Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[ASPECT MEDICAL SYSTEMS LOGO] [BRINGING INSIGHT OUT LOGO]
OEM DEVELOPMENT AND PURCHASE AGREEMENT
Agreement dated this 24th day of July 2003, by and between Aspect Medical
Systems, Inc., a Delaware corporation with its principal offices located at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx ("Aspect") and Datascope Corp., a Delaware
corporation with its principal offices located at 000 XxxXxxxxx Xxxxxxxxx,
Xxxxxx, XX ("Datascope") for the purchase and/or license by Datascope Corp. of
products under the terms and conditions contained in this Agreement.
1 BACKGROUND
1.1 Aspect is a developer, manufacturer and distributor of medical
devices, equipment, related hardware, software and related
products and accessories.
1.2 Datascope is a developer, manufacturer and distributor of
medical devices, equipment, related hardware, software and
related products and accessories, including patient monitors.
1.3 Datascope desires to integrate Aspect's BIS technology into
Datascope's multiparameter patient monitors.
1.4 Aspect agrees to sell and/or license to Datascope the products
described below, subject to the terms and conditions contained
in this Agreement.
2 DEFINITIONS.
2.1 "Aspect's Bispectral Index" or "BIS" is Aspect's proprietary
processed EEG parameter that may be used as an aid in
monitoring the effects of certain anesthetic agents.
2.2 "Datascope Patient Monitor" means any multi-parameter patient
monitoring system manufactured by or for Datascope . When the
[**] Development Project is complete, the Datascope [**]
System will allow the Datascope Patient Monitor to display BIS
and provide setup and operation information (user interface),
alarming, and network connectivity.
2.3 [**].
2.4 "Aspect [**] Kit" is the Aspect components of the Datascope
[**] System that are developed and manufactured by or for
Aspect and licensed/sold to Datascope under this Agreement
including [**]
2.5 "Monitor Cable" is the cable that connects the [**] to the
Datascope patient
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
monitor. This cable will be jointly designed by Aspect and
Datascope and supplied by Datascope or its manufacturer for
final assembly with the Aspect [**] Kit.
2.6 "Datascope [**] System" is the combined Aspect [**] Kit and
Monitor Cable.
2.7 "Aspect BIS Sensor" means a single use disposable sensor
manufactured by Aspect for use with the Aspect [**] Kit in the
OR and ICU that is required to generate Aspect's Bispectral
Index. These sensors include the BIS Quatro Sensor, the BIS
Extend Sensor and the BIS Pediatric Sensor.
2.8 "Aspect BIS Engine" is the processing unit for deriving BIS
data from the raw EEG signal and consists of a PC board and
connectors. This component is used in OEM modules to provide
the BIS index on modular patient monitoring systems.
2.9 "Aspect Products" means Aspect [**] Kit and any other product
that can be ordered by Datascope as listed in Exhibit A
(Aspect Products and Purchase Prices).
2.10 "Software" means Aspect software programs in binary code form
that are designed for use with the Aspect [**] Kit.
2.11 "Documentation" means the [**] Serial Interface Specification.
2.12 "Party" or "Parties" shall mean Aspect and Datascope each
individually or jointly.
3. [**] DEVELOPMENT PROJECT.
3.1 Project Management.
3.1.1 Each Party shall appoint a "Project Manager" who
shall oversee and manage the joint project on a
day-to-day basis.
3.1.2 The Project Managers shall meet regularly based on
the project needs to assess the project status and
discuss and resolve any issues or problems. These
meetings may be held face-to-face or as telephone or
video conferences. In addition to this, Datascope
shall have the right, but no more than once per year,
to do an audit of Aspect's facility, procedures,
manufacturing operations and vendors for regulatory
purposes.
3.1.3 Each Party shall bear its own communication and
travel costs.
3.1.4 All communication in conjunction with this Agreement
shall be directed to the appropriate person and
address as listed in Exhibit C (Contact
Persons/Addresses).
3.2 Datascope Responsibilities.
(a) Datascope, or one of its designees, will design,
develop, test and manufacture the Monitor Cable.
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(b) Datascope shall integrate and test the integration of
the components of the Aspect [**] Kit with the
Datascope Patient Monitors.
3.3 Aspect Responsibilities.
(a) Aspect will jointly design (with Datascope) the
Monitor Cable.
(b) Aspect shall design, develop, and test the Aspect
[**] Kit according to the mutually agreed
specifications.
(c) Aspect will certify the implementation of BIS
software into the host monitoring system and the
integration of the Datascope [**] System into the
associated monitoring systems.
4. PURCHASE AND SALE OBLIGATIONS:
4.1 Licenses - General.
Subject to the terms and conditions of this Agreement, Aspect
agrees to sell to Datascope the Aspect Products listed on
Exhibit A (Aspect Products and Purchase Prices). The
components of the Aspect [**] Kits purchased from Aspect under
this Agreement shall only be used as components in,
incorporated into or integrated with the [**] System which
Datascope sells or leases to third-party users in the regular
course of business. The components of the [**] System shall
only be resold, leased, rented, licensed or otherwise
transferred to third parties for use as a part of a Datascope
[**] System as part of a Datascope Patient Monitor or as
replacement parts used in Datascope [**] Systems and Datascope
shall only sell Aspect approved accessories including cables
and sensor products in connection with any Datascope [**]
System. During the term of this Agreement, Datascope
agrees [**]. However, if Datascope believes that [**], then
Datascope may [**]. Datascope [**] Datascope [**] for purposes
of this Section 4.1.
4.2 Aspect Software License.
Aspect hereby grants to Datascope a non-exclusive and
non-transferable license, without the right to sublicense
(except to purchasers of Datascope [**] Systems), during the
term of the Agreement to use the Software loaded in the Aspect
[**] Kit and related Documentation provided by Aspect solely
in connection with operation of the components of Aspect [**]
Kit in the Datascope [**] System. All rights granted to
Datascope customers to use the Datascope [**] Systems shall
survive any termination of this Agreement.
4.3 Distribution of Aspect BIS Sensors
4.3.1 Outside of the United States
Aspect hereby grants to Datascope the right to
distribute Aspect BIS Sensors solely for use on
Datascope [**] Systems sold to Datascope customers
outside of the
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United States who have purchased BIS solutions
exclusively in the form of Datascope [**] Systems.
Aspect shall [**] Aspect shall [**] Aspect BIS
Sensors for use with [**]. Datascope, [**] Aspect BIS
Sensors [**] such Aspect BIS Sensors [**]. Datascope
[**] Aspect BIS Sensors [**] Aspect BIS Sensors, [**]
Aspect BIS Sensors [**]
4.3.2 Within the United States
Datascope may sell one starter kit of five (5)
sensors with each Datascope [**] System sold to the
customer purchasing the corresponding Datascope [**]
System. In addition, if Aspect [**] this Agreement
[**] Datascope [**] Aspect BIS Sensors [**]
Datascope.
Datascope may also purchase sensors in the United
States for demonstration purposes. Sensors purchased
for demonstration use may not be resold to customers.
4.3.3 Prices
Prices for Aspect BIS Sensors purchased by Datascope
hereunder shall be as set forth in Exhibit A (Aspect
Products and Purchase Prices).
4.4 Monitor Cable Development and Production.
4.4.1 NRE for any Datascope specific alterations to the
Monitor Cable shall be borne by Datascope.
4.4.2 Initial development of the Monitor Cable must be done
at Aspect's preferred cable vendor [**], with
assistance provided by Aspect.
4.4.3 Datascope may utilize Aspect's tooling in the
production of the cable, with the following
conditions:
(a) Aspect retains ownership of all tooling that
is not specifically unique to the Datascope
Monitor Cable.
(b) Aspect has the right to transfer tooling to
another vendor if necessary.
