Exhibit 10.1
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote omissions.
[ASPECT(R) LOGO] [LOGO]
BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT (hereinafter "Agreement") dated this
28th day of January, 2004 (the "Effective Date"), by and between Aspect Medical
Systems, Inc., a Delaware corporation with its principal offices located at 000
Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx ("Aspect") and Xxxxxxx Medical Systems,
Inc., a Delaware corporation with its principal offices located at 00
Xxxxxxxxxxx Xxxxxx, Xxxxxxx, XX ("Draeger") for the development and purchase of
products and the licensing of software by Draeger from Aspect under the terms
and conditions contained in this Agreement.
1. BACKGROUND
1.1 Aspect is a developer, manufacturer and distributor of medical
devices, equipment and related hardware, software and accessories,
including BISx, a device adapted to process selected EEG
measurements and display the results thereof ("BIS") on a host
patient monitor system.
1.2 Draeger is a developer, manufacturer and distributor of medical
devices, equipment and related hardware, software and accessories,
including patient monitors.
1.3 Draeger desires to integrate Aspect's BIS technology into Draeger's
multiparameter patient monitors.
1.4 Aspect agrees to sell and/or license to Draeger selected Aspect
Products, 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 may be used as an aid in monitoring the effects of certain
anesthetic agents.
"Draeger Patient Monitors " means systems currently installed that have
had the necessary software upgrades to be BIS compatible, as well as the
Delta model monitors currently in production. Draeger Patient Monitors may
include future models of Draeger monitors at Draeger's choice and
discretion.
"BISx" is the integrated solution of Aspect's BIS engine processing
technology and the DSC-XP.
"DCS-XP" is Aspect's Digital Signal Converter using XP technology. The
DSC-XP is a small box that is kept close to the patient that converts the
analog EEG signals to digital signals for processing the BIS value.
FINAL
ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
"Aspect BISx Kit" is the Aspect components of the Draeger BISx System that
are developed and manufactured by or for Aspect and licensed/sold to
Draeger under this Agreement including the BISx and the Patient Interface
Cable ("PIC") and the Fixed Monitor Cable (if necessary).
"Fixed Monitor Cable" is a cable that is semi-permanently attached to the
BISx and connects the BISx to the Draeger Patient Monitor. This cable will
be primarily designed by Aspect with assistance from Draeger and supplied
as part of the Aspect BISx Kit. It can be disconnected from the BISx only
by a qualified service person.
"Detachable Monitor Cable" is a cable that connects the BISx to the
Draeger Patient Monitor. This cable will be primarily designed by Draeger,
with assistance from Aspect and supplied by Draeger or its manufacturer
for final assembly with the Aspect BISx Kit.
"Pod-Com Interface" is a Draeger proprietary interface used to connect
external devices to the Draeger Patient Monitoring Systems.
"Pod-Com Connector" is the connector that will be integrated into the BISx
system that will allow the Detachable Monitor Cable to plug into the BISx
unit.
"Draeger BISx System" is the combined Aspect BISx Kit and Monitor Cable.
"Aspect BIS Sensor" means a single use disposable sensor manufactured by
Aspect for use with the Aspect BISx Kit in the OR and ICU that is required
to generate Aspect's Bispectral Index. These sensors include the BIS
Quatro Sensor, the BIS Extend Sensor and the BIS Pediatric Sensor.
"Aspect BIS Engine" is the processing unit for deriving BIS data from the
raw EEG signal and consists of a PC board and connectors. This component
is used in OEM modules to provide the BIS index on modular patient
monitoring systems.
"Aspect Products" means Aspect BISx Kit and any other product that can be
ordered by Draeger as listed in Exhibit A (Aspect Products and Purchase
Prices).
"Software" means Aspect software programs in binary code form that are
designed for use with the Aspect BISx Kit.
"Documentation" means the BISx Serial Interface Specification.
"Party" or "Parties" shall mean Aspect and Draeger each individually or
jointly.
"Affiliate" shall mean, with respect to either Aspect or Draeger, any
other business entity which, directly or indirectly, controls, is
controlled by, or is under common control with Aspect or Draeger,
respectively.
3. BISx DEVELOPMENT PROJECT.
3.1 Project Management.
(a) Each Party shall appoint a "Project Manager" who shall oversee
and manage the joint project on a day-to-day basis.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
(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 videoconferences.
(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 C (Contact Persons/Addresses).
3.2 Draeger Responsibilities.
(a) Draeger will jointly design with Aspect the Detachable Monitor
Cable and Draeger, or one of its designees, will develop, test
and manufacture the Detachable Monitor Cable.
(b) Draeger will develop the necessary software for the Draeger
Patient Monitor to communicate with the Aspect BISx, allow the
user to configure BIS parameters, and display the BIS related
information on the Patient Monitor display.
(c) Draeger shall integrate and test the integration of the
components of the Aspect BISx Kit with the Draeger Patient
Monitors.
(d) Any additional responsibilities defined in Section 3.4.
3.3 Aspect Responsibilities.
(a) Aspect, with assistance from Draeger, will incorporate the
Pod-Com interface hardware directly into the BISx and will
provide a Pod-Com Connector (receptacle) on the BISx unit
itself.
(b) Aspect shall design, develop and test the Aspect BISx Kit
according to the mutually agreed specifications.
(c) Upon Draeger completing the integration of BIS into the
Draeger Patient Monitoring Systems, Aspect will "certify" this
integration. This entails Aspect verifying the accurate
display of BIS on the Draeger Patient Monitor. Once
successfully verified, Aspect will provide Draeger with a
Certification Letter so indicating. To facilitate the
certification process, Draeger will lend to Aspect a Draeger
Patient Monitor for testing purposes. Said Draeger Patient
Monitor will be provided to Aspect, at Draeger's cost and
expense, within thirty (30) days after execution of this
Agreement, and it will be returned to Draeger, at Aspect's
cost and expense, within thirty (30) days after either
Draeger's written demand therefore, or termination of this
Agreement, whichever first occurs.
(d) Any additional responsibilities as defined in Section 3.4
3.4 BISx to Monitor Cable Design and Development
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
(a) A technical feasibility study will be conducted jointly
between Aspect and Draeger to assess the capability to use
current production Draeger Pod-Com cables as the Detachable
Monitor Cable with the BISx system. If this is determined to
be feasible, Aspect will develop, [**], and with technical
assistance from Draeger, a Pod-Com Connector that will allow
the Detachable Monitor Cable to plug directly into the Pod-Com
Connector on the BISx unit
(b) Draeger will provide Aspect with necessary hardware interface
information to electrically interface the BISx to the Pod-Com
Interface port of the Draeger Patient Monitoring System. This
may include, but is not limited to: Electrical schematics,
FPGA design information (e.g. VHDL code) or access to
pre-existing interface Integrated Circuits (e.g. FPGA, ASIC,
etc.)
(c) Draeger will provide Aspect with necessary mechanical
interface information to mechanically interface the BISx to
the Pod-Com Interface port of the Draeger Patient Monitoring
System. This may include, but is not limited to, mechanical
drawings, access to (potentially pre-existing) Pod-Com
connectors, or access to Draeger's third-party manufacturer of
Pod-Com connectors.
(d) If it is determined that use of the Detachable Monitor Cable
is not feasible, both parties will agree to work jointly
together to design a Fixed Monitor Cable.
3.5 Development Schedule
(a) Aspect will use all reasonable efforts to meet the following
development timeline:
[**]: [**]
[**]: [**]
[**]: [**]
This schedule assumes the following:
(i) Draeger to provide tested VHDL code for Pod Com
converter FPGA by [**]
(ii) Draeger to provide verification and "certification" of
Pod Com converter hardware
(iii) Draeger to provide technical assistance to Aspect on
implementation of converter circuitry
(iv) No significant FDA delays
(v) Aspect (or designee) has authorization to purchase Pod
Com Connectors
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
4. PURCHASE AND SALE OBLIGATIONS:
4.1 Licenses - General.
Subject to the terms and conditions of this Agreement, Aspect agrees
to sell to Draeger the Aspect Products listed on Exhibit A (Aspect
Products and Purchase Prices). The components of the Aspect BISx
Kits purchased from Aspect under this Agreement shall only be used
as components in, incorporated into or integrated with the BISx
System which Draeger sells or leases to third-party users in the
regular course of business. The components of the BISx System shall
only be resold, leased, rented, licensed or otherwise transferred to
third parties for use as a part of a Draeger BISx System
incorporated into a Draeger Patient Monitor or as replacement parts
used in Draeger BISx Systems and Draeger shall only sell Aspect
approved accessories including cables and sensor products in
connection with any Draeger BISx System.
