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Exhibit 10.26
Aspect Medical Systems, Inc.
requests that the marked portions of this document be granted confidential
treatment pursuant to Rule 406 under the Securities Act of 1933.
PRIVILEGED AND CONFIDENTIAL
ATTORNEY-CLIENT AND WORK PRODUCT PRIVILEGES
FOR GE MARQUETTE ONLY
ASPECT MEDICAL SYSTEMS, INC.
OEM DEVELOPMENT AND PURCHASE AGREEMENT
Agreement dated this 22nd day of December, 1999, by and between Aspect
Medical Systems, Inc, a Delaware corporation with its principal offices located
at Two Vision Drive, Natick, Massachusetts ("Aspect") and GE Marquette Medical
Systems, Inc. ("Marquette"), a Wisconsin corporation with its principal offices
located at 0000 X. Xxxxx Xxx., Xxxxxxxxx, Xxxxxxxxx for the purchase and/or
license by Marquette 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 Marquette is a developer, manufacturer and distributor of
medical devices, equipment, related hardware, software and
related products and accessories, including multiparameter
patient monitors.
1.3 Marquette desires to integrate Aspect's BIS and EEG technology
into Marquette's multiparameter patient monitors.
1.4 Aspect agrees to sell and/or license to Marquette the products
described below, subject to the terms and conditions contained
in this Agreement.
2. DEFINITIONS.
"ASPECT'S BISPECTRAL INDEX" or "BIS" is Aspect's proprietary processed
EEG parameter that measures the hypnotic effects of anesthetic and
sedative agents on the brain during surgery.
"ASPECT'S EEG PARAMETERS" or "EEG" are Aspect's processed EEG
parameters including Spectral Edge frequency, Median Frequency,
Suppression Ratio, EMG and SQI (Signal Quality Index).
"MARQUETTE PATIENT MONITOR" means any multi-parameter modular patient
monitoring systems manufactured by or for Marquette. When the BIS/EEG
Module Development
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Project is complete, the Marquette BIS/EEG module will allow the
Marquette Patient Monitor to display BIS and certain EEG data
(waveforms, numerics, status info), and provide setup and operation
information (user interface), alarming, and network connectivity.
"MARQUETTE BIS/EEG MODULE" is the sum of all components involved in
integrating the BIS and EEG with Marquette Patient Monitors.
"DSC CABLE" is a cable used to connect the DSC-2 or DSC-4 to the
Marquette BIS/EEG Engine.
"MARQUETTE BIS/EEG ENGINE" is the processing unit for deriving the BIS
and EEG data from the raw EEG signal and consists of Aspect's "BIS
Engine" board modified for Marquette.
"DIGITAL SIGNAL CONVERTER-2" (or "DSC-2") is used to amplify the analog
EEG signals as acquired by the BIS sensors and convert it from analog
to digital signals. The DSC-2 is used by Marquette BIS/EEG Module
customers to obtain the BIS.
"DIGITAL SIGNAL CONVERTER-4" (or "DSC-4") is used to amplify the analog
EEG signals as acquired by the Zipprep electrodes and convert it from
analog to digital signals. The DSC-4 is used by Marquette BIS/EEG
Module customers to obtain 2 or 4-channel EEG data only.
"ASPECT BIS/EEG MODULE KIT" means the bundle of all components of the
Marquette BIS/EEG Module that are developed and manufactured by or for
Aspect and licensed/sold to Marquette under this Agreement: DSC-2,
DSC-4, DSC Cable, Marquette BIS/EEG Engine, and Module Cable.
"ASPECT BIS SENSOR" means a single use disposable sensor manufactured
by Aspect for use with the A2000 or with the Aspect BIS/EEG Module Kit
and that is required to generate Aspect's Bispectral Index.
"A2000" means Aspect's stand-alone BIS monitor for use with the Aspect
BIS Sensor and that generates Aspect's Bispectral Index.
"ASPECT PRODUCTS" means Aspect BIS/EEG Module Kit and any other product
that can be ordered by Marquette as listed in Exhibit A (Aspect
Products and Purchase Prices).
"SOFTWARE" means Aspect software programs in binary code form which are
designed for use with the Aspect BIS/EEG Module Kit.
"DOCUMENTATION" means the BIS Engine Serial Interface Specification.
"TERRITORY" shall mean all countries in which Marquette is permitted
under this Agreement to distribute Aspect Products.
"PARTY" or "PARTIES" shall mean Aspect and Marquette each individually
or jointly.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
3. BIS/EEG MODULE DEVELOPMENT PROJECT.
3.1 PROJECT TIMING. The overall project duration is expected to be
at least [**]. The product introduction is targeted for the
annual meeting of the [**], but if such target can not be
satisfied the product introduction shall be targeted for no
later than the annual meeting of [**]. A preliminary outline
of the development project is attached to this Agreement as
Exhibit C.
3.2 PROJECT MANAGEMENT.
(a) Each Party shall appoint a "Project Manager" who
shall oversee and manage the joint project on a
day-to-day basis.
(b) 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.
(c) Each Party shall bear its own communication and
travel costs.
(d) All communication in conjunction with this Agreement
shall be directed to the appropriate person and
address as listed in Exhibit D (Contact
Persons/Addresses).
3.3 MARQUETTE RESPONSIBILITIES.
(a) Marquette shall develop the Marquette BIS/EEG Module
according to mutually agreed specifications at
Marquette's own cost.
(b) Marquette shall develop, design and test the modular
integration of the components of the Aspect BIS/EEG
Module Kit with the Marquette Patient Monitors
3.4 ASPECT RESPONSIBILITIES.
(a) Aspect shall design, develop, and test the Aspect
BIS/EEG Module Kit according to the mutually agreed
specifications. The costs for Aspect to complete this
project, for which preliminary estimates are included
in Exhibit C, shall be borne by Marquette. [**] of
total estimated project costs shown on Exhibit C
shall be paid by Marquette within [**] days of the
date on which this Agreement is signed by both
parties; [**] of total estimated project costs, shown
on Exhibit C shall be paid [**] days thereafter, and
the final payment of the remaining actual project
costs (including labor at Aspect's standard labor
rates) shall be paid upon the project's completion.
Any [**] the [**] will be [**]; provided, however,
that Marquette shall not pay over [**] toward
non-recurring engineering ("NRE") and tooling to
Aspect.
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4. PURCHASE AND SALE OBLIGATIONS; LICENSES.
4.1 GENERAL. Subject to the terms and conditions of this
Agreement, Aspect agrees to sell to Marquette the Aspect
Products listed on Exhibit A (Aspect Products and Purchase
Prices). The components of the Aspect BIS/EEG Module Kits
purchased from Aspect under this Agreement shall only be used
as components in, incorporated into, or integrated with,
systems and products which Marquette sells or leases to
third-party users in the regular course of business. The
components of the Aspect BIS/EEG Module Kits shall only be
resold, leased, rented, licensed or otherwise transferred to
third parties for use as a part of an Marquette BIS/EEG Module
or as replacement parts used in Marquette BIS/EEG Modules and
Marquette shall only sell Aspect approved accessories
including cables and sensor products in connection with any
Marquette BIS/EEG Module. During the term of this Agreement,
Marquette agrees that it may offer complementary but not
directly competitive products to the Marquette BIS/EEG Module.
Marquette products other than the Marquette BIS/EEG Module
that display a parameter claiming to be a measure of the
hypnotic effect of anesthesia, are considered to be directly
competitive products for purposes of this Section 4.1.
