EXHIBIT 2.3
EXHIBIT B
ABPM PRIVATE LABEL DISTRIBUTION AGREEMENT
BETWEEN
SPACELABS MEDICAL, INC.
AND
SPACELABS XXXXXXX, INC.
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GENERAL
This Distribution Agreement is entered on December 31, 2002 by and
between Spacelabs Medical, Inc., a California corporation having its
principal executive offices in Redmond, Washington ("MANUFACTURER") and
Spacelabs Xxxxxxx, Inc., a Delaware corporation having its principal
executive offices in Deerfield, Wisconsin (referred to herein as
"DISTRIBUTOR"). The effective date of this Agreement shall be the
Closing Date contemplated by the Stock Purchase Agreement dated
December 23, 2002 among MANUFACTURER, DISTRUBUTOR and certain other
parties.
WHEREAS MANUFACTURER manufactures certain medical products and seeks to
establish a distribution channel in certain territories, and,
WHEREAS DISTRIBUTOR distributes certain medical products and desires to
distribute additional products to its customers; and,
WHEREAS MANUFACTURER desires to appoint DISTRIBUTOR as an authorized
distributor in certain territories of certain products supplied by
MANUFACTURER and DISTRIBUTOR desires to accept such appointment.
THEREFORE The parties agree to such appointment upon the following
terms and conditions:
ARTICLE 1. DEFINITIONS
The following terms have the meaning indicated here when used in this
Agreement:
"ACCESSORIES" means those Product related accessories, if any, listed
on SCHEDULE 1.
"AFFILIATE" means any person, firm, corporation, and other legal
entity, which controls or is controlled by or under common control with
either MANUFACTURER or DISTRIBUTOR (as the case may be).
"DISTRIBUTOR" means Spacelabs Xxxxxxx, Inc.
"MINIMUM ANNUAL PURCHASE QUOTA" means the minimum Product purchase
requirements set forth on SCHEDULE 2, as amended from time to time
pursuant to Section 2.4 below.
"PARTIES" means MANUFACTURER and DISTRIBUTOR;
"PARTY" means MANUFACTURER or DISTRIBUTOR, as the case may be.
"PRICES" means US$ prices at which MANUFACTURER shall sell Products and
Accessories to DISTRIBUTOR as set forth in SCHEDULE 1, and shall
include costs for labeling and packaging, but shall exclude freight,
duties, taxes and insurance.
"PRODUCT" means such medical appliances, materials and equipment
manufactured by MANUFACTURER that are listed on SCHEDULE 1. Products
shall also include improvements and substitutes to the Products listed
on SCHEDULE 1, provided that the Prices for such Product improvements
and substitutes may be greater than the Prices listed on Schedule 1 for
the Product.
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"TARGET QUOTA" means the Product purchase targets set forth on SCHEDULE
2, as amended from time to time pursuant to Section 2.4 below.
"SERVICE CONTRACT" means service contracts for after sales servicing by
MANUFACTURER for Products and Accessories, which Service Contract shall
be in the form and on the terms and conditions attached to this
Agreement as EXHIBIT A, as may be revised by MANUFACTURER from time to
time.
"TERRITORY" means the countries and locations, and the specific field
of use, that are set forth in SCHEDULE 3, and includes the Exclusive
Territory and the Non-Exclusive Territory.
ARTICLE 2. APPOINTMENT
2.1 Subject to Section 2.4, MANUFACTURER hereby appoints DISTRIBUTOR as
the exclusive distributor of the Products and Accessories in the
Exclusive Territory and as a non-exclusive distributor of the Products
and Accessories in the Non-Exclusive Territory.
In addition to the foregoing, DISTRIBUTOR is authorized by MANUFACTURER
to sell Service Contracts in the Territory in a form provided from time
to time by MANUFACTURER; provided, that within 14 days after any such
sale of a Service Contract, DISTRIBUTOR shall notify MANUFACTURER of
such Service Contract, including the name and address of such customer
and the Products and Accessories to which the Service Contract relates,
and shall provide MANUFACTURER with a true and complete copy of the
Service Contract. MANUFACTURER agrees that MANUFACTURER will be bound
by the terms of any Service Contract sold by DISTRIBUTOR in accordance
herewith. MANUFACTURER appoints DISTRIBUTOR as its agent for purposes
of negotiating and executing such Service Contracts. DISTRIBUTOR shall
not sell to any customer a Service Contract other than
contemporaneously with the sale of the specified Products or
Accessories covered by such Service Contract; provided, however, a
customer may renew an existing Service Contract prior to its
expiration. DISTRIBUTOR shall serve as the first point of contact for
DISTRIBUTOR's customers for service issues.
2.2 DISTRIBUTOR shall not, directly or indirectly, sell Products or
Accessories acquired from MANUFACTURER for distribution under this
Agreement or Service Contracts outside the Territory (including without
limitation in the Non-Permitted Territory (as set forth on SCHEDULE
3)). DISTRIBUTOR agrees to purchase all its requirements for the
Products and the Accessories within the Exclusive Territory exclusively
from the MANUFACTURER.
2.3 In order to achieve better coverage of the Territory, DISTRIBUTOR
shall have the right to appoint local firms as its local distributors
in the Territory and may sell Products and Accessories, and Service
Contracts, directly or indirectly through one or more tiers of
distributors, resellers or contractors; provided, however, no such
appointment shall relieve DISTRIBUTOR of its obligations and
liabilities hereunder. The terms and conditions of appointment of local
distributors and/or sales representatives by DISTRIBUTOR shall in all
respects be consistent with the rights and obligations herein imposed
upon DISTRIBUTOR.
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2.4. In the event that DISTRIBUTOR fails to meet the Target Quota set
forth on SCHEDULE 2 for any calendar year, MANUFACTURER shall have the
right, exercisable in its sole and absolute discretion, to immediately
terminate DISTRIBUTOR's appointment as MANUFACTURER'S exclusive
distributor in the Territory, in which case DISTRIBUTOR shall continue
as a non-exclusive distributor of the Products and Accessories in the
Territory for the remainder of the term of the Agreement, and Section
2.1 shall be deemed amended accordingly. In the event that DISTRIBUTOR
fails to meet the Minimum Annual Purchase Quota for any calendar year,
MANUFACTURER shall have the right, exercisable in its sole and absolute
discretion, to immediately terminate this Agreement for material breach
in accordance with the provisions of Article 6 (without regard for the
30-day cure provisions in Section 6.1). MANUFACTURER'S rights to
terminate exclusivity and terminate this Agreement as set forth in this
Section 2.4 shall be the sole and exclusive remedy for any failure by
DISTRIBUTOR to meet the Target Quota and Minimum Annual Purchase Quota
and DISTRIBUTOR will have no liability to MANUFACTURER for failure to
meet the Target Quota and Minimum Annual Purchase Quota. DISTRIBUTOR
shall be deemed to have satisfied the Target Quota or Minimum Annual
Purchase Quota, as applicable, for a particular year if DISTRIBUTOR
submits orders (not subsequently cancelled or modified) for the
applicable quantity of products listed on SCHEDULE 2.
The Target Quota and Minimum Annual Purchase Quota set forth on
SCHEDULE 2 shall be effective for a calendar year. In December of each
year during the term of this Agreement, MANUFACTURER and DISTRIBUTOR
shall use their reasonable good faith efforts to meet and jointly agree
on an increase to the purchase quantities for the Target Quota and
Minimum Annual Purchase Quota for the next subsequent calendar year;
provided, however, that the Target Quota and Minimum Annual Purchase
Quota shall increase by a minimum of ten percent (10%) each year. In
the event that by December 31 of any year MANUFACTURER and DISTRIBUTOR
are unable to jointly agree on the increased Target Quota and Minimum
Annual Purchase Quota for the next subsequent calendar year, the Target
Quota and Minimum Annual Purchase Quota for the next subsequent
calendar year shall automatically be fixed at one hundred and ten
percent (110%) of the Target Quota and Minimum Annual Purchase Quota
for the calendar year then ending, and SCHEDULE 2 shall be deemed
amended accordingly.