(c) Aspect will provide design files to
Datascope if Datascope desires its own
tooling to produce cables at a different
vendor.
(d) Aspect may [**] Monitor Cable [**] Monitor
Cables. If Datascope [**] Datascope will
[**]
4.4 System Compatibility.
All Datascope Passport 2 and Spectrum systems shipped to
locations where the BIS is used (OR, ICU and procedural
sedation sites) will have host system software configured to
support the Datascope [**] System and will be capable of
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accepting Aspect's Bispectral display [**]. Once BIS software
is released for the Datascope Passport2 and Spectrum systems,
BIS capability, at Datascope's discretion may add BIS
capability to its installed base of Datascope Passport2 and
Spectrum systems. Datascope Passport 2 and Spectrum comm port
that have BIS capability will be marked in a location and size
"BIS Ready" as mutually agreed upon.
4.5 Exclusivity.
The Datascope [**] System will be [**] in the [**]. Nothing in
this Agreement shall be construed to grant Aspect any license
to sell, distribute or license to any third party any
Datascope components, including the enabling software and
Monitor Cable, in the Datascope [**] System. It is understood
that Aspect sells, distributes, and licenses to other third
parties both generic and customized Aspect BIS Engines and
Aspect [**] Kits to meet the needs of other OEM customers, and
nothing in this Agreement shall prohibit Aspect from
continuing to sell, distribute, or license these products or
components thereof to customers other than Datascope.
5. SCOPE OF DELIVERY.
5.1 Purchase Orders.
Purchase orders (via Fax, e-mail, other electronic
transmission or paper) for Aspect Products to be purchased
under this Agreement (the "Orders") must be received by Aspect
during the term of this Agreement and must specify a delivery
date in accordance with the lead-time schedule outlined below
under Section 5.7. All Datascope Purchase Orders shall make
reference to the appropriate engineering drawing or
manufacturing reference numbers.
5.2 Order Acknowledgements.
Datascope purchase orders that are within Datascope's
forecasted quantities and do not include additional terms and
conditions other than those included in this agreement shall
be accepted by Aspect within [**] days of receipt of the
purchase order. If the quantity requested is greater than
Datascope's forecasted amount, Aspect will notify Datascope of
such and will advise Datascope, within [**] days of the
receipt of the purchase order of the time, using reasonable
business efforts, that Aspect will need to fill the purchase
order.
5.3 Forecasts.
Datascope shall furnish to Aspect a non-binding [**] forecast
during the term of this Agreement with the number and type of
Aspect Products for which Datascope expects to submit orders
for the following [**].
5.4 Supply of Monitor Cables.
Datascope will supply enough Monitor Cables to Aspect, [**] to
maintain an inventory sufficient to satisfy a rolling
inventory of [**] of cables, including units sufficient to
cover yield, service and warranty. Lead times listed in
section 5.7 are dependent upon receipt of
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cables required to satisfy those orders.
5.5 Installed Base Reporting.
On a [**] basis, Datascope will report units installed during
that [**]. In the United States, this report will include
number of units installed, date installed and the location by
hospital name and city. Outside the US, the report will
include number of units installed by country.
5.6 Cancellation Charges.
In the event of the cancellation of any Order by Datascope,
Datascope shall be liable for the payment of cancellation
charges based on the documented damages (including lost
revenues) suffered by Aspect. However, before such damages are
documented, Aspect shall use its reasonable efforts to
mitigate any damages. Such damages, however, shall not be
greater than that shown below based on the number of days
prior to scheduled delivery date that written notice of
cancellation is received by Aspect, as outlined below:
[**] weeks prior to acknowledged delivery [**]
[**] weeks prior to acknowledged delivery [**]% of order value
[**] weeks prior to acknowledged delivery [**]% of order value
[**] weeks prior to acknowledged delivery [**]% of order value
[**] weeks prior to acknowledged delivery [**]% of order value
5.7 Lead Times.
Lead times for the Datascope BIS System are expected to be
[**] days. Late deliveries are subject to late fees of 1% per
month (pro-rated daily). In the event of late deliveries by
Aspect, Aspect will also promptly reimburse Datascope for
expedited shipment charges that Datascope incurs as a direct
result of late shipments of the Aspect [**] Kit from Aspect.
[**] with the Monitor Cable, [**]
6. ROYALTIES AND COMMISSIONS.
6.1 Commissions on Sales of Aspect BIS Sensors.
For each Aspect BIS Sensor sold by Aspect to Datascope
customers in the United States for use with Datascope [**]
Systems, Aspect shall pay Datascope a commission equal to [**]
percent of the net sales revenue realized by Aspect for such
Aspect BIS Sensors. Aspect shall pay such commissions to
Datascope on a [**] basis. With such [**] payments, Aspect
shall provide to Datascope a list of Datascope customers to
which such sales were made, the number of sensors sold in that
[**], and the revenue realized from the sale of the sensors by
Aspect. This [**] payment shall be provided to Datascope no
later than 30 days following the end of each [**]. In the
event that Aspect's standalone BIS monitors and/or the BIS
modules of other manufacturers have also been installed at
such sites in addition to Datascope [**] Systems, Datascope
will be entitled to a [**]% commission only on BIS Sensor
sales intended for use with Datascope [**] Systems. A pro rata
determination will be based on the total number of BIS units
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of different types installed at such locations during the
period. To facilitate such calculations, Datascope will be
responsible for providing Aspect with documentation, on a [**]
basis, of the total number of Datascope [**] Systems
installed, and the dates of installation.
7. PRICES
7.1 Purchase Prices.
The prices of Aspect Products purchased by Datascope hereunder
(the "Purchase Prices"), which are ordered during the term of
the Agreement, shall be as set forth in Exhibit A (Aspect
Products and Purchase Prices).
7.2 Customization Costs.
Additional cost (both NRE and incremental unit cost) for
customization requested by Datascope of the product (mold
color, labeling) will be borne by Datascope. Datascope shall
be responsible for any charges requested by Datascope
associated with scrap of inventory due to any subsequent
changes made to customized product.
7.3 Purchase Price Changes.
The Purchase Prices set forth in Exhibit A (Aspect Products
and Purchase Prices) shall be reviewed 12 months after first
delivery of production units and annually thereafter. In the
event materials costs for the Aspect Products increase by more
than [**] percent ([**]%), Aspect shall have the right no more
than once per year during the term of this Agreement to
increase the Purchase Price of the Aspect Products by an
equivalent amount by delivering reasonable documentation
supporting such increase and by giving Datascope written
notice of the increase not less than [**] days prior to the
date upon which the increased Purchase Price is to become
effective. No Purchase Price increase shall apply to orders
for Aspect Products accepted by Aspect prior to or during such
[**] day period, which are to be delivered within [**] days of
the date of such notice. Notwithstanding anything to the
contrary in this Section 6.2, no Purchase Price increase shall
apply unless Aspect has used its reasonable efforts to find
alternate suppliers of the materials that have increased in
cost and, despite exercising such reasonable efforts, was not
able to locate such alternate suppliers.
7.4 [**]
In no case shall the [**] Datascope [**] with Aspect [**] this
Agreement [**].
7.5 Taxes.
All prices for Aspect Products are exclusive of all federal,
state and local taxes, levies and assessments, and Datascope
shall be responsible for the payment of all such taxes, levies
and/or assessments imposed on Aspect Products purchased and/or
licensed by Datascope hereunder, excluding taxes based on
Aspect's net income from the transaction. Datascope shall be
responsible for providing in a timely manner all
documentation, in the nature of exemption certificates or
otherwise, necessary to allow Aspect to refrain from
collections, such as sales tax,
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which it would otherwise be obligated to make.