4.2 DISTRIBUTION OF ASPECT BIS SENSORS. Aspect hereby grants to
Marquette a non-exclusive right to distribute Aspect BIS
Sensors solely to Marquette customers outside of North America
who have purchased Marquette BIS/EEG Modules. Prices for
Aspect BIS Sensors purchased by Marquette hereunder shall be
as set forth in Exhibit A (Aspect Products and Purchase
Prices).
4.3 ASPECT SOFTWARE LICENSE. Aspect hereby grants to Marquette a
non-exclusive and non-transferable worldwide license, without
the right to sublicense (except to purchasers of Marquette
BIS/EEG Modules), during the term of the Agreement to use the
Software and related Documentation provided by Aspect solely
in connection with operation of the components of Aspect
BIS/EEG Module Kit in the Marquette BIS/EEG Module.
Thereafter, Aspect grants to Marquette a right to use the
Software and related Documentation used in conjunction with
the Marquette BIS/EEG Modules being sold by Marquette on the
date of termination with respect to service and support of
installed Marquette BIS/EEG Modules for a period of 10 years,
after termination of the Agreement. All rights granted to
Marquette customers to use the Marquette BIS/EEG Modules shall
survive any termination of this Agreement as long as such
customers remain in compliance with the terms of use for such
Marquette BIS/EEG Modules. Marquette shall not disclose,
furnish, transfer, distribute or otherwise make available the
Software, the Documentation or any portion thereof in any form
to any third party (other than to purchasers of Marquette
BIS/EEG Modules and to Marquette's subdistributors) and shall
not duplicate the Software, the Documentation or any part
thereof (other than for Marquette's internal use as provided
above). Title to and ownership of any and all proprietary
rights in or related to the Software and the Documentation
therefor shall at all times remain with Aspect or its
licensor(s). Nothing in this Agreement shall be construed as a
sale of any rights in the Software or the Documentation. All
references in this Agreement to sale, resale or purchase of
the
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Aspect BIS/EEG Module Kits or the components thereof, or
references of like effect, shall, with respect to the Software
and the Documentation mean licenses or sublicenses of the
Software and the Documentation pursuant to this Section 4.
Marquette shall not disassemble, decompile or otherwise
reverse engineer the Software or any part thereof, except if
Aspect is required under applicable law to permit Marquette to
reverse engineer any Software. In such event, Marquette may
reverse engineer the Software but only to the extent Aspect is
required to permit such reverse engineering. Marquette shall
retain and shall not alter or obscure any notices, markings or
other insignia affixed to the Software, the Documentation or
any part thereof at the time it receives such Software or such
Documentation.
4.4 EXCLUSIVITY. Except to the extent Marquette and Aspect may
agree in the future to undertake co-marketing programs
pursuant to Section 22, nothing in this Agreement shall be
construed to grant Aspect any license to sell, distribute or
license to any third party the Marquette BIS/EEG Module, the
Marquette BIS/EEG Engine, or the Aspect BIS/EEG Module Kit. It
is understood, however, that Aspect sells, distributes, and
licenses to other third parties both generic and customized
Aspect BIS/EEG Engines and Aspect BIS/EEG Module 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 Marquette.
4.5 STANDARD OF CARE; PRIORITY. In connection with Aspect's
performance of its obligations hereunder, Aspect shall use
commercially reasonable efforts in the performance of its
obligations hereunder and will do so with the same degree of
care, skill and prudence customarily exercised when engaged in
similar activities for itself.
5. ROYALTIES AND COMMISSIONS.
5.1 ROYALTIES ON PURCHASES OF ASPECT MODULE KITS. For each Aspect
BIS/EEG Module Kit that Marquette purchases from Aspect,
Marquette shall pay a royalty fee and a price for all
components of the Aspect BIS/EEG Module Kit. Royalty fees and
component prices are specified in Exhibit A (Aspect Products
and Purchase Prices); provided that the prices specified in
Exhibit A shall not apply to the [**] for the [**] a [**] in
[**] for [**] as part [**] agreement pursuant to [**], as [**]
will be [**] to [**] at the [**] described in Exhibit A.
Aspect BIS/EEG Module Kits sold by Aspect under this
Agreement, [**], will be priced based on the Royalty fees and
component prices specified in Exhibit A.
5.2 [**]. For [**] Aspect [**] by Aspect to Marquette [**] in
North America for [**] with [**] or with Aspect [**] as part
of any [**] pursuant to Section [**],
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Aspect shall [**] Marquette a [**] to [**] of the [**] by
Aspect for [**] Aspect [**]. Aspect shall [**] such [**] to
Marquette on a [**]. With such [**], Aspect shall [**] to
Marquette a [**] of Marquette [**] to which such [**], the
[**] of [**] in that [**], and the [**] from the [**] of the
[**] by Aspect. This [**] shall be [**] to Marquette no later
than [**] the end of [**]. 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 Marquette BIS modules, [**] will be [**] to a [**]
only on [**] for [**] with [**]. The Parties will agree upon a
reasonable [**] for [**] the number of [**] with [**] in such
an event (e.g. a [**] determination based on the [**] of [**]
of [**] at [**] during the period) and [**] the [**] to
Marquette accordingly. To facilitate [**], Marquette will be
responsible for providing Aspect with [**] of the [**],
the [**].
6. SCOPE OF DELIVERY
6.1 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 6(e). All Marquette Purchase
Orders shall make reference to the appropriate engineering
drawing or manufacturing reference numbers. There is no
minimum volume commitment required for each purchase order.
6.2 ORDER ACKNOWLEDGEMENTS. Marquette purchase orders shall be
acknowledged by Aspect within 5 days after receipt of the
order, provided that the order is technically correct and that
the requested delivery time is within the agreed lead time and
that the latest forecast provided by Marquette is not exceeded
by more than [**] and the quantity ordered does not exceed by
more than [**] of the quantity ordered in the preceding month.
If the requested delivery time is less than the agreed lead
time, or if Marquette's latest forecast is exceeded by more
than [**], or if the quantity ordered exceeds by more than
[**] the quantity ordered in the preceding month, Aspect shall
use reasonable efforts to complete the requirements of such
nonconforming orders within seventy (70) days from the date it
receives such nonconforming order and to acknowledge such
orders within 10 days of its receipt. Order acknowledgements
shall not be unreasonably withheld.
6.3 FORECASTS. Marquette shall furnish to Aspect a non-binding
quarterly forecast during the term of this Agreement with the
number and type of Aspect Products for which Marquette expects
to submit orders for the following twelve months.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
6.4 CANCELLATION CHARGES. In the event of the cancellation of any
Order by Marquette, Marquette shall be liable for the payment
of cancellation charges based on the number of days prior to
scheduled delivery date that written notice of cancellation is
received by Aspect, as outlined below:
[Greater than] 10 weeks prior to acknowledged delivery [**]
6 - 10 weeks prior to acknowledged delivery [**] of order value
4 - 6 weeks prior to acknowledged delivery [**] of order value
2 - 4 weeks prior to acknowledged delivery [**] of order value
[Less than] 2 weeks prior to acknowledged delivery [**] of order value
6.5 COMMITMENT. Except as set forth in Section 6.4, Marquette has
no commitment to purchase any minimum quantity of Aspect
Products or Aspect BIS Sensors pursuant to this Agreement.