In the event MANUFACTURER exercises its right pursuant to Section 2.4
to terminate DISTRIBUTOR's exclusive distribution rights, then the
Target Quota and Minimum Annual Purchase Quota will no longer apply.
ARTICLE 3. RELATIONSHIP
3.1 The relationship of DISTRIBUTOR to MANUFACTURER shall be that of an
independent contractor engaged in purchasing Products and Accessories,
and Service Contracts, from MANUFACTURER for resale to DISTRIBUTOR's
customers.
3.2 Nothing contained in this Agreement shall be deemed to create a
partnership or joint venture between the Parties. Neither the making
nor the performance of this Agreement shall be construed in any manner
to have established a joint venture or partnership.
3.3 Except with respect to the sale of Service Contracts by
DISTRIBUTOR, neither Party shall hold itself out as the agent of the
other, nor shall they incur any indebtedness or
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obligations in the name of, or which shall be binding on the other,
without the prior written consent of the other. Each Party assumes full
responsibility for its own personnel under laws and regulations of the
governmental authorities of the competent jurisdiction.
ARTICLE 4. ENTIRE AGREEMENT AND DOCUMENTS
4.1 This Agreement constitutes the entire agreement between
MANUFACTURER and DISTRIBUTOR regarding the subject matter herein, and
there are no other understandings, agreements or representations,
express or implied, written or oral regarding this subject matter that
are not specified herein.
4.2 All Schedules and Exhibits attached to the Agreement shall be
deemed a part of this Agreement and incorporated herein. Terms that are
defined in this Agreement, and used in any Schedule or Exhibit, have
the same meaning in the Schedule or Exhibit as in this Agreement. The
following are hereby made a part of this Agreement:
Schedule 1 - Products, Accessories, and Prices
Schedule 2 - Target Quota and Minimum Annual Purchase
Quota
Schedule 3 - Territory
Schedule 4 - General Provisions
Schedule 5 - Product Support Requirements
Schedule 6 - Labeling of Products
ARTICLE 5. TERM OF AGREEMENT
Unless earlier terminated pursuant to other terms hereof, this
Agreement shall remain in effect until December 31, 2005. The initial
term shall be automatically extended for additional terms of twelve
(12) months each, in accordance with the provisions hereof, unless
either Party shall have provided the other with written notice of its
desire not to extend the initial term at least twelve (12) months prior
to the scheduled expiration date of such initial term or any successive
additional terms. In the event of such expiration or any early
termination, this Agreement shall continue to apply to all orders
previously accepted by MANUFACTURER unless cancelled by DISTRIBUTOR
pursuant to Article 6 or Article 9.2.
ARTICLE 6. TERMINATION
6.1 Either party may terminate this Agreement in the event that the
other party commits a material breach and such breach remains uncured
for a period of thirty (30) days after written notice.
6.2 To the extent permitted by law, if either Party becomes insolvent,
is unable to pay its debts when due, files for bankruptcy, is subject
of involuntary bankruptcy and such involuntary proceeding is not
dismissed within ninety (90) days, has a receiver appointed, or has its
assets assigned, the other Party may terminate this Agreement by giving
written notice to the other party.
6.3 DISTRIBUTOR shall immediately cease to be an authorized distributor
of MANUFACTURER upon the effective date of termination of this
Agreement. DISTRIBUTOR shall thereafter refrain from representing
itself as an authorized distributor of MANUFACTURER, except for the
purpose of selling its then existing
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inventory of the Products and Accessories and any Products and
Accessories purchased from MANUFACTURER under Article 6.4.
6.4 Upon termination of this Agreement by MANUFACTURER as the result of
a breach by DISTRIBUTOR, upon the request of MANUFACTURER, DISTRIBUTOR
shall purchase all Products and Accessories for which firm orders have
been accepted by MANUFACTURER, as well as any Products and Accessories
bearing DISTRIBUTOR's branding or otherwise altered expressly for
DISTRIBUTOR in good faith reliance on any forecasts provided by
DISTRIBUTOR. In addition, if any materials or other components of any
Product and Accessory have been manufactured by MANUFACTURER in
reliance on such forecasts, and such materials or other components are
customized for DISTRIBUTOR to such an extent that they could not be
easily incorporated into or reused as part of products sold through
other channels, DISTRIBUTOR shall purchase such materials and other
components at MANUFACTURER's costs.
6.5 Either party may terminate this Agreement at any time with or
without cause by giving at least six (6) months' written notice to the
other party.
6.6 Upon termination of this Agreement by DISTRIBUTOR as the result of
a breach by MANUFACTURER, unless otherwise requested in writing by
DISTRIBUTOR within five days after delivery of notice of termination
all outstanding orders for Products and Accessories that have not been
received by DISTRIBUTOR prior to the effective date of termination will
be cancelled and DISTRIBUTOR will have no liability in connection
therewith.
6.7 The rights and obligations of the parties that have accrued prior
to termination and the rights and obligations of the parties under
Articles 6.3, 6.4, 6.6, 6.7, 10.9 (for purposes of exercising the
rights under 6.3), 14, 17, 20, 21, 22, 24.4, 26 and 27 will survive
termination or expiration of this Agreement.
ARTICLE 7. ASSIGNMENT AND MODIFICATION OF AGREEMENT
7.1 During the term of this Agreement, except as expressly provided in
this Agreement, neither Party may assign, transfer or sublicense this
Agreement or any of the rights or obligations under this Agreement,
without the prior written consent of the other Party, which consent
shall not be unreasonably withheld. Either Party may assign this
Agreement to an Affiliate (a "PERMITTED ASSIGNEE").
7.2 An assignment for purpose of Article 7.1 shall include any
transaction including but not limited to, any merger, consolidation or
purchase of stock that results in a third party who is not a Permitted
Assignee holding any rights or obligations under this Agreement or a
third party who is not a Permitted Assignee controlling, directly or
indirectly, a legal entity that holds any rights or obligations under
this Agreement. For purpose of this Agreement, the term "control" shall
mean the beneficial ownership, directly or indirectly, of fifty per
cent (50%) or more of voting shares of such entity or pursuant to any
agreement or understanding by which a third party who is not a
Permitted Assignee gains effective control of the management or
decision-making authority of a Party.
7.3 No sale, assignment or other transfer of any rights of a Party
hereunder shall be effective unless the purchaser, assignee or
transferee assumes such Party's obligations under this Agreement.
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7.4 Modifications of this Agreement shall be effective and binding only
if agreed in writing and executed by respective duly authorized
representative of each of the Parties hereto.
7.5 Neither Party's failure to exercise any of its rights under this
Agreement will constitute or be deemed a waiver or forfeiture of those
rights.
7.6 The temporary, limited or specific waiver of any term, provision or
condition of the Agreement shall not be considered a waiver of any
other term, condition or provision thereof, nor of any subsequent
breach of the same term, condition or provision.
7.7 If any of the provisions of this Agreement shall be declared
illegal or unenforceable by any court of competent jurisdiction, the
validity of the remaining provisions shall not be affected thereby, and
the Parties agree to do all such reasonable things and cooperate in all
reasonable ways open to them to obtain substantially the same results,
or as much thereof as may be possible, including the amendment or
alteration of this Agreement.
