancements
specifically exclude additional features and functionality which the
parties may agree to under terms of the Research and Development Fees
discussed in Section 3.2. The additional features and functionality are
intended for incorporation into the Products as they are developed.
1.12 "SELL", "SALE" or "SOLD" shall mean to sell, license, lease,
distribute, market, install or otherwise dispose of and to use in
connection with those activities.
1.13 "TRANSFER FEE" shall mean the fee Xxxxxxx shall pay Mortara for each
Product purchased or licensed hereunder, except for reasonable numbers
of copies of the Software which are used by Xxxxxxx internally for
demonstration and development purposes. Xxxxxxx agrees to maintain
control of and accountability for the distribution of demonstration and
development copies of the Software.
1.14 "ENGINEERING PERSON-YEAR" shall mean the equivalent of one year of
engineering time, for one Mortara engineer and applicable supporting
resources, which the parties agree to value at the rate of [*].
ARTICLE 2 THE PRODUCT
2.1 GRANT OF XXXXXXX RIGHTS. In consideration of the Transfer Fees set
forth in Exhibit A, and subject to and expressly conditioned upon
compliance with the terms and conditions of this Agreement, Mortara
hereby grants to Xxxxxxx and Xxxxxxx hereby accepts an exclusive,
nontransferable, license to combine the Products with Xxxxxxx products
or equipment and deliver the Products, together with any available
documentation, and as combined, integrated and/or bundled with Xxxxxxx
products or equipment, to End Users in the Territory.
2.2 DISTRIBUTION OUTSIDE OF TERRITORY. With respect to distribution of
Mortara's products equivalent to those encompassed by this Agreement,
in relation to countries outside of the Territory, should Mortara
decide to expand or modify its currently existing sales channels, then
Mortara agrees to discuss such distribution with Xxxxxxx, and consider
Xxxxxxx for such distribution, prior to signing any third party
distribution Agreement for such products covered by this Agreement.
2.3 EXCLUSIVITY. Section 1.4 enables Mortara to distribute related Mortara
products directly to Datex-Ohmeda as part of patient monitoring
offerings and to research organizations, and it is conceivable that
this provision may bring Mortara's sales efforts into conflict with
Quinton's sales efforts as contemplated by this Agreement. Should one
of these conflicts arise, both sides agree to negotiate in good faith
such additional terms and conditions or other ad hoc arrangements as
may best resolve the conflict. Furthermore, the parties will discuss in
good faith how best to conclude pending sales of Mortara products and
upgrades
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in the interim between the date of this Agreement and Quinton's formal
release of the Product. Following Quinton's formal release, both sides
further agree to jointly manage and cooperate in the transition to
Xxxxxxx support and upgrading of existing Mortara product installations
in the Territory.
2.4 LICENSE. Xxxxxxx shall distribute the Products for use under materially
and substantially similar terms and conditions to those in Quinton's
standard of Software License and Limited Warranty and/or its Limited
Warranty for Hardware. The current version of Quinton's Software
License and Limited Warranty is attached as Exhibit C. The current
version of Quinton's Limited Warranty for Hardware is attached as
Exhibit D. Notwithstanding termination or expiration of this Agreement,
End User licenses validly granted prior to expiration or termination of
this Agreement shall survive any such expiration or termination and
following any termination of this Agreement and for so long thereafter
as necessary for Xxxxxxx to satisfy, and solely to satisfy, its then
existing obligations for maintenance, warranty or support services to
its End Users, Xxxxxxx shall have a limited license to use two (2)
copies of the Products solely for such purposes.
2.5 DEVELOPMENT OF PRODUCT
2.5.1 Mortara is responsible for the development of the Software and
delivery of the Software to Xxxxxxx. Xxxxxxx shall provide to
Mortara such guidance, including requirements specifications
and other related documents, as may be necessary and
appropriate to support the timely development of the Software.
2.5.2 Validation and verification testing shall be defined and
testing conducted by Xxxxxxx on the Software as delivered by
Mortara. During the testing period, at its sole cost and
expense, Mortara shall provide Xxxxxxx with technical
assistance to support validation and verification testing
process.
2.5.3 The Software as delivered by Mortara will be combined by
Xxxxxxx with other applications and with hardware to develop
and deliver the finished Products to end users. Mortara will
provide support to Xxxxxxx as appropriate to develop and test
the integration of the Software into the finished Products.
Mortara further agrees to support the Software by providing
corrections to anomalies and such minor feature enhancements
as shall be mutually agreed upon.
2.5.4 The Research and Development Fees as described in Section 3.2
shall enable the development of the Software plus additional
functionality to deliver a highly competitive Product.
2.6 REGULATORY APPROVALS BY MORTARA. Mortara will be solely responsible for
filing, obtaining and maintaining any and all domestic Regulatory
Approvals relating to the Products provided to Xxxxxxx under this
Agreement. All Regulatory Approvals will be owned by and filed in the
name of Mortara, provided, however, that Xxxxxxx shall have the right
to reference all such Regulatory Approvals in its Product labeling.
Xxxxxxx will cooperate with Mortara, at Mortara's expense, in such
manner as Mortara may reasonably request to assist in obtaining such
Regulatory Approvals.
2.7 TECHNOLOGY ESCROW. Xxxxxxx has the right, but not the obligation, to
require Mortara to place all Product and corresponding documentation,
sufficient to manufacture and Sell the Products with Regulatory
Approval, in an escrow account upon the occurrence of any of the
factors listed below: (1) bankruptcy or insolvency of Mortara, (2)
uncured breach of the Agreement by Mortara in accordance with Article
12 of this Agreement, or (3) if greater than 50% of the voting shares
of Mortara are transferred to a company deemed by Xxxxxxx to be a
competitor of Xxxxxxx. Within sixty (60) days of Quinton's written
notice to Mortara of Quinton's decision to require the establishment of
an Escrow account: (i) the parties will select a mutually agreed upon
person or entity to serve as the holder of a technology escrow (the
"Technology Escrow Holder"); (ii) Mortara will establish a technology
escrow account with the Technology Escrow Holder; and (iii) Mortara
will negotiate and execute an escrow agreement which will provide for
the release of the escrow contents to Xxxxxxx by the Technology Escrow
Holder upon occurrence of the following events: any breach of this
Agreement by Mortara, or failure of Mortara to do business in the
normal course. Upon execution of the escrow agreement, Mortara will
place in the technology escrow account the information and data
necessary to manufacture the Products. During the term of this
Agreement Mortara shall update the
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escrow contents whenever significant Product changes occur. Xxxxxxx
will bear all Escrow fees associated with establishing and maintaining
the Escrow account and has the right to audit the Escrow account to
insure completeness.
ARTICLE 3 PRICES AND PAYMENT TERMS
3.1 FEES. Transfer Fees for the Products are set forth in Exhibit A
attached hereto.