8. TERMS OF PAYMENT.
8.1 Invoices.
Datascope shall pay to Aspect the Purchase Price for all
Aspect Products shipped hereunder within [**] days after the
receipt of Aspect's invoice. Nothing herein shall affect
Aspect's right to withhold shipment or otherwise exercise its
rights under Section 22 (Termination) hereof in the event of
Datascope's failure to make payment when due for Aspect
Products delivered to Datascope. Datascope shall have the
right to provide Aspect with a specific address to which
Aspect will send invoices for Aspect Products purchased under
this Agreement.
8.2 Late Payment Charge.
Subject to applicable law, service and/or interest charges not
exceeding the lesser of 1% per month or the highest amount
permitted by law may, at the election of Aspect, be assessed
on amounts past due more than [**] days (that is, more than
[**] days after the payment due date as specified in Section
8.1). Datascope, however, shall receive a [**] percent ([**]%)
discount if payment is made within [**] days of date of
invoice.
9. SHIPMENT AND DELIVERY.
9.1 Delivery Location. Each shipment must indicate the exact
address of the recipient on the outside of the packaging as
follows:
Datascope Corp
000 XxxXxxxxx Xxxx
Xxxxxx, XX 00000 XXX
(000) 000-0000
9.2 Delivery Terms.
All shipments hereunder shall be FOB Aspect's Massachusetts
point of origin (Incoterms 1990). All Aspect Products shall be
deemed delivered and subject to Datascope's dominion and
control only when properly packed and ready for shipment to
Datascope and placed in the possession of a carrier designated
by Datascope. Aspect shall cooperate with Datascope in the
documentation and proof of loss claims promptly presented by
Datascope to the appropriate carrier and/or insurer.
9.3 Delivery Date and Date of Dispatch.
The requested delivery date shall be specified on the
Datascope Purchase Order provided that such delivery date must
be at least [**] days after the date Aspect receives the
Order; provided, however, that Aspect shall use its reasonable
efforts to deliver the Order as close to requested date as
reasonably possible (taking other customer demands on Aspect
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into account). Aspect shall utilize reasonable efforts to
ensure that the order is delivered in accordance with Aspect's
order acknowledgement and that the date of dispatch is [**]
calendar days prior to the delivery date. Late delivery
penalties to Aspect will apply as specified in Section 5.7 of
this Agreement.
10. ACCEPTANCE.
Any Aspect Product shipped hereunder may be subjected to inspection and
performance testing by Datascope, to confirm that it functions in
accordance with Aspect's applicable product specifications in effect at
the time of delivery of such Aspect Products to Datascope. Datascope
shall provide written notice to Aspect of the rejection of any such
Aspect Product within [**] days of the date of receipt of any Aspect
Product. Aspect shall have [**] days from receipt of a notice from
Datascope rejecting an Aspect Product either, at its option, to make
any necessary repairs to the defective Aspect Product or to replace it.
If Aspect replaces an Aspect Product, Datascope shall dispose of the
replaced Aspect Product in accordance with Aspect's instructions and at
Aspect's expense. Datascope's sole remedy for rejected Aspect Products
shall be limited to prompt repair or replacement of such Aspect
Products.
11. WARRANTY.
11.1 General.
Aspect warrants solely to Datascope that Aspect Products
(including Software) delivered hereunder shall perform
substantially in accordance with the specifications in Exhibit
B (Aspect's [**] Kit) and shall be free from defects in
materials and workmanship, when given normal, proper and
intended usage, for [**] months from the date of shipment of
the Datascope [**] System to Datascope end customer site or
[**] months from the date of shipment by Aspect to Datascope,
whichever is less. This warranty shall not apply to expendable
components and supply items, such as, but not limited to,
cables (except for failures occurring within [**] days of
receipt of shipment), or disposable items such as an Aspect
BIS Sensor after the expiration date marked on the Sensor
packaging. Aspect shall not have any obligation under this
Agreement to make repairs or replacements which are required
by normal wear and tear, or which result, in whole or in part,
from catastrophe, fault or negligence of Datascope, or anyone
claiming through or on behalf of Datascope, or from improper
or unauthorized use of Aspect Products, or use of Aspect
Products in a manner for which they were not designed, or by
causes external to Aspect Products such as, but not limited
to, power or air conditioning failure.
11.2 Warranty Procedures.
Datascope shall notify Aspect of any Aspect Products which it
believes to be defective during the applicable warranty period
and which are covered by the warranties set forth in Section
11.1. At Aspect's option, such Aspect Products shall be
returned by Datascope
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to Aspect's designated facility for examination and testing,
or may be repaired on site by Aspect. Aspect shall either
repair or replace, within [**] days of receipt by Aspect, any
such Aspect Product found to be defective and return these
Products to Datascope. Transportation and insurance costs
shall be borne by Aspect. Should Aspect's examination and
testing not disclose any defect covered by the foregoing
warranty, Aspect shall so advise Datascope and dispose of or
return the Aspect Product in accordance with Datascope's
instructions and at Datascope's expense, and Datascope shall
reimburse Aspect for transportation and insurance costs.
11.3 Repair Warranty.
Aspect warrants its repair work and/or replacement parts for
the duration of the original warranty period as set forth in
Section 11.1 or at least [**] months, whichever is longer.
11.4 DISCLAIMER OF WARRANTIES.
THE PROVISIONS OF THE FOREGOING WARRANTIES ARE IN LIEU OF ANY
OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL,
INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR NONINFRINGEMENT.
12. SERVICE AND SUPPORT
12.1 Service and Support.
Datascope shall be responsible for providing installation,
customer training, service and support (including repair) to
its end customers for the Aspect Products Datascope sells to
such customers, and Datascope shall bear all related costs
incurred for labor, parts, or travel to perform such service.
12.2 Service Training.
Aspect agrees to provide initial service training to a
mutually agreed upon number of Datascope service
representatives prior to the market release of the [**]
Systems, as well as periodic (typically [**]) ongoing training
for existing and new Datascope service personnel.
12.3 Service Period.
For a period of [**] following the last delivery to Datascope
of the applicable Aspect Product ordered by Datascope
hereunder, Aspect shall use its reasonable efforts to make
available repair service (or at Aspect's sole discretion,
exchange units for the Aspect Products) for purchase by
Datascope and third party users of the Aspect products at
Aspect's then-current prices for such repair services and
exchange units. After expiry of this [**] period, Aspect may,
in its sole discretion, continue to supply repair services
(and/or exchange units for the Aspect Products) subject to the
mutual written agreement of the Parties.
12.4 Service Reporting.
Aspect shall maintain a complete record of all repair
activities performed on any Aspect Products received for
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repair.
13. QUALITY ASSURANCE.
13.1 Certification Status. Both parties agree to maintain, as
applicable, ISO900x or ISO13485, EN460x, European directive
93/42/EEC Annex II ("MDD AX-II") certification status and
compliance with the U.S. Food and Drug Administrations ("FDA")
Quality System Regulation ("QSR"), the European Medical Device
Directive ("MDD"), and other appropriate regulations pertinent
to the development, manufacturing and marketing of medical
products similar to the Aspect Products.
13.2 Aspect Product Compliance. All Aspect Products sold by Aspect
under this Agreement shall fully comply with the above quality
requirements and guidelines (MDD AX-II, FDA QSR, etc.)
13.3 QA and Regulatory Audits. Aspect shall permit Datascope's
Quality Assurance department to conduct a reasonable audit of
its facilities at a mutually agreed upon date after the date
of this Agreement for the purpose of approving its status as
an OEM supplier, and reasonable periodic audits thereafter for
the purpose of confirming continuing compliance with
applicable quality and regulatory requirements and guidelines.
Such audits shall be scheduled with at least [**] advance
notice during normal business hours and shall not take place
more than once per calendar year.