Except as set forth in Section 6.4, unless agreed otherwise in
writing by the parties, Marquette shall not be responsible or
in any way liable to Aspect or any third party with respect to
any component purchase commitments or production arrangements
in excess of the amounts or in advance of the times necessary
to meet Marquette's delivery schedules set forth in its
Orders.
6.6 LEAD TIMES. Lead times for the Aspect BIS/EEG Module Kit are
expected to be [**] days. Late deliveries are subject to late
fees of [**] per month (pro-rated daily. In the event of late
deliveries by Aspect, Aspect will also promptly reimburse
Marquette for expedited shipment charges that Marquette incurs
as a direct result of late shipments of the Aspect BIS/EEG
Module Kit from Aspect .
7. PRICES.
7.1 PURCHASE PRICES. The prices of Aspect Products purchased by
Marquette 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 PURCHASE PRICE CHANGES. In consideration of the market
situation and after consultation with Marquette, 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. Any price adjustment
shall become effective only after mutual agreement between
both Parties. [**], Aspect shall have the right [**] during
the term of this Agreement to increase the Purchase Price of
the Aspect Products without the consent of Marquette by an
equivalent amount by delivering reasonable documentation
supporting such increase and by giving Marquette written
notice of the increase not less than [**] days prior to the
date upon which the increased Purchase Price is to become
effective. [**] 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.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Notwithstanding anything to the contrary in this Section 7.2,
[**] unless [**] reasonable efforts to [**] of the [**] which
have [**] in [**] and, [**] reasonable efforts, was not [**]
to [**].
7.3 PURCHASE PRICE REDUCTIONS. Aspect may reduce the Purchase
Price of any Aspect Product at any time. Such reduction shall
be applicable to all Aspect Products shipped after the date of
the reduction. [**] the [**] of the [**] for the [**] by [**]
as provided in Section 7.2, Aspect shall reduce the Purchase
Prices for all Aspect Products (excluding license fees and
volume discounts) by not less than [**] per year. The first
price reduction will be effective on the [**] anniversary of
the introduction of the Marquette BIS/EEG Module, and the
second price reduction shall be effective on the [**]
anniversary of the introduction of the Marquette BIS/EEG
Module.
7.4 [**]. In no case shall the [**] by any other Party that has
[**] with Aspect [**] of this Agreement for [**] under [**]
terms and conditions.
7.5 TAXES. All prices for Aspect Products are exclusive of all
federal, state and local taxes, levies and assessments, and
Marquette shall be responsible for the payment of all such
taxes, levies and/or assessments imposed on Aspect Products
purchased and/or licensed by Marquette hereunder, excluding
taxes based on Aspect's net income from the transaction.
Marquette 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, which it would
otherwise be obligated to make.
8. TERMS OF PAYMENT.
8.1 INVOICES. Marquette shall pay to Aspect the Purchase Price for
all Aspect Products shipped hereunder within forty-five (45)
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 23 (Termination) hereof in
the event of Marquette's failure to make payment when due for
Aspect Products delivered to Marquette. Marquette 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 [**] 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).
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:
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
[TBD]
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 Marquette's
dominion and control only when placed in the possession of a
carrier designated by Marquette, properly packed and ready for
shipment to Marquette. Aspect shall cooperate with Marquette
in the documentation and proof of loss claims promptly
presented by Marquette to the appropriate carrier and/or
insurer.
9.3 DELIVERY DATE AND DATE OF DISPATCH. The requested delivery
date shall be specified on the Marquette 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 early as reasonably possible (taking other customer
demands on Aspect 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 ten (10) days prior to the delivery date.
Late delivery penalties to Aspect will apply as specified in
Section 6.6 of this Agreement.
10. ACCEPTANCE.
Any Aspect Product shipped hereunder may be subjected to inspection and
performance testing by Marquette, 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 Marquette . Marquette 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 Marquette 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, Marquette shall dispose of the
replaced Aspect Product in accordance with Aspect's instructions and at Aspect's
expense. Marquette'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 Marquette that Aspect
Products (including Software) delivered hereunder shall
perform substantially in accordance with the specifications in
Exhibit B (Aspect's Standard Module Kit) or other applicable
product specifications as published by Aspect in effect at the
time of delivery of such Aspect Product (including Software),
and shall be free from defects in materials and workmanship,
when given normal, proper and intended usage, for twelve (12)
months from the date of shipment of the Marquette BIS/EEG
Module at Marquette's end customer site or eighteen (18)
months from the date of shipment by Aspect to Marquette,
whichever is less. Aspect agrees, during the applicable
warranty period, to repair or replace (at Aspect's option) all
defective Aspect Products within thirty (30) days after the
date of return to Aspect and without cost (including shipping)
to Marquette. In the event that Aspect is unable to repair or
replace such defective Aspect Products
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within such thirty (30) day period, Aspect agrees to refund to
Marquette the amounts paid to Aspect for such defective Aspect
Products. This warranty shall not apply to expendable
components and supply items, such as, but not limited to,
cables, fuses and bulbs (or disposable items such as an Aspect
BIS Sensor after the expiration date marked on the Sensor
packaging); nor shall Aspect 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 Marquette, or anyone
claiming through or on behalf of Marquette, 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. Marquette 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 Marquette to Aspect's
designated facility for examination and testing, or may be
repaired on site by Aspect. Aspect shall either repair or
replace, within thirty (30) days of receipt by Aspect, any
such Aspect Product found to be so defective and promptly
return such Aspect Products to Marquette. 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 Marquette and
dispose of or return the Aspect Product in accordance with
Marquette's instructions and at Marquette's sole expense, and
Marquette shall reimburse Aspect for such 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 10(a) or at least six (6)
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 OR FITNESS FOR A PARTICULAR PURPOSE.
12. SERVICE AND SUPPORT.
12.1 SERVICE AND SUPPORT. Marquette shall be responsible for
providing installation, customer training, service and support
(including repair) to its end customers for the Aspect
Products Marquette sells to such customers, and Marquette
shall bear all related costs incurred for labor, parts, or
travel to perform such service.
12.2 CENTRAL REPAIR SERVICE. For the term of this Agreement, Aspect
agrees to provide central repair service (as opposed to field
service) to Marquette for Aspect Products sold hereunder.
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12.3 SERVICE TRAINING. Aspect agrees to provide initial service
training to a mutually agreed upon number of Marquette service
representatives prior to the market release of the EEG/BIS
module, as well as periodic (annually at a minimum) ongoing
training for existing and new Marquette service personnel.
12.4 SERVICE PERIOD. For a period of seven (7) years following the
last delivery to Marquette of the applicable Aspect Product
ordered by Marquette 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 Marquette 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 seven
(7) year 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.
12.5 SERVICE REPORTING. Aspect shall maintain a complete record of
all repair activities performed on any Aspect products
received for repair, and shall provide Marquette with a
quarterly report on all service actions including failure and
repair statistics at a sub-assembly level Service Reports for
each product shall be sent electronically by email to a
designated procurement and technical marketing engineer
(Contact Persons shown in Exhibit D, Contact Persons /
Addresses). Root cause analysis is to be performed and
reported by Aspect to Marquette in case of abnormal failures,
incidents and malfunctions.
13. QUALITY ASSURANCE.
13.1 CERTIFICATION STATUS. Both parties agree to maintain ISO900x,
EN460x, European directive 93/42/EEC Annex II ("MDD AX-II")
certification status and compliance with the U.S. Food and
Drug Administration's ("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 Marquette'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 thirty (30) days
advance notice during normal business hours and shall not take
place more than once per calendar year.