3.2 RESEARCH AND DEVELOPMENT FEES.
3.2.1 Xxxxxxx agrees to pay Research and Development Fees to Mortara
to support the development and maintenance of the Software as
defined in this Section 3.2. These fees will be charged at a
rate of [*] per development Engineering Person-Year. In year
one of this Agreement, Xxxxxxx will pay for one Engineering
Person-Year of development to achieve the customization and
additional functionality including: (1) customization of
Xxxxxxx-labeled software, (2) Web server enablement, (3)
output of final reports in Adobe PDF format, and (4) a
facility to export data in the format specified in Exhibit E
(the "Initial Deliverables").
3.2.2 This Research and Development Fee for the Initial Deliverables
will be paid with a first installment of [*], billable net 30
days from the Effective Date of this Agreement, with the
remaining [*] to be split equally over reaching two milestones
over the course of developments described in the initial
deliverables. These milestones will be discussed in good faith
and agreed to by both parties upon the start of such
development. Additional functionality beyond that outlined in
the initial deliverables will be developed by Mortara for
additional fees at the same rate with a minimum fee of [*]. In
future years of this Agreement, Xxxxxxx can contract with
Mortara for additional development under similar terms. All
developments created under Research and Development Fees,
currently and in the future, will remain the intellectual
property of Mortara,.
3.3 REPORTING AND PAYMENT TERMS.
3.3.1 For all Software copied and distributed by Xxxxxxx, Xxxxxxx
agrees to deliver monthly reports as detailed in Section 3.3.2
to Mortara within thirty (30) days after the end of each month
in which the Software was Sold, specifying the number of
copies of Software distributed to End Users during the month
just ended. Each report shall be signed by a duly authorized
representative of Xxxxxxx and forwarded to Mortara at its
then-current notice address, addressed to the attention of
Xxxxx Xxxxxxxx. All reports shall be accompanied by payment
due, if any.
3.3.2 Monthly Reports. Quinton's monthly reports shall include
"Point of Sale" information which shall contain, at a minimum,
the following information: beginning and ending report dates,
End User purchase date, End User name, Product name, part
number, and quantity Sold to End User minus returns.
3.4 WITHHOLDING TAXES. Payments to Mortara hereunder shall be made without
deduction other than such amount (if any) Xxxxxxx is required by law to
deduct or withhold. Payments subject to such deductions or other
withholdings shall be increased by an amount which shall equal, as
nearly as possible, the amount required to be deducted or withheld,
less any tax benefits realizable by Mortara. Xxxxxxx shall obtain a
receipt from the relevant taxing authorities for all withholding taxes
paid and forward such receipts to Mortara to enable Mortara to claim
any and all tax credits for which it may be eligible. Xxxxxxx shall
reasonably assist Mortara in claiming exemption from such deductions or
withholdings under any double taxation or similar agreement or treaty
from time to time in force.
3.5 PRICE ADJUSTMENTS. Xxxxxxx and Xxxxxxx agree to review Qscribe system
sales, along with the resulting cost analysis, on a quarterly basis.
Should Quinton's profitability with the Products and Software exceed
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original expectations then the parties agree to enter into good faith
negotiations regarding increased transfer fees as deemed appropriate
and necessary.
3.6 OTHER TAXES, TRANSPORTATION AND INSURANCE. Xxxxxxx will pay all
non-U.S. export charges, import duties, any and all sales, use, excise,
value added or other taxes or assessments imposed by any governmental
authority upon or applicable to any sale to Xxxxxxx under this
Agreement, and all costs and charges for transportation, brokerage,
handling and insurance of the Products from the point of shipment.
3.7 RECORDS, AUDIT OF SALES AND EXPENSES. During the term of the Agreement
and for one (1) year thereafter, Mortara shall have the right, at its
sole cost and expense, to audit Quinton's books and records as
necessary to verify the monthly reports issued by Xxxxxxx under Section
3.3.2 above and Quinton's compliance with the terms of this Agreement.
Xxxxxxx shall make its books and records available for inspection
during Quinton's normal business hours. Mortara shall give Xxxxxxx no
less than ten (10) days prior written notice of its desire to perform
such an audit. If any such audit should disclose that Quinton's reports
understate the actual fees payable then Xxxxxxx shall promptly pay the
amount of the discrepancy to Mortara. Should such understatement of
fees payable by Xxxxxxx be five percent (5%) or more, Xxxxxxx shall
also reimburse Mortara for any expenses incurred in conducting the
audit, including auditor's fees and reasonable travel expenses, if any,
up to a maximum of $5,000. If any such audit discloses Xxxxxxx overpaid
fees to Mortara, then the amount of overpayment shall be credited
against Quinton's next monthly payment(s). Any Xxxxxxx records, books
or accounting information received by Mortara or its auditors during
any audit shall be treated as Confidential Information as detailed in
Article 9.
ARTICLE 4 MARKETING AND SERVICE
4.1 PROMOTION AND MARKETING. Xxxxxxx agrees to promote the Sale, marketing
and distribution of the Products in the Territory in a manner
consistent with this Agreement and generally accepted business
practices.
4.2 BUSINESS MEETINGS. Mortara and Xxxxxxx will meet each year during the
term of the Agreement to review sales performance, average selling
price of Product, Quinton's gross margins on net sales, Mortara's
Transfer Fees for Products and other relevant issues.
4.3 PROMOTIONAL LITERATURE. Upon request, Mortara will xxxxxxx Xxxxxxx, at
Mortara's expense, with all available electronic files of Product
documentation, technical requirements and the like in order to aid
Xxxxxxx in effectively carrying out its activities under this
Agreement. Xxxxxxx shall be responsible for and have exclusive rights
to the design and production of promotional literature for the Products
as created and delivered by Xxxxxxx. Xxxxxxx shall include any
copyright notices of Mortara as requested in writing by Mortara.
4.4 REPLACEMENT OR SERVICE OF DEFECTIVE PRODUCTS DURING THE WARRANTY
PERIOD. Mortara will replace or repair all defective Products returned
or reported to it by Xxxxxxx at no cost during the warranty period.
4.5 END USER SUPPORT. Xxxxxxx will be responsible for direct interaction
with its End Users for warranty and non-warranty related field service
and ongoing support for the Product.
4.6 TECHNICAL SUPPORT TO XXXXXXX. At its own cost and expense, Mortara will
provide Xxxxxxx technical service and applications personnel with
technical support for the Products, including telephone consultation
and assistance sufficient to enable Xxxxxxx to support its End Users of
the Products. In addition, Mortara agrees to provide technical
assistance to Xxxxxxx in adapting the Products to Quinton's products.
4.7 DEFECT TRENDING. No less than once each quarter Xxxxxxx shall supply
Mortara with a written report detailing any commonly experienced
failures or service problems with the Products. Upon reasonable notice
to Xxxxxxx from Xxxxxxx, records of Incidents shall be made available
to Mortara for inspection. Mortara agrees to use its best efforts to
promptly correct problems or defects that degrade the use of the
Product or result in an increased hazard risk.