4.2 Aspect Software License.
Aspect hereby grants to Draeger and its Affiliates a non-exclusive
and non-transferable license, without the right to sublicense
(except to purchasers of Draeger BISx Systems), during the term of
the Agreement to use the Software loaded in the Aspect BISx Kit and
related documentation provided by Aspect solely in connection with
operation of the components of the Aspect BISx Kit in the Draeger
BISx System. All rights sublicensed to Draeger customers to use the
Draeger BISx Systems shall survive any termination of this
Agreement.
4.3 Distribution of Aspect BIS Sensors.
(a) Outside of the United States
Aspect hereby grants to Draeger the right to distribute Aspect
BIS Sensors solely for use on Draeger BISx Systems sold to
Draeger customers outside of the United States who have
purchased Draeger BISx Systems Aspect shall not [**] Aspect
shall [**] Aspect BIS Sensors for use with [**]. Draeger, [**]
Aspect BIS Sensors [**]such Aspect BIS Sensors [**]. Draeger
and Aspect also acknowledge that [**] Aspect BIS Sensors [**]
Aspect BIS Sensors, [**] Aspect BIS Sensors [**].
(b) Within the United States
Draeger may sell one starter kit of five (5) Aspect BIS
Sensors with each Draeger BISx System sold to the customer
purchasing the corresponding Draeger BISx System.
Draeger may also purchase Aspect BIS Sensors in the United
States for demonstration purposes. Aspect BIS Sensors
purchased for demonstration use may not be resold to
customers.
(c) Prices
Prices for Aspect BIS Sensors purchased by Draeger hereunder
shall be as set forth in Exhibit A (Aspect Products and
Purchase Prices).
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
4.4 System Compatibility.
[**] Draeger Patient Monitoring systems shipped to [**] will have
host system software configured to support the Draeger BISx System
and Aspect's BIS Index display.
(a) Draeger Patient Monitoring Systems that have BIS capability
will be labeled with a mutually agreed upon "BIS Ready" label
in a mutually agreed upon location on the monitor.
4.5 Exclusivity.
The Draeger BISx System will be [**] in the BISx [**] BISx [**] are
the [**] can be [**] used [**]. Nothing in this Agreement shall be
construed to grant Aspect any license to sell, distribute or license
to any third party any Draeger components, including the enabling
software and Monitor Cable (Fixed or Detachable), in the Draeger
BISx System. It is understood that Aspect sells, distributes, and
licenses to other third parties both generic and customized Aspect
BIS Engines and Aspect BISx 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 Draeger.
5. SCOPE OF DELIVERY.
5.1 Purchase Orders.
Purchase orders (via Fax, e-mail, other electronic transmission or
paper) for Aspect Products to be purchased under this Agreement (the
"Orders") must be received by Aspect during the term of this
Agreement and must specify a delivery date in accordance with the
lead-time schedule outlined below under Section 5.6. All Draeger
Purchase Orders shall make reference to the appropriate engineering
drawing or manufacturing reference numbers.
5.2 Order Acknowledgements.
Draeger purchase orders shall be acknowledged in writing by Aspect
within [**] [**] after receipt of the order, provided that the order
is correct (pricing and part numbers) and that the requested
delivery time is within the agreed lead time. If the requested
delivery time is less than the agreed lead time, or if the quantity
ordered exceeds by more than [**] percent ([**]%) the quantity
ordered in the preceding month, Aspect shall use reasonable efforts
to complete the requirements of such nonconforming orders within
[**] from the date it receives such nonconforming order and to
acknowledge such orders within [**] of its receipt. Order
acknowledgements shall not be unreasonably withheld.
5.3 Forecasts.
Draeger shall furnish to Aspect a non-binding [**] forecast during
the term of this Agreement with the number and type of Aspect
Products for which Draeger expects to submit orders for the
following [**].
5.4 Installed Base Reporting.
On a [**] basis, Draeger will report the number of BISx Systems
installed during that [**] in the United States,
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
dates of installation and overall installed base of BISx Systems by
hospital on a [**] basis. Outside of the United States, Draeger will
report on a [**] basis the total number of BISx Systems installed,
and overall install base of Draeger BISx Systems by country.
5.5 Cancellation and Rescheduling.
(a) In the event of the cancellation of any Order by Draeger,
Draeger 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:
[**] weeks prior to acknowledged delivery [**]
[**] weeks prior to acknowledged delivery [**]% of order value
[**] weeks prior to acknowledged delivery [**]% of order value
[**] weeks prior to acknowledged delivery [**]% of order value
[**] weeks prior to acknowledged delivery [**]% of order value
(b) Notwithstanding anything to the contrary herein, the Parties
agree that Draeger shall have the right to reschedule Orders,
and to delay delivery of such Orders up to [**] later than the
original delivery date.
5.6 Lead Times.
Lead times for the Draeger BISx System are expected to be [**] days.
Late deliveries are subject to late fees of 1% per month (pro-rated
daily). In the event of late deliveries by Aspect, Aspect will also
promptly reimburse Draeger for documented and reasonable expedited
shipment charges that Draeger incurs as a direct result of late
shipments of the Aspect BISx Kit from Aspect.
6. ROYALTIES AND COMMISSIONS.
6.1 Commissions on Sales of Aspect BIS Sensors.
For each Aspect BIS Sensor sold by Aspect to Draeger customers in
the United States for use with Draeger BISx Systems, Aspect shall
pay Draeger a commission equal to [**] percent of the net sales
revenue (invoice price after discounts) billed by Aspect for such
Aspect BIS Sensors. Aspect shall pay such commissions to Draeger on
a [**] basis. With such [**] payments, Aspect shall provide to
Draeger a list of Draeger customers to which such sales were made,
the number of sensors sold in that [**], and the net revenue billed
for the sale of the sensors by Aspect. This [**] payment shall be
provided to Draeger no later than [**] following the end of each
[**]. In the event that Aspect's standalone BIS monitors, the BIS
modules and/or the BISx Systems of other manufacturers have also
been installed at such sites in addition to Draeger BISx Systems,
Draeger will be entitled to a [**] percent commission only on BIS
Sensor sales intended for use with Draeger BISx Systems. A pro rata
determination will be based on the total number of BIS units of
different types installed at such locations during the period
according to Aspect's
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
installed base records. To facilitate such calculations, Draeger
will be responsible for providing Aspect with the documentation
required in Section 5.4, and Aspect shall be responsible for
providing Draeger with accurate information regarding the total
number of non-Draeger units which have been installed, and are in
use, at such sites. The information on total installed BIS systems
at Draeger accounts is auditable by an independent auditor at
Draeger's expense.
7. PRICES
7.1 Purchase Prices.
The prices of Aspect Products purchased by Draeger 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) as long as Draeger offers complementary, but not
directly competitive products to the Draeger BISx System. Products
that display a parameter claiming to be a measure of the hypnotic
effect of anesthesia are considered to be directly competitive
products for the purposes of this Section 7.
7.2 Customization Costs.
Additional cost (both NRE and incremental unit cost) for
customization of the product (mold color, labeling) will be borne by
Draeger. Draeger shall be responsible for any charges associated
with scrap of inventory due to any subsequent changes made to
customized product.
