Confidential portions of this Exhibit, denoted by bracketed asterisks, have been omitted and filed separately with the Securities and Exchange Commission in reliance on Rule 24b-2 of the Securities Exchange Act of 1934. NxStage Medical, Inc. DaVita...
Exhibit 10.1
Confidential portions of this Exhibit, denoted by bracketed asterisks, have been omitted and filed separately with the Securities and Exchange Commission in reliance on Rule 24b-2 of the Securities Exchange Act of 1934.
DaVita Inc.
Second Amended and Restated National Service Provider Agreement
Information Sheet
| Date of Agreement: | March 1, 2013 (“Effective Date”) | |||
| National Service Provider: | DaVita Healthcare Partners Inc. | |||
| Street Address of Customer: City, State, Zip of Customer: |
000 0xx Xxxxxx, XX Xxxxx 000 Xxxxxxxxxx, XX 00000 | |||
| Customer Contact and Phone No.: | XxXxxx Xxxxxxx, 000-000-0000 | |||
| NxStage Customer Service Phone No.: | 1-866-NxStage (1-866-697-8243) | |||
| Contract No.: | 2013-753 | |||
| Contract Term: | From the Effective Date through December 31, 2015, which term shall be automatically extended on a month-to-month basis until one of the parties provides thirty (30) days prior written notice of termination (the “Term”). | |||
| Attached Exhibits: | Exhibit A: | Cycler Log File Decoding Document | ||
| Exhibit B: | [**] Example | |||
| Exhibit C: | [**] | |||
| Attached Schedules: | Schedule A: | Authorized Customer Locations | ||
| Schedule B: | Program and Pricing | |||
| Schedule C: | Warranty; Service; and Recalls | |||
| Schedule D: | Preferred Relationship | |||
| Schedule E: | Hawaii | |||
| Attachment B-1 to Schedule B-1 | Markets | |||
| Attachment C-1 to Schedule C | System Ones Subject to Expiration of Service Term | |||
1
Second Amended and Restated National Service Provider Agreement - Chronic Outpatient Therapy
THIS SECOND AMENDED AND RESTATED NATIONAL SERVICE PROVIDER AGREEMENT (this “Agreement”) is effective as of the Effective Date, by and between DaVita Healthcare Partners Inc., a Delaware corporation (“Customer”) and NxStage Medical, Inc., a Delaware corporation (“NxStage”). Capitalized terms used herein and not otherwise defined herein shall have the meaning set forth in Section 1 of this Agreement.
RECITALS
A. Customer and NxStage entered into that certain First Amended and Restated National Service Provider Agreement - Chronic Outpatient Therapy, dated as of July 22, 2010, as amended by letter agreements dated September 8, 2010, April 29, 2011, July 21, 2011, July 22, 2011, November 18, 2011, April 26, 2012, and December 21, 2012 (collectively, the “First Amended Agreement”), whereby NxStage agreed to sell certain products to Customer and Customer agreed to purchase such products from NxStage, subject to all of the terms and conditions stated therein.
B. NxStage and Customer deem it desirable to enter into this Agreement in order to amend and restate (and supersede and replace) the First Amended Agreement effective as of the Effective Date as provided herein.
In consideration of the foregoing premises and mutual covenants, agreements, representations and warranties contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:
1. DEFINITIONS
The following definitions as used herein have the following meanings:
(a) “Authorized Customer Locations” means any home hemodialysis program site in the Continental United States or Hawaii: (i) of Customer or any majority owned subsidiary of Customer, (ii) in which Customer has entered into a management contract covering the purchase of products for chronic home or in-center self-care patient therapy, including the System One, or (iii) held by Customer in a joint venture structure. Schedule A - Authorized Customer Locations hereto sets forth all of the Authorized Customer Locations.
(b) “Commercially Available” means any product that is approved by the FDA and manufactured, sold or distributed anywhere in the United States by NxStage or any of its affiliates, and for which NxStage has completed its then-current market release processes.
(c) “Express Monthly Dialysis Supplies” means System One cartridges with pre-attached filter and bagged PureFlow Express premixed dialysate for the prescribed therapy frequency and fluid volume.
(d) “FDA” means the United States Food and Drug Administration and any successor thereto.
(e) “Monthly Dialysis Supplies” means PureFlow SL Monthly Dialysis Supplies and Express Monthly Dialysis Supplies.
(f) “Patient Noncompliance Event” means an event in which any patient of an Authorized Customer Location misses [**] or more of his or her prescribed treatment frequencies or fluid volumes.
(g) “Patient Prescription Monthly Standing Orders” means NxStage’s standard patient prescription form submitted via NxStage’s NXRX electronic prescription system, or any successor thereto, for the System One and Monthly Dialysis Supplies for a named home or in-center self-care patient signed by such patient’s treating physician.
(h) “PureFlow SL Monthly Dialysis Supplies” means System One cartridges with pre-attached filter and PureFlow SL disposable cartridges and sets required to prepare PureFlow dialysate for the prescribed therapy frequency and fluid volume.
2. PURCHASES AND RENTALS
All purchases or rentals, as the case may be, of (a) the NxStage System One for chronic home and in-center self-care use (consisting of either (i) a System One Cycler (“Cycler”), Warmer (“Warmer”), and Stand (“Stand”), or (ii) a Cycler and System One PureFlow SL (“PureFlow SL” and together with the Cycler, Warmer and Stand, the “System One” or “System”), and (b) System One disposables and other
products for chronic home and in-center self-care use set forth on Schedule B attached hereto, which may or may not be manufactured by NxStage (the “Disposables” and collectively, with the System One and the Monthly Dialysis Supplies, the “Products”) under this Agreement shall be initiated by purchase orders covering one month of Monthly Dialysis Supplies consistent with then-current Patient Prescription Monthly Standing Orders received by NxStage. If the terms and provisions of any purchase order, sales order or any other document delivered by the parties hereto conflict with, or are in addition to, the terms of this Agreement, the terms of this Agreement shall control. To purchase or rent Products, an Authorized Customer Location must provide NxStage with a valid Patient Prescription Monthly Standing Order for the named NxStage patient(s) who will receive chronic therapy.
3. PRICING
As of the Effective Date, the pricing for each Product purchased during the Term is set forth next to each such Product on Schedule B attached hereto (each, a “Purchase Price” and collectively, the “Purchase Prices”). The Purchase Price of each Product may be increased in accordance with the terms and conditions of Section 2 titled “[**]” of Schedule B-5 - Additional Product Discount [**].