14. REGULATORY MATTERS.
14.1 Aspect Products.
Aspect shall assume full regulatory responsibility for the
Aspect Products, including obtaining and maintaining all
applicable governmental authorizations and regulatory
approvals required to distribute the Aspect [**] Kit. Both
Parties shall work together to develop a regulatory plan which
defines precisely what the regulatory and localization
requirements are for Datascope. In particular, Aspect shall be
responsible for generating its own Device Master Record for
the Aspect [**] Kit. It is understood that the Aspect [**] Kit
shall be a component of the Datascope [**] System.
14.2 Datascope [**] System.
Datascope shall assume the regulatory responsibility for the
combination of the Aspect and Datascope components in the
Datascope [**] System. Aspect shall provide commercially
reasonable support to Datascope as required in the process of
obtaining regulatory approvals by making available to
Datascope any required information, data, certificates, or
technical files as requested by the regulatory authorities.
14.3 Product Complaints and Incident Reporting.
Datascope and Aspect shall inform each other in writing
immediately about any event that may require incident
reporting in any country. Datascope and Aspect shall inform
each other in
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writing within [**] business days of a customer complaint
regarding the Datascope [**] System, the Aspect Products, or
(outside the United States) Aspect BIS Sensors. Both parties
will cooperate and use commercially reasonable efforts to
resolve such customer complaints. Closure of any customer
complaint relating to the Datascope [**] will occur when
Datascope notifies Aspect that the problem is resolved.
Closure of any customer complaint relating solely to Aspect
Products or Aspect Sensors will occur when Aspect notifies
Datascope that the problem is resolved.
14.5 Delegation.
Datascope may at its sole discretion delegate some of the
obligations under this Section 14 to its sub-distributors.
14.6 Traceability.
Datascope agrees to maintain traceability through serial
number and/or lot code for all Aspect products shipped to
customer.
14.7 Recalls and Payments.
In the event that Aspect desires to take a corrective action
(including notifications or recalls) with respect to any of
the Aspect Products sold to Datascope's customer or an end
user that have been incorporated in any of the customer's
products and distributed by the customer, and such action (i)
is required to comply with applicable laws or regulations,
(ii) is determined by Aspect in its discretion for a
reasonable business purpose or for safety reasons or (iii) is
the result of Aspect's failure to supply Aspect Products that
conform with the applicable warranty for such Aspect Products,
the party's actions that required such action shall be
responsible for the repair or replacement of the Aspect
Products without cost to the other party, its Affiliates,
distributors and subdistributors. The parties agree to consult
with each other to establish a reasonable process for managing
the corrective action.
15. PRODUCT CHANGES; DISCONTINUED PRODUCTS; FUTURE PRODUCTS; CONTINUED SUPPLY.
15.1 Software Updates.
Aspect shall make available to Datascope all future software
features and performance improvements to the BIS software and
the Aspect [**] Kit.
15.2 Product Changes
Aspect shall have the right, at any time and from time to
time, to make substitutions and modifications to Aspect
Products, provided such substitutions or modifications shall
not materially affect form, fit, function, reliability,
serviceability, performance, functional interchangeability or
interface capability of Aspect Products and further provided
that Aspect attends to and pays for any associated regulatory
related to the substitution or modification. In the event that
any proposed substitution or modification affects, in Aspect's
reasonable
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judgment, the form, fit, function, reliability,
serviceability, performance, functional interchangeability or
interface capability of an Aspect Product, Aspect shall give
Datascope written notice of such proposed substitution or
modification at least [**] days prior to its taking effect.
Datascope, however, shall have the right, during such [**] day
period and for [**] days thereafter, to order the Aspect
Products without such substitution or modification for
delivery up to [**] days after such substitution or
modification takes effect. If as the expiration of the [**]
day period Datascope wishes to still have the original design
Aspect Product available, Aspect will either continue the
original design as long as Datascope continues to order said
design or provide Datascope with the technology, tooling
designs, equipment design and their right to manufacture or
have manufactured for it the original design Aspect Product.
Aspect shall provide the appropriate verification and
validation information for evaluating the effect of the change
on the Datascope [**].
15.3 Discontinued Products.
Aspect agrees to notify Datascope in writing not less than
[**] months in advance of the discontinuance of any Aspect
Products purchased by Datascope. Datascope shall be able to
place orders for at least [**] months after receipt of the
written notice in any case. In addition, Datascope shall be
entitled to determine its lifetime-buy quantities and place a
corresponding last purchase order.
15.4 Future Products.
The Aspect Products are designed for use in measuring the
effects of anesthetic and sedative agents on the brain during
surgery and in the intensive care environment.
15.4.1 Aspect has an agreement with Boston Scientific
Corporation for an option of exclusive distribution
of Aspect BIS Sensors for the procedural sedation
market in the United States. If Boston Scientific
[**] Aspect BIS Sensors for the [**] Aspect agrees to
[**] Datascope [**] Datascope [**] Aspect BIS Sensors
[**]
16. OWNERSHIP AND PROTECTION OF RESULTS.
16.1 No Transfer of Ownership.
It is expressly agreed that neither Aspect nor Datascope shall
transfer to the other Party any patent rights, copyrights or
other intellectual property of any kind that either Party owns
as of the Effective Date of this Agreement.
16.2 Models, Patterns, Dies, etc.
Aspect shall retain the title to and possession of any models,
patterns, dies, molds, jigs, fixtures, and other tools made
for or obtained in connection with this Agreement and related
to the Aspect Products, exclusive of the Datascope owned
Monitor Cable molds.
17. DOCUMENTATION AND TRAINING.
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Aspect agrees to provide Datascope with product literature, sales team
and customer training tools, operations and maintenance manuals, and
other information and training to enable Datascope to sell and maintain
Aspect Products.
18. CONFIDENTIALITY.
No confidential information disclosed by either Party to the other in
connection with this Agreement shall be disclosed to any person or
entity other than the recipient Party's employees and contractors
directly involved with the recipient Party's use of such information
who are bound by written agreement to protect the confidentiality of
such information, and such information shall otherwise be protected by
the recipient Party from disclosure to others with the same degree of
care accorded to its own confidential information of like importance.
In addition, each Party and its representatives shall use the
confidential information only for the purposes specified under this
Agreement and such information shall not be used for any other purpose
without the prior written consent of the disclosing Party. To be
subject to this provision, information must be delivered in writing and
designated as proprietary or confidential, or if initially delivered
orally, must be identified at the time of disclosure, and confirmed in
writing as confidential within ten (10) days after such oral
disclosure. Information shall not be subject to this provision if it is
or becomes a matter of public knowledge without the fault of the
recipient Party, if it was a matter of written record in the recipient
Party's files prior to disclosure to it by the other Party, if it was
or is received by the recipient Party from a third person under
circumstances permitting its unrestricted disclosure by the recipient
Party, or if it was independently developed by the recipient Party
without reference to the confidential information. Upon termination of
this Agreement, each Party shall promptly destroy all confidential
information of the other Party in the possession or control of such
Party and all copies thereof, provided that each Party may retain one
copy thereof for archival purposes. The obligations under this Section
16 shall continue for both parties for a period of five (5) years after
delivery by Aspect to Datascope of the last Aspect Product under this
Agreement. Datascope is entitled to transmit confidential information
of Aspect to Datascope subsidiaries and affiliated companies. In such,
case these subsidiaries and affiliated companies may only use such
information to the same extent as Datascope is entitled to use such
information under this Agreement. Datascope shall be responsible if any
of these subsidiaries and affiliated companies fails to comply with the
confidentiality provisions of this Agreement.