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4.8 EXPENSES. All expenses incurred by either Mortara or Xxxxxxx in
connection with the performance of its obligations hereunder will be
borne solely by the party incurring the expense. Mortara and Xxxxxxx
shall each be responsible for appointing and compensating its own
employees, agents and representatives.
ARTICLE 5 MORTARA PRODUCT WARRANTY
5.1 PRODUCT WARRANTY. Mortara warrants that the Products provided to
Xxxxxxx in accordance with the terms hereof shall be (i) in compliance
with and perform in accordance with the Product specifications; (ii)
developed in compliance with the FD&C, cGMP and other applicable laws,
rules and regulations and (iii) free from defects in material and
workmanship. The Software shall be warranted for a period of ninety
(90) days from the date on which the Software is delivered to the End
User.
5.2 EXCLUSIONS. The above warranties shall not apply to any Product which
(a) has been altered by Xxxxxxx without approval of Mortara, (b) has
not been operated, repaired or maintained in accordance with any
handling, maintenance or operating instructions supplied by Mortara or
(c) has been subjected to unusual physical or electrical stress,
misuse, abuse, negligence or accident.
5.3 DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, MORTARA
MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE
PRODUCTS, AND MORTARA EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5.4 LIMITATION OF LIABILITY. To the maximum extent permitted by applicable
law, in no event shall Mortara be liable for any special, incidental,
or consequential damages whatsoever (including, without limitation,
damages for loss of business profits, business interruption, loss of
business information, or any other pecuniary loss) arising out of the
use or inability to use the Product, even if Mortara has been advised
of the possibility of such damages. Because some States and
Jurisdictions do not allow the exclusion of limitation of liability for
consequential or incidental damages, the above limitation may not
apply.
ARTICLE 6 REPRESENTATIONS AND WARRANTIES
6.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party hereby represents and
warrants to the other party that (i) it has the right and lawful
authority to enter into this Agreement; (ii) this Agreement is legal
and valid and the obligations binding upon each party are enforceable
in accordance with their terms except insofar as the enforceability
hereof may be limited by applicable bankruptcy, insolvency,
receivership, moratorium and other similar laws affecting the rights of
the creditors generally, or general principles of equity regardless of
whether asserted in a proceeding in equity or at law; and (ii) the
execution, delivery and performance of this Agreement does not conflict
with any agreement or understanding, oral or written, to which such
party may be bound, nor violate any law or regulation of any court,
governmental body or administrative or other agency having jurisdiction
over it.
6.2 PATENTS. Mortara warrants to Xxxxxxx that (a) it is the owner of the
entire right, title and interest in the Products and has all authority
necessary to grant the licenses in and to the Products herein; and
which is necessary for the manufacture, use, offer for Sale, Sale and
importation of the Products; and (b) manufacture, use, offer for Sale,
Sale and importation of the Products has not been found to infringe,
and to the best of Mortara's knowledge is not now infringing, and has
not been the subject of any notice or allegation, received by Mortara
as of the Effective Date, of infringement of any intellectual property
right of a third party.
ARTICLE 7 INDEMNIFICATION
7.1 INDEMNIFICATION BY MORTARA. Mortara agrees to indemnify, defend and
hold Xxxxxxx harmless from and against all claims, damages, losses,
costs and expenses, including reasonable attorney's fees and court
costs (collectively "Claims"), which Xxxxxxx may incur to the extent
such Claims arise out of (i) a Product's infringement of any United
States federal or state intellectual property right of a third party,
or (ii) the death
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or injury of any person or damage to property resulting from (a)
Mortara's breach of its representations, warranties and covenants
contained in this Agreement (b) Mortara's design, testing or
manufacture of the Products to the extent not caused by fault
attributable to Xxxxxxx, or (c) the negligence, recklessness or willful
misconduct of Mortara or its officers, employees or agents.
7.2 INDEMNIFICATION BY XXXXXXX. Xxxxxxx agrees to indemnify, defend and
hold Mortara harmless from and against all claims, damages, losses,
costs and expenses, including reasonable attorney's fees and court
costs (collectively "Claims"), which Mortara may incur to the extent
that such Claims arise out of (i) Quinton's breach of its
representations, warranties and covenants contained in this Agreement,
(ii) the Sale, promotion or other distribution of Products by Xxxxxxx
otherwise than in a manner consistent with the Agreement, (iii) any
representation or warranty given by Xxxxxxx with respect to the
Products (other than product warranty given by Mortara in Article 6
hereto and other than the labeling for Products as cleared by the FDA),
(iv) repairs or services rendered by Xxxxxxx that do not comply with
Mortara's recommended guidelines, or (v) injury, illness or death of
any person to the extent such injury, illness or death to other persons
arises out of or results from the negligence, recklessness or willful
misconduct of Xxxxxxx or Xxxxxxx'x officers, employees or agents.
7.3 LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO
THE OTHER FOR ANY INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT
LIMITATION, LOST PROFITS), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY THEREOF. Each party acknowledges that the foregoing
limitations are an essential element of the Agreement between the
parties and that in the absence of such limitations the pricing and
other terms set forth in this Agreement would be substantially
different.
7.4 INDEMNIFICATION PROCEDURE. The party seeking indemnification under this
Article 7 (the "Indemnified Party") shall (i) give the other party (the
"Indemnifying Party") written notice of the relevant Claim and the
related facts with reasonable promptness after becoming aware of same,
(ii) reasonably cooperate with the Indemnifying Party, at the
Indemnifying Party's expense, in the defense of such claim, and (iii)
give the Indemnifying Party the right to control the defense and
settlement of any such claim, except that the Indemnifying Party shall
not enter into any settlement that affects the Indemnified Party's
rights or interest in any intellectual property the Indemnified Party
controls, without the Indemnified Party's prior written approval. The
Indemnified Party shall have no authority to settle any claim on behalf
of the Indemnifying Party.
7.5 INSURANCE. Mortara shall maintain, during the term of this Agreement
and for a period of five (5) years after expiration or termination of
this Agreement, comprehensive general liability insurance, including
full products liability coverage, with an insurance carrier with a
rating of VII A Best or better, and coverage limits of not less than
$1,000,000 per occurrence and at least $2,000,000 aggregate coverage
for claims of bodily injury and property damage arising out of any
loss. Such policy or policies shall include Xxxxxxx as named insured in
such policy or policies. Such policy or policies shall also expressly
cover any liability Mortara may incur as Indemnifying Party under this
Agreement.