14. REGULATORY MATTERS.
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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 BIS/EEG
Module Kit. Both Parties shall work together to develop a
regulatory plan which defines precisely what these regulatory
and localization requirements are for all countries where the
Marquette BIS/EEG Module is intended to be sold. In
particular, Aspect shall be responsible for generating its own
Device Master Record for the Aspect BIS/EEG Module Kit. It is
understood that the Aspect BIS/EEG Module Kit shall be a
component of the Marquette BIS/EEG Module. Marquette shall be
responsible for obtaining and maintaining all applicable
governmental authorizations and regulatory approvals required
to distribute the combination of Aspect and Marquette products
in the Marquette BIS/EEG Module as provided in Section 14.3.
14.2 MARQUETTE PATIENT MONITORS. Marquette shall assume full
regulatory responsibility for the Marquette Patient Monitors,
including obtaining and maintaining all applicable
governmental authorizations and regulatory approvals required
to distribute the Marquette Patient Monitors in all countries
in the Territory.
14.3 MARQUETTE BIS/EEG MODULE. Marquette shall assume the
regulatory responsibility for the combination of the Aspect
and Marquette components in the Marquette BIS/EEG Module.
Aspect shall fully support Marquette as required in the
process of obtaining regulatory approvals by making available
to Marquette any required information, data, certificates, or
technical files in the requested formats.
14.4 INTERNATIONAL REGULATORY RESPONSIBILITIES. For bringing the
Aspect Products into the market in countries affected by the
European Medical Device Directive ("MDD"), Aspect is the
legally responsible manufacturer under the MDD. The Aspect
Products shall be marked accordingly.
14.5 PRODUCT COMPLAINTS AND INCIDENT REPORTING. Marquette and
Aspect shall inform each other in writing immediately about
any event that may require incident reporting in any country.
Marquette and Aspect shall inform each other in writing within
two (2) business days of a customer complaint regarding the
Marquette BIS/EEG Module, the Aspect Products, or (within the
Territory) 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
Marquette BIS/EEG Module will occur when Marquette 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 Marquette that the problem is
resolved.
14.6 RECALLS. In the event of any recall of an Aspect Product
required by either a governmental agency, by Aspect, or by
Marquette for safety or efficacy reasons which is the result
of Aspect's failure to supply Aspect Products that (1) conform
in all material respects to the applicable published
specifications (including the
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
specifications set forth in Exhibit B (Aspect's Standard
Module Kit)) or (2) are free from defects in material and
workmanship (when given normal, proper and intended usage),
Aspect agrees to repair or replace at its own costs all Aspect
Products subject to the recall and previously delivered to
Marquette. Aspect also agrees to consult with Marquette to
establish a reasonable process for managing the recall and
Aspect shall be [**] (including, but not limited to [**] that
are consistent with the recall process agreed to by the
Parties. In the event that Aspect at its sole discretion
requests a recall that is not required by a governmental
agency for safety or efficacy reasons, Aspect shall be
responsible for determining the scope of the recall, including
the number of units, timeframe for the recall, and criteria
for completion. Marquette agrees to maintain all necessary
sales records to facilitate the recall.
14.7 DELEGATION. Marquette may at its sole discretion delegate some
of the obligations under this Section 14 to its
sub-distributors.
14.8 TRACEABILITY. For the purpose of facilitating product
traceability, all Products purchased from Aspect by Marquette
shall require identification of an internal order number and
tracking code.
15. PRODUCT CHANGES; DISCONTINUED PRODUCTS; FUTURE PRODUCTS; CONTINUED
SUPPLY.
15.1 PRODUCT CHANGES. Aspect shall have the right, at any time and
from time to time, to make substitutions and modifications to
Aspect Products, provided that such substitutions or
modifications shall not materially affect form, fit, function,
reliability, serviceability, performance, functional
interchangeability or interface capability of Aspect Products.
In the event that any proposed substitution or modification
affects, in Aspect's reasonable judgment, the form, fit,
function, reliability, serviceability, performance, functional
interchangeability or interface capability of an Aspect
Product, Aspect shall give Marquette written notice of such
proposed substitution or modification at least [**] days prior
to its taking effect and Marquette shall have the right,
during such [**] day period and for [**] days thereafter, to
order Aspect Products without such substitution or
modification for delivery up to [**] days after such
substitution or modification takes effect. Aspect shall
provide the appropriate verification and validation
information for evaluating the effect of the change on the
Marquette BIS/EEG Module.
15.2 DISCONTINUED PRODUCTS. Aspect agrees to notify Marquette in
writing not less than [**] in advance of the discontinuance of
any Aspect Product. Marquette shall be able to place orders
for at least [**] after receipt of the written notice in any
case. In addition, Marquette shall be entitled to determine
its lifetime-buy quantities and place a corresponding last
purchase order.
15.3 FUTURE PRODUCTS. The Aspect Products are designed for use in
measuring the effects of anesthetic and sedative agents on the
brain during surgery. In the event that Aspect develops a
product involving this or a different type of index, patient
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sensor, or application, Aspect and Marquette agree to discuss
in good faith a new agreement for the purchase of such new
product or products by Marquette.
16. OWNERSHIP AND PROTECTION OF RESULTS.
16.1 NO TRANSFER OF OWNERSHIP. It is expressly agreed that neither
Aspect nor Marquette 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, even
if made for, obtained by or paid for by Marquette.
16.3 DEVELOPMENTS. If there are developments (including patentable
inventions) conceived, created or reduced to practice under
this Agreement then the rights to such developments shall be
retained (a) by Aspect if conceived, created and reduced to
practice solely by Aspect, or (b) by Marquette, if solely
conceived, created and reduced to practice by Marquette, or
(c) jointly by Marquette and Aspect (without any duty to
account to the other) if jointly developed by Marquette and
Aspect, provided that:
(i) Marquette shall assign to Aspect all rights
to any developments conceived, created or
reduced to practice by Marquette solely
relating to the Aspect BIS/EEG Module Kit;
and
(ii) Aspect shall assign to Marquette all rights
to any development solely relating to the
Marquette Patient Monitor.
17. DOCUMENTATION AND TRAINING.
Aspect agrees to provide Marquette with such product literature, operations and
maintenance manuals, and other information and training (including training to
avoid possible misrepresentation of Aspect's Bispectral Index) as is mutually
agreed, to enable Marquette to properly sell and maintain Aspect Products,
provided that in no event shall the source code or source listings of Aspect
Software be required to be disclosed or provided by Aspect to Marquette except
as provided in Section 25 (Source Code Escrow). Aspect agrees to give Marquette
the rights to use or reproduce its user documentation for incorporation into
Marquette documentation excluding source code or source listings as previously
mentioned. Such documentation should be provided in an electronic format. Aspect
shall be given the opportunity to review and approve Marquette documentation
that incorporates Aspect documentation prior to publication. The training Aspect
is required to provide Marquette under this Section 17 shall begin at least
three (3) months prior to introduction of the Marquette BIS/EEG Module and shall
be defined as part of the Project's marketing plan.
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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 18 shall
continue for both parties for a period of five (5) years after delivery by
Aspect to Marquette of the last Aspect Product under this Agreement, provided,
however that any source code disclosed pursuant to the Source Code Escrow
established under to Section 25 shall be maintained in confidence in perpetuity.