7.3 Competitive Products and "BIS Ready" Price Discounts
If Draeger offers a directly competitive product to the Draeger BISx
System (any parameter that claims to be a measure of the hypnotic
effect of anesthesia), the discounts for "% of Systems BIS Ready"
shown in Exhibit A will be eliminated. Only discounts based on
volume of BISx Systems shipped will be available from that time
forward.
7.4 Purchase Price Changes.
(a) Initial Prices
The initial prices set forth in Exhibit A (Aspect Products and
Purchase Prices) are based on known material and labor costs
for the BISx unit, and an estimated cost of $[**] for the
Pod-Com Connector on the BISx unit. If the actual cost of the
BISx Pod-Com Connector differs from the estimated cost of
$[**] by more than [**]%, or the feasibility study referenced
in Section 3.4 shows that a Fixed Monitor Cable is required,
and the cost of the Fixed Monitor Cable solution differs from
the estimated BISx Pod-Com Connector cost of $[**] by more
than [**]%, the initial prices will be increased or decreased,
as appropriate, by the difference between the actual cost and
the estimated cost of $[**]. In any case, [**] will be
responsible for any additional development costs for fixed or
detachable monitor cables.
(b) Annual Purchase Price Review
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
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 on a
calendar year schedule. In the event material costs for the
Aspect Products increase by more than [**] percent, Aspect
shall have the right no more than once per year during the
term of this Agreement to increase the Purchase Price of the
Aspect Products by an equivalent amount by delivering
reasonable documentation supporting such increase and by
giving Draeger written notice of the increase not less than
ninety (90) days prior to the date upon which the increased
Purchase Price is to become effective. No Purchase Price
increase shall apply to orders for Aspect Products accepted by
Aspect prior to or during such ninety (90) day period.
Notwithstanding anything to the contrary in this Section 6.2,
no Purchase Price increase shall apply unless Aspect has used
its reasonable efforts to find alternate suppliers of the
materials that have increased in cost and, despite exercising
such reasonable efforts, was not able to locate such alternate
suppliers.
7.5 [**]
In no case shall the [**] Draeger [**] with Aspect [**] this
Agreement [**].
7.6 Taxes.
All prices for Aspect Products are exclusive of all federal, state
and local taxes, levies and assessments, and Draeger shall be
responsible for the payment of all such taxes, levies and/or
assessments imposed on Aspect Products purchased and/or licensed by
Draeger hereunder, excluding taxes based on Aspect's net income from
the transaction. Draeger 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.
Draeger shall pay to Aspect the Purchase Price and all other charges
invoiced (i.e. freight) for all Aspect Products shipped hereunder
within [**] days after the date of the invoice from Aspect. Nothing
herein shall affect Aspect's right to withhold shipment or otherwise
exercise its rights under Section 22 (Termination) hereof in the
event of Draeger's failure to make payment when due for Aspect
Products delivered to Draeger. Draeger 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.
FINAL 9/36
ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Subject to applicable law, service and/or interest charges not
exceeding the lesser of 1% per month or the highest amount permitted
by law may, at the election of Aspect, be assessed on amounts past
due more than thirty (30) days (that is, more than thirty (30) 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:
Draeger
XXX
XXX
9.2 Delivery Terms.
All shipments hereunder shall be EXW Aspect's Massachusetts point of
origin (Incoterms 1990). All Aspect Products shall be deemed
delivered and subject to Draeger's dominion and control only when
properly packed and ready for shipment to Draeger and placed in the
possession of a carrier designated by Draeger. Aspect shall
cooperate with Draeger in the documentation and proof of loss claims
promptly presented by Draeger to the appropriate carrier and/or
insurer.
9.3 Delivery Date and Date of Dispatch.
The requested delivery date shall be specified on the Draeger
Purchase Order provided that such delivery date must be at least
[**] days after the date Aspect receives the Order; provided,
however, that Aspect shall use its reasonable efforts to deliver the
Order as close to requested date as reasonably possible (taking
other customer demands on Aspect into account). Aspect shall utilize
reasonable efforts to ensure that the order is delivered in
accordance with Aspect's order acknowledgement and that the date of
dispatch is [**] calendar days prior to the delivery date. Late
delivery penalties to Aspect will apply as specified in Section 5.6
of this Agreement.
10. ACCEPTANCE.
Any Aspect Product shipped hereunder may be subjected to inspection and
performance testing by Draeger, to confirm that it functions in accordance
with Aspect's applicable product specifications in effect at the time of
the ordering of such Aspect Products by Draeger. If mandatory changes or
upgrades occur with the Aspect Products between the time of order and
shipment, Aspect shall provide written documentation of the changes and
Draeger shall review and approve or reject the changes within [**] days of
receipt of notification. The two companies will work together to identify
a mutually acceptable product.
Draeger shall provide written notice to Aspect of the rejection of any
such Aspect
FINAL 10/36
ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Product within [**] days of the date of receipt of any Aspect Product.
Aspect shall have [**] days from receipt of a notice from Draeger
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, Draeger shall dispose of the replaced Aspect
Product in accordance with Aspect's instructions and at Aspect's expense.
Draeger's sole remedy for rejected Aspect Products shall be limited to
prompt repair or replacement of such Aspect Products. The Parties
understand and agree that repaired or replaced Products shall be subjected
to inspection and performance testing by Draeger, to the same extent as
first delivered Products.
11. WARRANTY.
11.1 General.
Aspect warrants solely to Draeger that Aspect Products (including
Software) delivered hereunder shall perform substantially in
accordance with the specifications in Exhibit B (Aspect's BISx Kit)
and shall be free from defects in materials and workmanship, when
given normal, proper and intended usage, for [**] months from the
date of shipment of the Draeger BISx System to the Draeger end
customer site or [**] months from the date of shipment by Aspect to
Draeger, whichever is less. This warranty shall not apply to
expendable components and supply items, such as, but not limited to,
cables (except for failures occurring within [**] days of receipt of
shipment by Draeger), or disposable items such as an Aspect BIS
Sensor after the expiration date marked on the Aspect BIS Sensor
packaging. Aspect shall not have any obligation under this Agreement
to make repairs or replacements which are required by normal wear
and tear, or which result, in whole or in part, from catastrophe,
fault or negligence of Draeger, or anyone claiming through or on
behalf of Draeger, 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.
Draeger 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 Draeger to
Aspect's designated facility for examination and testing, or may be
repaired on site by Aspect. Aspect shall either repair or replace,
within [**] days of receipt by Aspect, any such Aspect Product found
to be defective and return these Products to Draeger. Transportation
and insurance costs shall be borne by Aspect. Should Aspect's
examination and testing disclose that there was no defect covered by
the foregoing warranty, Aspect shall so advise Draeger and dispose
of or return the Aspect Product in accordance with Draeger's
instructions and at Draeger's expense, and Draeger shall reimburse
Aspect for transportation and insurance costs.
11.3 Repair Warranty.
Aspect warrants its repair work
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
and/or replacement parts for the duration of the original warranty
period as set forth in Section 11.1 or at least [**] months,
whichever is longer.
11.4 DISCLAIMER OF WARRANTIES.
THE PROVISIONS OF THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER
WARRANTY, WHETHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR
NONINFRINGEMENT.
12. SERVICE AND SUPPORT
12.1 Service and Support.
Draeger shall be responsible for providing installation, customer
training, service and support (including repair) to its end
customers for the Aspect Products Draeger sells to such customers,
and Draeger shall bear all related costs incurred for labor, parts,
or travel to perform such service.
12.2 Service Training.
Aspect agrees to provide initial service training, without charge to
Draeger, to a mutually agreed upon number of Draeger service
representatives prior to the market release of the BISx Systems, as
well as periodic (typically [**]) ongoing training for existing and
new Draeger service personnel.
12.3 Service Period.
For a period of [**] years following the last delivery to Draeger of
the applicable Aspect Product ordered by Draeger 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 Draeger 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 [**] 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.
12.4 Service Reporting.
For a period of ten (10) years, Aspect shall maintain a complete
record of all repair activities performed on any Aspect Products
received for repair.