19. INDEMNITIES.
19.1 Indemnification by Aspect.
Except as provided below, Aspect shall defend and indemnify
Datascope from and against any damages, liabilities, costs and
expenses (including reasonable
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attorney's fees) arising out of any claim that an Aspect
Product infringes a valid patent or copyright in the Territory
or misappropriates a trade secret of a third party, provided
that (i) Datascope shall have promptly provided Aspect written
notice thereof and reasonable cooperation, information, and
assistance in connection therewith, and (ii) Aspect shall have
sole control and authority with respect to the defense,
settlement, or compromise thereof. Should any Aspect Product
become, or, in Aspect's opinion, be likely to become the
subject of an injunction preventing its use as a contemplated
herein, Aspect may, at its option, (1) procure for Datascope
the right to continue using such Aspect Product, (2) replace
or modify such Aspect Product so that it becomes
non-infringing, or, if (1) and (2) are not reasonably
available to Aspect, then (3) accept return of the allegedly
infringing Aspect Product and refund to Datascope the amount
which Datascope has paid to Aspect for such Aspect Product.
(a) Aspect shall have no liability or obligation to
Datascope hereunder with respect to any patent,
copyright or trade secret infringement claim thereof
based upon (i) use of the Aspect Product by Datascope
in combination with devices or products not provided
by Aspect (ii) use of the Aspect Product in an
application or environment for which such Aspect
Product was not designed or contemplated, (iii)
modifications, alterations or enhancements of the
Aspect Product not created by or for Aspect, or (iv)
any claims of infringement of a patent, copyright or
trade secret in which Datascope or any affiliate of
Datascope has an interest. Datascope shall indemnify
and hold Aspect harmless from all costs, damages and
expenses (including reasonable attorney's fees)
arising from any claim enumerated in clauses (i)
through (iv) above.
(b) In the event that any claim is brought against
Datascope as a result of personal injuries and/or
property damages resulting from that portion of the
Datascope [**] System developed and manufactured by
Aspect, and provided further that such claims do not
arise as a result of Datascope or its customer's
misuse of the Aspect Products, or Datascope or its
customer's use of the Aspect Products in an
application for which it was not designed by Aspect,
where such claim would not have occurred but for such
Datascope or its customer's misuse or Datascope or
its customer's use, Aspect agrees that it shall
indemnify and hold Datascope and its directors,
officers, employees, representatives and agents
harmless from and against any damages, liabilities,
costs and expenses (including attorneys' and other
professional fees and other costs of litigation)
arising out of such claim, provided that the
procedures set forth in Section 19.3 are followed.
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19.2 Indemnification by Datascope.
Except as provided below, Datascope shall defend and indemnify
Aspect from and against any damages, liabilities, costs and
expenses (including reasonable attorney's fees) arising out of
any claim that a Datascope Patient Monitor infringes, for
reasons other than the incorporation of the Aspect Product
within such Datascope Patient Monitor, a valid patent or
copyright in the Territory or misappropriates a trade secret
of a third party, provided that (i) Aspect shall have promptly
provided Datascope written notice thereof and reasonable
cooperation, information, and assistance in connection
therewith, and (ii) Datascope shall have sole control and
authority with respect to the defense, settlement, or
compromise thereof.
(a) Datascope shall have no liability or obligation to
Aspect hereunder with respect to any patent,
copyright or trade secret infringement claim thereof
based upon (i) use of the Datascope Patient Monitor
by Aspect in combination with devices or products not
provided by Datascope, (ii) use of the Datascope
Patient Monitor in an application or environment for
which such Datascope Patient Monitor was not designed
or contemplated, (iii) modifications, alterations or
enhancements of the Datascope Patient Monitor not
created by or for Datascope, or (iv) any claims of
infringement of a patent, copyright or trade secret
in which Aspect or any affiliate of Aspect has an
interest. Aspect shall indemnify and hold Datascope
harmless from all costs, damages and expenses
(including reasonable attorney's fees) arising from
any claim enumerated in clauses (i) through (iv)
above
(b) In the event that any claim is brought against Aspect
as a result of personal injuries and/or property
damages resulting from the Datascope [**] System, and
provided further that such claims do not arise as a
result of the defective design or operation of that
portion of the Datascope [**] System developed or
manufactured by Aspect, Datascope agrees that it
shall indemnify and hold Aspect and its directors,
officers, employees, representatives and agents
harmless from and against any damages, liabilities,
costs and expenses (including attorneys' and other
professional fees and other costs of litigation)
arising out of such claim, provided that the
procedures set forth in Section 19.3 are followed.
19.3 Indemnification Procedures.
(a) In the event that any person intends to claim
indemnification pursuant to this Agreement, (an
"Indemnitee"), it shall promptly notify the
indemnifying Party (the "Indemnitor") in writing of
such alleged liability, provided that the failure to
promptly notify the Indemnitor shall not relieve the
Indemnitor of any obligation under this Agreement
except to the extent
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such failure to provide prompt notice adversely
impairs the Indemnitor's ability to defend against
the claim, suit or proceeding.
(b) The Indemnitor shall have the sole right to control
the defense and settlement thereof, provided, that
(i) the Indemnitor may not consent to imposition of
any obligation or restriction on the Indemnitee in
any settlement unless mutually agreed among Aspect
and Datascope (ii) Indemnitor shall keep Indemnitee
fully informed and permit the Indemnitee to
participate (at Indemnitee's expense) as the
Indemnitee may reasonably request and (iii)
Indemnitee may, without affecting its right to
indemnity hereunder, defend and settle any such
claim, suit or proceeding if Indemnitor declines to
defend against such claim, suit or proceeding or
Files for Bankruptcy. The Indemnitee shall cooperate
with the Indemnitor and its legal representatives in
the investigation of any action, claim or liability
covered by this Agreement.
(c) The Indemnitee shall not, except at its own cost,
voluntarily make any payment or incur any expense
with respect to any claim or suit without the prior
written consent of Indemnitor, which Indemnitor shall
not be required to give, provided that the Indemnitee
may, without affecting its right to indemnity
hereunder, defend and settle any such claim, suit or
proceeding if the Indemnitor declines to take
responsibility or Files for Bankruptcy.
20. TRADEMARKS.
20.1 Trademarks.
(a) Ownership.
Datascope acknowledges and agrees that Aspect is the
sole and exclusive owner of all right, title and
interest in, or has valid licenses to the trademarks
(the "Aspect Trademarks") identified on Exhibit D
(Aspect Trademarks). Aspect acknowledges and agrees
that Datascope is the sole and exclusive owner of all
right, title and interest in and to the trademarks
(the "Datascope Trademarks") identified on Exhibit D
(collectively the "Aspect and Datascope" Trademarks).
Each Party recognizes the value of the other Party's
Trademarks and the good will associated with the
other Party's Trademarks. Datascope agrees that its
use of the Aspect Trademarks and any good will
arising therefrom shall inure to the benefit of
Aspect. Aspect agrees that its use of the Datascope
Trademarks and any good will arising therefrom shall
inure to the benefit of Datascope. Nothing contained
herein shall create, nor shall be construed as an
assignment of, any right, title or interest in or to
the Aspect Trademarks to Datascope, or the Datascope
Trademarks to Aspect, other than the grant of
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
the licenses in Section 20.1 (c) below; it being
acknowledged and agreed that all other right, title
and interest in and to the Aspect Trademarks is
expressly reserved by Aspect and its licensors, and
all other right, title and interest in and to the
Datascope Trademarks is expressly reserved by
Datascope. Each Party shall keep the other Party's
Trademarks free from all liens, mortgages or other
encumbrances. Each Party agrees that it shall not
attack or otherwise challenge the title, validity or
any other rights of the other Party in or to its
Trademarks.
(b) Notice.
All Datascope [**] Systems that use the Aspect
Trademarks shall be accompanied, where reasonable and
appropriate, by a proprietary notice consisting of
the following elements:
(i) The statement "[insert trademark(s)] is a
trademark(s) of [or licensed to] Aspect Medical
Systems, Inc.".