ARTICLE 8 PRODUCT RECALLS, ADVERSE EVENTS
8.1 PRODUCT RECALL. In the event that any governmental agency or authority
issues a recall or takes similar action in connection with the
Products, or in the event either party determines that an event,
incident or circumstance has occurred which may result in the need for
a recall or market withdrawal, the party with such information shall,
within twenty-four (24) hours, advise the other party of the
circumstances by telephone or facsimile. Xxxxxxx shall have the right
to control the arrangement of any Product recall, and the parties will
cooperate with each other in implementing such recall. Specifically,
the parties shall cooperate in the event of a Product recall with
respect to the reshipment, storage or disposal of recalled Products;
the preparation and maintenance of relevant records and reports; and
notification to any recipients or End Users.
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8.2 ADVERSE EVENTS. Each party shall advise the other party, by telephone
or facsimile, within such time as is required by the FDA (with respect
to the severity of an adverse event) after it becomes aware of any
complaints, adverse event reports or safety issues potentially caused
by use of the Products or to which the use of the Products may have
contributed as well as any Product malfunction or any other reportable
events under 21 CFR 803-804 or similar laws and regulations in other
countries. Such advising party shall provide the other party with a
written report delivered by confirmed facsimile of any such reports,
stating the full facts known to it, including but not limited to,
customer name, address, telephone number and serial number, if any, of
the Products involved.
ARTICLE 9 CONFIDENTIAL INFORMATION
9.1 NONDISCLOSURE OBLIGATIONS. During the term of this Agreement, and for a
period of three (3) years after termination hereof, each party will
maintain all Confidential Information in trust and confidence and will
not disclose any Confidential Information to any third party or use any
Confidential Information for any unauthorized purpose. Each party may
use such Confidential Information only to the extent required to
accomplish the purposes of this Agreement. Confidential Information
shall not be used for any purpose or in any manner that would
constitute a violation of any laws or regulations, including without
limitation the export control laws of the United States. Confidential
Information shall not be reproduced in any form except as required to
accomplish the intent of this Agreement. Each party will use at least
the same standard of care as it uses to protect proprietary or
confidential information of its own, which shall at minimum be a
reasonable standard of care. Each party will promptly notify the other
upon discovery of any unauthorized use or disclosure of the
Confidential Information. All information that is to be held
confidential shall be given only to individuals who are made aware of
the confidential nature of the information and who have signed a
confidentiality agreement or who have a fiduciary responsibility to the
disclosing party and who have a need to know.
9.3 EXCEPTIONS. Confidential Information shall not include any information
which: (i) is now, or hereafter becomes, through no act or failure to
act on the part of the receiving party, generally known or available;
(ii) is known by the receiving party at the time of receiving such
information, as evidenced by its written records; (iii) is hereafter
furnished to the receiving party by a third party, as a matter of right
and without restriction on disclosure; (iv) is independently developed
by the receiving party without any breach of Section 10.1; (v) is the
subject of a written permission to disclose provided by the disclosing
party; or (vi) is of such inconsequential nature as to render it
valueless. The parties agree that the material financial terms of this
Agreement will be considered the Confidential Information of both
parties. However, each party shall have the right to disclose the
material financial terms of this Agreement to any potential acquirer,
merger partner, or other bona fide potential financial partner, subject
to a requirement to secure confidential treatment of such information
consistent with the Agreement or if it is prudent or proper to make
such disclosure to comply with applicable government regulations;
provided that the disclosing party shall utilize reasonable efforts to
not publicly disclose such information to the extent legally permitted
and practicable.
9.3 AUTHORIZED DISCLOSURE. Notwithstanding any other provision of this
Agreement, each party may disclose Confidential Information if such
disclosure is in response to a valid order of a court or other
governmental body of the United States or any political subdivision
thereof; provided, however that the responding party shall first have
given notice to the other party hereto and shall have made a reasonable
effort to obtain a protective order requiring that the Confidential
Information so disclosed be used only for the purposes for which the
order was issued; is otherwise required by law; or is otherwise
necessary to secure financing, prosecute or defend litigation or comply
with applicable governmental regulations, including regulatory filings,
or otherwise establish rights or enforce obligations under this
Agreement, but only to the extent that any such disclosure is
necessary.
9.4 PUBLICITY. All public announcements and press releases regarding the
subject matter of this Agreement shall be made only after mutual
agreement by the parties as to the content and timing thereof. Any such
announcements or communications shall be made only with the prior
approval of the other party hereto, which shall not be unreasonably
withheld, except as otherwise required by applicable law or legal
process.
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ARTICLE 10 COMPLIANCE WITH LAWS
10.1 MANUFACTURING AND SHIPPING. Xxxxxxx and Mortara each shall be
responsible for complying with all applicable legal and regulatory
requirements of the United States and any other state or local
regulatory agency, department, bureau, commission, council or other
governmental entity regarding the manufacture and shipment obligations
hereunder. Each party shall promptly notify the other of new
instructions, regulations or specifications of which it becomes aware
which are relevant to the manufacture and distribution of the Products
under this Agreement and which are required by the FDA, or other
applicable laws or governmental regulations and shall confer with each
other with respect to the best means to comply with such requirements.
Each party shall assist the other in obtaining and maintaining all
approvals and authorizations of any governmental agencies necessary for
the manufacture, use, marketing, distribution or sale of Products, and
will promptly notify the other party of any comments, responses or
notices that a party receives from any governmental authorities which
relate to the regulatory status of the Product.
10.2 MARKETING AND SALES. Xxxxxxx shall comply with all applicable laws,
regulations and orders of any governments or government agencies
worldwide and with all other governmental requirements applicable to
its promotion, marketing and sales activities with respect to the
Products, including obtaining import approvals or other permits,
customs clearances, or authorizations for the shipment and Sale of
Products. In connection with Quinton's compliance with this Section
10.2, Xxxxxxx will provide Mortara with all information it reasonably
requests, including but not limited to distribution records, copies of
any filings made in connection therewith and any promotional
literature, sales literature, books, catalogues and the like prepared
in connection with the Products. Mortara will, at Quinton's expense,
xxxxxxx Xxxxxxx with such assistance and cooperation as may reasonably
be requested in connection with compliance with such governmental
requirements.
10.3 FACILITIES APPROVAL. Mortara shall be responsible for obtaining and
maintaining all necessary plant inspection standards, plant licenses
registrations or permits to enable the development of the Products.
ARTICLE 11 TERM, TERMINATION, AND EFFECT OF TERMINATION.
11.1 TERM. Except as provided in Sections 11.2 and 11.3, this Agreement and
the licenses and rights granted hereunder will be effective for a term
of five (5) years. Thereafter, this Agreement shall automatically renew
for successive one (1) year terms until terminated by either party
under Section 11.2 or Section 11.3 herein.