13. QUALITY ASSURANCE.
13.1 Certification Status. Both parties agree to maintain, as applicable,
ISO900x or ISO13485, EN460x, European directive 93/42/EEC Annex II
("MDD AX-II") certification status and compliance with the U.S. Food
and Drug 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
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
(MDD AX-II, FDA QSR, etc.)
13.3 QA and Regulatory Audits. Aspect shall permit Draeger's Quality
Assurance department to conduct a reasonable audit of its facilities
at a mutually agreed upon date after the date of this Agreement for
the purpose of approving its status as an OEM supplier, and
reasonable periodic audits thereafter for the purpose of confirming
continuing compliance with applicable quality and regulatory
requirements and guidelines. Such audits shall be scheduled with at
least [**] advance notice during normal business hours and shall not
take place more than once per calendar year. All costs incurred by
Draeger for such audits shall be the sole responsibility of Draeger.
14. REGULATORY MATTERS.
14.1 Aspect Products.
Aspect shall assume full regulatory responsibility for the Aspect
Products, including obtaining and maintaining all applicable
governmental authorizations and regulatory approvals required to
distribute the Aspect BISx Kit. Both Parties shall work together to
develop a regulatory plan which defines precisely what the
regulatory and localization requirements are for Draeger. In
particular, Aspect shall be responsible for generating its own
Device Master Record for the Aspect BISx Kit. It is understood that
the Aspect BISx Kit shall be a component of the Draeger BISx System.
The Aspect product shall be labeled as manufactured by Aspect and
include the Aspect CE xxxx.
14.2 Draeger BISx System.
Draeger shall assume the regulatory responsibility for the Draeger
BISx System. Aspect shall provide commercially reasonable support to
Draeger as required in the process of obtaining regulatory approvals
by making available to Draeger any required information, data,
certificates, or technical files in the requested formats as
requested by the regulatory authorities.
14.3 Product Complaints and Incident Reporting.
Draeger and Aspect shall inform each other's Regulatory Affairs
office (in writing) within [**] about any event involving mutually
used technology that may require mandatory incident reporting to US
& International Regulatory Agencies. Draeger and Aspect shall inform
each other (in writing) within [**] business days of a customer
complaint regarding the Draeger BISx System or Aspect BIS Sensors
that were used in conjunction with a Draeger BISx System and
relating to Aspect technology. Both parties will cooperate and use
commercially reasonable efforts to resolve such customer complaints.
Closure of any customer such complaints relating to the Draeger BISx
will occur when Draeger notifies Aspect that the problem is
resolved. Closure of any customer complaint relating solely to
Aspect Products or Aspect BIS Sensors will occur when Aspect
notifies Draeger that the problem is resolved.
14.4 Notifications to Draeger.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Aspect agrees to promptly inform Draeger of any official
observations of FDA relating to any Aspect Product manufactured for
Draeger or the manufacturing of such Product as well as Aspect's
response to such findings. Aspect will immediately inform Draeger of
any Aspect Product manufactured for Draeger that does not meet the
Specifications or does not perform as intended or any information
which may suggest that an Aspect Product manufactured for Draeger
does not meet the Specifications or does not perform as intended, as
well as any possible Medical Device Report ("MDR") reportable event
of which it becomes aware.
14.5 Recall.
If any government agency requires Draeger to recall, destroy and/or
withhold from marketing or selling any Product that are still under
Aspect's warranty pursuant to this Agreement ("Recall") based upon
such agency's reasonable determination that Aspect's workmanship in
manufacturing such Products is the sole and direct cause of the
Product defect necessitating the Recall ("Covered Products"), Aspect
shall, subject to the parties' mutual written agreement by
authorized representatives, (i) repair or replace, at Aspect's sole
discretion, the Covered Products without charge to Draeger, and (ii)
reimburse Draeger for its reasonable out-of-pocket expenses actually
incurred by Draeger, as evidenced by supporting documentation
provided to Aspect, in connection with Draeger's implementation of
the Recall. Draeger shall bear all costs and expenses, and shall
indemnify and hold Aspect and its Affiliates harmless, for any
Product recall to the extent such recall is the result of any act or
omission attributable to Draeger. This clause shall survive the
expiration or termination of this Agreement.
14.6 Delegation.
Draeger may at its sole discretion delegate some of the obligations
under this Section 14 to its sub-distributors. Notwithstanding
anything to the contrary herein, Draeger shall remain responsible
for compliance with this Section 14 even after such delegation.
14.7 Traceability.
Draeger agrees to maintain traceability through serial number and/or
lot code for all Aspect products shipped to customer.
15. PRODUCT CHANGES; DISCONTINUED PRODUCTS; FUTURE PRODUCTS; CONTINUED SUPPLY,
ENGINEERING CHANGES.
15.1 Software Updates.
Aspect shall make available to Draeger all future software features
and performance improvements to the BIS software in the Aspect BISx
Kit.
15.2 Product Changes
Aspect shall have the right, at any time and from time to time, to
make substitutions and modifications to Aspect Products, provided
that such substitutions or modifications shall not materially affect
form, fit, function,
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
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 Draeger
written notice of such proposed substitution or modification at
least [**] days prior to its taking effect and Draeger 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 Draeger BISx System.
15.3 Discontinued Products.
Aspect agrees to notify Draeger in writing not less than [**] months
in advance of the discontinuance of any Aspect Products purchased by
Draeger. Draeger shall be able to place orders for at least [**]
months after receipt of the written notice in any case. In addition,
Draeger shall be entitled to determine its lifetime-buy quantities
and place a corresponding last purchase order.
15.4 Draeger-Initiated Product Engineering Changes
Draeger may from time to time request in writing that Aspect
implement an Engineering Change. Such request shall be accompanied
by an Engineering Change Order ("ECO") form or equivalent with a
written description of the proposed Engineering Change sufficient to
permit Aspect to evaluate its feasibility, a revised Xxxx of
Materials ("BOM"), drawings, media, and a proposed implementation
date. Within a maximum of [**] business days of such request, Aspect
will advise Draeger in writing of the conditions under which Aspect
would implement the Engineering Change, if any. Aspect's evaluation
will include, at a minimum, the cost to implement, any cost savings
or increase as a result of the Engineering Change. The parties shall
agree to any Engineering Change that may apply directly to the unit
price of a Product within a maximum of [**] business days from the
date that Aspect receives Draeger's notice of an Engineering Change.
Purchase Orders shall be amended accordingly. In the event that
Draeger designates an Engineering Change as "URGENT" or "RUSH",
Aspect will use all reasonable efforts to respond to Draeger's
request within [**] of receipt. If any Engineering Change causes an
increase or decrease in the total number of Products due under a
purchase order issued hereunder or in the time required for its
performance, an equitable adjustment shall be made, provided,
however, that any claim by either party must be made in writing in
the form of a quotation within thirty (30) days from the
acknowledged receipt date of the change notice by Aspect.
15.5 Disposition of Product Parts
If an Engineering Change is implemented by Aspect, Aspect will
notify Draeger in writing of the disposition to be made of those
parts affected in raw inventory, work in process, and finished
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
goods. Further, Aspect will advise Draeger of the disposition of
current purchase orders not yet processed at the time of the
Engineering Change. Aspect and Draeger shall mutually agree on
reimbursement to Aspect for any and all obsolete materials and
rework that result from the implementation of any Draeger-initiated
Engineering Changes prior to Aspect initiating implementation of the
same. Aspect will use all reasonable efforts to minimize the cost
exposure generated by obsolete Product parts. Aspect will make all
reasonable efforts to return all goods to suppliers prior to
reimbursement and settlement. Notwithstanding anything to the
contrary contained herein, Draeger's liability for any material
identified by Aspect as obsolete due to the implementation of any
Draeger-initiated ECO will be limited to that quantity and price
identified by Aspect at the time of Aspect's notice of acceptance of
the ECO.
16. OWNERSHIP AND PROTECTION OF RESULTS.
16.1 No Transfer of Ownership.
It is expressly agreed that neither Aspect nor Draeger shall
transfer to the other Party any patent rights, copyrights or other
intellectual property of any kind that either Party owns as of the
date of this Agreement.