(ii) Datascope shall include the "(TM)" or "(R)"
symbol, as instructed by Aspect, after the first
prominent use of the Aspect Trademark in the
Datascope Patient Monitor Operators Manual and
related materials. Datascope shall have a period of
sixty (60) days in which to begin to use the "(R)"
symbol in replacement of the "(TM)" symbol upon
receiving instructions to do so by Aspect for all new
stock of such materials. Datascope may continue to
deliver stocked literature before the change becomes
effective.
(c) License.
Each Party hereby grants to the other a nonexclusive,
worldwide, royalty-free license (without the right to
sublicense) to use the other Party's Trademarks to
designate and promote Aspect Products in conjunction
with Datascope [**] Systems. Neither Party shall have
any other right to use, display or utilize the other
Party's Trademarks for any other purpose or in any
other manner.
(d) Quality Standards.
(i) Inspection.
Upon reasonable notice and request, each
Party will furnish to the other samples of
its applicable advertising and promotional
materials as necessary to allow the
requesting Party to monitor compliance with
this Agreement. In addition, upon reasonable
notice and request, each licensee Party will
permit the other
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
licensor Party to examine any products
bearing the licensor Party's trademarks to
verify that such .products meet the licensor
Party' quality control standards for such
products. If such products do not meet the
licensor Party' quality control standards,
the licensee Party shall not distribute such
products with the licensor Party's
trademarks.
(ii) Protection and Infringement.
Each Party agrees to cooperate with and
assist the other Party in obtaining,
maintaining, protecting, enforcing and
defending the other Party's proprietary
rights in and to its Trademarks. In the
event that either Party learns of any
infringement, threatened infringement or
passing-off of the other Party's Trademarks
, or that any third party claims or alleges
that the other Party's Trademarks infringe
the rights of the third Party obtaining such
information shall notify the other Party
giving the particulars thereof, and if such
claims or allegations relate to this
Agreement, the Datascope [**], the Aspect
[**] Kit or Aspect Products sold hereunder,
shall provide necessary information and
assistance reasonably requested by such
other Party in the event that such other
Party decides that proceedings should be
commenced.
(e) Termination.
In addition to the termination rights set forth in
Section 22 hereof, in the event that either Party is
in material breach of any provision of this Section
20, the non-breaching Party may, upon [**] days
written notice, terminate the license granted in
Section 20.1 (c) if the breaching Party does not cure
such breach or default within such [**] day period.
In addition to the provisions of Section 22 hereof,
upon termination of the license granted in Section
20.1 (c), or upon termination of this Agreement, for
whatever cause:
(i) Each Party shall immediately cease and
desist from any further use of the other
Party's Trademarks and any trademarks
confusingly similar thereto, either directly
or indirectly;
(ii) All rights in the Aspect Trademarks granted
to Datascope hereunder shall immediately
revert to Aspect, and all rights in the
Datascope Trademarks granted to Aspect
hereunder shall immediately revert to
Datascope.
(f) Promotional Claims.
The general form of any promotional claims by
Datascope regarding Aspect's Bispectral
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
Index technology and/or the integration of Aspect's
Bispectral Index technology in Datascope Patient
Monitors, and the specific form of the use of
Aspect's trade names and trademarks, and of intended
use claims regarding Aspect's Bispectral Index
technology, in promotional material, advertisement,
and/or in written technical literature shall be
subject to review and approval by Aspect prior to its
publication or display. The general form of any
promotional claims by Aspect regarding Datascope's
Patient Monitors or the integration of Aspect's
Bispectral Index technology in Datascope Patient
Monitors, and the specific form of the use of
Datascope's trade names and Trademarks, and of
intended use claims regarding the Datascope [**]
Systems, in promotional material, advertisement,
and/or in written technical literature shall be
subject to review and approval by Datascope prior to
its publication or display.
21. EXPORT.
Datascope shall not export, directly or indirectly, Aspect Products
(including when integrated into a Datascope Patient Monitor) or other
products, information or materials provided by Aspect hereunder, to any
country for which the United States requires any export license or
other governmental approval at the time of export without first
obtaining such license or approval. It shall be Datascope's
responsibility to comply with the latest United States export
regulations, and Datascope shall defend and indemnify Aspect from and
against any damages, fines, penalties, assessments, liabilities, costs
and expenses (including reasonable attorneys' fees and court costs)
arising out of any claim that Datascope Patient Monitors or other
products, information or materials provided by Aspect hereunder were
exported or otherwise shipped or transported in violation of applicable
laws and regulations.
22. TERM; DEFAULT AND TERMINATION.
22.1 Term and Renewal.
The initial term of this Agreement shall commence on the
Effective Date and shall continue for a period of five (5)
years following introduction of the Datascope [**] System. On
each anniversary date one (1) additional year is added to the
term of this Agreement to maintain a five (5) year rolling
term unless either Party provides written notice of
termination to the other Party at least sixty (60) days prior
to the anniversary date.
22.2 Termination for good cause.
(a) Termination by Aspect.
The Agreement may be terminated by Aspect giving [**]
prior written notice to Datascope in the event
Datascope has not commercially introduced a Datascope
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
[**] System by [**].
(b) Termination by Datascope.
The Agreement may be terminated by Datascope giving
[**] prior written notice to Aspect if Aspect has
failed to provide an Aspect [**] Kit consistent with
the specifications outlined in Exhibit B to Datascope
by [**].
(c) Material Competitive Features / Competitive
Technologies.
(i) Datascope may terminate this Agreement if
the Aspect [**] Kit does not have material
competitive features for measuring the
hypnotic effects of anesthetic and sedative
agents on the brain. In order to exercise
its rights under this Section 22.2(c),
Datascope must provide [**] prior written
notice to Aspect, specifying in reasonable
detail the material features or capabilities
that are required. Following receipt of such
notification, Aspect shall have [**] to
include such features in the Aspect [**]
Kit. If at the end of such [**] period,
Aspect is unable to do so, Datascope may
terminate the Agreement.
(ii) If Datascope [**], Aspect may [**] with [**]
written notice, [**] to Datascope [**].
22.3 Events of Default.
The following shall constitute events of default under this
Agreement:
(i) if either Party assigns this Agreement or any of its
rights or obligations hereunder without the prior
written consent of the respective other Party,
except: (a) as specifically permitted under this
Agreement; or (b) in connection with the sale or
other transfer of such Party's business to which this
Agreement relates (the word "assign" to include,
without limiting the generality thereof, a transfer
of a majority interest in the Party) or
(ii) if either Party shall neglect or fail to perform or
observe any of its obligations to the other Party
hereunder, including, without limiting the generality
thereof, the timely payment of any sums due, and such
failure is not cured within thirty (30) days (ten
(10) days in the event of a default in the payment of
amounts owed the other Party) after written notice
thereof from the other Party; or
(iii) if there is (a) a dissolution, termination of
existence, liquidation, insolvency or business
failure of either Party, or the appointment of a
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
custodian or receiver of any part of either Party's
property, if such appointment is not terminated or
dismissed within thirty (30) days; (b) a composition
or an assignment or trust mortgage for the benefit of
creditors by either Party; (c) the commencement by
either Party of any bankruptcy proceeding under the
United States Bankruptcy Code or any other federal or
state bankruptcy, reorganization, receivership,
insolvency or other similar law affecting the rights
of creditors generally; or (d) the commencement
against either Party of any proceeding under the
United States Bankruptcy Code or any other federal or
state bankruptcy, reorganization, receivership,
insolvency or other similar law affecting the rights
of creditors generally, which proceeding is not
dismissed within thirty (30) days ("File for
Bankruptcy").
22.4 Remedies.
Upon any event of default, and in addition to any other
remedies either Party may have at law or in equity, the
non-defaulting Party may terminate the Agreement, cancel any
outstanding Order, refuse to make or take further Orders or
deliveries, cancel any discount given, and declare all
obligations immediately due and payable. Any such termination
or other action taken by the non-defaulting Party pursuant to
this Section 22.4 shall not relieve the defaulting Party of
its obligations hereunder and the non-defaulting Party shall
retain all legal and equitable remedies after such
termination.