11.2 TERMINATION FOR BREACH. Either party may terminate this Agreement upon
written notice to the other party if (i) the other party commits any
material breach of this Agreement which the other party fails to cure
within sixty (60) days following written notice from the non-breaching
party specifying such breach; (ii) the other party permanently ceases
to conduct business; or (iii) the other party (a) becomes insolvent,
(b) makes an assignment for the benefit of creditors, (c) commences any
dissolution, liquidation or winding up, (d) has a receiver, trustee,
conservator or liquidator appointed for all or a substantial part of
its assets, or (e) has a petition filed by or against it under the
Bankruptcy Code of 1978, as amended, 11 U.S.C. Section 101 et seq., or
under any state insolvency laws providing for the relief of debtors,
and such petition is not dismissed within sixty (60) days of its
filing.
11.3 TERMINATION WITHOUT CAUSE. Either party may terminate this Agreement at
its election and in its sole discretion without cause upon twelve (12)
month written notice to the other party.
11.4 SURVIVING OBLIGATIONS. Termination or expiration of this Agreement will
not (i) affect any rights of either party which may have accrued up to
the date of such termination or expiration, (ii) relieve either party
of its obligations under Article 5 (Mortara Product Warranty), Article
6 (Representations and Warranties), Article 7 (Indemnification) or
Article 9 (Confidential Information), or (iii) relieve Xxxxxxx of its
obligation to pay to Mortara sums due prior to termination or
expiration of this Agreement.
11.5 EFFECT OF TERMINATION.
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11.5.1 Upon the termination of this Agreement for whatever reason,
Xxxxxxx will cease to act as a sales representative and
distributor of the Products, except that Xxxxxxx shall have
the right to continue to fulfill its support and maintenance
obligations related to the Products to its installed End User
base. Xxxxxxx will return to Mortara all price lists,
catalogs, sales literature, operating and service manuals,
advertising literature and other materials relating to the
Products originally provided by Mortara to Xxxxxxx, less one
(1) copy for the purpose of fulfilling its support and
maintenance obligations. Notwithstanding the foregoing,
Xxxxxxx will have the following rights: (i) for a period not
to exceed one hundred eighty (180) days, to sell any Products
remaining in inventory, and to fulfill firm orders received
from End Users and previously delivered to Mortara, and (ii)
in the event this Agreement is terminated by Xxxxxxx pursuant
to Section 11.2, to sell any Products for an additional two
hundred seventy (270) days solely with respect to the
fulfillment of firm standing orders as proven by documentation
presented to Mortara.
11.5.2 Upon the termination of this Agreement by any material breach
by Xxxxxxx, or from Quinton's inability to conduct its normal
business (Section 11.2 (ii) and (iii) above) Xxxxxxx shall
provide to Mortara upon the effective date of termination, the
following information: (i) the location of all Products sold
by Xxxxxxx during the term of this Agreement; (ii) the
Incident files related to the Products; and (iii) a copy of
Quinton's End User list for the Products compiled during the
term of this Agreement, including names, addresses, telephone
numbers and purchase history.
11.6 CHANGE OF CONTROL OF XXXXXXX. Xxxxxxx shall provide Mortara with prompt
written notice in the event of any Competitive Change of Control of
Xxxxxxx, and Xxxxxxx shall have the right to terminate this Agreement
upon thirty (30) days advance written notice to Xxxxxxx. In the event
Mortara elects to terminate this Agreement under this Section 11.6,
Mortara shall have the right, but not the obligation, to require
Xxxxxxx to satisfy its obligation to accept delivery of any Product(s)
ordered under any then current Xxxxxxx purchase order.
11.7 CHANGE OF CONTROL OF MORTARA. Mortara shall provide Xxxxxxx with prompt
written notice in the event of any Competitive Change of Control of
Mortara, and Xxxxxxx shall have the right to terminate this Agreement
upon thirty (30) days advance written notice to Mortara. In the event
Xxxxxxx elects to terminate this Agreement under this Section 11.7,
Xxxxxxx shall have the right, but not the obligation, to require
Mortara to satisfy its obligation to complete the delivery of any
Product(s) ordered under any then current Xxxxxxx purchase order.
11.8 NO LIABILITY FOR TERMINATION. Neither party will have any obligation to
the other by reason of the terminating party's termination permitted by
this Agreement. Each party hereby agrees not to assert any claim by
reason of such termination of this Agreement. Neither party, by reason
of the termination of this Agreement, will be liable to the other
because of any damages, expenditure, loss of profits, or prospective
profits of any kind or nature, sustained or arising out of such
termination or for any investments related to the performance of this
Agreement or the goodwill created in the course of the performance
under this Agreement.
11.9 ACCRUED OBLIGATIONS. No termination of this Agreement will in any
manner whatsoever release, or be construed as releasing, any party from
any liability to the other arising out of or in connection with a
party's breach of, or failure to perform any covenant, agreement, duty
or obligation contained in this Agreement. Neither party will be
relieved from any obligations vested prior to the date of termination
of this Agreement.
ARTICLE 12 MISCELLANEOUS
12.1 GOVERNING LAW AND VENUE. This Agreement shall be construed and
controlled by the laws of the State of Washington, U.S.A. (excluding
its conflict of law rules) and by laws of the United States of America,
excluding the United Nations Convention on Contracts for the
International Sale of Goods (which the parties hereby agree shall not
apply). In the event Mortara files a claim against Xxxxxxx in
connection with this Agreement, such claim will be filed in the state
and federal courts sitting in Snohomish County,
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
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Washington. In the event Xxxxxxx files a claim against Mortara in
connection with this Agreement, such claim will be filed in the state
and federal courts sitting in Milwaukee County, Wisconsin.
12.2 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the Exhibits hereto,
set forth and constitute the final, complete and entire agreement
between the parties hereto with respect to the subject matter hereof,
supersede any and all prior agreements, understandings, promises and
representations made by either party to the other concerning the
subject matter hereof and the terms applicable hereto and are intended
as a complete and exclusive statement of the terms of the agreement
between the parties. This Agreement may not be released, discharged,
amended or modified in any manner except by a writing signed by duly
authorized officers of both parties.
12.3 NO AGENCY; NO JOINT VENTURE; INDEPENDENT CONTRACTOR. Each party will
act as an independent contractor under the terms of this Agreement.
Neither party is, and will not be deemed to be, employee, agent,
co-venturer or legal representative of the other party for any purpose.
Neither party will be entitled to enter into any contracts in the name
of, or on behalf of the other party, nor will either party be entitled
to pledge the credit of the other party in any way or hold itself out
as having authority to do so.
12.4 WAIVER. No waiver of any right under this Agreement will be deemed
effective unless contained in a writing signed by the party charged
with such waiver, and no waiver of any right arising from any breach or
failure to perform will be deemed to be a waiver of any future such
right or of any other right arising under this Agreement.
12.5 HEADINGS. The headings of the several Articles and Sections herein are
inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement.
12.6 ASSIGNMENT. Neither party may assign, in whole or in part, this
Agreement nor any right or obligation arising under it without the
prior written consent of the other, such consent not to be unreasonably
withheld; provided, however, that either party may assign or transfer
its rights and obligations arising under this Agreement to a purchaser
of all or substantially all of the stock or assets of such party or to
an entity into which such party is merged, or to a wholly-owned
subsidiary of such party, without the consent of the other party.