16.2 Models, Patterns, Dies, etc.
The Party paying for the design, development and manufacture of any
models, patterns, dies, molds, jigs, fixtures, and other tools made
for or obtained in connection with this Agreement shall have title
thereto, and possession thereof shall be transferred to such title
holder no later than thirty (30) days after termination of this
Agreement.
17. DOCUMENTATION AND TRAINING.
Aspect agrees to provide Draeger with product literature, sales team and
customer training tools, operations and maintenance manuals, and other
existing information to train the Draeger sales team to sell and maintain
Aspect Products.
18. CONFIDENTIALITY.
No confidential information disclosed by either Party to the other in
connection with this Agreement shall be disclosed to any person or entity
other than the recipient Party's employees and contractors directly
involved with the recipient Party's use of such information who are bound
by written agreement to protect the confidentiality of such information,
and such information shall otherwise be protected by the recipient Party
from disclosure to others with the same degree of care accorded to its own
confidential information of like importance. In addition, each Party and
its representatives shall use the confidential information only for the
purposes specified under this Agreement and such information shall not be
used for any other purpose without the prior written consent of the
disclosing Party. Both sides should consider as confidential and protect
any information that could reasonably be construed as confidential. This
would include but
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
not be limited to, technical information and specifications, sales plans
including customer names and locations and product information including
new developments and product roadmaps. 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 Draeger of the last Aspect Product under this Agreement. Draeger is
entitled to transmit confidential information of Aspect to Draeger
subsidiaries and affiliated companies. In such case these subsidiaries and
affiliated companies may only use such information to the same extent as
Draeger is entitled to use such information under this Agreement. Draeger
shall be responsible if any of these subsidiaries and affiliated companies
fails to comply with the confidentiality provisions of this Agreement.
19. INDEMNITIES.
19.1 Indemnification by Aspect.
(a) Aspect represents and warrants that it has not granted
anywhere in the world any exclusive licenses or exclusive
sublicenses in the Aspect Products that would prevent it from
granting Draeger the licenses set forth in Section 4.2 (Aspect
Software License). Aspect also represents and warrants that it
has the right and authority to engage in the joint development
of the Draeger BISx system as contemplated hereunder and
further, 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 Aspect
has entered into with a third party.
(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. Draeger'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 reasonable 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 Draeger or any of Draeger's customers
based on an allegation of such infringement or
misappropriation with respect to any Aspect
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Product.
(c) In the event that any claim is brought against Draeger as a
result of personal injuries and/or property damages resulting
from that portion of the Draeger BISx System developed and
manufactured by Aspect, and provided further that such claims
are a result of the defective design or manufacture of the
Aspect Products, 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 Draeger and its
directors, officers, employees, representatives and agents
harmless from and against any damages, liabilities, costs and
expenses (including reasonable 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 Indemnification by Draeger.
(a) Draeger represents and warrants that it has the right and
authority to engage in the development of the Draeger BISx
System 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 Draeger has entered into with a third
party.
(b) Draeger warrants that all Draeger Patient Monitors used with
Aspect Products will be free from the rightful claims of any
third party for infringement of any Patents, Trademarks or
Copyrights or misappropriation of Trade Secrets. Draeger
warrants that as of the date of this Agreement, Draeger has
received no notice of a claim of infringement or
misappropriation from any third party regarding the Draeger
Patient Monitors. Aspect's exclusive remedy with respect to
breach of any warranty provided in this Section 19.2 shall be
that Draeger will defend at its own expense, and will pay the
costs and damages (including reasonable 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 based on an allegation of such
infringement or misappropriation with respect to any
Draeger-supplied component of the Draeger BISx System.
(c) In the event that any claim is brought against Aspect as a
result of personal injuries and/or property damages resulting
from the Draeger BISx System, and provided further that such
claims do not arise as a result of the defective design or
manufacture of that portion of the Draeger BISx System
developed or manufactured by Aspect, Draeger agrees that it
shall indemnify and hold Aspect and its directors, officers,
employees, representatives and agents harmless from and
against any damages,
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
liabilities, costs and expenses (including reasonable
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 Draeger (ii) Indemnitor shall
keep Indemnitee fully informed and permit the Indemnitee to
participate (at Indemnitee's expense) as the Indemnitee may
reasonably request and (iii) Indemnitee may, without affecting
its right to indemnity hereunder, defend and settle any such
claim, suit or proceeding if Indemnitor declines to defend
against such claim, suit or proceeding or Files for
Bankruptcy. The Indemnitee shall cooperate with the Indemnitor
and its legal representatives in the investigation of any
action, claim or liability covered by this Agreement.
(c) The Indemnitee shall not, except at its own cost, voluntarily
make any payment or incur any expense with respect to any
claim or suit without the prior written consent of Indemnitor,
which Indemnitor shall not be required to give, provided that
the Indemnitee may, without affecting its right to indemnity
hereunder, defend and settle any such claim, suit or
proceeding if the Indemnitor declines to take responsibility
or Files for Bankruptcy.
20. TRADEMARKS.
20.1 Trademarks.
(a) Ownership.
Draeger acknowledges and agrees that Aspect is the sole and
exclusive owner of all right, title and interest in, or has
valid licenses to the trademarks (the "Aspect Trademarks")
identified on Exhibit D (Aspect Trademarks). Aspect
acknowledges and agrees that Draeger is the sole and exclusive
owner of all right, title and interest in and to the
trademarks (the "Draeger Trademarks") identified on Exhibit D
(collectively the "Trademarks"). Each Party recognizes the
value of the other Party's
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Trademarks and the good will associated with the other Party's
Trademarks. Draeger 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
Draeger Trademarks and any good will arising therefrom shall
inure to the benefit of Draeger. 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
Draeger, or the Draeger 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 Draeger Trademarks is expressly
reserved by Draeger. 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 Draeger BISx Systems that use the Aspect Trademarks shall
be accompanied, where reasonable and appropriate, by a
proprietary notice consisting of the following elements:
(i) The statement "[insert trademark(s)] is a trademark(s)
of [or licensed to] Aspect Medical Systems, Inc."
(ii) Draeger shall include the "(TM)" or "(R)" symbol, as
instructed by Aspect, after the first prominent use of
the Aspect Trademark in the Draeger Patient Monitor and
related materials. Draeger shall have a period of sixty
(60) days in which to begin to use the "(R)" symbol in
replacement of the "(TM)" symbol upon receiving
instructions to do so by Aspect for all new stock of
such materials. Draeger may continue to deliver stocked
literature printed before the change becomes effective.
(c) License.
Aspect hereby grants to Draeger (and Draeger's Affiliates) a
nonexclusive, worldwide, royalty-free license (without the
right to sublicense) to use Aspect's Trademarks on the Draeger
Patient Monitor screen display, the operator manuals provided
by Draeger to its customers, or other locations designed to
designate or promote the inclusion of BIS technology in the
Draeger systems. Aspect shall have the right to use Draeger's
trademarks only with Draeger's prior written consent, which
consent shall be granted in Draeger's sole discretion. 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.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
(d) Quality Standards.
(i) Inspection.
In the event that a Party uses the other Party's
Trademarks as authorized herein, then, upon reasonable
notice and request, the licensee Party will furnish to
the licensor Party samples of the licensee Party's
applicable advertising and promotional materials as
necessary to allow the licensor Party to monitor
compliance with this Agreement. In addition, upon
reasonable notice and request, each licensee Party will
permit the licensor Party to examine any products
bearing the licensor Party's Trademarks to verify that
such .products meet the licensor Party's quality control
standards for such products. If such products do not
meet the licensor Party's quality control standards, the
licensee Party shall not distribute such products with
the licensor Party's Trademarks.
(ii) Protection and Infringement.