23. INSURANCE.
Upon request, Aspect shall provide evidence of product liability,
general liability and property damage insurance against an insurable
claim or claims which might or could arise regarding Aspect products
purchased from Aspect. Such insurance shall contain a minimum limit of
liability for bodily injury and property damage of not less than
1,000,000 (one million) US$.
24. DISPUTE RESOLUTION
24.1 General.
Any dispute, controversy or claim arising out of or relating
to this Agreement or any related agreement or the validity,
interpretation, breach or termination thereof (a "Dispute"),
including claims seeking redress or asserting rights under
applicable law, shall be resolved in accordance with the
procedures set forth herein. Until completion of such
procedures, no Party may take any action not contemplated
herein to force a resolution of the Dispute by any judicial or
similar process, except to the limited extent necessary to;
(i) avoid expiration of a claim that might eventually be
permitted hereby; or (ii) obtain interim relief, including
injunctive relief, to preserve the status quo or prevent
irreparable harm.
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24.2 Waiver.
In connection with any Dispute, the parties expressly waive
and forego any right to (i) punitive, exemplary, statutory,
enhanced or similar damages in excess of compensatory damages
and (ii) trial by jury.
24.3 Good Faith Negotiations.
Any Dispute relating to this Agreement (a "Dispute") will be
resolved first through good faith negotiations between
appropriate management-level representatives of each Party
having responsibility for the sale or use of products
involved.
24.4 Mediation.
If within sixty (60) days the parties are unable to resolve
the dispute through good faith negotiation, either Party may
submit a Dispute for resolution by mediation pursuant to the
Center for Public Resources Model Procedure for Mediation of
Business Disputes as then in effect. The mediation shall be
conducted in Boston, Massachusetts. Mediation will continue
for at least thirty (30) days unless the mediator chooses to
withdraw sooner. At the request of either Party, the mediator
will be asked to provide an evaluation of the Dispute and the
parties' relative positions. Each Party shall bear its own
costs of mediation effort.
24.5 Arbitration.
After completion of any mediation effort, a Party may submit
the Dispute for resolution by arbitration pursuant to the
Non-Administered Arbitration Rules of the Center for Public
Resources as in effect on the date hereof, unless the parties
agree to adopt such rules as in effect at the time of the
arbitration. The arbitral tribunal shall be composed of one
arbitrator; and the arbitration shall be conducted in Boston,
Massachusetts. If the resolution of the Dispute is not found
within the terms of this Agreement, the arbitrator shall
determine the Dispute in accordance with the governing law of
the Agreement, without giving effect to any conflict of law
rules or other rules that might render such law inapplicable
or unavailable. The prevailing Party in any arbitration
conducted under this Section shall be entitled to recover from
the other Party (as part of the arbitral award or order) its
reasonable attorneys' fees and other costs of arbitration.
24.5 Applicable Law.
The law applicable to the validity of this arbitration
provision, the conduct of the arbitration, the challenge to or
enforcement of any arbitral award or order or any other
question of arbitration law or procedure shall be governed
exclusively by the Federal Arbitration Act, 9 U.S.C. sections
1-16; however, the award can be modified or vacated on grounds
cited in the Federal Arbitration Act or, if the arbitrator's
findings of facts are not supported by substantial evidence or
the conclusions of law are erroneous, under the laws of the
Commonwealth of Massachusetts. The place of
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
arbitration shall be in Boston, Massachusetts. The parties
agree that the federal and state courts located in the
Commonwealth of Massachusetts shall have exclusive
jurisdiction over any action brought to enforce this
arbitration provision, and each Party irrevocably submits to
the jurisdiction of said courts. Notwithstanding the foregoing
sentence, either Party may apply to any court of competent
jurisdiction, wherever situated, for enforcement of any
judgment on an arbitral award.
24.6 Time Limit.
Except as time barred under any applicable statute of
limitations of lesser duration, any claim by either Party
shall be time-barred unless the asserting Party commences an
arbitration proceeding with respect to such claim within two
years after the cause of action has accrued.
24.7 Provisional or Interim Judicial Measures.
Notwithstanding any other provision of this Agreement, the
parties expressly agree that prior to the first meeting of the
arbitrator either shall have the right to apply to any state
or federal court in the Commonwealth of Massachusetts or any
other court that would otherwise have jurisdiction, for
provisional or interim measures.
24.8 Consolidated Proceedings.
Each Party hereby consents to a single, consolidated
arbitration proceeding of multiple claims, or claims involving
more than two parties. The prevailing Party or parties in any
arbitration conducted under this paragraph shall be entitled
to recover from the other Party or parties (as part of the
arbitral award or order) its or their reasonable attorneys'
fees and other reasonable costs of arbitration.
25. GENERAL PROVISIONS.
25.1 Force Majeure.
In the event that either Party is prevented from performing,
or is unable to perform, any of its obligations under this
Agreement due to any act of God, fire, casualty, flood, war,
strike, lock out, failure of public utilities, injunction or
any act, exercise, assertion or requirement of governmental
authority, epidemic, destruction of production facilities,
insurrection, inability to procure materials, labor,
equipment, transportation or energy sufficient to meet
manufacturing needs, or any other cause beyond the reasonable
control of the Party invoking this provision, and if such
Party shall have used its best efforts to avoid such
occurrence and minimize its duration and has given prompt
written notice to the other Party, then the affected Party's
performance shall be excused and the time for performance
shall be extended for the period of delay or inability to
perform due to such occurrence.
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25.2 Publicity.
Neither Party shall originate any publicity, news release or
other public announcement relating to this Agreement or the
existence of an arrangement between the Parties without the
prior written approval of the other Party, except as otherwise
required by law.
25.3 Waiver.
The waiver by either Party of a breach or a default of any
provision of this Agreement by the other Party shall not be
construed as a waiver of any succeeding breach of the same or
any other provision, nor shall any delay or omission on the
part of either Party to exercise or avail itself of any right,
power or privilege that it has, or may have hereunder, operate
as a waiver of any right, power or privilege by such Party.
25.4 No Agency.
Nothing contained in this Agreement shall be deemed to
constitute either Party as the agent or representative of the
other Party, or both Parties as joint venturers or partners
for any purpose. Neither Party shall be responsible for the
acts or omissions of the other Party, and neither Party shall
have authority to speak for, represent or obligate the other
Party in any way without prior written authority from the
other Party.
25.5 Survival of Obligations.
All obligations of either Party under Sections 11 (Warranty),
12 (Service and Support), 14 (Regulatory Matters), 16
(Ownership and Protection of Results), 18 (Confidentiality),
19 (Indemnities), 20 (Trademarks), 24 (Dispute Resolution),
and 25.6 (Limitation on Liability) shall survive the
expiration or termination of this Agreement and continue to be
enforceable.
25.6 LIMITATION ON LIABILITY.
EXCEPT AS PROVIDED IN SECTION 19, EACH PARTY'S LIABILITY
ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLYING OF ASPECT
PRODUCTS OR THEIR USE OR DISPOSITION, WHETHER BASED UPON
WARRANTY, CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED ALL
AMOUNTS PAID AND PAYABLE BY DATASCOPE TO ASPECT UNDER THIS
AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR OTHER
INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES) ARISING OUT OF
THE MANUFACTURE, SALE OR SUPPLYING OF ASPECT PRODUCTS.
25.7 Severability.
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
In the event that any provision of this Agreement is held by a
court of competent jurisdiction to be unenforceable because it
is invalid or in conflict with any law of any relevant
jurisdiction, the validity of the remaining provisions shall
not be affected and the rights and obligations of the Parties
shall be construed and enforced as if the Agreement did not
contain the particular provisions held to be unenforceable.