Marquette is entitled to transmit confidential information of Aspect to
Marquette subsidiaries and affiliated companies. In such, case these
subsidiaries and affiliated companies may only use such information to the same
extent as Marquette is entitled to use such information under this Agreement.
Marquette shall be responsible if any of these subsidiaries and affiliated
companies fail to comply with the confidentiality provisions of this Agreement.
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19. WARRANTIES AND INDEMNITIES.
19.1 WARRANTIES BY ASPECT.
(a) Aspect represents and warrants that it either has all
rights, title and interest in, or valid licenses to,
the Aspect Products and any related intellectual
property rights thereto. Aspect represents and
warrants that it has not granted in the Territory any
exclusive licenses or exclusive sublicenses in the
Aspect Products that would prevent it from granting
Marquette the licenses set forth in Section 4.3
(Aspect Software License). Aspect also represents and
warrants that it has the right and authority to
engage in the joint development of the Marquette
BIS/EEG module as contemplated hereunder and that to
its knowledge such activity will not infringe upon or
misappropriate any third party's intellectual
property rights.
(b) Aspect warrants that it will deliver all Aspect
Products free from the rightful claims of any third
party for infringement of any Patents, Trademarks or
Copyrights or misappropriation of Trade Secrets.
Aspect also warrants that as of the date of this
Agreement, Aspect has received no notice of a claim
of infringement or misappropriation from any third
party regarding Aspect Products. Marquette's
exclusive remedy with respect to breach of any
warranty provided in this Section 19.1 shall be that
Aspect will defend at its own expense, and will pay
the costs and damages (including attorneys fees,
other professional fees and other costs of litigation
or settlement) made in settlement or awarded as a
result of, any action brought against Marquette or
any of Marquette's customers based on an allegation
of such infringement or misappropriation with respect
to any Aspect Product, provided that the
Indemnification Procedures set forth in Section 19.3
are followed. If an injunction is obtained against
Marquette's or its customers' use of an Aspect
Product by reason of an infringement or
misappropriation described above, or if in Aspect's
opinion an Aspect Product or any part thereof is
likely to become the subject of a claim of such
infringement or misappropriation, Aspect will, at its
option and its own expense procure the right for
Marquette and its customers to continue using such
Aspect Product, or replace or modify such Aspect
Product or any part thereof so that it becomes
non-infringing. If neither of the foregoing options
are reasonably available to Aspect, Aspect shall have
the right to discontinue supplying such Aspect
Products to Marquette. Aspect shall not have any
obligation to Marquette or its customers under any
provision of this Section if the infringement or
misappropriation claim is based upon the modification
of any Aspect Product not made by Aspect, the use of
Aspect Products in combination with any program or
equipment, or any part thereof, not furnished or
recommended in writing by Aspect, or the use of such
Aspect Products in a manner or environment, or for
any purpose, for which Aspect did not design or
license them.
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(c) In the event that any claim is brought against
Marquette as a result of personal injuries and/or
property damages resulting from that portion of the
Marquette BIS/EEG Module developed and manufactured
by Aspect, and provided further that such claims do
not arise as a result of the misuse of the Aspect
Products, or the 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
misuse or use, Aspect agrees that it shall indemnify
and hold Marquette 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.
19.2 WARRANTIES BY MARQUETTE.
(a) Marquette represents and warrants that it either has
all rights, title and interest in, or valid license
to, the Marquette Patient Monitor and any related
intellectual property rights thereto. Marquette also
represents and warrants that it has the right and
authority to engage in the development of the
Marquette BIS/EEG Module as contemplated hereunder
and that to its knowledge such activity will not
infringe upon or misappropriate any third party's
intellectual property rights or violate the terms of
any agreement Marquette has entered into with a third
party.
(b) Marquette warrants that as of the date of this
Agreement, Marquette has received no notice of a
claim of infringement or misappropriation from any
third party regarding the Marquette Patient Monitor
or any other Marquette-supplied component of the
Marquette BIS/EEG Module. Aspect's exclusive remedy
with respect to breach of any warranty provided in
this Section 19.2 shall be that Marquette will defend
at its own expense, and will pay the costs and
damages (including attorneys fees, other professional
fees and other costs of litigation or settlement)
made in settlement or awarded as a result of, any
action brought against Aspect or any of Aspect's
customers based on an allegation of such infringement
or misappropriation with respect to any Marquette
Patient Monitor or any other Marquette-supplied
component of the Marquette BIS/EEG Module, provided
that the Indemnification Procedures set forth in
Section 19.3 are followed. If an injunction is
obtained against Aspect's or its customers' use of a
Marquette Patient Monitor or any other
Marquette-supplied component of the Marquette BIS/EEG
Module by reason of an infringement or
misappropriation described above, or if in
Marquette's opinion a Marquette Patient Monitor or
any other Marquette-supplied component of the
Marquette BIS/EEG Module or any part thereof is
likely to become the subject of a claim of such
infringement or misappropriation, Marquette will, at
its option and its own expense procure the right for
Aspect and its customers to continue using such
Marquette Patient Monitor or any other
Marquette-supplied component of the Marquette
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BIS/EEG Module, or replace or modify such Marquette
Patient Monitor or any other Marquette-supplied
component of the Marquette BIS/EEG Module or any part
thereof so that it becomes non-infringing. Marquette
shall not have any obligation to Aspect or its
customers under any provision of this Section 19.2 if
the infringement or misappropriation claim is based
upon the use of Marquette Patient Monitors or any
other Marquette-supplied component of the Marquette
BIS/EEG Modules in combination with any program or
equipment, or any part thereof, not furnished or
recommended in writing by Marquette, or the use of
such Marquette Patient Monitors or any other
Marquette-supplied component of the Marquette BIS/EEG
Modules in a manner or environment, or for any
purpose, for which Marquette did not design or
license them.
(c) In the event that any claim is brought against Aspect
as a result of personal injuries and/or property
damages resulting from the Marquette BIS/EEG Module,
and provided further that such claims do not arise as
a result of the defective design or operation of that
portion of the Marquette BIS/EEG Module developed or
manufactured by Aspect, Marquette 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 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 Marquette (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.
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(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. Marquette 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 E (Aspect Trademarks). Aspect acknowledges
and agrees that Marquette is the sole and exclusive
owner of all right, title and interest in and to the
trademarks (the "Marquette Trademarks") identified on
Exhibit F (Marquette Trademarks). Each Party
recognizes the value of the other Party's Trademarks
and the good will associated with the other Party's
Trademarks. Marquette 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 Marquette Trademarks and any good
will arising therefrom shall inure to the benefit of
Marquette. 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
Marquette, or the Marquette Trademarks to Aspect,
other than the grant of 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 Marquette Trademarks is expressly reserved
by Marquette. 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 Marquette BIS/EEG Modules 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) Marquette shall include the "(TM)" or "(R)"
symbol, as instructed by Aspect, after the
first prominent use of the Aspect Trademark
in the Marquette Patient Monitor and related
materials. Marquette shall have a period of
sixty (60) days in which to begin to use the
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
"(R)" symbol in replacement of the "(TM)"
symbol upon receiving instructions to do so
by Aspect for all new stock of such
materials. Marquette may continue to deliver
stocked literature before the change becomes
effective.
Marquette shall reproduce copyright and trademark notices of
Aspect on the "splash screen" or in the same location where
Marquette reproduces its own copyright and trademark notices .