4. LIMITATIONS ON SALE AND USE AND [**] ACQUIRED AND MANAGED SITES
(a) Limitations on Sale and Use. All Products are to be used by Customer in the Continental United States and Hawaii at Authorized Customer Locations and are not to be resold, transferred or remarketed. Notwithstanding the foregoing, Customer may transfer Products to a third party in connection with the sale or disposition (whether by sale of assets or stock, merger or consolidation) of any Authorized Customer Location by Customer which includes Products then in use by such Authorized Customer Location’s patients, subject to NxStage’s prior written consent, which consent shall not be unreasonably withheld. The Products are to be used only for chronic home and in-center self-care patient therapy for treatment of any Authorized Customer Locations’ patients with Patient Prescription Monthly Standing Orders.
(b) [**] Acquired and Managed Sites. If at any time during the Term, Customer, any Customer affiliate, or any Authorized Customer Location or its affiliates enters into any transaction or series of transactions pursuant to which Customer, any Customer affiliate, or any Authorized Customer Location or its affiliates: (i) acquires the equity interests of any dialysis facility or program of [**] (collectively, “[**]”), or any of their joint venture or managed facilities (including any facilities with management contracts with [**] or its affiliates as of or subsequent to the Effective Date) (a “[**] Site”) possessing the voting power to elect a majority of such [**] Site’s board of directors, board of managers or members, general partner, managing member or manager, as the case may be (whether by merger, consolidation, reorganization, combination, sale or transfer of the equity interests of any such [**] Site, or otherwise acquires the right to control such [**] Site whether by securityholder or voting agreement, proxy, power of attorney or otherwise), (ii) acquires all or substantially all of the assets of an [**] Site (subsection (i), together with this subsection (ii) hereinafter collectively referred to as a “[**] Acquisition”), or (iii) enters into a management contract, joint venture or other similar transaction with any [**] Site relating to the provision of chronic hemodialysis therapy (an “[**] Management Contract”), Customer covenants and agrees that: (A) if at the time of the closing of such [**] Acquisition with respect to a [**] Site pursuant to the terms and conditions of the acquisition agreement related to such [**] Acquisition (a “[**] Acquired Site Closing”) such [**] Site did not have patients prescribed to receive therapy with the System One at any time during the [**] months prior to the [**] Acquired Site Closing, the parties shall enter into an amendment to this Agreement to allow such [**] Site to become an “Authorized Customer Location” under this Agreement, (B) if at the time of the [**] Acquired Site Closing, such [**] Site has, or had patients prescribed to receive therapy with the System One at any time during the [**] months prior to the [**] Acquired Site Closing, Customer and NxStage shall enter into a
new agreement relating to the purchase and/or rental of the Products on the same terms and conditions as then-exist under any [**] Pre-Existing Agreement (as defined below) applicable to such [**] Site (the “New Agreement”), including the term of such New Agreement, which shall in no event exceed the term of the [**] Pre-Existing Agreement, or (C) as of the effective date of any [**] Management Contract with an [**] Site, whether or not such [**] Site has, or had, patients prescribed to receive therapy with the System One at any time during the [**] months prior to the effective date of such [**] Management Contract, Customer and NxStage shall enter into a New Agreement. NxStage covenants and agrees that upon the expiration of any New Agreement relating to a [**] Site acquired by Customer in connection with a [**] Acquisition or to a [**] Site under a [**] Management Contract, the parties shall enter into an amendment to this Agreement, if necessary, to allow such [**] Site to become an “Authorized Customer Location” under this Agreement. If at the time of a [**] Acquired Site Closing, or upon the effective date of a [**] Management Contract, as applicable, a [**] Pre-Existing Agreement does not then cover the direct or indirect sale of one or more of the Products to the acquired [**] Site, or [**] Site subject to a [**] Management Contract, as the case may be, the parties shall enter into an amendment to this Agreement to allow such [**] Site to become an “Authorized Customer Location” under this Agreement. For purposes hereof, a “[**] Pre-Existing Agreement” means any agreement(s) between NxStage or its affiliates and [**] relating to the purchase and/or rental, shipment, or delivery of some or all of the Products to the applicable [**] Site.
5. SHIPPING
(a) Shipping Terms. Shipping for the Products is F.O.B. Customer’s designated destination. Monthly Dialysis Supplies shipment quantities will be based on the prescribed frequency (as indicated in the Patient Prescription Monthly Standing Order) and inventory needs of the patients at each Authorized Customer Location, as reported by each such patient to NxStage’s customer service department. All prices for the Monthly Dialysis Supplies include shipping costs to Authorized Customer Locations’ patients’ homes or designated travel destination, in each case, in the Continental United States via common carrier of NxStage selection unless otherwise stated, and include one patient delivery each [**] weeks, based on NxStage’s then-standard delivery policies for that geographical area; provided that such Monthly Dialysis Supplies must be a part of either: (i) a patient’s standard delivery quantities pursuant to such patient’s Patient Prescription Monthly Standing Order, or (ii) a patient’s travel delivery package consistent with the terms hereof and as documented on a NxStage “System One Vacation and Travel Form” (copies of which are available on request)). For all other deliveries, shipping costs will be prepaid by NxStage and added to Customer’s invoice. NxStage shall use its commercially reasonable efforts to ensure that the Products are shipped according to any Authorized Customer Locations’ delivery requirements. Any extra charges for special delivery services shall be prepaid by NxStage and added to Customer’s invoice. The fees for all special delivery services are set forth on Schedule B-4 - Delivery Services attached hereto. The terms and conditions of this Section 5(a) shall not apply to the shipment of any Product to Hawaii. The terms and conditions of Schedule E - Hawaii shall apply to the shipment of any Product to Hawaii.
(b) Expedited Delivery. If an expedited shipment of the Products (i.e. requiring delivery in less than [**] business days) must be made at any Authorized Customer Locations’ request, Customer agrees to pay for all incremental Product-shipping charges in excess of what standard shipping costs would be for an unexpedited shipment of the Products. Customer agrees that each of the Authorized Customer Locations’ patients must use their reasonable efforts to accurately report the inventory of Monthly Dialysis Supplies that each such patient has on a monthly basis to NxStage’s customer service department. If any patient of any Authorized Customer Location fails to properly report his or her inventory of Monthly Dialysis Supplies to NxStage’s customer service department, and as a result of such failure such patient will require expedited shipment of such patient’s Monthly Dialysis Supplies to perform dialysis therapy at such patient’s prescribed frequencies, Customer agrees to pay for all incremental Product-shipping charges in excess of what standard shipping costs would be for an
unexpedited shipment. NxStage reserves the right to charge Customer the appropriate fee set forth in Schedule B-1 - Monthly Dialysis Supplies for any Monthly Dialysis Supplies consumption by a patient of any Authorized Customer Location that is above such patient’s applicable prescribed frequency, as measured on a calendar monthly basis, or if such patient’s usage is above standard usage levels.