12.7 SEVERABILITY. If any provision of this Agreement is or becomes or is
deemed invalid, illegal or unenforceable in any jurisdiction, such
provision will be construed or deemed amended to conform to applicable
laws so as to be valid, legal and enforceable and to conform to the
maximum extent possible to the intention of the parties including,
without limitation, by deleting such provision.
12.8 RESTRICTED RIGHTS. Any Software product which Xxxxxxx distributes or
licenses to or on behalf of the United States of America, its agencies
and/or instrumentalities, shall be provided with RESTRICTED RIGHTS in
accordance with DFARS 252.227-7013(c)1(ii), or as set forth in the
particular department or agency regulations or rules, or particular
contract which provide Mortara equivalent or greater protection.
12.9 EXPORT. Xxxxxxx acknowledges that the Product is subject to the export
control laws and regulations of the United States, and any amendments
thereof. Xxxxxxx confirms that with respect to the Product, it will not
export or re-export them, directly or indirectly, to (i) any countries
that are subject to United States export restrictions; (ii) any End
User who Xxxxxxx knows or has reason to know will utilize them in the
design, development or production of nuclear, chemical or biological
weapons; or (iii) any end user who has been prohibited from
participating in United States export transactions by any federal
agency of the United States government. Xxxxxxx further acknowledges
that the Product may include technical data subject to export and
re-export restrictions imposed by United States law.
12.10 BENEFITS OF THIS AGREEMENT. Except as expressly provided for herein,
nothing in this Agreement will be construed to give to any person or
entity other than Xxxxxxx and Xxxxxxx any legal or equitable right,
remedy or claim under this Agreement. This Agreement will be for the
sole and exclusive benefit of
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Xxxxxxx and Xxxxxxx and shall be binding upon and inure to the benefit
of their respective successors and permitted assigns.
12.11 NOTICES. Notices, consents and the like required or permitted hereunder
will be in writing and will be sent to the addresses set forth below or
to such other addresses as the parties may hereafter specify, and will
be deemed given on the earlier of (a) physical deliver (or refusal to
accept same) to a party, including confirmed delivery by facsimile or
telex; (b) upon delivery (or refusal to accept same) after sending by
expedited courier; (c) or upon delivery (or refusal to accept same) by
certified mail, return receipt requested. Copies of notices will be
sent to the appropriate address as set forth below:
TO MORTARA:
Mortara Instrument, Inc.
0000 Xxxxx 00xx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxx Xxxxxxxx
TO XXXXXXX:
Xxxxxxx Inc.
0000 Xxxxx Xxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Contracts Administration
12.12 FORCE MAJEURE. Neither of the parties hereto will be liable for any
failure or delay in performance hereunder where such failure or delay
is due, in whole or in part, to any cause beyond its reasonable
control, including but not limited to Acts of God, fire, flood,
warfare, labor disputes or other similar catastrophic events. If a
force majeure prevents Mortara from supplying, for a period of excess
of one hundred fifty (150) days, Products to Xxxxxxx pursuant to a
purchase order accepted by Xxxxxxx, Xxxxxxx shall have the rights set
forth in Article 2 hereof.
12.13 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be an original and all of which will
constitute together but one and the same document.
In Witness Whereof, the parties have executed this Agreement on the date first
above mentioned.
XXXXXXX INC. MORTARA INSTRUMENT, INC.
/s/ Xxxx Xxxxxx /s/ Xxxxx Xxxxxxxx
------------------------------ ----------------------------------
Authorized Signature Authorized Signature
XXXX XXXXXX XXXXX XXXXXXXX
Printed Name Printed Name
PRESIDENT V.P. OPERATIONS
Title Title
10/11/01 10/12/01
------------------------------ ----------------------------------
Date Date
Attached Exhibits:
-----------------
Exhibit A Products, Quantity Discount levels, Transfer Fees, Lead Times and Initial Order Quantity
Exhibit B Territory
Exhibit C QIC Software License and Limited Warranty
Exhibit D QIC Limited Warranty for Hardware
Exhibit E Data Content of the Exported Records
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EXHIBIT A
SOFTWARE, QUANTITY DISCOUNT LEVELS, TRANSFER FEES, LEAD TIMES AND
INITIAL ORDER QUANTITY
QUANTITY INITIAL
DISCOUNT TRANSFER LEAD ORDER
PRODUCT LEVELS FEE TIME QUANTITY
------- ------ --- ---- --------
HARDWARE:
Not Applicable
SOFTWARE:
Per-Site License Fee for Q-Scribe/NT Enterprise Server n.a. [*] n.a. n.a.
Per-Workstation License Fee for Q-Scribe/NT Workstation n.a. [*] n.a. n.a.
Per-Site HL-7 Interface Fee n.a. [*] n.a. n.a.
Per-Site License Fee for Upgrade of existing Mortara UNIX n.a. [*] n.a. n.a.
E-Scribe Server to Q-Scribe/NT Enterprise Server
Per-Site License Fee for Upgrade of existing Mortara n.a. [*] n.a. n.a.
E-Scribe/NT Server to Q-Scribe/NT Enterprise Server
Per-Site License to Upgrade from Synergy Server to n.a. [*]
Q-Scribe/NT Enterprise Server
Per-Workstation License to Upgrade from n.a. [*] n.a. n.a.
Synergy Workstation to Q-Scribe/NT Workstation
Product Labeling. All Software provided under this Agreement will be private
labeled by Mortara for Xxxxxxx, including a Mortara label e.g. "Heart of
Mortara" if appropriate. All decisions regarding product labeling and
trademarking for the Software and for the End User Products will be the
responsibility of Xxxxxxx.
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XXXXXXX X
XXXXXXXXX
Xxx Xxxxxxxxx is defined as follows: EXCLUSIVE TO MORTARA - Austria, Belgium,
Bulgaria, Croatia, Slovenia, Hungary, Finland, Greece, Portugal, Spain, Italy,
Germany, Netherlands, Switzerland, Turkey, Russia (CIS), Israel, Kuwait, New
Zealand, India, and the Peoples Republic of China including Hong Kong. EXCLUSIVE
TO QUINTON - England, Ireland, Japan and Korea along with the Western
Hemisphere. All other countries not directly stated above are non-exclusive and
are available for distribution through either Company.
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EXHIBIT C
QIC SOFTWARE LICENSE AND LIMITED WARRANTY
This Software License ("License") applies to Software products purchased by you
("Customer") from Xxxxxxx Instrument ("QIC") either alone or as part of Hardware
provided by QIC.
DEFINITIONS. "Software" means the proprietary software programs, routines,
subroutines and related items for control of products purchased from QIC by
Customer. "Hardware" means the equipment purchased by Customer from QIC to be
used with or containing the Software or, if none, the equipment specified for
use with QIC Software. The Software and Hardware that operate together are an
integrated "System." "Documentation" includes any commercially available
materials published by QIC for Customer's use with the Software or System.