ARTICLE 8. PRICES AND PAYMENTS
8.1 DISTRIBUTOR sets its selling prices for the Products, Accessories
and Service Contracts at the sole judgment of DISTRIBUTOR. DISTRIBUTOR
shall compensate MANUFACTURER for the sale of Service Contracts at an
amount equal to the Price set forth on SCHEDULE 1. DISTRIBUTOR shall
maintain complete and accurate books and records of all Service
Contracts, including, without limitation, payments received by
customers Service Contracts, and MANUFACTURER shall have the right
during the term of this Agreement during normal business hours and upon
written notice given reasonably in advance to audit and inspect such
books and records to confirm the sales of Service Contracts and
payments received from customers therefor.
8.2 The Prices set forth in SCHEDULE 1 include the Product (or
Accessory, as the case may be) labeling and packaging, but exclude
freight, duties taxes and insurance. Products and Accessories shall be
shipped FCA (Incoterms 2000).
8.3 The Prices set forth in SCHEDULE 1 may be revised by MANUFACTURER,
by giving [*] days' prior written notice to DISTRIBUTOR, based on
supplier costs and the expected unit volume of Products and Accessories
purchased under this Agreement and after taking into consideration
market conditions and the parties' intent to maintain their respective
margins on the products. Notwithstanding the foregoing, Prices for any
Products listed on SCHEDULE 1 for which MANUFACTURER is providing any
improvements or substitutions may be revised effective immediately upon
written notice o DISTRIBUTOR after taking into consideration market
conditions and the parties' intent to maintain their respective margins
on the products. Issues relating to pricing may be raised at the
quarterly marketing meetings between DISTRIBUTOR and MANUFACTURER, as
described in Section 10.2 below.
8.4 Orders issued by DISTRIBUTOR before receipt of notice of any Price
change with requested or acknowledged delivery dates after the
effective date of any Price change will be billed at the earlier Price.
This includes backlog and orders already placed but that have not
received acknowledged delivery dates.
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8.5 Payment by DISTRIBUTOR to MANUFACTURER for Products, Accessories or
Service Contracts shall be net thirty (30) days after receipt by
DISTRIBUTOR of an invoice for Products or Accessories received or
Service Contracts sold. Invoices must include details such as
DISTRIBUTOR order number and quantities as reference. MANUFACTURER
shall invoice for Service Contracts at the end of each month and may
invoice for Products and Accessories at any time.
All payments under this Agreement shall be made in U.S. dollars. All
bank charges, fees, taxes and costs for remitting payments shall be
borne by DISTRIBUTOR. DISTRIBUTOR shall pay MANUFACTURER any costs and
expenses, including attorney's fees and fees of collecting agencies
incurred by MANUFACTURER in enforcing the terms of this Agreement.
8.6 MANUFACTURER may reject orders or refuse to make deliveries if
DISTRIBUTOR has any unpaid amounts that are due for previous orders.
MANUFACTURER shall be entitled to interest on overdue payments at the
rate of [*] per cent ([*]%) per annum or the highest lawful rate,
whichever is lower.
8.7 In competitive situations or as part of a large order, DISTRIBUTOR
and MANUFACTURER may agree on a special Price arrangement and split the
cost of additional discounts, but shall not be under any obligation to
reach such agreement.
ARTICLE 9. SHIPMENT AND DELIVERY
9.1 DISTRIBUTOR will submit written (fax or electronic) orders of
Products and Accessories to MANUFACTURER. In addition, with respect to
each Forecast (as defined in Section 11.1 below), DISTRIBUTOR will
submit a firm purchase order in the amount of the Products for the
first month stated in such Forecast. All purchase orders are subject to
acceptance by MANUFACTURER. Acknowledgment of the acceptance of the
order and the expected delivery date will be provided by MANUFACTURER
to DISTRIBUTOR within no more than five (5) working days in writing.
9.2 Provided that the quantity of Products and Accessories in a
purchase order for a given month does not exceed the quantity set forth
in the forecast for the immediately preceding month by more than 30%,
MANUFACTURER will make commercially reasonable effort to deliver the
Products and Accessories subject to such purchase order within 30 days
from the date of acceptance of the purchase order. MANUFACTURER shall
give DISTRIBUTOR prompt notice of any prospective failure to meet the
acknowledged delivery date. If MANUFACTURER either notifies DISTRIBUTOR
that it will fail to meet the acknowledged delivery date or fails to
deliver Products or Accessories by the acknowledged delivery date,
DISTRIBUTOR may (without limiting any other rights or remedies
available to DISTRIBUTOR) cancel such orders without charge. In
addition, in the event that MANUFACTURER fails, for any two consecutive
purchase orders, to deliver at least 70% of the quantity of Products or
Accessories subject to such purchase orders within the 30-day period
following the applicable acknowledged delivery dates, then the quantity
of Product not delivered by the end of such 30-day period shall be
credited towards satisfaction of the Target Quota and/or Minimum Annual
Purchase Quota, as applicable notwithstanding the cancellation of the
order for all or any portion of the undelivered quantities.
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9.3 Orders are firm when submitted, but DISTRIBUTOR may request changes
in delivery dates, quantity and configuration for Products appearing on
its orders, at no charge, provided written notice of said changes is
received by MANUFACTURER at least ten (10) working days prior to the
acknowledged delivery date; provided, however, that any requested
changes shall not (i) result in an extension of the acknowledged
delivery date by more the 30 days, or (ii) be for a greater than 30%
increase or decrease in the quantity or configuration of any Product or
Accessory stated on the purchase order; and provided further, that if
any such request involves any increase in the quantity or configuration
of any Products or Accessories or acceleration of the delivery date,
MANUFACTURER will make commercially reasonable efforts to accommodate
such changes.
9.4 Upon DISTRIBUTOR's request with the necessary information,
MANUFACTURER shall make commercially reasonable efforts to promptly
evaluate special requests for suitability of software or suitability of
a particular hardware interface between Products and Accessories and
the hardware/software used by DISTRIBUTOR's customers and inform
DISTRIBUTOR of its findings.
9.5 MANUFACTURER shall provide a packing list with DISTRIBUTOR's
purchase order number, part numbers, serial numbers, quantity shipped
and date shipped with each unit shipped. If applicable, the packing
list should also provide lot number, batch number, or other identifying
information.
9.6 MANUFACTURER shall preserve, package, handle, and pack Products and
Accessories so as to reasonably protect the Products and Accessories
from loss or damage, in conformance with good commercial practice,
government regulations, and other applicable requirements. MANUFACTURER
shall xxxx the exterior of the boxes with a description of the
associated Product and Accessory and serial numbers of the contents.
MANUFACTURER shall be responsible for any loss or damage due to its
failure to properly preserve, package, handle, or pack Products and
Accessories. DISTRIBUTOR shall not be required to assert any claims, on
MANUFACTURER's behalf, for such loss or damage against the common
carrier involved. MANUFACTURER will ship Products and Accessories in
the final packaging as intended to be received by the end user as
instructed in writing by DISTRIBUTOR.
9.7 DISTRIBUTOR shall, upon receipt of the Products and Accessories
supplied by MANUFACTURER, without delay, using due diligence, examine
them both as to their quality and quantity.
9.8 Items missing in shipment will be promptly replaced and shipped at
no charge to DISTRIBUTOR within five (5) business days of notice of
missing items.
ARTICLE 10. MARKETING, SALES PROMOTION, AFTER SALES, TRADEMARKS AND COPYRIGHTED
MATERIAL
10.1. DISTRIBUTOR shall actively sell, advertise and promote the sale
of the Products, Accessories and Service Contracts throughout the
Territory and agrees to maintain at its cost an effective marketing,
sales and service organization and an adequate and representative stock
of the Products and the Accessories. In particular, DISTRIBUTOR agrees
to pursue all inquiries and to issue quotations to prospective
customers promptly and diligently. Further, DISTRIBUTOR shall at its
cost participate at fairs and exhibitions in the Territory.