(c) Product Returns. Customer or an Authorized Customer Location, as applicable, must notify NxStage’s customer service department in writing of any irregularity in a Product shipment within the later of [**] days of receipt of the shipment or [**] days of discovery of a concealed defect in such shipment. All evidence of shipping damage or over- or under- shipment (other than concealed defects) should be noted on the carrier’s freight xxxx and the carrier should countersign the document. In the absence of timely written notice of any irregularity in the shipment of any Products, acceptance of such shipment will be conclusively presumed. NxStage shall use its commercially reasonable efforts to replace any Product damaged in transit and to remedy Product delivery shortages within [**] days of receiving notice thereof from Customer or any Authorized Customer Location, as applicable.
6. PAYMENT
Payments shall be due and payable on a net [**] day basis. Payments made within [**] days of invoicing shall be subject to a [**] discount on the total amount due. Payments made more than [**] days after the stated term will be subject to a past due service charge of [**] per month (or the highest rate permitted by applicable law, whichever is less), except for any portion of an invoice disputed by Customer in good faith. If Customer fails to pay any portion of its undisputed balance within [**] days of the date of the invoice, NxStage may, at its option, terminate this Agreement upon [**] days written notice and Customer’s failure to cure such payment default within such [**] days. Any invoice dispute must be made by Customer in good faith. Customer must notify NxStage of any invoice disputes in writing within [**] days of its receipt of an invoice, and the parties shall use all commercially reasonable efforts to resolve any billing disputes within [**] days. Any invoice subject to a good faith dispute shall not be subject to the past due service charge of [**] per month (or the highest rate permitted by applicable law, whichever is less).
7. DISCOUNTS AND REBATES
Discounts and rebates earned under this Agreement are “Discounts or Other Reductions in Price” to Customer under 42 U.S.C. §1320a-7b(b)(3)(A) of the Social Security Act, and shall be properly reported by Customer on applicable Medicare and Medicaid claims and cost reports. Customer will retain a copy of this Agreement and all related notices and communications from NxStage, together with invoices hereunder (which will indicate that a discount or end of period rebate may apply) and permit agents of the U.S. Department of Health and Human Services or any state Medicaid agency access to such records upon request. In order to assist Customer’s compliance with any such obligations, NxStage shall fully and accurately report all discounts, if any, on the invoices or statements submitted to Customer; or where the value of a discount is not known at the time of sale, NxStage shall fully and accurately report the existence of the discount program on the invoices or statements submitted to Customer and when the value of the discount becomes known, provide Customer with documentation of the calculation of the discount identifying the specific goods or services purchased to which the discount will be applied. At Customer’s reasonable request, NxStage shall also use commercially reasonable efforts to provide to Customer any other information that Customer may request that is necessary for Customer to obtain in order to comply with any such obligations.
8. TAXES
The Purchase Price for each Product does not include sales, use, excise or similar taxes. Customer agrees to pay promptly any and all applicable sales, use, excise or similar taxes, assessments or other charges levied or assessed on or with respect to the acquisition, possession, or use of any of the Products, and shall reimburse NxStage if NxStage has paid such taxes, excluding, however, any taxes on or measured by NxStage’s income. Notwithstanding the foregoing, NxStage covenants and agrees that it shall not [**]. NxStage further covenants and agrees that if at any time during the Term [**]. For purposes of this Agreement, [**].
9. RETURNED GOODS
(a) Return Goods Policy. This returned goods policy set forth in this Section 9 is intended to address shipment errors and over-ordering of Products. Returns of damaged or defective Products are handled as set forth under Schedule C - Warranty; Service; and Recalls. Returns of Monthly Dialysis Supplies caused by a discontinuation of patient therapy are covered in Section 10 “Discontinuation of Therapy and Missed Treatments”. Returns of rented Systems, at the end of their applicable rental period are covered in Section 9(c) below. No credit will be issued for unauthorized returns. Product which is not damaged or defective, may only be returned as described in this Section 9, and only after Customer or the applicable Authorized Customer Location has obtained a return authorization number from NxStage’s customer service department.
(b) Return of Purchased Products. Customer shall receive full credit, and NxStage shall pay for all returned goods shipping charges, for Products shipped in error by NxStage, so long as such Products (i) are returned in their original carton with original labels within [**] days of shipment (no resealed or partial cases), (ii) are in a condition for restocking and resale, and (iii) are accompanied by a copy of the NxStage packing list. Customer shall receive [**] credit ([**] restocking fee) and Customer shall pay for all return shipping charges, for any returns due to over-ordering of Products (other than Excluded Products (as defined below)), so long as such Products: (A) are returned in their unopened carton with original labels within [**] days of shipment (no resealed or partial cases), (B) are in condition for restocking and resale, and (C) have at least [**] months remaining shelf life. The following Products may not be returned:
| • | Products which are currently not in production; |
| • | Special Customer specification Products; or |
| • | Products not shipped to an applicable Authorized Customer Location by NxStage and not billed to Customer by NxStage (collectively, the “Excluded Products”). |
(c) Return of Rented Products during the Term. If requested by NxStage during the Term, rented System Ones shall be returned to NxStage within [**] days after the end of the agreed upon rental term, or upon permanent discontinuation of patient therapy. If rented Systems are requested to be returned during the Term, but are not returned within such [**] day period, Customer shall be charged an additional fee of [**] per System per month until each such System is returned to NxStage. If a System is rented for more than six (6) months, NxStage shall bear all related shipping charges to return such rented Systems, otherwise, Customer shall bear all related shipping charges to return such rented Systems. Customer shall be responsible for any damage incurred in connection with the return of rented Systems, as set forth in Section 13 below. If NxStage does not request return of a rented System One during the Term, the additional fee of [**] shall be waived and Customer shall renew the rental of the System as soon as a patient in the service area where the System is stored is in need of such System during the Term. NxStage’s failure to request return of any rented System at the end of the agreed upon rental term, or upon permanent discontinuation of patient therapy, shall not preclude NxStage from later requesting such return.
10. DISCONTINUATION OF THERAPY AND MISSED TREATMENTS
(a) Billing of Monthly Dialysis Supplies. Monthly Dialysis Supplies are billed on a monthly basis, by calendar month at the start of each month. The monthly billing amount will be adjusted only (i) during the first month of therapy (to account for the portion of the month prior to a patient’s therapy start date) or (ii) in the event of a documented hospitalization leading to missed NxStage therapy treatments. Except as otherwise provided in this Section 10 with respect to retrieved Monthly Dialysis Supplies, no credit shall be given for permanent discontinuation of therapy or for missed treatments, other than documented hospitalizations, for any reason, including missed treatments due to patient noncompliance with prescribed treatment schedules. NxStage shall use its reasonable efforts to notify the applicable Authorized Customer Location in the event NxStage becomes aware of a specific Patient Noncompliance Event through monthly customer service inventory calls with patients. Notwithstanding any of the foregoing, Customer understands and agrees that NxStage does not represent to the completeness or the accuracy of the information so provided regarding any Patient Noncompliance Event at any time hereunder.