TERM. This License shall become effective on the date of QIC's invoice for the
Software or Hardware and shall remain in effect until terminated. QIC may
terminate this License immediately if Customer fails to comply with any of the
terms of the License. Upon termination, Customer agrees to return, or, at QIC's
request, destroy all copies of the Software.
LICENSE. In consideration of the License fee, which is included in the purchase
price of the related Hardware, or if no Hardware is purchased, which is
otherwise charged for the Software, QIC hereby grants to Customer, and Customer
accepts, a non-transferable, non-exclusive license to use the Documentation,
install the Software in machine-readable executable object code on the Hardware
and use the Software in accordance with the Documentation provided by QIC.
COPYRIGHT. The Software is owned by QIC or its suppliers and is protected by
United States copyright laws and international treaty provisions. QIC and its
suppliers own and retain all right, title and interest in and to the Software,
including patents, trademarks, copyrights, trade secrets and other intellectual
property rights embodied or contained therein. Therefore, except as specifically
provided herein, Customer may not use, copy, or distribute the Software without
the prior written consent of QIC. Customer (i) may make one (1) copy of the
Software solely for backup or archival purposes, and (ii) may not copy the
Documentation accompanying the Software without the express written consent of
QIC.
RESTRICTIONS. This License may not be transferred by sublicense, assignment or
otherwise, except in the case of a transfer of all related QIC-supplied
Hardware. Transfer of QIC supplied Hardware shall include transfer of this
License; provided that (i) QIC has been notified in writing of the transfer;
(ii) the Hardware is the only Hardware specified for use with the Software;
(iii) each transferee must agree to the terms of this License; and (iv) any QIC
warranty or maintenance agreement in effect with Customer on the date of
transfer shall terminate without notice.
LIMITED WARRANTY. The "Warranty Period" means 90 days from the date of QIC's
invoice for the Software, or, if the Software is provided as a component to the
Hardware and specified for use with the Hardware, 90 days from the date of QIC's
invoice for the Hardware. QIC warrants that, at the time of delivery to Customer
and during the Warranty Period identified above: (i) the Software shall perform
reasonably in accordance with the specifications set forth in QIC's then current
commercially available Documentation for the Software or Hardware, and (ii) the
media on which the Software is delivered shall be free from defects in material
and workmanship.
CUSTOMER REMEDY. If the Software fails to comply with the limited warranty as
set forth herein during the Warranty Period, QIC will use commercial efforts to
repair or replace any such Software; or, at QIC's option, accept the return of
the Software and refund the License fees, or an equitable portion thereof, paid
by Customer for the Software.
SUPPORT. QIC will provide Support for the Software as follows:
1) as long as the Software is commercially available and supported by QIC,
Customer will receive maintenance releases commercially available from QIC
for the Software;
2) during the Warranty Period, Customer will receive all commercially
available maintenance releases, minor enhancements to the user interface,
toll-free telephone consultation and assistance on the Software during the
normal business hours of QIC, remote access support, and installation of
any maintenance releases or minor enhancements to the user interface
provided by QIC during the normal business hours of QIC;
Following the Warranty Period, Customer may, at its option, choose to purchase
any then current commercially available QIC support program for the Software.
Software Support services do not include maintenance releases, minor
enhancements and / or upgrades to any Hardware product(s) or System purchased
from QIC. Please contact QIC at the address listed below for details on QIC's
commercially available Hardware support service programs, after hours support,
installation assistance and on-site support services.
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EXCEPT AS EXPRESSLY SET FORTH HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, QIC AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW LIMITATIONS ON
IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
LIMITATION OF LIABILITY. IN NO EVENT SHALL QIC OR ITS SUPPLIERS BE LIABLE FOR
ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR COVER, OR LOSS OF
DATA, PROFIT, REVENUE OR USE IN CONNECTION WITH OR ARISING OUT OF CUSTOMERS USE
OF THE SOFTWARE, DOCUMENTATION, HARDWARE OR THIS LICENSE.
U.S. GOVERNMENT-RELATED RIGHTS. The Software and accompanying Documentation are
deemed to be "commercial computer Software" and "commercial computer Software
documentation," respectively, pursuant to DFAR Section 227.7202 and FAR Section
12.212, as applicable. Any use, modification, reproduction release, performance,
display or disclosure of the Software and accompanying Documentation by the U.S.
Government will be governed solely by the terms of this License and will be
prohibited except to the extent expressly permitted by the terms of this
License.
EXPORT RESTRICTIONS. Customer may not download, export, or re-export the
Software (a) into, or to a national or resident of, any country to which the
United States has embargoed goods, or (b) to anyone on the United States
Treasury Department's list of Specially Designated Nationals or the U.S.
Commerce Department's Table of Deny Orders. By downloading or using the
Software, Customer represents and warrants that Customer is not located in,
under the control of, or a national or resident of any such country or on any
such list. Customer acknowledges that it is Customer's sole responsibility to
comply with any and all government export and other applicable laws and that QIC
has no further responsibility for such after QIC's delivery of the License to
Customer.
The application of the United States Convention of Contracts for the
International Sale of Goods is expressly excluded. This License shall not be
subject to the Uniform Commercial Code. Any dispute between Customer and QIC
regarding this License will be subject to the exclusive venue and applicable
laws of the state and federal courts of the State of Washington.
ENTIRE AGREEMENT. This License constitutes the entire agreement between QIC and
Customer with respect to the subject matter hereof and shall supersede all
previous representations, agreements or proposals, whether oral or written. The
terms of this License shall prevail notwithstanding any variances with the terms
and conditions of any purchase order or other document submitted by Customer. If
any provision of this License is deemed invalid under any applicable statute or
rule of law, it is to that limited extent deemed omitted or modified.
CONTACT INFORMATION. Should you have any questions concerning this QIC Software
License and Limited Warranty, or if you desire to contact QIC for any reason,
please call (000) 000-0000, or write: Xxxxxxx Instrument, 0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx, Xxxxxxxxxx 00000-0000
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EXHIBIT D
QIC LIMITED WARRANTY FOR HARDWARE
During the warranty period set forth herein, QIC warrants that 1) the Product,
used in a manner for which it was designed, will generally conform to the
specifications as set forth in the operators manual delivered by QIC with the
Product, and 2) the mechanical and electronic components of the Product will be
free from defects in materials and workmanship. This warranty is
non-transferable.
For Category I products (standalone, non-networked products), the warranty
period is 13 months from invoice date. For Category II products (system,
networked products), the warranty period is 12 months from the earliest of: a)
first clinical use, b) final acceptance or c) 90 days from shipment date. For
Category III products (upgrades), the warranty period is 90 days from the
earliest of: a) first clinical use, b) final acceptance or c) 90 days from
shipment date.