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To secure product safety and correct use and to help avoid difficulties
in tracing or recall matters and arranging after-sales services, the
Products and Accessories are intended for sale to professional users,
such as (but without limitation) physicians, only.
10.2 During the term of this Agreement, MANUFACTURER and DISTRIBUTOR
agree to use their good faith efforts to meet and participate (either
in person, by telephone or videoconference) in quarterly marketing
meetings, at such times and places mutually reasonably acceptable to
both parties, for the purpose of discussing and following up sales and
marketing efforts for Products and Accessories, and the performance of
the parties under this Agreement, and to discuss and evaluate potential
future courses of sales and marketing activities, including, without
limitation, the matters described in Section 8.3. MANUFACTURER and
DISTRIBUTOR shall each cause its respective marketing director or
manager responsible for ABP marketing to attend each such quarterly
meeting.
10.3 It is understood and agreed that all expenses incurred by
DISTRIBUTOR in marketing, selling, promoting and servicing the
Products, Accessories and Service Contracts shall be borne by
DISTRIBUTOR, and MANUFACTURER shall be under no obligation to make any
payments to DISTRIBUTOR for such expenses.
DISTRIBUTOR agrees that DISTRIBUTOR has the responsibility of
producing, at DISTRIBUTOR's cost, all brochures, catalogs and other
marketing, sales and promotion materials as well as user's and service
manuals. To assist DISTRIBUTOR in preparing the user's and service
manuals MANUFACTURER will furnish DISTRIBUTOR with a draft copy of the
user's and service manuals in respect of the Products and Accessories
in the English language. MANUFACTURER shall inform DISTRIBUTOR about
any material change in the Products or Accessories that materially
affect the English language user's or service manual as furnished by
MANUFACTURER. DISTRIBUTOR further agrees not to use any brochures,
catalogs or any other sales promotion material, or their parts,
produced by MANUFACTURER in marketing, selling or promoting any of
DISTRIBUTOR's similar products or in any other way, unless expressly
otherwise agreed in writing. All other DISTRIBUTOR specific literature
and advertising will be the responsibility of DISTRIBUTOR. The
copyright in any marketing materials provided by MANUFACTURER,
including any derivative works thereof made by or for MANUFACTURER,
shall be owned by MANUFACTURER. The copyright in any marketing, sales
and promotion materials, users' and service manuals, including any
derivative works thereof made by or for DISTRIBUTOR will be owned by
DISTRIBUTOR subject to MANUFACTURER's rights in any underlying works.
10.4 MANUFACTURER agrees to provide periodic training to DISTRIBUTOR's
employees, at MANUFACTURER's facilities (or such other location
mutually agreed by the Parties), in connection with sales and servicing
of the Products and Accessories. DISTRIBUTOR shall, at its sole cost,
ensure and require that all of its employees, sales representatives and
agents involved in sales, marketing, promotion, servicing and other
activities related to the Products and Accessories maintain adequate
levels of training in the areas of sales and service, including,
without limitation, attending training seminars and other training
programs sponsored by MANUFACTURER. In addition, DISTRIBUTOR shall
develop and provide, at its sole costs, training and other services for
its local distributors, resellers, contractors, sales representatives,
field staff and agents. From time to time, at DISTRIBUTOR's reasonable
request, MANUFACTURER agrees
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to provide back-up support and training for DISTRIBUTOR's training
staff at MANUFACTURER's facilities (or such other location mutually
agreed by the Parties).
10.5 DISTRIBUTOR shall market and promote the Products and Accessories
under the trade name and trademarks of DISTRIBUTOR specified in
Schedule 6 hereto. DISTRIBUTOR agrees not to use any trademarks or
servicemarks of MANUFACTURER, in marketing, selling or promoting the
Products or Accessories or in any other way, without obtaining
MANUFACTURER's prior written approval.
Except as expressly set forth in this Agreement, no right, title or
interest with respect to any trademarks, servicemarks, trade names,
patents, copyrights, trade secrets and designs of any party shall be
conveyed to the other party pursuant to this Agreement.
10.6 DISTRIBUTOR shall not register or attempt to register any
trademarks or trade names owned or generally used by MANUFACTURER or
any confusingly similar trademarks or names. Similarly MANUFACTURER
shall not register or attempt to register any trademarks or trade names
owned or generally used by DISTRIBUTOR or any confusingly similar
trademarks or names.
10.7 DISTRIBUTOR shall not infringe, violate or misappropriate any
intellectual property or proprietary rights of MANUFACTURER.
DISTRIBUTOR shall not modify, or assist any other party to modify, the
Products or Accessories for resale. DISTRIBUTOR shall notify
MANUFACTURER in the event the DISTRIBUTOR becomes aware of any
activities in the Territories that DISTRIBUTOR knows or has reason to
believe infringe, violate or misappropriate any intellectual property
or proprietary rights of MANUFACTURER.
10.8 DISTRIBUTOR hereby grants MANUFACTURER a revocable license to use
such of DISTRIBUTOR's trademarks and trade names as DISTRIBUTOR
designates in writing are to be incorporated into the Products and
Accessories and their related documentation, for the purpose of
manufacturing the Products and Accessories and preparing such
associated documentation as required hereunder during the term of this
Agreement. Except as provided in this paragraph and paragraph 10.1,
MANUFACTURER shall have no right, title or interest in or to any
trademark of trade name belonging to DISTRIBUTOR. Any and all goodwill
accruing from the use of any DISTRIBUTOR trademarks will inure solely
to the benefit of DISTRIBUTOR. MANUFACTURER will not (a) register any
of the trademarks designated by DISTRIBUTOR to be incorporated into the
Products and Accessories or any similar trademarks, (b) contest the
validity or DISTRIBUTOR's ownership of any such trademarks, (c) use any
such trademarks for any purpose that is not expressly authorized herein
or authorize any third party to use any such trademarks, or (d)
sublicense any of the rights herein.
10.9 MANUFACTURER hereby grants DISTRIBUTOR a revocable license to
reproduce materials provided to DISTRIBUTOR by MANUFACTURER as is
reasonable for promotion, demonstration, sale and support of
MANUFACTURER's Products and Accessories, including but not limited to
posting such materials on the Internet, Intranet, or World Wide Web.
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EXHIBIT B
ARTICLE 11. ESTIMATED PURCHASES; MINIMUM PURCHASE ORDER RELEASE QUANTITY
11.1 DISTRIBUTOR agrees to submit to MANUFACTURER and maintain a good
faith rolling four month purchase forecast for Products ("FORECAST").
The minimum purchase order release quantity (i.e., the minimum quantity
of units which may be ordered for delivery on any particular date)
shall be [*]. The Forecast is provided as an accommodation to
MANUFACTURER only and nothing in the Forecast is binding except as
otherwise expressly specified in this Agreement (including, without
limitation, Section 9.3).
ARTICLE 12. QUALITY ASSURANCE, REGULATORY COMPLIANCE
12.1 MANUFACTURER agrees to maintain ISO9001, US GMP 21 CFR 820, and
compliance with the Food and Drug Administration's (FDA) Quality System
Regulation and/or appropriate regulations that apply to the United
States of America. As manufacturer, MANUFACTURER will comply with all
applicable regulations and standards that pertain to manufacturers for
Products and Accessories in the Territory. DISTRIBUTOR shall comply
will all applicable laws and regulations in connection with
DISTRIBUTOR's sale and distribution of Products, Accessories and
Service Contracts in the Territory. Other than those that are the
responsibility of MANUFACTURER hereunder, DISTRIBUTOR shall obtain at
its sole cost and expense any permissions, consents and licenses that
may be necessary to enable it to market, distribute, and sell the
Products and Accessories. MANUFACTURER agrees that the appropriate
labeling of the Products and Accessories and the obtaining of
registrations, tests and/or approvals from relevant authorities where
necessary, is the sole responsibility of MANUFACTURER and will be done
at MANUFACTURER's sole cost.