Each Party agrees to cooperate with and assist the other
Party in obtaining, maintaining, protecting, enforcing
and defending the other Party's proprietary rights in
and to its Trademarks. In the event that either Party
learns of any infringement, threatened infringement or
passing-off of the other Party's Trademarks, or that any
third party claims or alleges that the other Party's
Trademarks infringe the rights of the third party 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 Draeger BISx System, the Aspect BISx Kit
or Aspect Products sold hereunder, shall provide
necessary information and assistance reasonably
requested by such other Party (at the requesting Party's
cost and expense) in the event that such other Party
decides that proceedings should be commenced.
(e) Termination.
In addition to the termination rights set forth in Section 22
hereof, in the event that either Party is in material breach
of any provision of this Section 20, the non-breaching Party
may, upon thirty (30) 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 thirty (30)
day period. In addition to the provisions of Section 22
hereof, upon termination of the license granted in Section
20.1 (c), or upon termination of this Agreement, for whatever
cause:
(i) Each Party shall immediately cease and desist from any
further use of the other
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Party's Trademarks and any trademarks confusingly
similar thereto, either directly or indirectly;
(ii) All rights in the Aspect Trademarks granted to Draeger
hereunder shall immediately terminate, and all rights in
the Draeger Trademarks granted to Aspect hereunder shall
immediately terminate.
(f) Promotional Claims.
The general form of any promotional claims by Draeger
regarding Aspect's Bispectral Index technology and/or the
integration of Aspect's Bispectral Index technology in Draeger
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 Draeger's Patient
Monitors or the integration of Aspect's Bispectral Index
technology in Draeger Patient Monitors, and the specific form
of the use of Draeger's trade names and Trademarks, and of
intended use claims regarding the Draeger BISx Systems, in
promotional material, advertisement, and/or in written
technical literature shall be subject to review and approval
by Draeger prior to its publication or display.
21. EXPORT.
Draeger shall not export, directly or indirectly, Aspect Products
(including when integrated into a Draeger 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 Draeger's responsibility to comply with
the latest United States export regulations, and Draeger 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 Draeger
Patient Monitors or other products, information or materials provided by
Aspect hereunder were exported or otherwise shipped or transported in
violation of applicable laws and regulations.
22. TERM; DEFAULT AND TERMINATION.
22.1 Term and Renewal.
The initial term of this Agreement shall commence on the Effective
Date and shall continue for a period of five (5) years following
introduction of the Draeger BISx System. The term of this Agreement
shall thereafter be renewed automatically for successive twelve (12)
month periods, unless either Party provides written notice of
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
termination to the other Party at least sixty (60) days prior to
expiration of the Agreement.
22.2 Termination for good cause.
(a) Termination by Aspect.
The Agreement may be terminated by Aspect giving thirty (30)
days prior written notice to Draeger in the event Draeger has
not filed a 510(k) submission with the FDA for the Draeger
BISx System by [**], but only if Aspect has provided an Aspect
BISx Kit consistent with the specifications outlined in
Exhibit B to Draeger by [**].
(b) Termination by Draeger.
The Agreement may be terminated by Draeger giving thirty (30)
days prior written notice to Aspect if Aspect has failed to
provide an Aspect BISx Kit consistent with the specifications
outlined in Exhibit B to Draeger by [**].
(c) Material Competitive Features.
Draeger may terminate this Agreement if the Aspect BISx Kit
does not have material competitive features for measuring the
hypnotic effects of anesthetic and sedative agents on the
brain. In order to exercise its rights under this Section
22.2(c), Draeger must provide [**] prior written notice to
Aspect, specifying in reasonable detail the material features
or capabilities that are required. Following receipt of such
notification, Aspect shall have [**] to include such features
in the Aspect BISx Kit. If at the end of such [**] period,
Aspect is unable to do so, Draeger may terminate the
Agreement.
22.3 Events of Default.
The following shall constitute events of default under this
Agreement:
(i) if either Party assigns this Agreement or any of its rights or
obligations hereunder without the prior written consent of the
respective other Party, except: (a) as specifically permitted
under this Agreement; or (b) in connection with the sale or
other transfer of such Party's business to which this
Agreement relates (the word "assign" to include, without
limiting the generality thereof, a transfer of a majority
interest in the Party) or
(ii) if either Party shall neglect or fail to perform or observe
any of its material obligations to the other Party hereunder,
including, without limiting the generality thereof, the timely
payment of any undisputed sums due, and such failure is not
cured within thirty (30) days after written notice thereof
from the other Party; or
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
(iii) if there is (a) 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; (b) a composition or an
assignment or trust mortgage for the benefit of creditors by
either Party; (c) the commencement by either Party of any
bankruptcy proceeding under the United States Bankruptcy Code
or any other federal or state bankruptcy, reorganization,
receivership, insolvency or other similar law affecting the
rights of creditors generally; or (d) the commencement against
either Party of any proceeding under the United States
Bankruptcy Code or any other federal or state bankruptcy,
reorganization, receivership, insolvency or other similar law
affecting the rights of creditors generally, which proceeding
is not dismissed within thirty (30) days ("File for
Bankruptcy").
22.4 Remedies.
Upon any event of default, and in addition to any other remedies
either Party may have at law or in equity, the non-defaulting Party
may terminate the Agreement, cancel any outstanding Order, refuse to
make or take further Orders or deliveries, and declare all
obligations immediately due and payable. Any such termination or
other action taken by the non-defaulting Party pursuant to this
Section 22.4 shall not relieve the defaulting Party of its
obligations hereunder and the non-defaulting Party shall retain all
legal and equitable remedies after such termination.
23. INSURANCE.
Upon request, Aspect shall provide evidence of product liability, general
liability and property damage insurance against an insurable claim or
claims which might or could arise regarding Aspect Products purchased from
Aspect. Such insurance shall contain a minimum limit of liability for
bodily injury and property damage of not less than 1,000,000 (one million)
US$.
24. DISPUTE RESOLUTION
24.1 General.
Any dispute, controversy or claim arising out of or relating to this
Agreement or any related agreement or the validity, interpretation,
breach or termination thereof (a "Dispute"), including claims
seeking redress or asserting rights under applicable law, shall be
resolved in accordance with the procedures set forth herein. Until
completion of such procedures, no Party may take any action not
contemplated herein to force a resolution of the Dispute by any
judicial or similar process, except to the limited extent necessary
to; (i) avoid expiration of a claim that might eventually be
permitted hereby; or (ii) obtain interim relief, including
injunctive relief, to preserve the status quo or prevent irreparable
harm.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
24.2 Waiver.
In connection with any Dispute, the parties expressly waive and
forego any right to (i) punitive, exemplary, statutory, enhanced or
other indirect damages in excess of compensatory damages and (ii)
trial by jury.
24.3 Good Faith Negotiations.
Any Dispute relating to this Agreement will be resolved first
through good faith negotiations between appropriate management-level
representatives of each Party having responsibility for the sale or
use of products involved.
24.4 Mediation.
If within sixty (60) days the parties are unable to resolve the
Dispute through good faith negotiation, either Party may submit a
Dispute for resolution by mediation pursuant to the Center for
Public Resources Model Procedure for Mediation of Business Disputes
as then in effect. The mediation shall be conducted in Boston,
Massachusetts. Mediation will continue for at least thirty (30) days
unless the mediator chooses to withdraw sooner. At the request of
either Party, the mediator will be asked to provide an evaluation of
the Dispute and the Parties' relative positions. Each Party shall
bear its own costs of mediation effort.
24.5 Arbitration.
After completion of any mediation effort, a Party may submit the
Dispute for resolution by arbitration pursuant to the
Non-Administered Arbitration Rules of the Center for Public
Resources as in effect on the date hereof, unless the parties agree
to adopt such rules as in effect at the time of the arbitration. The
arbitral tribunal shall be composed of one arbitrator; and the
arbitration shall be conducted in Boston, Massachusetts. If the
resolution of the Dispute is not found within the terms of this
Agreement, the arbitrator shall determine the Dispute in accordance
with the governing law of the Agreement, without giving effect to
any conflict of law rules or other rules that might render such law
inapplicable or unavailable. The prevailing Party in any arbitration
conducted under this Section shall be entitled to recover from the
other Party (as part of the arbitral award or order) its reasonable
attorneys' fees and other costs of arbitration. The arbitrator shall
not award punitive damages as part of the arbitration settlement.