During the warranty period, QIC will provide Customer with the following at no
charge:
1. Replacement of defective parts.
2. Labor necessary to effect repairs or replace defective parts during normal
business hours of 8:00AM to 4:30PM, Monday through Friday (excluding QIC
holidays), Customer's local time zone.
3. Access to the QIC Technical Support "hotline" during normal business hours
of 8:00AM to 4:30PM, Monday through Friday (excluding QIC holidays),
Customer's local time zone.
Parts replaced or labor performed under the terms of this warranty will be
warranted for the remainder of the original warranty term.
This warranty is void if failure of the Product results from accident, abuse,
improper use, neglect, repairs or alterations unauthorized by QIC, or any other
cause not directly resulting from a defect in materials or workmanship. If
failure of the Product results from any of the above conditions, all warranty
work performed by QIC, including parts and labor, shall be billed to Customer at
QIC's then current rates.
Interconnecting cables between the control panel and the mainframe of the
treadmill, patient cables, styli, ink cartridges, preamplifiers and all
external, operator accessible cabling, normally considered expendable, are
warranted for a period of 90 days from the date of Customer's invoice.
Electrodes and recording paper are specifically excluded from this warranty.
Calibration is not covered by this warranty unless failure results from a defect
in materials or workmanship. Also excluded from this warranty are operator
adjustments, as outlined in the operators manual, and power distribution within
the Customer's facility i.e. outlets, fuse boxes and wiring.
LIMITATION OF LIABILITY. QIC AND ITS SUPPLIERS WILL NOT BE LIABLE FOR ANY LOSS
OR DAMAGE CLAIMED TO HAVE RESULTED FROM THE USE, OPERATION OR PERFORMANCE OF THE
PRODUCTS OR RELATED IN ANY WAY TO THEIR ACQUISITION, REGARDLESS OF THE FORM OF
ACTION. IN NO EVENT WILL QIC BE LIABLE TO CUSTOMER FOR (A) ANY SPECIAL,
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF QIC HAS BEEN ADVISED OF
THE POSSIBILITY THEREOF, (B) ANY DAMAGES RESULTING FROM LATENT DEFECTS, LOSS OF
DATA OR PROFITS, (C) ANY CLAIM WHETHER IN CONTRACT OR TORT, THAT AROSE MORE THAN
ONE YEAR PRIOR TO INSTITUTION OF SUIT THEREON. QIC shall be liable for actual
damages resulting from a material breach of this limited warranty and for
personal injury or property damages directly resulting from gross negligence or
intentional misconduct on the part of QIC up to, but not exceeding, the purchase
price or license fees paid hereunder.
NOTE: This warranty is offered separate from but in addition to any warranty the
original manufacturer might offer. The original manufacturer's warranty may be
found in the printed material accompanying the Product. Both warranties are in
effect concurrently and Customer may choose that which is most cost effective
and convenient.
TO OBTAIN WARRANTY SERVICE: Notify QIC at the address shown below. Have
available full details of the malfunction, as well as the model and serial
numbers of the Product. When QIC receives this information, Customer will be
advised as to the service arrangements: field repair, field replacement, or
factory repair. In the case of factory repair, Customer will be assigned a
"return authorization number" and directed to return the Product, freight
prepaid, to the address shown below:
QIC TECHNICAL SERVICES DEPARTMENT
0000 XXXXX XXXXX XXXXXXX
XXXXXXX, XX 00000
425/402-2485 (000) 000-0000
The foregoing warranty constitutes the sole and exclusive remedy of the
Customer, and the exclusive liability of QIC. This limited warranty is in lieu
of any and all other warranties, representations and conditions, express or
implied, based in
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
XXXXXXX/MORTARA OEM AGREEMENT FOR ECG MANAGEMENT CONFIDENTIAL
Page 17 of 18
statute, common law or equity, as to the merchantability, fitness or purpose
sold, description, quality productiveness, or any other matter.
EXHIBIT E
DATA CONTENT OF THE EXPORTED RECORDS
This Exhibit defines the SCP sections that may be present and the data contents
of each section. Unless otherwise noted, the SCP file conforms all
specifications defined by SCP-ECG version 1.0.
E.1 SCP SECTION 1 - PATIENT / ECG ACQUISITION
This section is populated in a tagged data format. Tags 2 (Patient ID), 14
(Acquiring Device ID), 25 (Acquisition Date), and 26 (Acquisition Time) are
required; all other tags are optional. The Export program includes a tag if the
corresponding data is present in the ECG record. This section complies with the
SCP specification with the following exceptions:
- Tags 14 & 15 (Acquiring/Analyzing Device info) are not fully
populated. The following fields are populated:
- Institution number (bytes 1&2, corresponding to Q-Scribe
Group)
- Department number (bytes 3&4, corresponding to Q-Scribe
Site)
- Device type (byte 7)
- Manufacturer code (byte 8)
- Tab 21 (Overreading Physician) if the record is confirmed, this
field identifies the confirming physician; otherwise, the
contents of this field are undefined.
E.2 SCP SECTION 2 - XXXXXXX DEFINITION
Section 2 of the SCP file defines the codes used for data compression. The
Synergy Export program uses the SCP default Xxxxxxx table.
E.3 SCP SECTION 3 - ECG LEAD DEFINITION
This section indicates how many leads are present, and the lead ID and sample
range for each. The Synergy Export program does not use Median beats. The sample
range for each lead is zero-based, rather than one-based as called for by the
SCP specification.
E.4 SCP SECTION 6 - RHYTHM DATA
This section contains the compressed sample data for each of the ECG leads
defined in Section 3. This section is in full conformance with the SCP
definition.
E.5 SCP SECTION 7 - GLOBAL MEASUREMENTS
This section contains global ECG measurements and pacemaker locations &
amplitudes (if present). This section is in full conformance with the SCP
definition.
E.6 SCP SECTION 8 - ECG INTERPRETIVE STATEMENTS
This section contains text (not coded) interpretation statements. The Synergy
Export program places an asterisk (*) as the first character of a remark
statement. Statement hints or reasons are placed at the end of the statement
line and enclosed in brackets ( [...] ). This section also indicates whether the
record has been confirmed, and if so, the date & time of confirmation.
E.7 SCP SECTION 10 - LEAD MEASUREMENTS
This section contains the measurements for each ECG lead. This section is in
compliance with the SCP specification with the following exceptions:
- The P & T amplitudes and morphologies are not fully supported.
Only one of the (+) or (-) amplitudes is set; the other is
always zero. The morphology is limited to "positive", "notched
M" (both of these indicate that the (+) amplitude is valid), or
"negative", "notched W" (which indicate that the (-) amplitude
is valid).
- The Intrinsicoid deflection is not supported.
[*] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A
REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
XXXXXXX/XXXXXXX OEM AGREEMENT FOR ECG MANAGEMENT CONFIDENTIAL
Page 18 of 18