12.2 DISTRIBUTOR may, from time to time, inform MANUFACTURER of
applicable regulations in the Territory and MANUFACTURER shall ensure
that Products and Accessories comply with all such regulations as
provided in this Article 12.
12.3 Upon request, MANUFACTURER agrees to reasonably cooperate with
DISTRIBUTOR through the provision of any information in MANUFACTURER'S
possession that is required to enable DISTRIBUTOR to comply with all
applicable regulations and standards that pertain to distributors for
Products and Accessories and Territory set forth herein.
12.4 Each party shall be solely responsible, at its own cost, for the
regulatory compliance with respect to the Products and Accessories as
set forth herein.
ARTICLE 13. MODIFICATION OF PRODUCTS AND ACCESSORIES
13.1 All Products and Accessories marketed by DISTRIBUTOR shall be sold
under DISTRIBUTOR'S trade name and trade dress as agreed upon by the
parties and as packaged by MANUFACTURER. DISTRIBUTOR shall not alter or
change any Products or Accessories or their package, prior to sale.
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13.2 MANUFACTURER shall not, without DISTRIBUTOR's prior written
consent, make any process or design changes affecting the regulatory
status of Products or Accessories in the Territory or the form, fit or
function of the Products or Accessories.
13.3 MANUFACTURER shall provide DISTRIBUTOR written notice of all
Product or Accessories production discontinuance six (6) months prior
to the last order date and written notice of any planned
service/support discontinuation at least eighteen (18) months prior to
such discontinuation.
13.4 MANUFACTURER agrees to ensure backward compatibility for all
enhancements to the current Products and Accessories.
ARTICLE 14. WARRANTY AND LIMITATION OF REMEDIES
14.1. MANUFACTURER agrees to remedy any material defect in the Products
or Accessories resulting from faulty design, materials or workmanship.
MANUFACTURER's obligation set forth herein shall apply (i) to defects
appearing and notified to MANUFACTURER within a period of [*] months
from the date of invoice of the Product by MANUFACTURER to DISTRIBUTOR
and (ii) to defects appearing and notified to MANUFACTURER within a
period of [*] months from the date of invoice of the Accessory by
MANUFACTURER to DISTRIBUTOR (the "USER WARRANTY"). Defects in a
repaired or replaced Product or parts shall be covered to the extent of
the unexpired term of the applicable warranty period or no less than
[*] months after the repair or replacement, whichever occurs later. The
Products, Accessories and repaired or replaced items shall be referred
to as the "WARRANTY GOODS".
14.2 MANUFACTURER will supply a copy of the User Warranty with each
Warranty Good sold herein.
14.3 If DISTRIBUTOR finds that any Product or Accessory is defective,
in need of repair or fails to comply with a warranty hereunder prior to
its sale by DISTRIBUTOR, DISTRIBUTOR shall notify MANUFACTURER and
describe the defect. Within five (5) working days following
notification, MANUFACTURER will grant approval and, provide a return
authorization number for repair or replacement of the Product or
Accessory as applicable hereunder. DISTRIBUTOR undertakes to quote the
authorization number on all documentation that accompanies Products or
Accessories being returned. DISTRIBUTOR should ensure that equipment is
suitably packed. These defective Products or Accessories will be
promptly replaced at no charge to DISTRIBUTOR.
14.4 After MANUFACTURER approves the return of the defective Products
or Accessories, MANUFACTURER will inform DISTRIBUTOR as to the return
location and send return labels to DISTRIBUTOR or advise all details.
14.5 MANUFACTURER shall be entitled to verify the reason for the return
and to determine in its discretion whether to replace (rather than
repair) the Product or Accessory. MANUFACTURER shall have no obligation
to repair or replace units free of charge if the failure is due to any
of the following reasons:
i Damage from abuse or misuse by DISTRIBUTOR or its
sublicensees or customers; ii Attempted repair by
DISTRIBUTOR through an unauthorized service center.
ii Attempted repair by DISTRIBUTOR through an unauthorized
service center.
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14.6 MANUFACTURER warrants that at the time of delivery all Products
and Accessories shall (i) conform strictly to their respective
specifications, (ii) be free from efects in design, material and
workmanship, (iii) be free from all liens, encumbrances, and other
claims against title, and (iv) have correct and adequate warning labels
and instructions relating to their use, handling or function in the
Territory.
14.7 In addition to warranties specified above, where an exceptionally
high failure rate occurs (more than double the annual failure rate
quoted in SCHEDULE 5, Product Support Requirements), MANUFACTURER will
use commercially reasonable efforts to return the failure rate to
normal as soon as reasonably practicable. MANUFACTURER shall reimburse
DISTRIBUTOR for reasonable and documented costs incurred by DISTRIBUTOR
in case of such abnormal failures. Failure is defined as a situation
where the end user cannot fully utilize the Product.
ARTICLE 15. IN-WARRANTY REPAIR
If Warranty Goods are returned to MANUFACTURER, then parts, labor costs
for returned Products and transportation, insurance and handling
charges of shipment of Product to MANUFACTURER for repair or
replacement are covered by MANUFACTURER. Repaired or replaced Warranty
Products will be returned to sender at MANUFACTURER's expense.
ARTICLE 16. OUT-OF-WARRANTY REPAIR
16.1 DISTRIBUTOR or its customer shall bear all shipping charges for
out-of-warranty repairs.
16.2 Repairs made by MANUFACTURER outside of the warranty period shall
be billed at MANUFACTURER's then current standard repair charge. Such
out-of-warranty repairs shall have a [*]-day warranty and shall be
subject to the same terms and conditions as set forth in Articles 14
and 15.
16.3 MANUFACTURER shall provide technical support and shall ensure that
compatible spare parts for the Products and Accessories are available
for a period of [*] years from the last delivery of the Product or
Accessory in question. If unable to provide such service and support,
MANUFACTURER shall provide DISTRIBUTOR with a mutually agreeable
alternative.
ARTICLE 17. COMPLAINTS, QUALITY RECORDS AND RECALLS
17.1 DISTRIBUTOR will notify, in writing, MANUFACTURER's quality
assurance department of all Product complaints or any
regulatory/conformance issues known to DISTRIBUTOR that are likely to
affect the marketability of Products or Accessories. MANUFACTURER shall
notify the appropriate regulatory agent(s) if required and shall
conduct any safety investigations or other necessary follow-up
activities. DISTRIBUTOR will provide any requested information in its
possession essential to such activities. MANUFACTURER will promptly
notify DISTRIBUTOR if corrective action is necessary in the Territory.
17.2 DISTRIBUTOR shall maintain and shall cause its local distributors,
sales representatives and agents to maintain serial and/or lot number
and date of shipment
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records for each Product and Accessory so that, if necessary for
tracing or recall purposes, the name and address of each end-user
purchaser of a Product or an Accessory can be identified to the serial
and lot number and the software version and update thereof. DISTRIBUTOR
shall promptly make such records available for audit by MANUFACTURER on
MANUFACTURER's request. DISTRIBUTOR shall give its assistance to
MANUFACTURER in tracing or recall situations by making the records
available or alternatively by contacting the end-user itself.
17.3 Upon request, but not more often than once per year, DISTRIBUTOR
will supply MANUFACTURER a report of repairs, maintenance or service
activity for Products. The report will include the product number,
serial number, fault found, action taken and date of the activity.