(b) Pro-Rated Credits for Documented Hospitalization. In the event of a documented hospitalization of any Authorized Customer Location patient, NxStage will allow a pro-rated credit against future payments equal to [**] of the applicable Monthly Dialysis Supplies price per documented missed treatment day for each such Authorized Customer Location patient during the month of hospitalization, provided that such pro-rated credit shall be adjusted in good faith by NxStage for any such Authorized Customer Location patient that is treated under a different treatment schedule. Any subsequent monthly shipments from NxStage shall be adjusted appropriately to account for any such missed days of therapy due to a documented hospitalization. Documentation of hospitalizations must be provided to NxStage within [**] days of the hospitalization in order to be eligible for such a pro-rated credit.
(c) Discontinuation of Patient Therapy. All purchased NxStage Monthly Dialysis Supplies are the property of Customer or the applicable Authorized Customer Location. It is Customer’s responsibility to retrieve any unused Monthly Dialysis Supplies in the event of a permanent discontinuation of patient therapy. No credit will be issued for any Monthly Dialysis Supplies retrieved by Customer that have not been invoiced. Monthly Dialysis Supplies retrieved that have not yet been invoiced must either: (i) be returned to NxStage, at NxStage’s expense or (ii) used by the Authorized Customer Locations. Once retrieved Monthly Dialysis Supplies are assigned for use, NxStage shall invoice Customer for such Monthly Dialysis Supplies, and adjust subsequent deliveries of such Monthly Dialysis Supplies. If retrieved Monthly Dialysis Supplies were invoiced, NxStage will apply, at Customer’s request, a credit against future Monthly Dialysis Supplies orders, as set forth in Patient Prescription Monthly Standing Orders, if the retrieved Monthly Dialysis Supplies are: (A) used for a future patient, (B) unexpired, and (C) consistent with the future patient’s prescription. The amount of the credit applied shall be based upon the number of treatments that can be fully performed with such retrieved Monthly Dialysis Supplies. To assist NxStage in documenting such credits, Customer shall notify NxStage of all permanent patient discontinuations from NxStage therapy within [**] calendar days of such discontinuations, and shall also confirm with NxStage the quantity of all Monthly Dialysis Supplies retrieved following any such discontinuations. In the event NxStage ships a monthly standing order of Monthly Dialysis Supplies to a patient following a permanent discontinuation of NxStage therapy due solely to reasons of death or transplant, and before NxStage receives notice of such discontinuation due to death or transplant, NxStage shall retrieve such Monthly Dialysis Supplies, at its own expense, provided that NxStage is notified of the discontinuation due to death or transplant within [**] days as set forth in this Section 10(c).
(d) Alternate Terms. If, during the Term, NxStage contractually agrees with any other customer purchasing NxStage home hemodialysis products to either (i) provide credits for missed treatments due to home patients’ noncompliance with prescribed treatment frequency and/or discontinuation of therapy, or (ii) allow for the purchase of Monthly Dialysis Supplies for use with the
System One or any successor product on a non-monthly or non-bundled basis for use by home hemodialysis patients (it being understood that home hemodialysis patients shall not include, for purposes of this Agreement, patients treated in a self-care setting outside of the home or patients treated in a nursing home setting), NxStage shall promptly offer such credit, non-monthly, or non-bundled purchase terms, on a prospective basis, to Customer on terms consistent with those credit, non-monthly, or non-bundled purchase terms then offered to other NxStage customers; provided that such terms, if accepted by Customer, shall in no way alter the other provisions hereof; and provided further that such terms shall only be offered to Customer in an amount equal to the number of patients of such other NxStage customer then covered by such credit, non-monthly, or non-bundled purchase terms. In addition, if during the Term, NxStage contractually agrees with any other customer to allow for the purchase of Monthly Dialysis Supplies for use with the System One or any successor product on a non-monthly or non-bundled basis for use by patients treated in a self-care setting outside of the home or to patients treated in a nursing home setting, NxStage shall promptly offer such non-monthly or non-bundled purchase terms, on a prospective basis, to Customer on terms consistent with those non-monthly or non-bundled purchase terms then offered to other NxStage customers; provided that such terms, if accepted by Customer, shall in no way alter the other provisions hereof; and provided further that such terms shall only be offered to Customer in an amount equal to the number of patients treated in a self-care setting outside of the home or in a nursing home setting of such other NxStage customer then covered by such non-monthly or non-bundled purchase terms.
11. TITLE TO PRODUCTS
(a) Title to Rented/Loaned Products. NxStage will retain title to any Products that have previously been, or are subsequently provided, on a rental or no charge basis (including Products previously rented, but for which rental payments are no longer being made by Customer due to discontinuation of patient therapy) (collectively, “Rented/Loaned Products”) to Customer or any Authorized Customer Location, or any of their respective patients. Upon NxStage’s request, Customer will execute a financing statement as provided under the Uniform Commercial Code to permit NxStage to perfect a security interest in any Rented/Loaned Products.
(b) Return of Rented/Loaned Products upon Expiration or Earlier Termination. Upon the expiration or earlier termination of this Agreement for any reason, Customer will contact NxStage customer service to arrange for the return of all such Rented/Loaned Products, according to NxStage product return procedures. If a Rented/Loaned Product has been rented by any Authorized Customer Location, or loaned to any Authorized Customer Location, for more than [**] months, NxStage shall bear all related return shipping charges for the return of such Rented/Loaned Product, otherwise Customer shall bear all related return shipping charges for the return of such Rented/Loaned Product. Customer shall be responsible for any damage incurred in connection with the return of Rented/Loaned Products, as set forth in Section 13 below. For each Rented/Loaned Product which is not returned to NxStage within [**] days of the expiration or earlier termination of this Agreement for any reason, Customer shall pay to NxStage each month following such [**] day period until each piece of such Rented/Loaned Product is returned to, and received by, NxStage, the applicable rental fee set forth on Schedule B-3 - Equipment Rental or Purchase plus [**]; provided that any Rented/Loaned Product not returned to, and received by, NxStage within [**] days of the expiration or earlier termination of this Agreement for any reason must be immediately purchased by Customer at the applicable purchase price set forth on Schedule B-3 - Equipment Rental or Purchase less a [**] credit for each such Rented/Loaned Product equal to [**] of all [**].