(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 Marquette BIS/EEG
Modules. 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.
(ii) COMPLIANCE. Aspect acknowledges the high
standards of quality and excellence
established by Marquette with respect to
products bearing Marquette's trademarks.
Marquette acknowledges the high standards of
quality and excellence established by Aspect
with respect to products bearing the Aspect
Trademarks. Each Party agrees that Marquette
BIS/EEG Modules with which both parties'
Trademarks are used shall be of such quality
so as to maintain such high standards and to
reflect well upon both Parties. Each Party
agrees to adhere to its own or the following
quality standards (whichever may be more
rigorous) for use of the other Party's
Trademarks in connection with the Marquette
BIS/EEG Module:
- In order to ensure that the
Marquette BIS/EEG Module
distributed under both parties'
Trademarks complies with the
consistent quality standards of
each Party, all Marquette BIS/EEG
Modules distributed by or for
Marquette which bear an Aspect
Trademark shall conform to those
commercially reasonable standards
which Aspect provides to Marquette
in writing. Marquette shall cause
each major new release of such
Marquette BIS/EEG Modules to comply
with such standards or remove the
Aspect Trademark(s) from any such
new release, which does not comply
with such standards. Marquette
shall have a period of [**] in
which to bring newly manufactured
Marquette
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
BIS/EEG Modules into compliance
with any commercially reasonable
standard provided to it in writing
by Aspect following the date of
receipt of such standard.
- Each Party acknowledges that if
Marquette BIS/EEG Modules bearing
both Parties' Trademarks fail to
satisfy the quality standards set
forth above, the substantial good
will which each Party has built and
now possess in its own products and
Trademarks shall be impaired.
(e) 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 or are otherwise liable to cause deception or
confusion to the public, the Party obtaining such
information shall notify the other Party giving the
particulars thereof, and if such claims or
allegations relate to this Agreement, the Marquette
BIS/EEG Module, the Aspect BIS/EEG 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.
(f) TERMINATION. In addition to the termination rights
set forth in Section 23 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
23 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 Marquette hereunder shall immediately
revert to Aspect, and all rights in the
Marquette Trademarks granted to Aspect
hereunder shall immediately revert to
Marquette;
(iii) In the event that this Agreement is
terminated for any reason other than a
material breach or material default by
Marquette, Marquette shall thereafter to
dispose of all of the unsold Marquette
Patient Monitors bearing the Trademarks and
advertising and promotional
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
materials relating thereto which had been
completed by it prior to such termination,
provided such Marquette Patient Monitors and
materials were in the process of manufacture
before such termination.
(g) PROMOTIONAL CLAIMS. The general form of any
promotional claims by Marquette regarding Aspect's
Bispectral Index technology and/or the integration of
Aspect's Bispectral Index technology in Marquette
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 Marquette's
Patient Monitors or the integration of Aspect's
Bispectral Index technology in Marquette Patient
Modules, and the specific form of the use of
Marquette's trade names and Trademarks, and of
intended use claims regarding the Marquette BIS/EEG
Modules, in promotional material, advertisement,
and/or in written technical literature shall be
subject to review and approval by Marquette prior to
its publication or display.
21. EXPORT.
Marquette shall not export, directly or indirectly, Aspect Products (including
when integrated into a Marquette 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 Marquette's
responsibility to comply with the latest United States export regulations, and
Marquette 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 Marquette 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. CO-MARKETING PROGRAM.
Marquette and Aspect will undertake co-marketing programs in the future in
certain geographies, including North America, consistent with the goals and
principles outlined in Exhibit F to this Agreement. The Parties further agree to
utilize their best efforts to finalize a definitive co-marketing agreement to
implement the goals outlined in Exhibit F within [**] days following the date on
which this OEM Development and Purchase Agreement is signed by both Parties.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
23. TERM; DEFAULT AND TERMINATION.
23.1 TERM AND RENEWAL. The initial term of this Agreement shall
commence on the Effective Date and shall continue for a period
of three (3) years following introduction of the Marquette
BIS/EEG Module. The term of this Agreement shall be renewed
automatically for successive twelve (12) month periods, unless
either Party provides written notice of termination to the
other Party at least sixty (60) days prior to expiration of
the Agreement.
23.2 TERMINATION FOR GOOD CAUSE.
(a) TERMINATION BY ASPECT. The Agreement may be
terminated by Aspect giving [**] prior
written notice to Marquette in the event Marquette
has not commercially introduced a Marquette BIS/EEG
Module by October 31, 2001.
(b) TERMINATION BY MARQUETTE. The Agreement may be
terminated by Marquette giving [**] written notice
to Aspect if Aspect has failed to provide a Aspect
BIS/EEG Module Kit consistent with the specifications
outlined in Exhibit C to Marquette by December 31,
2000. Furthermore, Marquette will require prototype
Aspect BIS/EEG Module Kits in advance of the December
31, 2000 date, as follows in order to make the date
specified in Section 23.2(a): [**] then current
Aspect BIS/EEG Module Kit approximately 10-12 weeks
after the project commences; [**] then current Aspect
BIS/EEG Module Kits approximately five (5) months
thereafter; and approximately [**] then current
Aspect BIS/EEG Module Kits two (2) months thereafter.
Specific schedules and volumes for prototype Aspect
BIS/EEG Module Kits will be mutually agreed upon by
both Parties to meet the mutual timelines.
(c) MATERIAL COMPETITIVE FEATURES. Either Party may
terminate this Agreement if the other Party's [**] do
not [**] for [**] the [**] of [**] and [**] on the
[**] . In order to exercise its rights under this
Section 23.2(c), a Party must provide [**] prior
written notice to the other Party, specifying in
reasonable detail the [**] or [**] that are [**].
Following receipt of such notification, the notified
Party shall have [**] to [**] in [**]. If at the end
of such [**] period, the notified Party is unable to
do so, the notifying Party may terminate the
Agreement; provided, that no such notification shall
be effective prior to [**].
-23-
24
23.3 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 (w) a dissolution, termination
of existence, liquidation, insolvency or
business failure of either Party, or the
appointment of a custodian or receiver of
any part of either Party's property, if such
appointment is not terminated or dismissed
within thirty (30) days; (x) a composition
or an assignment or trust mortgage for the
benefit of creditors by either Party; (y)
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 (z) 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").
23.4 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 23.4 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.
-24-
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
24. 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 2,000,000 (two million) US$.
25. SOURCE CODE ESCROW
25.1 Escrow Agent. Aspect warrants that the entire source code for
Software, together with all Documentation, as now exists or
hereafter becomes available including but not limited to, the
then current version(s) of Software necessary for the use,
maintenance, modification and enhancement of the Marquette
BIS/EEG Module will have been deposited and maintained at
Marquette's expense in an escrow account (the "Escrow
Account") pursuant to an agreement between an escrow agent
(the "Escrow Agent"), which Escrow Agent is reasonably
satisfactory to Marquette, and Aspect (the "Escrow
Agreement"). Such Escrow Agent shall be instructed to certify
in writing to Marquette within thirty (30) days from the
execution date hereof that such source code and Documentation
have been delivered to it. Such Escrow Agent shall be
instructed in writing by Aspect upon execution hereof to
deliver all such Software and Documentation to Marquette upon
written notice thereof by Marquette promptly after any of the
following occurrences:
(a) Aspect fails to repair or maintain the Software as it
is required to do under Sections 11 and 12.4 of this
Agreement;
(b) Aspect suspends or discontinues business or indicates
its intention to suspend or discontinue business.