25.8 Governing Law.
This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts,
without reference to conflict of laws principles, and shall
not be governed by the U.N. Convention on Contracts for the
International Sale of Goods.
25.9 Notices.
Any notice or communication with regard to the termination of
or changes to this Agreement from one Party to the other shall
be in writing and either personally delivered or sent via
certified mail, postage prepaid and return receipt requested
addressed, to such other Party at the address of such Party
specified in this Agreement or such other address as either
Party may from time to time designate by notice hereunder.
25.10 Entire Agreement.
This Agreement constitutes the entire agreement between the
Parties. No waiver, consent, modification or change of terms
of this Agreement shall bind either Party unless in writing
signed by both Parties, and then such waiver, consent,
modification or change shall be effective only in the specific
instance and for the specific purpose given. There are no
understandings, agreements, representations or warranties,
expressed or implied, not specified herein regarding this
Agreement or the Aspect Products purchased and/or licensed
hereunder. Only the terms and conditions contained in this
Agreement shall govern the transactions contemplated
hereunder, notwithstanding any additional, different or
conflicting terms which may be contained in any Order or other
document provided by one Party to the other. Failure of Aspect
to object to provisions contained in any Order or other
document provided by Datascope shall not be construed as a
waiver of the terms and conditions of this Agreement nor an
acceptance of any such provision.
25.11 Headings.
Captions and headings contained in this Agreement have been
included for ease of reference and convenience and shall not
be considered in interpreting or construing this Agreement.
25.12 Exhibits:
The following Exhibits shall be part of this Agreement:
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
Exhibit A: Aspect Products and Purchase Prices
Exhibit B: Specifications: Aspect's [**] Kit
Exhibit C: Contact Persons/Addresses
Exhibit D: Aspect and Datascope Trademarks
25.13 Beneficiaries.
Except for the provisions of Section 19 hereof, which are also
for the benefit of the other Persons indemnified, this
Agreement is solely for the benefit of the parties hereto and
their respective affiliates, successors in interest and
permitted assigns and shall not confer upon any other person
any remedy, claim, liability, reimbursement or other right in
excess of those existing without reference to this Agreement.
25.14 Assignment.
Neither Party may assign or delegate this Agreement or any
rights or obligations under this Agreement without the prior
written consent of the other, which shall not be unreasonably
withheld; provided, however, that Datascope may, without the
prior written consent of Aspect, assign and delegate this
Agreement and any or all of its rights and obligations
hereunder to any of its affiliates, and provided that either
party shall have the right to assign this Agreement in
connection with a sale of the business of such party to which
this Agreement relates.
IN WITNESS WHEREOF, this Agreement has been duly executed as a sealed instrument
as of the date specified above.
Aspect Medical Systems, Inc. Datascope.
By: /s/ J. Xxxx Xxxxxxxxx By: Unreadable
------------------------- ----------------------------
Title: CFO Title: President
----------------------- -------------------------
7-30-03 7-28-03
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
EXHIBIT A
ASPECT PRODUCTS AND PURCHASE PRICES
A) ASPECT BIS/EEG MODULE KIT:
Price for the Aspect [**]
Kit: $[**]
Demonstration Aspect [**] Kit: $[**]
Additional incremental NRE and unit cost for customization of the product (i.e.
Mold color, labeling) will be borne by Datascope.
Aspect and Datascope will agree to the size of the demonstration pool of
Datascope [**] Systems.
Datascope will be responsible for providing Aspect with documentation, on a [**]
basis, of the total number of Datascope [**] Systems installed in the
United States during the [**] just ended, the locations, by zip code, of
such Datascope [**] Systems and the dates of sale and installation.
B) ASPECT BIS SENSORS
Price for the Aspect BIS Sensors: $[**].
Volume discounts are based on the total volume of sensors purchased. Each
calendar year pricing levels will be set initially based on the volume of
sensors [**], with subsequent volume discounts realized as additional
volume discounts are achieved. The discounted price will apply only to the
sensors purchased after the volume discount is achieved; it is not
retroactive to sensors purchased prior:
QUANTITY PER YEAR PRICE
[**] $[**]
[**] $[**]
[**] $[**]
[**] $[**]
Starter kit of five (5) sensors (of like kind): $[**]
Demonstration kit of five (5) sensors (of like kind): $[**]
NOTE: Demonstration kit sensors cannot be resold by Datascope.
Pricing applicable to [**].
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
EXHIBIT B
SPECIFICATIONS: ASPECT [**] KIT
[ASPECT [**] KIT CHART]
[**]
[**]
Main Parameters: [**]
Bispectral Index: 0-100 unitless scale
USB Interface: [**]
RS-232 Interface: [**]
RS-485 Interface: [**]
Dimensions (main body): [**]
[**]
Weight: [**]
[**] [**]
Cable Length: [**]
Temperature: [**]
[**]
Humidity: [**]
[**]
Pressure: [**]
[**]
Electrical Safety: [**]
Input Impedance: [**]
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
Noise (RTI): [**]
Input Range: [**]
EEG Bandwidth: [**]
A/D Conversion: [**]
Sample Rate: [**]
Patient Leakage: [**]
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
EXHIBIT C
CONTACT PERSONS/ADDRESSES
CONTACT PERSONS AND RESPONSIBILITIES AT ASPECT:
EMAIL
PHONE NUMBER
PERSON TITLE RESPONSIBILITY FAX NUMBER
=============== ================= ====================== =======================
Xxxx Xxxxx Director, Global Contract and Marketing xxxxxx@xxxxxxxx.xxx
Partnerships
--------------- ----------------- ---------------------- -----------------------
Xxxxx Xxxxxxxxx Manager, OEM Project Manager xxxxxxxxxx@xxxxxxxx.xxx
Engineering
--------------- ----------------- ---------------------- -----------------------
Xxxxx Xxxxx Director, Quality Quality and Regulatory xxxxxx@xxxxxxxx.xxx
Systems Matters
--------------- ----------------- ---------------------- -----------------------
MAILING ADDRESS: Aspect Medical Systems, Inc.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
XXX
CONTACT PERSONS AND RESPONSIBILITIES AT DATASCOPE:
[To be provided by Datascope with thirty (30) days of the date of this Agreement
EMAIL
PHONE NUMBER
PERSON TITLE RESPONSIBILITY FAX NUMBER
============ ================ ===================== ==========================
Xxxxx Xxxxxx Senior Business Product Manager, Xxxxx_xxxxxx@xxxxxxxxx.xxx
Manager Passport 2 & Spectrum (000) 000-0000
fax: (000) 000-0000
------------ ---------------- --------------------- --------------------------
Xxxx Xxxx Senior Principal Project Manager, Xxxxxxx_xxxx@xxxxxxxxx.xxx
Engineer Passport 2 & Spectrum (000) 000-0000
------------ ---------------- --------------------- --------------------------
------------ ---------------- --------------------- --------------------------
MAILING ADDRESS: Datascope Corp
000 XxxXxxxxx Xxxx
Xxxxxx, XX 00000
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ASPECT / DATASCOPE OEM DEVELOPMENT AND PURCHASE AGREEMENT
EXHIBIT D
ASPECT AND DATASCOPE TRADEMARKS
ASPECT TRADEMARKS REFERENCE
----------------- ---------
Aspect(R) Aspect is a trademark of Aspect Medical
Systems, Inc
A-2000(TM) A-2000 is a trademark of Aspect Medical
Systems, Inc.
Bispectral Index(R) Bispectral is a registered trademark of Aspect Medical Systems,
Inc.
BIS(R) BIS is a registered trademark of Aspect Medical Systems, Inc.
[BIS LOGO] BIS logo is a registered trademark of
Aspect Medical Systems, Inc.
DATASCOPE TRADEMARKS REFERENCE
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