24.6 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 governed exclusively by the Federal
Arbitration Act, 9 U.S.C. sections 1-16; however, the award can be
modified or vacated on grounds cited in the Federal Arbitration Act
or, if the arbitrator's findings of facts are not supported by
substantial evidence or the conclusions of law are erroneous, under
the laws of the Commonwealth of Massachusetts. The place of
arbitration shall be in Boston, Massachusetts. The Parties agree
that the federal and
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
state courts located in the Commonwealth of Massachusetts shall have
exclusive jurisdiction over any action brought to enforce this
arbitration provision, and each Party irrevocably submits to the
jurisdiction of said courts. Notwithstanding the foregoing sentence,
either Party may apply to any court of competent jurisdiction,
wherever situated, for enforcement of any judgment on an arbitral
award.
24.7 Time Limit.
Except as time barred under any applicable statute of limitations of
lesser duration, any claim by either Party shall be time-barred
unless the asserting Party commences an arbitration proceeding with
respect to such claim within two (2) years after the cause of action
has accrued.
24.8 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 Party shall have the right to apply to any state or federal
court in the Commonwealth of Massachusetts or any other court that
would otherwise have jurisdiction, for provisional or interim
measures.
24.9 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.
25. GENERAL PROVISIONS.
25.1 Force Majeure.
In the event that either Party is prevented from performing, or is
unable to perform, any of its obligations under this Agreement due
to any act of God, fire, casualty, flood, war, strike, lock out,
failure of public utilities, injunction or any act, exercise,
assertion or requirement of governmental authority, epidemic,
destruction of production facilities, insurrection, inability to
procure materials, labor, equipment, transportation or energy
sufficient to meet manufacturing needs, or any other cause beyond
the reasonable control of the Party invoking this provision, and if
such Party shall have used its best efforts to avoid such occurrence
and minimize its duration and has given prompt written notice to the
other Party, then the affected Party's performance shall be excused
and the time for performance shall be extended for the period of
delay or inability to perform due to such occurrence.
25.2 Publicity.
Neither Party shall originate any publicity, news release or other
public announcement relating to this Agreement or the existence of
an arrangement between the Parties without the
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
prior written approval of the other Party, except as otherwise
required by law.
25.3 Waiver.
The waiver by either Party of a breach or a default of any provision
of this Agreement by the other Party shall not be construed as a
waiver of any succeeding breach of the same or any other provision,
nor shall any delay or omission on the part of either Party to
exercise or avail itself of any right, power or privilege that it
has, or may have hereunder, operate as a waiver of any right, power
or privilege by such Party.
25.4 No Agency.
Nothing contained in this Agreement shall be deemed to constitute
either Party as the agent or representative of the other Party, or
both Parties as joint venturers or partners for any purpose. Neither
Party shall be responsible for the acts or omissions of the other
Party, and neither Party shall have authority to speak for,
represent or obligate the other Party in any way without prior
written authority from the other Party.
25.5 Survival of Obligations.
All obligations of either Party under Sections 11 (Warranty), 12
(Service and Support), 14 (Regulatory Matters), 16 (Ownership and
Protection of Results), 18 (Confidentiality), 19 (Indemnities), 20
(Trademarks), 24 (Dispute Resolution), and 25.6 (Limitation on
Liability) 14.5 (recall) shall survive the expiration or termination
of this Agreement and continue to be enforceable.
25.6 LIMITATION ON LIABILITY.
EXCEPT AS PROVIDED IN SECTION 19, EACH PARTY'S LIABILITY ARISING OUT
OF THE MANUFACTURE, SALE OR SUPPLYING OF PRODUCTS OR THEIR USE OR
DISPOSITION, WHETHER BASED UPON WARRANTY, CONTRACT, TORT OR
OTHERWISE, SHALL NOT EXCEED ALL AMOUNTS PAID AND PAYABLE BY DRAEGER
TO ASPECT UNDER THIS AGREEMENT. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR
OTHER INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF
PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES) ARISING OUT OF THE
MANUFACTURE, SALE OR SUPPLYING OF PRODUCTS.
25.7 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, unless the stricken provisions
affect the basis of the Agreement.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
25.8 Governing Law.
This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Massachusetts, without reference to
conflict of laws principles, and the UN Convention on Contracts for
the International Sale of Goods shall not be applicable.
25.9 Notices.
Any notice or communication with regard to the termination of or
changes to this Agreement from one Party to the other shall be in
writing and either personally delivered or sent via certified mail,
postage prepaid and return receipt requested addressed, to such
other Party at the address of such Party specified in this Agreement
or such other address as either Party may from time to time
designate by notice hereunder.
25.10 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties.
No waiver, consent, modification or change of terms of this
Agreement shall bind either Party unless in writing signed by both
Parties, and then such waiver, consent, modification or change shall
be effective only in the specific instance and for the specific
purpose given. There are no understandings, agreements,
representations or warranties, expressed or implied, not specified
herein regarding this Agreement or the Aspect Products purchased
and/or licensed hereunder. Only the terms and conditions contained
in this Agreement shall govern the transactions contemplated
hereunder, notwithstanding any additional, different or conflicting
terms which may be contained in any Order or other document provided
by one Party to the other. Failure of either Party to object to
provisions contained in any Order or other document provided by the
other Party shall not be construed as a waiver of the terms and
conditions of this Agreement nor an acceptance of any such
provision.
25.11 Headings.
Captions and headings contained in this Agreement have been included
for ease of reference and convenience and shall not be considered in
interpreting or construing this Agreement.
25.12 Exhibits:
The following Exhibits shall be part of this Agreement:
Exhibit A: Aspect Products and Purchase Prices
Exhibit B: Specifications: Aspect's BISx Kit
Exhibit C: Contact Persons/Addresses
Exhibit D: Aspect and Draeger Trademarks
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
25.13 Beneficiaries.
Except for the provisions of Section 19 hereof, which are also for
the benefit of the other persons indemnified, this Agreement is
solely for the benefit of the parties hereto and their respective
affiliates, successors in interest and permitted assigns and shall
not confer upon any other person any remedy, claim, liability,
reimbursement or other right in excess of those existing without
reference to this Agreement.
25.14 Assignment.
Neither Party may assign or delegate this Agreement or any rights or
obligations under this Agreement without the prior written consent
of the other, which shall not be unreasonably withheld; provided,
however, that Draeger may, without the prior written consent of
Aspect, assign and delegate this Agreement and any or all of its
rights and obligations hereunder to any of its Affiliates, and
provided that either party shall have the right to assign this
Agreement in connection with a sale of the business of such party to
which this Agreement relates.
IN WITNESS WHEREOF, this Agreement has been duly executed as a sealed instrument
as of the date specified above.
Aspect Medical Systems, Inc. Xxxxxxx Medical Systems, Inc.
By: /s/ J. Xxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
-------------------------- ---------------------------
Title: CFO Title: CEO
/s/ Xxxxxxx Xxxxxxx
Strategic Purchasing Manager
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
EXHIBIT A
ASPECT PRODUCTS AND PURCHASE PRICES
A) ASPECT BISX KIT:
List price for the Aspect BISx Kit: $[**]
- Pricing is based on volume and "% of systems shipped BIS Ready"
- "BIS Ready" means BIS port standard on all systems ready
to accept a BISx system, with BIS software installed on
host monitor. If a dedicated BIS port is not utilized,
then at least one multi-connector port must be available
on a system in order for that system to qualify as "BIS
Ready".
- Discount for "% of systems BIS Ready" takes effect upon commencement
of shipment of systems that meet this criteria
- If Draeger offers a directly competitive product to the Draeger BISx
System (any parameter that Draeger claims to be a measure of the
hypnotic effect of anesthesia), the discounts for "% of Systems BIS
Ready" will be eliminated. Only discounts based on volume of BISx
Systems shipped will be available from that time forward.