(c) Return of Loaned Products During the Term. During the Term, Customer or any Authorized Customer Location, will upon NxStage’s request, return any Product loaned to Customer or any Authorized Customer Location (a “Loaned Product”) (including any Loaned Products provided to
Customer or any Authorized Customer Location prior to the Effective Date), within [**] days of NxStage’s request to return such Loaned Product. Any Loaned Product not returned within [**] days of NxStage’s request during the Term shall be deemed rented by Customer at the applicable rental fee set forth on Schedule B-3 - Equipment Rental or Purchase each month during the Term until such Loaned Product is returned to NxStage.
(d) Title to Purchased Products. Customer shall have good and marketable title to all Products purchased under this Agreement.
12. REPRESENTATIONS, WARRANTIES AND COVENANTS OF NXSTAGE
NxStage hereby represents and warrants to Customer as follows:
(a) No Liability for Indirect/Consequential Damages. Except as provided in this Section 12, all Products are provided by NxStage to Customer and the Authorized Customer Locations “AS IS” AND NO EXPRESS OR IMPLIED WARRANTY EXISTS FOR ANY OF THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL NXSTAGE BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR OTHER INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR THE PERFORMANCE OF SERVICES AND/OR SUPPLY OF ANY PRODUCTS HEREUNDER.
(b) Product Warranty. For a period of [**] year following the date of delivery of any Product by NxStage to Customer or any Authorized Customer Location, as applicable, NxStage warrants that each Product (i) shall be free from defects in material and workmanship when delivered, and (ii) is fit for the purposes and indications described in each such Product’s Operator’s Manual and package inserts when used in accordance with the instructions for use provided in such Operator’s Manual and package inserts. Unless such Products are used in accordance with such instructions and indications, the warranty in this Section 12(b) shall be void and of no force and effect. Except as otherwise described at the end of this Section 12, the warranties are not assignable or transferable.
(c) Product Warranty Remedy. EXCEPT AS PROVIDED IN THIS SECTION 12(C), NXSTAGE’S SOLE OBLIGATION AND CUSTOMER’S SOLE REMEDY FOR BREACH OF THE WARRANTY SET FORTH IN SECTION 12(B) OF THIS AGREEMENT SHALL BE LIMITED TO PRODUCT REPAIR OR REPLACEMENT, AT NXSTAGE’S OPTION AND EXPENSE, CONSISTENT WITH THE TERMS SET FORTH UNDER SECTION 2 “SERVICE” OF SCHEDULE C - WARRANTY; SERVICE; AND RECALLS. ALL WARRANTIES UNDER SECTION 12(B) OF THIS AGREEMENT SHALL BE VOIDED IF (i) the Product has been repaired by persons other than NxStage personnel or its authorized representatives, (ii) the replacement or repair is required due to the misuse or abuse of the Product, as determined by NxStage, in its reasonable discretion, (iii) the Cycler or Warmer is used with non- NxStage sets, (iv) the replacement or repair is required for reasons other than defects in materials and workmanship or, in the case of equipment, normal wear and tear, as determined by NxStage, in its reasonable discretion, or (v) the Product is not used in accordance with its instructions for use, as determined by NxStage, in its reasonable discretion.
(d) Product Infringement. If any Authorized Customer Location is enjoined by an order of a court of law from using any purchased Cycler or PureFlow SL in the United States for its intended use and consistent with its then-current user’s guide for a period of [**] consecutive months (for purposes hereof, a purchased Cycler or PureFlow SL shall not be unusable if it can be used with other non-NxStage products, consistent with then-current product labeling), due to the infringement by such purchased Cycler or PureFlow SL of the intellectual property rights of a third party, and NxStage is unable prior to the
expiration of such [**] month period to obtain a valid license to use such intellectual property or reengineer such purchased Cycler or PureFlow SL to eliminate any such infringement, NxStage shall be obligated to pay Customer actual damages within [**] days of the expiration of such [**] month period (with the amount of such damages to be mutually agreed to by the parties in good faith, up to the amount of Customer’s and the Authorized Customer Locations’ then-current [**] for the purchased Cycler or PureFlow SL which the Authorized Customer Locations have been enjoined from using for [**] consecutive months (measured as of the date of such injunction); provided such [**] is calculated in good faith and in accordance with generally accepted accounting standards). NxStage’s obligation to make any payment pursuant to this Section 12(d) may be accelerated to the date of filing of a voluntary or involuntary bankruptcy proceeding with respect to NxStage or the date NxStage refunds, all or any significant portion of, the purchase price of any Cycler or PureFlow SLs that have been the subject of such an injunction (and where such refund is specifically provided solely in connection with, and due to, such an injunction) to any other customer, or group of customers that has purchased such Cycler or PureFlow SLs for the treatment of chronic home hemodialysis patients (it being understood that Customer’s right to damages hereunder shall not be so accelerated if such refund involves no more than [**] Systems in the aggregate across all other chronic NxStage customers). No other remedy shall be provided to Customer or the Authorized Customer Locations in connection with intellectual property claims hereunder, except as set forth in Section 22 of this Agreement.
(e) Title and Expired Product. NxStage warrants that at the time of transfer of title to a Product to Customer, Customer shall possess good and marketable title to such Product, free and clear of any and all liens and encumbrances, except those created by this Agreement and will convey to Customer good and marketable title to such Product. In addition, NxStage expressly warrants that it will not ship to any Authorized Customer Location expired Product or Product with less than [**] months’ remaining shelf life; provided that NxStage may from time to time request that an Authorized Customer Location accept delivery of Products with fewer months of remaining shelf life, and any such Authorized Customer Location agrees to not unreasonably withhold its consent to accept such deliveries.
All warranties granted or assigned under this Section 12 will continue in full force and effect notwithstanding transfer of title to any Product to or by Customer or any Authorized Customer Location to any other Authorized Customer Location. All warranties granted under this Agreement shall survive inspection, acceptance and payment of the Products.
13. RISK OF LOSS (only for items to which NxStage retains title)
Customer is entirely responsible for any loss of or damage to the System One(s) or any other equipment rented or loaned hereunder from whatever causes, except for normal wear and tear and defects in materials and workmanship (an “Uncovered Loss”). Customer will promptly notify NxStage of any loss or damage to any such devices. If NxStage determines that a device which has an Uncovered Loss is repairable, Customer will pay NxStage’s cost of repair or replacement and NxStage will either repair the damaged device or replace it with another device in good working order, which may or may not be new. If NxStage determines that a device, which has an Uncovered Loss, is not repairable, Customer will pay NxStage the price of such device as set forth in Schedule B-3 - Equipment Rental or Purchase, less appropriate adjustments to be reasonably agreed upon by the parties hereto to reflect the period of time such device has been in use by the applicable Authorized Customer Location, and return the damaged device to NxStage, and NxStage upon receipt of such returned device will provide a replacement device in good working order so that treatments may be continued under this Agreement. If a rented or loaned device is lost or stolen, Customer shall pay NxStage the price of such device as set forth in Schedule B-3 - Equipment Rental or Purchase, less appropriate adjustments to be reasonably agreed upon by the parties to reflect the period of time such device has been in use by the applicable Authorized Customer Location, and NxStage shall provide Customer with a replacement device in good working order, which may or may not be new.