25.2 Marquette's Right To Use Source Code. Upon the occurrence of
any of the above, Marquette shall have the right to use such
source code and Documentation solely to use, maintain,
support, or enhance the Marquette BIS/EEG Module.
25.3 Verification. Marquette shall have the right to verify at any
time, at its own cost, that the applicable version(s) of
Software is so deposited; and the right to engage a mutually
acceptable third party to test the Software source code to
assure Marquette that it is the applicable version(s) and that
it complies.
25.4 Disputes. Should there be any dispute as to whether Marquette
shall be entitled to receive any such source code and
Documentation, then such dispute shall be resolved in
accordance with the terms and conditions set forth in Section
26 (Dispute Resolution) of this Agreement.
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26. DISPUTE RESOLUTION
26.1 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.
26.2 WAIVER. In connection with any Dispute, the parties expressly
waive and forego any right to (i) punitive, exemplary,
statutorily, enhanced or similar damages in excess of
compensatory damages and (ii) trial by jury.
26.3 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.
26.4 MEDIATION. If within sixty (60) day 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 New York City. Mediation will
continue for at least thirty (30) days unless the mediator
chooses to withdraw sooner. At the request of either Party,
the mediator will be asked to provide an evaluation of the
Dispute and the parties' relative positions. Each Party shall
bear its own costs of mediation effort.
26.5 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 New
York. 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.
26.6 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
-26-
27
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 State of New York. The place of
arbitration shall be in New York City. The parties agree that
the federal and state courts located in the State of New York
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.
26.7 TIME LIMIT. Except as time barred under any applicable statute
of limitation 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.
26.8 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
State of New York or any other court that would otherwise have
jurisdiction, for provisional or interim measures.
26.9 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.
27. GENERAL PROVISIONS.
27.1 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.
-27-
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
27.2 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.
27.3 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.
27.4 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.
27.5 SURVIVAL OF OBLIGATIONS. All obligations of either Party under
Sections 4.3 (but only insofar as it relates to the rights of
Marquette customers to continue using Marquette BIS/EEG
Modules), 5 (Royalties), 11 (Warranty), 12 (Service and
Support), 14 (Regulatory Matters), 16 (Ownership and
Protection of Results), 18 (Confidentiality), 19
(Indemnities), 20 (Trademarks), 25 (Source Code Escrow), 26
(Dispute Resolution), and 27.6 (Limitation on Liability) shall
survive the expiration or termination of this Agreement and
continue to be enforceable.
27.6 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 THE SUM OF (i) THE TOTAL ACTUAL PURCHASE
PRICE PAID BY MARQUETTE FOR ALL ASPECT PRODUCTS PURCHASED
HEREUNDER; (ii) ALL AMOUNTS PAID BY MARQUETTE TO ASPECT FOR
PROJECT DEVELOPMENT COSTS PURSUANT TO SECTION 3.4 OF THIS
AGREEMENT; AND (iii) ALL AMOUNTS PAID BY MARQUETTE TO ASPECT
FOR SERVICE AND SUPPORT PURSUANT TO SECTION 12 OF 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.
-28-
29
27.7 SEVERABILITY. 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.
27.8 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.
27.9 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.
27.10 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 Marquette
shall not be construed as a waiver of the terms and conditions
of this Agreement nor an acceptance of any such provision.
27.11 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.
-29-
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27.12 EXHIBITS: The following Exhibits shall be part of this
Agreement:
EXHIBIT A: Aspect Products and Purchase Prices
EXHIBIT B: Aspect's Standard BIS Module Kit
EXHIBIT C: Development Project
EXHIBIT D: Contact Persons/Addresses Prices
EXHIBIT E: Aspect and Marquette Trademarks
27.13 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.
27.14 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
Marquette 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
within the GE Medical Systems division of General Electric
Company, 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. GE Marquette Medical Systems, Inc.
By: /s/ X. Xxxxxxxxxxxx Xxxxx By: /s/ Xxxxx Xxxx
------------------------------ ------------------------------
X. Xxxxxxxxxxxx Xxxxx Xxxxx Xxxx
Title: Chairman Title: Vice President and
--------------------------- General Manager of
Global Marketing
---------------------------
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT A
ASPECT PRODUCTS AND PURCHASE PRICES
A) ASPECT BIS/EEG MODULE KIT:
Within thirty (30) days of the date of this Agreement, Marquette shall
[**] of the following [**] by giving Aspect written notice [**].
[**]:
List price for Aspect BIS/EEG Module Kit: [**] (includes [**] for
components and [**] for BIS license)
Volume discounts:
--------------------------------------------------------------------------------
QUANTITY
PER YEAR PRICE (COMPONENTS + LICENSE DISCOUNT
-------- --------------------------- --------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
--------------------------------------------------------------------------------
Exceptions to [**].
[**]: Assumes [**] of [**] and [**]:
[**] (based on installed base of approximately [**] GE Marquette OR
monitors at [**] /unit)
[**] volume discounts according to the following schedule:
--------------------------------------------------------------------------------
QUANTITY
PER YEAR PRICE (COMPONENTS ONLY) DISCOUNT
-------- ----------------------- --------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
--------------------------------------------------------------------------------
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
Composite volume discount schedule [**] - for illustration
purposes only:
--------------------------------------------------------------------------------
PRICE DISCOUNT
(COMPONENTS (COMPONENTS
QUANTITY AND LICENSE AND LICENSE)
PER YEAR NOTE A NOTE A
-------- ----------- ------------
[**] [**] [**]
[**] [**] [**]
[**] [**] [**]
--------------------------------------------------------------------------------
Note A: assumes imputed BIS license fee of [**] per unit
B) ASPECT BIS SENSOR:
Transfer price to Marquette for distribution solely to Marquette
customers outside North America and solely for use with Marquette BIS/EEG
Modules: [**] of Aspect's list price in the U.S.
C) ASPECT SPARE PARTS/ACCESSORY PRICES
--------------------------------------------------------------------------------
Aspect Marquette
Orderable List Price Price
Parts/Products (US$) (US$) - Note A
-------------- ---------- --------------
DSC-2 [**] [**]
(replacement
BIC Engine PCB [**] [**]
(replacement)
Sensor Cable [**] [**]
(replacement)
DSC-4 [**] [**]
(replacement)
User Manual [**] [**]
--------------------------------------------------------------------------------
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT B: SPECIFICATIONS ASPECT'S
STANDARD BIS MODULE KIT
Aspect's BIS Module Kit is designed specifically for OEM applications and allows
the integration of Aspect's BIS monitoring technology into OEM equipment. The
BIS Engine will interface to the patient via the Aspect BIS sensor and to the
OEM equipment utilizing a serial (RS-232) 3-wire interface and the necessary
power connections.
The BIS Module Kit consists of a Digital Signal Converter (DSC-2) that is placed
in proximity to the patient and a small circuit board that resides in the OEM
equipment. The DSC-2 is a small (palm sized) front-end to the BIS Engine circuit
board that provides the patient interface and performs the high performance
analog to digital conversion of the EEG signals. The EEG signals are transmitted
in digital format from the DSC-2 to the BIS engine circuit board via a 12 foot
cable that is hard wired at the DSC-2.
The small BIS Engine circuit board performs digital signal processing on the
digitized EEG signal and outputs the Bispectral Index to the OEM system via the
RS-232 serial connection. The board is constructed using double-sided surface
mount techniques. The connections to the BIS Engine circuit board are a serial
interface (RS-232), power, and DSC connections.