- Additional incremental NRE charges and unit cost for customization
of the product (i.e. Mold color, labeling), if included in the final
product, will be borne by Draeger.
- Volume discounts are based on the total volume of BISx kits
purchased. Each calendar year pricing levels will be set initially
based on the volume of BISx kits [**], with subsequent volume
discounts realized as additional volume discounts are achieved. The
discounted price will apply only to the BISx kits purchased after
the volume discount is achieved; it is not retroactive to BISx kits
purchased prior to that point.
SYSTEMS SHIPPED % OF TOTAL SYSTEMS
WITH BISx "BIS READY" BISx PRICE
--------------- ------------------ ----------
[**] [**]% $[**]
[**]% $[**]
[**]% $[**]
[**] [**]% $[**]
[**]% $[**]
[**]% $[**]
[**] [**]% $[**]
[**]% $[**]
[**]% $[**]
- Demonstration Aspect BISx Kit: High Volume price based on applicable
"BIS Ready" qualification
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
- Aspect and Draeger will agree to the initial size of the
demonstration pool of Draeger BISx Systems. Demonstration kit
pricing will be effective for the initial demonstration pool
purchase only.
- Draeger will be responsible for providing Aspect with documentation,
on a [**] basis, of the total number of Draeger BISx Systems
installed in the [**], the locations of such Draeger BISx Systems
and the dates of sale and installation.
B) ASPECT BIS SENSORS
Price for the Aspect BIS Sensors: $[**] per BIS Sensor.
Volume discounts are based on the total volume of Aspect BIS Sensors
purchased (excluding demonstration sensors). Each calendar year
pricing levels will be set initially based on the volume of Aspect
BIS Sensors [**], with subsequent volume discounts realized as
additional volume discounts are achieved. The discounted price will
apply only to the Aspect BIS Sensors purchased after the volume
discount is achieved; it is not retroactive to Aspect BIS Sensors
purchased prior to that point. The volume discounts are as follows:
QUANTITY PER YEAR BIS SENSOR PRICE
----------------- ----------------
[**] $[**]
[**] $[**]
[**] $[**]
[**] $[**]
Starter kit of five (5) Aspect BIS Sensors (of like kind): $[**]
Demonstration kit of five (5) Aspect BIS Sensors (of like kind): $[**]
NOTE: Demonstration kit Aspect BIS Sensors cannot be resold by Draeger.
Pricing applicable to [**].
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
EXHIBIT B
SPECIFICATIONS: ASPECT BISX KIT
[PICTURE]
BISx is a device that acquires up to two channels of EEG and
computes BIS and other EEG parameters, uniting the functionality of
the existing Aspect DSC-XP and Aspect BIS Engine. BISx is designed
to mate with Aspect's XP platform 1 or 2 channel sensors. BISx has
no display or user interface. It plugs into a host monitor system
for display of EEG and processed parameters. BISx is designed for
use wherever sedative drugs are administered, including but not
limited to the following environments: Operating rooms, Intensive
Care Units, Procedural Sedation, and Clinical Research areas.
The standard BISx acquires EEG via single channel or two channel
referential XP platform sensors and XP compatible sensors. The
inputs are protected against damage from electrostatic discharge
(ESD), a direct hit from an electrocautery device, and
defibrillation of the patient to which it is attached. The BISx
recovers from large signal saturation quickly. The BISx is resistant
to electrosurgical (ESU) interference.
BISx interfaces to one or more of the following interfaces: standard
RS-232 asynchronous interface, RS-232 type asynchronous interface
but with TTL 3.3V signal levels, Universal Serial Bus (USB)
interface, or RS-485 interface. Availability of interfaces may be
limited by the specific monitor cable connected to BISx. All
interface versions also support USB interfacing for software upgrade
and download purposes. BISx can be connected and disconnected to an
already powered up host monitor. The host monitor should
automatically detect its presence and configure it accordingly.
The BISx is designed to be placed near the patient's head. It is
unobtrusive and conveniently handled. It is sealed so as not to
allow liquids to enter when splashed. The enclosure is not painted,
but rather is of materials that are a solid color throughout. The
BISx includes a convenient method for attaching and de-attaching the
enclosure to surgical draperies, sheets, or an IV pole.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
The BISx connects to a sensor via the Aspect PIC Plus (Aspect part
number 186-0107). The PIC Plus is approximately [**]. The PIC Plus
connection is integral to the enclosure (no pigtail), and can be
detached from the box for service or replacement without the use of
tools. The enclosure is sealed against liquid ingress even when the
PIC is detached.
The BISx is attached to the host monitoring system via a [**]. The
wire is narrow and highly flexible. The monitor connection is
integral to the enclosure (no pigtail), and may require the use of
tools for detachment from the box for service or replacement. The
enclosure is sealed against liquid ingress only when the monitor
cable is attached. The connector on the host monitor end is chosen
in collaboration with the OEM host partner company. There are no
adjustable parts inside the BISx. The cables may be replaced without
opening the enclosure.
The BISx software is stored in reprogrammable FLASH memory. Software
upgrades can be accomplished on-site or remotely via the serial /
USB interface. Each BISx is given a unique serial identifier,
allowing for electronic identification and tracking of every BISx.
[**]
Main Parameters: [**]
Bispectral Index: 0 - 100 unitless scale
USB Interface: [**]
RS-232 Interface: [**]
RS-485 Interface: [**]
Dimensions (main body): [**]
[**]
Weight: [**]
[**]
[**]
Cable Length: [**]
[**]
[**]
Temperature: [**]
[**]
Humidity: [**]
[**]
Pressure: [**]
[**]
Electrical Safety: [**]
Input Impedance: [**]
Noise (RTI): [**]
Input Range: [**]
EEG Bandwidth: [**]
A/D Conversion: [**]
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
Sample Rate: [**]
Patient Leakage: [**]
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
EXHIBIT C
CONTACT PERSONS/ADDRESSES
CONTACT PERSONS AND RESPONSIBILITIES AT ASPECT:
EMAIL
PHONE NUMBER
PERSON TITLE RESPONSIBILITY FAX NUMBER
--------------- ----------------------------- ------------------------------ -----------------------
Xxxx Xxxxx Director, Global Partnerships Contract and Marketing xxxxxx@xxxxxxxx.xxx
Xxxxx Xxxxxxxxx Manager, OEM Engineering Project Manager xxxxxxxxxx@xxxxxxxx.xxx
Xxxxx Xxxxx Director, Quality Systems Quality and Regulatory Matters xxxxxx@xxxxxxxx.xxx
MAILING ADDRESS: Aspect Medical Systems, Inc.
000 Xxxxxxx Xx.
Xxxxxx, XX 00000
XXX
CONTACT PERSONS AND RESPONSIBILITIES AT DRAEGER:
[To be provided by Draeger within thirty (30) days of the date of this
Agreement]
EMAIL
PHONE NUMBER
PERSON TITLE RESPONSIBILITY FAX NUMBER
--------------- ----------------------------- ------------------------------ -----------------------
_______________ _____________________________ ______________________________ _______________________
_______________ _____________________________ ______________________________ _______________________
_______________ _____________________________ ______________________________ _______________________
_______________ _____________________________ ______________________________ _______________________
MAILING ADDRESS: Draeger Medical Systems, Inc.
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ASPECT/DRAEGER BISx DEVELOPMENT, PURCHASE AND LICENSE AGREEMENT
EXHIBIT D
ASPECT AND DRAEGER TRADEMARKS
ASPECT TRADEMARKS REFERENCE
Aspect(R) Aspect is a registered trademark of Aspect Medical
Systems, Inc.
A-2000(TM) A-2000 is a trademark of Aspect Medical Systems, Inc.
Bispectral Index(R) Bispectral is a registered trademark of Aspect Medical
Systems, Inc.
BIS(R) BIS is a registered trademark of Aspect Medical
Systems, Inc.
[BIS LOGO] BIS logo is a registered trademark of Aspect Medical
Systems, Inc.
DRAEGER TRADEMARKS REFERENCE
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