14. TRAINING
Customer agrees to:
| • | Select [**] and use reasonable efforts to select at least [**] staff members at each new Authorized Customer Location to serve as Customer’s expert users of the Products and trainer of subsequent staff at such new Authorized Customer Location. Notwithstanding the foregoing, NxStage understands that in some of the Authorized Customer Locations it may be necessary or desirable to select [**] or more than [**] staff members for training, in which case NxStage will use its reasonable efforts to accommodate Customer’s business determination regarding the number of staff that will receive training; |
| • | Use reasonable efforts to ensure that the staff members selected at each Authorized Customer Location for training with respect to the use of the Products by NxStage are available for the designated training day mutually agreed to by the parties and in-servicing at the startup of such Authorized Customer Location; and |
| • | Use reasonable efforts to have at least [**] available for treatment on each of days [**] of the start-up of such Authorized Customer Location. |
NxStage agrees to:
| • | Provide initial in-service and training at each new Authorized Customer Location for certain staff members at such new Authorized Customer Location designated by such new Authorized Customer Location to NxStage, which training shall be provided over a period of [**] consecutive days (the “Initial Training”); provided that NxStage shall have no obligation to provide such Initial Training unless such Authorized Customer Location has made reasonable efforts to start at least [**] patients during such Initial Training, and NxStage has received at least [**] Patient Prescription Monthly Standing Orders from such Authorized Customer Location before Initial Training starts. Notwithstanding the foregoing, NxStage understands that in limited circumstances it may be necessary or desirable for an Authorized Customer Location to initiate Initial Training with [**] and NxStage will use reasonable efforts to accommodate such Authorized Customer Location in such limited circumstances; |
| • | Make a NxStage clinical specialist reasonably available, whether in person or on-call by telephone (as determined by NxStage), for [**] additional days while treatments are being provided to provide additional training support and assistance; |
| • | Provide 24/7 clinical and technical assistance by telephone; |
| • | Provide additional training at Customer’s request for [**]/day, plus reasonable travel and lodging expenses; and |
| • | Provide a “Training Package” of [**] cartridges to be used during the start-up of each Authorized Customer Location to familiarize each such Authorized Customer Location with the System and its operation during the Initial Training. |
In lieu of such in-service and training from NxStage, Customer may elect to train its own staff at Authorized Customer Locations, subject to the provisions of the paragraph headed “Site Startup/Additional Sites” on Schedule B-3 - Equipment Rental or Purchase attached hereto.
15. CUSTOMER SERVICE
NxStage’s customer service department is available from 8am through 5pm EST, Monday through Friday to support Customer’s and each Authorized Customer Locations’ product ordering needs. NxStage will provide 24/7 technical support for each Authorized Customer Locations’ Product servicing needs. Clinical
and technical questions raised by any Authorized Customer Locations’ patients with NxStage’s customer service department will be referred, if possible, to the applicable Authorized Customer Location, to ensure consistency in patient care and adherence with Customer’s policies and procedures. NxStage understands that Customer may, in the future, elect to staff its own call center to directly handle patient inquiries. Subject to the terms and conditions of Section 39, Customer understands that nothing herein shall prevent NxStage from making communications directly to any Authorized Customer Locations’ patients regarding matters related to the Products.
16. ACCESS TO EQUIPMENT DATA; LICENSE TO CYCLER LOG FILES
(a) NxStage Ownership of Access to Cycler Log Files. The System One may have an internal computer that records all System operations, such as alarms and Cycler control panel touches, as such computer may be upgraded, improved or redeveloped from time to time for similar functional purposes (such computer records hereinafter referred to as the “Cycler Log Files”). Customer agrees that, even with purchased Cyclers, the Cycler Log Files and the computer containing them, are the property of NxStage (so long as such computer is not necessary for the normal operations of the System One). Customer and the Authorized Customer Locations further agree not to tamper with or destroy the Cycler Log Files or the computer containing them, and to use reasonable efforts to make available such Cycler Log Files and the computer containing them to NxStage at reasonable times within [**] hours of NxStage’s request. NxStage shall keep all information in the Cycler Log Files confidential and shall use it for continued product improvement and service.
(b) Additional Covenants Regarding Cycler Log Files. For so long as Systems are in use by the Authorized Customer Locations for the treatment of chronic home hemodialysis patients, NxStage hereby grants to Customer an irrevocable license to access and use the treatment specific data (e.g., flow rates, treatment times, alarms) contained in all Cycler Log Files created in connection with the treatment of all of the Authorized Customer Locations’ patients using the System One; provided that NxStage shall have no obligation to summarize such data or otherwise manipulate such data on Customer’s behalf; and provided further that NxStage shall have no obligation to service the computer generating such Cycler Log Files beyond [**] years after the original System purchase date. Customer understands that such data is not automatically transmitted from Cyclers to NxStage and that Customer and the Authorized Customer Locations are responsible for ensuring the transmittal of such data to NxStage. Customer further understands that NxStage cannot guarantee the completeness of such data, as the same may be impacted by power outages, improper connections between the Cycler and the computer that records the Cycler Log Files, or other disruptions in Cycler or computer operations. Customer acknowledges and agrees that it has no expectation that the Cycler Log File information will be analyzed by NxStage. Customer understands that the Cycler Log Files do not presently capture patient clinical data, which is defined to mean patient physiologic parameters such as blood pressure, heart rate, URR, and Kt/Vs) (the “Patient Clinical Data”). NxStage agrees that all of the Patient Clinical Data shall be the property of Customer but that NxStage may continue to use such data learned by NxStage in the ordinary course of its business for complaint investigations, product improvements and service.