17.4 In the event of any corrective or preventive action, including,
without limitation, recall or field correction of a Product required by
a governmental agency for safety or efficacy reasons, or requested by
MANUFACTURER at its sole discretion, without limiting any other rights
or remedies available to DISTRIBUTOR, MANUFACTURER agrees to repair or
replace at its own costs all Products and Accessories subject to the
corrective or preventive action and to reimburse any costs or expenses
that DISTRIBUTOR may incur in connection therewith. MANUFACTURER also
agrees to consult with DISTRIBUTOR to establish a reasonable process
for managing the corrective or preventive action and MANUFACTURER shall
be responsible for all reasonable out-of-pocket expenses incurred by
DISTRIBUTOR (including, but not limited to shipping costs, labor and
travel costs, but excluding any internal overhead and administrative
costs) that are consistent with the corrective or preventive action
process agreed to by the Parties. In the event the corrective or
preventive action is not required by a governmental agency for safety
or efficacy reasons, but is instead requested by MANUFACTURER at its
sole discretion, MANUFACTURER will consult with DISTRIBUTOR and will
implement only if such corrective or preventive action is necessary for
safety or other reason approved in advance by DISTRIBUTOR (which
approval shall not be unreasonably withheld). DISTRIBUTOR agrees to
maintain all necessary sales records to facilitate the corrective or
preventive action.
ARTICLE 18. PRODUCT INFORMATION
MANUFACTURER shall, upon request, provide available environmentally
related information regarding materials included in Products and
Accessories and packaging that MANUFACTURER ships to DISTRIBUTOR
including material safety data sheets.
ARTICLE 19. FORCE MAJEURE
No Party to this Agreement shall be liable for failure or delay of
performance of any of its obligations hereunder if such failure or
delay is due to causes beyond its reasonable control including, without
limitation, natural disasters, fires, earthquake or storm, strikes,
acts of war, or intervention, acts restraints or regulations of any
governmental authority including compliance with any order of any
governmental considerations; provided that any such delay or failure
shall be remedied by such Party as soon as possible after removal of
the cause of such failure. A Party suffering such delay or which
expects to suffer such delay shall promptly notify the other Party in
writing of the cause and expected duration of such delay. In the event
a delay lasts or is expected to last more than
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EXHIBIT B
six (6) months the other Party shall have the option to terminate this
Agreement upon written notice.
ARTICLE 20. CONFIDENTIALITY
Both Parties agree to keep in confidence the terms and conditions of
this Agreement and shall not disclose any technical, trade, financial,
marketing or sales information obtained from the other party unless
such information (a) is already known to the receiving party, (b) has
become publicly available through no fault of the receiving party, (c)
is independently developed by the receiving party without reliance on
any information of the disclosing party or (d) is disclosed to the
receiving party by another source who is under no obligation of
confidentiality with respect to such information. The parties shall
not, without the prior written consent of the other party, use such
proprietary information of the other party for any purpose other than
as necessary for performance of this Agreement. Nothing in this Article
20 shall effect or impair the rights or obligations of the parties
under that certain Non-solicitation and Non-Disclosure Agreement dated
of even date herewith.
ARTICLE 21. INTELLECTUAL PROPERTY RIGHTS AND INDEMNITY
21.1 MANUFACTURER agrees to indemnify and hold harmless and defend at
its own expense DISTRIBUTOR, its Affiliates, employees, officers,
directors, assignees, local distributors, and customers from and
against any and all liabilities, claims, demands, damages, costs and
expenses and judgements (including legal fees) incurred by or rendered
against any of the above mentioned parties arising from claims that
Products, spare parts, Accessories and any other products or services
provided under this Agreement by MANUFACTURER infringe, violate or
misappropriate any copyright, patents, trade marks, industrial designs,
trade secret or other intellectual property or proprietary rights of
any third party. Notwithstanding anything to the contrary above, in no
event shall MANUFACTURER have any liability under this Article 21.1 for
any such claims to the extent resulting from (a) modifications to the
Products or Accessories by DISTRIBUTOR where the unmodified Products or
Accessories do not infringe, (b) the combination of the Products or
Accessories by DISTRIBUTOR with other products not provided or
combination accepted (whether express or implied acceptance) or
validated by MANUFACTURER where the non combined Products or
Accessories do not infringe or (c) any activities by DISTRIBUTOR not
permitted under this Agreement.
21.2 DISTRIBUTOR agrees to indemnify and hold harmless and defend at
its own expense MANUFACTURER, its Affiliates, assignees, local
distributors, and customers from and against any and all liabilities,
claims, demands, damages, costs and expenses and judgements (including
legal fees) incurred by or rendered against any of the above mentioned
parties arising from claims that DISTRIBUTOR'S copyrighted material
created by or for DISTRIBUTOR after the date of this Agreement or any
trademarks, trade names or trade dress that were not used by
DISTRIBUTOR or MANUFACTURER prior to the date of this Agreement
infringe any third party's intellectual property or proprietary rights.
Notwithstanding anything to the contrary above, in no event shall
DISTRIBUTOR have any liability under this Article 21.2 for any such
claims to the extent resulting from (a) use of any trademark, trade
name or trade dress other than as expressly permitted under this
Agreement or (b) any infringement of any of MANUFACTURER's underlying
work contained in any copyrighted material created by or for
DISTRIBUTOR after the date of this Agreement.
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21.3 MANUFACTURER shall indemnify and hold harmless and defend at its
own expense DISTRIBUTOR, its Affiliates, employees, officers,
directors, from and against any and all liabilities, claims, demands,
damages, costs and expenses or judgments (including legal fees)
incurred by or rendered against any of them from third party claims or
actions arising out of or relating to (a) personal injury, death or
property damage which arise out of or in any way relate to (i) a defect
in the design, parts, workmanship or materials of Products or
Accessories, (ii) service of any Products or Accessories, or (iii) any
negligence or willful misconduct of MANUFACTURER, its employees,
contractors or agents, (b) any breach of this Agreement, including
without limitation breach of any representation or warranty contained
herein, or (c) any Service Contract sold by DISTRIBUTOR in accordance
with the terms of this Agreement. DISTRIBUTOR shall indemnify, defend
and hold harmless MANUFACTURER and its Affiliates from and against any
and all liabilities, claims, demands, damages, costs and expenses or
money judgments (including legal fees) incurred by or rendered against
any of them from third party claims or actions for personal injury or
property damage which arise out of DISTRIBUTOR's distribution or sale
of Products or Accessories hereunder to the extent such claims do not
give rise to MANUFACTURER's indemnification obligation hereunder or do
not arise out of MANUFACTURER's (or its Affiliates') negligence or
breach of this Agreement.
21.4 In either case under Section 21.1, 21.2 or 21.3 above, the party
seeking indemnification (the "INDEMNIFIED PARTY") shall (a) give the
other party (the "INDEMNIFYING PARTY") prompt written notice of any
Claim for which indemnification is sought hereunder, (b) not settle or
compromise such Claim without the prior written consent of the
Indemnifying Party, (c) permit the Indemnifying Party to control the
defense and settlement of such Claim, and (d) comply with any
settlement, judgment or court order made in connection with such Claim.
The Indemnifying Party shall not, without the prior written consent of
the Indemnified Party, enter into any settlement or consent to the
entry of any judgment with respect to any such Claim (x) that contains
any admission by or finding against the Indemnified Party, (y) that
includes any relief to the claimant other than monetary relief to be
paid in full by the Indemnifying Party, or (z) that does not include as
an unconditional term thereof the giving by the claimant to the
Indemnified Party a release of all liability in respect of such Claim.
The Indemnified Party shall have the right to participate in the
defense and settlement of any Claim with an attorney of its own choice
at its own expense.