DETAILED TECHNICAL SPECIFICATIONS:
Digital Output: [**]
Main Parameters: [**]
Electrical Safety: [**]
Power: [**]
Artifact Rejection: [**]
Bispectral Index: [**]
DIGITAL SIGNAL CONVERTER (DSC-2)
Description: [**]
Weight: [**]
Dimensions: [**]
[**]
Cable Length: [**]
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
(a) BIS Engine PCB
Physical: [**]
Processing Power: [**]
(b) Software Upgrades
The BIS engine software is stored in reprogrammable FLASH memory. Software
upgrades can be accomplished on-site or remotely via the serial interface.
(c) Serial Identifier
Each BIS engine is given a unique serial identifier. This allows for electronic
identification/tracking of every BIS Engine.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT C: DEVELOPMENT PROJECT -
PRELIMINARY OUTLINE
1. SCOPE
This preliminary outline describes a development project that Aspect would
perform for GE Marquette. This outline is based on notes from a meeting held at
Aspect on August 18, 1999. A more detailed project description needs to be
completed before the timetable and costs can be finalized.
2. DEVELOPMENT TIMETABLE
A detailed project schedule needs to be developed. It is planned that the total
elapsed time of the project will be approximately [**].
3. SOFTWARE PROJECT - [**]
Expanded BIS Engine Software Functionality: Aspect will [**] so that, in
addition to all of the functionality of the standard BIS Module Kit (described
in Attachment A), the system will [**] when a [**] is connected to the BIS
Engine circuit board. Upon connection of the [**], the BIS software will
automatically [**] processing. The BIS engine will then [**] including [**]. The
BIS engine will then transmit these [**] to the host system via the [**].
4. TASKS
Determine and Specify:
System Specifications (Aspect/GE Marquette) including hazard
analysis Software Specifications (Aspect)
Develop/Implement (Aspect)
Verification & Validation (Aspect)
After Aspect has validated the BIS/EEG module kit, GE Marquette will have the
responsibility to validate, with Aspect's assistance, the BIS/EEG module in the
GE Marquette system.
The approximate cost to complete this software project is [**].
DSC-4 Hardware Development Project
Conceptually, Aspect will [**] the [**] that is [**] . However, this [**]. A
preliminary review indicates that [**]. Additionally, there may be [**].
Therefore a small development budget needs to be established in order to bring
this product back on-line. An estimate of the project cost including engineering
and tooling is roughly [**]. A full review of the manufacturability of the DSC-4
needs to be completed before Aspect can commit to the actual development expense
and the transfer price of the DSC-4.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT D: CONTACT PERSONS/ADDRESSES
CONTACT PERSONS AND RESPONSIBILITIES AT ASPECT:
--------------------------------------------------------------------------------------------------
EMAIL
PHONE NUMBER/
PERSON TITLE RESPONSIBILITY FAX NUMBER
--------------------------------------------------------------------------------------------------
[**] [**] [**] [**]
[**]
[**]
--------------------------------------------------------------------------------------------------
[**] [**] [**] [**]
[**]
[**]
--------------------------------------------------------------------------------------------------
[**] [**] [**] [**]
[**]
[**]
--------------------------------------------------------------------------------------------------
[**] [**] [**] [**]
[**]
[**]
--------------------------------------------------------------------------------------------------
[**] [**] [**] [**]
[**]
[**]
--------------------------------------------------------------------------------------------------
MAILING ADDRESS: Aspect Medical Systems, Inc.
0 Xxxxxx Xxxxx
Xxxxxx, XX 00000-0000
XXX
CONTACT PERSONS AND RESPONSIBILITIES AT GE MARQUETTE:
--------------------------------------------------------------------------------------------------
EMAIL
PHONE NUMBER/
PERSON TITLE RESPONSIBILITY FAX NUMBER
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
MAILING ADDRESS: GE Marquette Medical Systems, Inc.
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EXHIBIT E: ASPECT TRADEMARKS
TRADEMARK REFERENCE
--------- ---------
Aspect(R) None*
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 logo is a registered trademark of
Aspect Medical Systems, Inc.
* This trademark is registered as a trademark to another company, and is used
under license by Aspect Medical Systems.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
EXHIBIT F: CO-MARKETING PROGRAM
a) Goals:
- to provide GE Marquette customers with access to BIS, and a seamless
transition from Aspect's A-2000 BIS monitor to XX Xxxxxxxxx'x BIS
Module, during the period in which the BIS module is under
development by GE Marquette
- to ensure that the field organizations of both Aspect and GE
Marquette are properly incented to assist one another, and to work
in collaboration, to promote the BIS technology, irrespective of the
platform on which it is available.
- to minimize the likelihood that GE Marquette customers will be
disposed to delay purchasing BIS until GE Marquette completes the
development of a BIS module.
- to minimize the incremental costs to customers of exchanging one BIS
platform for another when the module becomes available; and
- to encourage existing GE Marquette customers to remain loyal to GE
Marquette, and to stimulate monitoring system sales to new
customers, by offering a BIS solution that address current and
future needs at a very attractive price.
b) Term: beginning immediately following an announcement by GE Marquette and
Aspect that GE Marquette intends to develop a BIS module until the module
is launched. It is understood that the module will be launched
approximately 2-3 months prior to becoming commercially available.
c) Proposed Pricing: Aspect list price [**] per monitor. Aspect's current
list prices vary from [**] per monitor depending on the number of monitors
purchased. In addition to outright sales, the parties will also make
available a fee-for-use program using equivalent terms. (Aspect would need
to do the fee-for-use program - Marquette would just submit the referral
to Aspect and Marquette would still exchange for the module at no module
charge.) In exchange, customers will receive A-2000 monitors initially; as
soon as the BIS module is available, the module will be exchanged for the
monitor.
d) Mechanics: following each sale under this program, Aspect will assume
responsibility for installation, in-service, and clinical support for the
A-2000. Following release of the BIS Module, Marquette will assume
responsibility for installation and in-service of the module, at which
time the used A-2000 will be returned to Aspect.
e) [**]: proceeds from sale of the BIS platform (i.e. the A-2000 followed by
the BIS Module) will be [**]. In the event GE Marquette fails to deliver a
BIS module within a suitable period of time as specified in the Agreement.
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Confidential Materials omitted and filed separately with the Securities and
Exchange Commission. Asterisks denote omissions.
f) Sales rep compensation: it is understood that a compensation program for
both field organizations will be established that appropriately ties rep
compensation to success of the program.
g) Elements of co-marketing program: customer lists to be shared, high
priority accounts to be jointly identified and developed, co-promotional
activities to be coordinated (e.g. trade shows, joint seminars and
customer presentations, etc.); reimbursements to Marquette due quarterly
with customer lists, selling price, number of sensors purchased by
customer.
h) Territory: U.S. and other countries to be discussed.
i) Possible role of MVP: in the event MVP acts as a distributor for Aspect,
the terms of their participation in the co-marketing program to be
negotiated.
j) Demonstration Equipment: for promotional purposes only (not to be sold to
any end-user), Marquette will require five (5) demonstration Aspect A-2000
Monitors. Terms of the transfer price for these demonstration units will
be negotiated.
k) BIS Sensor [**]: Marquette [**] BIS Sensors [**] as a result of the [**]
to a [**].
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