(c) License of Cycler Log Files to Customer. Subject to the terms and conditions of this Agreement, NxStage hereby grants to Customer a perpetual, non-transferable, non-assignable license, with the ability to sublicense to a [**] (as defined below), to access the Cycler Log Files contained in Cyclers purchased or rented by Customer and to use the Cycler Log File Decoding Document, a copy of which is attached as Exhibit A hereto, and any updates thereto, provided by NxStage as needed to further Customer’s [**] of a [**] to be used solely and exclusively by Customer to electronically aggregate and communicate [**] (as defined below) from the System One, and upon reasonable written request, selected additional information currently recorded in such Cycler Log Files (provided that NxStage consents thereto in writing prior to any use of such selected additional information, which consent shall not be
unreasonably withheld; and provided further that such selected additional information shall be the confidential information of NxStage (subject to the confidentiality obligations between the parties)) ([**] to be referred to as the “[**]”, and such [**] referred to as the “[**]”). NxStage further agrees that Customer may provide this information to any third party [**] contracted by Customer to assist Customer in the [**] and/or manufacture of a [**] (a “[**]”) upon completion of the [**], provided that (i) [**] is contractually obligated to maintain the confidentiality of any confidential information provided by Customer, (ii) Customer shall designate the Cycler Log File Decoding Document as confidential information subject to the confidentiality obligations between the parties, and (iii) to Customer’s knowledge, [**] has not, otherwise (A) [**], marketed, or commercialized a renal replacement system or any component thereof, or (B) collaborated in or performed any part of the [**] of a renal replacement system or any component thereof on behalf of a third party (except for [**], if any), and shall be precluded from such [**] marketing, or commercialization during the period any such [**] is assisting Customer in the [**], manufacture and/or commercialization of the final approved prototype by Customer of the [**] and for a period of [**] after the [**] of the final approved prototype by Customer of the [**], if any. NxStage further agrees to promptly provide to Customer (with the ability to use and sublicense as provided herein), all updates to the Cycler Log File Decoding Document as the Cycler Log File, file format and corresponding code is updated or otherwise modified from time to time during the Term. For purposes hereof, [**] under this Agreement.
(d) Ownership of the [**]. As between the parties, NxStage agrees that the [**] and the [**] shall be the sole intellectual property of Customer with no limitation on its use, commercially or otherwise, except as provided in Section 16(c) above. Notwithstanding the foregoing, Customer agrees, and will cause any [**] to agree, that no intellectual property arising from the [**] or pertaining to the [**] shall in any way prevent NxStage or its affiliates, agents or representatives from [**] and commercializing another [**] and related technology. It is further understood, without limiting the foregoing, that neither Customer nor any [**] nor any of their respective affiliates, agents or representatives shall seek to obtain license fees, damages or equitable remedies against NxStage or its affiliates, customers, manufacturers, distributors, agents or representatives relating to such intellectual property or any infringement thereof. Likewise, neither NxStage nor any of its affiliates, agents or representatives, including any [**] or manufacturer working with NxStage on [**] and/or commercializing another [**] and related technology, shall seek to obtain license fees, damages or equitable remedies against Customer and/or any of its affiliates, customers, manufacturers, distributors, agents or representatives relating to such intellectual property or any infringement thereof. Nothing herein shall be construed to prevent NxStage from asserting or enforcing any of its intellectual property against [**] manufacturers, and/or distributors of systems and devices that perform extracorporeal blood treatment.
17. FORCE MAJEURE
Neither NxStage nor Customer will be liable for any failure to perform under this Agreement, including any failure or delay in delivering Products, that is caused by any event or condition not within the control of either party which prevents, in whole or in material part, the performance by one of the parties of its obligations hereunder, such as an act of government, war or related actions, raw materials shortages, interruptions in transportation, civil insurrection, riot, sabotage, strike, epidemic, fire, flood, windstorm, or similar event (hereinafter referred to as an event of “Force Majeure”). If an event of Force Majeure occurs, NxStage shall allocate Products and training capacity to the Authorized Customer Locations on a first-priority basis consistent with Customer’s and the Authorized Customer Locations’ then-current share of NxStage’s equipment field base that has been purchased, and consistent with the then-effected prescription items included in Customer’s and each Authorized Customer Locations’ Monthly Dialysis Supplies orders.
18. CONFIDENTIALITY
Prior to entering into this Agreement, NxStage and Customer entered into a Confidential Disclosure Agreement effective February 4, 2004, as amended effective October 19, 2004, and as may be revised from time to time upon written agreement between the parties (collectively referred to as the “CDA”). NxStage and Customer represent and warrant that the CDA shall be effective throughout the Term, and that the obligations of the parties to protect the confidentiality of the Confidential Information (as defined in the CDA) shall survive for a period of [**] years from the date of termination of this Agreement or the date of the last disclosure of Confidential Information, whichever is later. Each party also represents and warrants that throughout the Term said party shall be and shall remain in compliance with all provisions of the CDA. Customer agrees that the CDA shall not apply to the purchase and delivery of any Products in the ordinary course of business pursuant to the terms and conditions of this Agreement; provided that to the extent any Confidential Information is exchanged between the parties in connection with the purchase and delivery of any Products pursuant to the terms and conditions hereof, the CDA shall apply to any and all such Confidential Information.
19. USE OF NAME
Notwithstanding the provisions of Section 18, NxStage may refer to Customer as a “customer” without Customer’s prior written consent and Customer may refer to NxStage as a “supplier” without NxStage’s prior written consent. Both parties must obtain the other’s prior written consent to use the other party’s name in promotional materials.
20. COMPLIANCE WITH LAWS
Each party represents and warrants that throughout the Term said party shall be and shall remain in compliance with all applicable federal, state, and local laws, except to the extent that any noncompliance would not have a material adverse effect on such party’s ability to perform under this Agreement.
21. INSURANCE
NxStage shall, during the Term and for a period of six (6) years following the termination or expiration of this Agreement, maintain product liability insurance for the Products. The insurance must have minimum limits of at least five million dollars ($5,000,000) per occurrence.
NxStage shall, during the Term and for a period of three (3) years following the termination or expiration of this Agreement, maintain comprehensive general liability insurance and broad form contractual liability insurance to cover claims related to its premises and operations, personal injuries, property damage and independent contractors. The insurance must have minimum limits of at least one million dollars ($1,000,000) per occurrence.
Simultaneously with the execution of this Agreement, NxStage shall provide to Customer certificates of insurance, issued by a company or companies reasonably acceptable to Customer, evidencing the existence of the insurance required to be maintained pursuant to this Section 21 and providing that Customer is an additional insured under such policies. NxStage agrees to provide at least thirty (30) days notice of the expiration or cancellation of any insurance required by this Section 21. Any limits on NxStage’s insurance coverage shall not be construed to create a limit on its liability with respect to any of its obligations hereunder.