21.5 In the event of a claim is for infringement, violation, or
misappropriation of a third party's intellectual property rights for
which a party has indemnification obligations under either 21.1 or
21.2, the Indemnifying Party shall have the option at its own expense
to procure for the Indemnified Party the right to continue to exercise
the rights licensed hereunder, or to replace the relevant material with
non-infringing material, or modify the relevant material so that it no
longer infringes, violates or misappropriates the applicable third
party intellectual property rights. The remedies set forth in this
Article 21 shall be the sole remedies of each party against the other
with respect to claims by third parties for infringement, violation or
misappropriation of a third party's intellectual property rights.
ARTICLE 22. LIMITATIONS ON REMEDIES
22.1 EXCEPT AS PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL,
CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY KIND WHATSOEVER
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EXHIBIT B
INCLUDING BUT NOT LIMITED TO LOST PROFITS, IN CONJUNCTION WITH OR
ARISING OUT OF THE PERFORMANCE UNDER THIS AGREEMENT OR THE USE OR
PERFORMANCE OF PRODUCTS OR ACCESSORIES AND SUPPORT SERVICES EVEN IF THE
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
CONSEQUENTIAL LOSS FOR THE PURPOSES OF THIS AGREEMENT SHALL MEAN AND
INCLUDE WITHOUT LIMITATION, IN EACH CASE WHETHER ARISING IN TORT,
STRICT LIABILITY OR CONTRACT:
(a) LOSS OF PROFITS;
(b) LOSS OF CONTRACTS;
(c) LOSS OF ANTICIPATED SAVINGS;
(d) LOSS OF DATA;
(e) LOSS OF BUSINESS;
(f) LOSS OF GOODWILL;
(g) LOSS OF REVENUE;
22.2 The above limitation of liability shall not apply to damages with
respect to breach of Article 20 or to the parties' indemnification
obligations under Article 21 or in the case of MANUFACTURER's gross
negligence or willful misconduct.
22.4 The rights and remedies set forth in Articles 14, 15 and 16 shall
bethe exclusive rights and remedies for any breaches or noncompliances
of any of the warranties contained in Article 14.
ARTICLE 23. INSURANCE
Upon request by a party, the other party shall provide evidence of
product liability, general liability and property damage insurance
against an insurable claim or claims, which might or could arise
regarding the Products or Accessories. Such insurance will contain a
minimum limit of liability for bodily injury and property damage of not
less than $[*] US.
ARTICLE 24. CONFLICT RESOLUTION
24.1 The appointed representatives set forth in Schedule 4 General
Provisions shall address conflicts that arise relative to this
Agreement. Upon the written request of either representative by written
notice to the other party the MANUFACTURER and DISTRIBUTOR shall
promptly establish a review board comprised of appropriate members of
management from MANUFACTURER and DISTRIBUTOR to resolve the conflict.
24.2 In the event that (a) the review board of the Parties does not
resolve a dispute within thirty (30) days from the date the conflict is
presented to the review board, (b) the MANUFACTURER or DISTRIBUTOR have
not appointed at least one individual to participate on the review
board within five (5) days after written notice from the representative
as described in 24.1, or (c) the review board has not met in person or
by telephone within ten (10) days after it is formed, then the Parties
agree to consider seriously the use of mediation but each party will
also be free to pursue any rights or remedies available under contract,
at law or in equity through any proceeding or venue available in
accordance with Article 24.4 below. Any mediation process shall be non-
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EXHIBIT B
binding and voluntary. The Parties shall agree on the procedural
aspects of the mediation, including the venue, during the time that the
mediation is being considered.
24.3 If the Parties do not attempt to resolve a dispute through the
foregoing mediation process or upon failure of or withdrawal from such
mediation process, then either of the Parties may elect to pursue any
remedies available at law, in accordance with the provisions of Section
24.4 below.
24.4 This Agreement and all orders under this Agreement shall be
governed and interpreted in accordance with the local law of the State
of Washington without reference to its law relating to conflicts of law
to the contrary. The rights and obligations of MANUFACTURER and
DISTRIBUTOR shall not be governed by the provisions of the U.N.
Convention for the International Sale of Goods, 1980. Neither party
will commence or prosecute any suit, proceeding or claim to enforce the
provisions of this Agreement other than in the courts of the State of
Washington or the United States District Court for the Western District
of Washington; provided that the foregoing sentence shall not apply in
a situation where a party is seeking an injunction or other equitable
relief in which case a party may seek such injunction or other
equitable relief in any court having jurisdiction. Subject to the
previous sentence, DISTRIBUTOR and MANUFACTURER hereby irrevocably
consent to the exclusive jurisdiction and venue of the courts
identified in the preceding sentence.
ARTICLE 25. ADMINISTRATION AND NOTICES
Any notices pursuant to this Agreement shall be sent to the address(s)
specified SCHEDULE 4 General Provisions or such other address as a
party may identify in writing by a written notice given in accordance
herewith.
ARTICLE 26. SEVERABILITY
If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent,
the remainder of this Agreement and the application of such provision
to other persons or circumstances shall not be affected thereby and
shall be enforced to the greatest extent permitted by law.
ARTICLE 27. INJUNCTIVE RELIEF
Notwithstanding anything else contained in this Agreement, either party
shall have the right to pursue injunctive and other equitable relief
for any violations of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY BLANK; SIGNATURE PAGE FOLLOWS]
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DATED AND EXECUTED on December 31, 2002, by duly authorized officers of
the undersigned parties, intending to be bound hereby.
SIGNATURES
FOR SPACELABS MEDICAL, INC. FOR SPACELABS XXXXXXX, INC.
___________________________________ ____________________________________
Authorized Representative Signature Authorized Representative Signature
Name: Name:
Title: Title:
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SCHEDULE 1 - PRODUCTS, ACCESSORIES AND PRICES
--------------------------------------------------------------------------------
The following Schedule is attached to and forms part of the Distribution
Agreement between MANUFACTURER and DISTRIBUTOR
--------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
XXXXXXX/XXXXXXX
FACTORY REPAIR
XXXXXXX/XXXXXXX PRICE
ANNUAL SERVICE (NO SERVICE
MODEL/PART NO. DESCRIPTION PRICE CONTRACT PRICE CONTRACT)
---------------------------------------------------------------------------------------------------------------------------
See Prices
90207 COMPLETE ABP MODEL 90207 SYSTEM Below [*] [*]
---------------------------------------------------------------------------------------------------------------------------
COMPLETE ABP MODEL 90217-1A SYSTEM
ABP Monitor and docking station together with See Prices
90217-1A all related analysis software Below [*] [*]
---------------------------------------------------------------------------------------------------------------------------
90207 COMPLETE ABP MODEL 90207/90239A SYSTEM
and and See Prices
90239A Report Generator/Printer Below [*] [*]
---------------------------------------------------------------------------------------------------------------------------
90217-1A COMPLETE ABP MODEL 90217/90239A SYSTEM
and and See Prices
90239A Report Generator/Printer Below [*] [*]
---------------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
AMBULATORY BLOOD PRESSURE
-----------------------------------------------------------------------------------------------------------------------
PRODUCTS LIST XXXXXXX/XXXXXXX
-----------------------------------------------------------------------------------------------------------------------
MODEL DESCRIPTION PRICE PRICE
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
COMPLETE ABP MODEL 90207 SYSTEM
-----------------------------------------------------------------------------------------------------------------------
90207 ABP Monitor with Cuff, Standard Adult, 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
90121-1 ABP Report Management System Base Station Interface [*] [*]
-----------------------------------------------------------------------------------------------------------------------
ABP Interface Cable (ABP Monitor to Personal
000-0000-00 Computer) [*] [*]
-----------------------------------------------------------------------------------------------------------------------
[*] [*]
-----------------------------------------------------------------------------------------------------------------------
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-----------------------------------------------------------------------------------------------------------------------
COMPLETE ABP MODEL 90217-1A SYSTEM
-----------------------------------------------------------------------------------------------------------------------
90217-1A Ultralite ABP Monitor with Cuff, Standard Adult,
24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
90121-1 ABP Report Management System Base Station Interface [*] [*]
-----------------------------------------------------------------------------------------------------------------------
ABP Interface Cable (ABP Monitor to Personal
000-0000-00 Computer) [*] [*]
-----------------------------------------------------------------------------------------------------------------------
[*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
COMPLETE ABP MODEL 90207/90239A SYSTEM
-----------------------------------------------------------------------------------------------------------------------
90207 ABP Monitor with Cuff, Standard Adult, 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
90239A Ambulatory Blood Pressure Report Generator/Printer [*] [*]
-----------------------------------------------------------------------------------------------------------------------
[*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
COMPLETE ABP MODEL 90217/90239A SYSTEM
-----------------------------------------------------------------------------------------------------------------------
Ultralite ABP Monitor with Cuff, Standard Adult,
90217-1A 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
90239A Ambulatory Blood Pressure Report Generator/Printer [*] [*]
-----------------------------------------------------------------------------------------------------------------------
[*] [*]
-----------------------------------------------------------------------------------------------------------------------
MONITORS
-----------------------------------------------------------------------------------------------------------------------
90207 ABP Monitor with Cuff, Standard Adult, 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
Ultralite ABP Monitor with Cuff, Standard Adult,
90217-1A 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
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-----------------------------------------------------------------------------------------------------------------------
PERSONAL COMPUTER INTERFACE (IBM COMPATIBLE COMPUTERS ONLY)
-----------------------------------------------------------------------------------------------------------------------
90121-1 ABP Report Management System Base Station
Interface for [*] [*]
-----------------------------------------------------------------------------------------------------------------------
Windows 3.1x features remote communication
capability for data
-----------------------------------------------------------------------------------------------------------------------
retrieval and monitor programming via modem
(Requires ABP
-----------------------------------------------------------------------------------------------------------------------
Interface Cable Model 012-0097-02)
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
REPORT GENERATOR
-----------------------------------------------------------------------------------------------------------------------
90239A Ambulatory Blood Pressure Report Generator/Printer [*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
ACCESSORIES
-----------------------------------------------------------------------------------------------------------------------
CUFFS
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff, Child, 12-20 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff, Small Adult, 17-26 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff, Standard Adult, 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff, Large Adult, 32-42 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
Cuff, XL Adult, 38-50 cm (includes cuff support
000-0000-00 harness) [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff Support Harness for all cuffs [*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
REUSABLE CUFF WRAPS
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff Wrap, ABP, Child, 12-20 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff Wrap, ABP, Small Adult, 17-26 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff Wrap, ABP, Standard Adult, 24-32 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff Wrap, ABP, Large Adult, 32-42 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Cuff Wrap, ABP, XL Adult, 38-50 cm [*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
Page 23
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request for confidential treatment filed separately with the Commission.
EXHIBIT B
-----------------------------------------------------------------------------------------------------------------------
CABLES
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 ABP Interface Cable (ABP Monitor to Personal
Computer) [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Modem Interface Cable (ABP Monitor to Modem) [*] [*]
-----------------------------------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------------------------------
OTHER
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Pouch, cloth 90207 [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Pouch, cloth 90217 [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Nylon Xxxx Belt for 90207/90217 [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 Shoulder Strap for Pouch, cloth 90207/90217 [*] [*]
-----------------------------------------------------------------------------------------------------------------------
000-0000-00 T-tube Calibration Accessory for 90207/90217 [*] [*]
-----------------------------------------------------------------------------------------------------------------------
Page 24
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request for confidential treatment filed separately with the Commission.
EXHIBIT B
SCHEDULE 2 - TARGET QUOTA AND MINIMUM ANNUAL PURCHASE QUOTA
--------------------------------------------------------------------------------
The following Schedule is attached to and forms part of the Distribution
Agreement between MANUFACTURER and DISTRIBUTOR
--------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
2003 MINIMUM ANNUAL
PART NO. DESCRIPTION 2003 TARGET QUOTA PURCHASE QUANTITY
----------------------------------------------------------------------------------------------------------------
All Systems Combined All Systems Combined
90207 Complete ABP Model 90207 System Totaling [*] Totaling [*]
90217-1A Complete ABP Model 90217-1a System
(ABP Monitor and docking station together
with all related analysis software)
90207
90239A Complete ABP Model 90207/90239A System
90217-1A
90239A Complete ABP Model 90217/90239A System
----------------------------------------------------------------------------------------------------------------
Page 25
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request for confidential treatment filed separately with the Commission.
EXHIBIT B
SCHEDULE 3 - TERRITORY
--------------------------------------------------------------------------------
The following Schedule is attached to and forms part of the Distribution
Agreement between MANUFACTURER and DISTRIBUTOR
--------------------------------------------------------------------------------
Herein, the Territory is established for the above referenced Agreement.
-----------------------------------------------------------------------
EXCLUSIVE TERRITORY:
- Physicians' offices and similar primary care facilities, in
the United States of America
DISTRIBUTOR acknowledges that sales made directly by MANUFACTURER
or by other distributors outside the primary care marketplace or
Territory may be used in physicians' offices or other primary
care facilities.
-----------------------------------------------------------------------
NON EXCLUSIVE TERRITORY:
- Outpatient clinics, surgery centers and other such care
facilities, the home health care market, or any other
marketplace other than the primary care market (other than the
Non-Permitted Territories), in the United States of America.
-----------------------------------------------------------------------
NON PERMITTED TERRITORY:
- Clinical research organizations, pharmaceutical companies,
hospitals and governmental facilities or any other part of the
governmental sector (other than unit exceptions for de minimis
/ odd lot sales by distributors in governmental areas and
hospitals), anywhere in the world.
-----------------------------------------------------------------------
Page 26
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request for confidential treatment filed separately with the Commission.
EXHIBIT B
SCHEDULE 4 - GENERAL PROVISIONS
[Omitted]
Page 27
[*] designates portions of this document that have been omitted pursuant to a
request for confidential treatment filed separately with the Commission.
EXHIBIT B
SCHEDULE 5 - PRODUCT SUPPORT REQUIREMENTS
--------------------------------------------------------------------------------
The following Schedule is attached to and forms part of the Distribution
Agreement between MANUFACTURER and DISTRIBUTOR
--------------------------------------------------------------------------------
The following Schedule establishes the support requirements for the
Products covered by this Agreement.
1. GENERAL SUPPORT STRATEGY: The support strategy consists of "bench repair"
by MANUFACTURER (replacement of parts) at its Issaquah, Washington
facility.
2. FAILURE RATE: The expected failure rate of the installed base per year is
[*] percent ([*]%).
3. GUARANTEED PARTS AVAILABILITY: The plant repair time is three to five
working days.
4. GUARANTEED RESPONSE TIME: MANUFACTURER will provide response to escalated
customer issues within 24 hours for safety-related issues or 48 hours
otherwise during normal business hours Monday through Friday.
Page 28
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request for confidential treatment filed separately with the Commission.
EXHIBIT B
SCHEDULE 6 - LABELING OF PRODUCTS
--------------------------------------------------------------------------------
The following Schedule is attached to and forms part of the Distribution
Agreement between MANUFACTURER and DISTRIBUTOR
--------------------------------------------------------------------------------
"XXXXXXX"
Other marks that may be designated from time to time in writing by DISTRIBUTOR
to MANUFACTURER
Page 29
[*] designates portions of this document that have been omitted pursuant to a
request for confidential treatment filed separately with the Commission.