22. INDEMNIFICATION
(a) Indemnification of Customer. NxStage agrees to indemnify, defend and hold harmless Customer and its affiliates and each of their respective officers, directors, employees, agents, successors
and assigns (each, a “Customer Indemnity”) from any and all third party claims, demands, actions, losses, proceedings, expenses, damages, liabilities, costs, expenses (including reasonable attorney’s fees and costs) and judgments (collectively, “Losses”) arising out of (i) any injury or damage caused by any design or manufacturing defect of the Products covered under this Agreement when such Products are used in accordance with NxStage User’s Guides and package inserts, (ii) the negligent acts or omissions of NxStage or its employees or agents, (iii) any claim or allegation that the use of the Products in accordance with the terms of this Agreement and with then-current Product user’s guides or instructions for use infringes upon any United States intellectual property right of any third party, and (iv) any breach by NxStage of its representations, warranties and covenants hereunder; provided in each case that such indemnity shall not apply to the extent any Losses arise out of the negligence or willful misconduct of any Customer Indemnity or its patients.
(b) Indemnification of NxStage. Customer agrees to indemnify, defend and hold harmless NxStage and its affiliates and each of their respective officers, directors, employees, agents, successors and assigns (each, a “NxStage Indemnity”) from any and all third party Losses arising out of (i) the negligent acts or omissions of Customer or its employees or agents or (ii) any breach by Customer of its representations, warranties and covenants hereunder; provided in each case that such indemnity shall not apply to the extent any Losses arise out of the negligence or willful misconduct of any NxStage Indemnity.
23. NOTICES
All notices required or permitted to be given hereunder shall, unless expressly provided otherwise, be in writing, properly addressed, and delivered by hand, certified or registered mail, postage prepaid, or overnight courier with instructions for overnight delivery, to the parties at their notice address set forth in this Agreement. A notice will be deemed effective as indicated: (a) if in writing and delivered in person, on the date it is delivered, or one day following delivery to an overnight courier with instructions for overnight delivery; or (b) if sent by certified or registered mail (airmail if overseas) (return receipt requested) five (5) days after deposit in the US mails. NxStage or Customer may change its notice address by providing notice thereof in accordance with this Section 23.
Notices should be sent to the following addresses:
DaVita Health Care Partners Inc.
000 0xx Xxxxxx, XX Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Group Vice President
With a copy to DaVita General Counsel at the following address:
DaVita Health Care Partners Inc.
0000 00xx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Attention: Chief Legal Officer
President, North America
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
With a copy to NxStage’s General Counsel at the same address.
24. OPEN RECORDS
To the extent required by §1861(v)(1)(I) of the Social Security Act, the parties will allow (and will ensure that their agents and contractors allow) the U.S. Department of Health and Human Services, the U.S. Comptroller General and their duly authorized representatives, access to this Agreement and related invoices necessary to verify the nature and extent of costs incurred.
25. TERMINATION
If one of the parties hereto becomes the subject of bankruptcy proceedings, becomes operated by a receiver, makes an assignment for the benefit of creditors, or loses its eligibility to xxxx for services under the Medicare or Medicaid programs, then the other party hereto, may, at its option, terminate this Agreement. In addition, except as otherwise provided herein, either party hereto may terminate this Agreement as follows: (a) [**] in the event of a breach by the other party hereto of any of its covenants and obligations set forth in Section 18 of this Agreement; or (b) upon [**] days prior written notice to the other party hereto, in the event of a breach, as determined by the non-breaching party in its reasonable discretion, by the other party of any representation, warranty, covenant or obligation of the other party hereto contained in this Agreement (other than the covenants and obligations set forth in Section 18 of this Agreement), and the other party hereto fails to cure such breach within [**] days following the date of such notice. Upon termination, NxStage shall be obligated to continue to sell to Customer and each Authorized Customer Location Monthly Dialysis Supplies at pricing and on terms consistent with those provided by NxStage to its other customers buying similar quantities as Customer and the Authorized Customer Locations in the aggregate, for so long as the Authorized Customer Locations have patients using the System One for chronic home hemodialysis therapy, up to a maximum of [**] years from the original purchase date of each System One. Termination of this Agreement will not release either party hereto from any liability or obligation which, at the time of such termination, has already accrued or which thereafter may accrue in respect to any act or omission of any party hereto prior to such termination, nor will any such termination affect in any way the survival of any right, duty or obligation of any party hereto, which is expressly stated elsewhere in this Agreement to survive the termination.
26. LIMITATION OF LIABILITY
In no event will NxStage’s total liability to Customer and the Authorized Customer Locations collectively under this Agreement, including all Schedules hereto, exceed Customer’s and the Authorized Customer Locations’ then current [**] for purchased Systems (measured at the time the payment owed by NxStage to Customer and the Authorized Customer Locations hereunder is definitively ascertained); provided that such [**] is calculated in good faith and in accordance with generally accepted accounting standards.
27. ENTIRE AGREEMENT, AMENDMENT, ASSIGNMENT AND GOVERNING LAW
This Agreement and the Schedules and Exhibits referred to in this Agreement contain the entire agreement between NxStage and Customer relating to the subject matter hereof and supersede and replace all prior negotiations, representations, warranties, correspondence and covenants of the parties not set forth in this Agreement, including the First Amended Agreement and that certain term sheet between the parties dated March 1, 2013. Any conflicting or additional terms contained in any purchase order or other document submitted by Customer shall not be valid unless signed by the Chief Financial Officer or Chief Executive Officer of NxStage. Any amendment to this Agreement shall only be effective if agreed to in writing by a duly authorized officer of both parties and referencing an intent to amend this Agreement, and in the case of NxStage, if signed by the Chief Financial Officer or Chief Executive Officer of NxStage. This Agreement will be governed by the laws of the State of Delaware, without regard to its conflicts of laws principles and may not be assigned in whole or in part by either party without prior written consent of the other, except that if NxStage consents to any transfer of Products by Customer to a
third party pursuant to the terms of Section 4 above, such third party shall have the right (a) to continue to receive service for the System One(s) transferred by Customer on terms consistent with the terms set forth in Schedule C - Warranty; Service; and Recalls hereof, and (b) to continue to purchase Monthly Dialysis Supplies at pricing and on terms consistent with those provided to other NxStage customers buying similar quantities, for so long as such third party has patients using the transferred System One(s) for chronic home hemodialysis therapy. Except with respect to such rights, such third party shall have no other rights hereunder. Notwithstanding the above, this Agreement shall survive a change-in-control of either party, or the sale of substantially all of the business related to this Agreement by either party, and may be assigned by Customer or NxStage to any of its affiliates; provided that as a condition to such an assignment, this Agreement shall be guaranteed by Customer or NxStage respectively. Those provisions which are intended to survive the termination of this Agreement, including Sections 4, 6, 7, 8, 9, 11, 12, 13, and 16 through 36 shall survive termination. Nothing in this Agreement is intended or shall be construed to confer upon any individual or entity other than NxStage and Customer and their respective successors and assigns, any remedy or claim under or by reason of this Agreement of any term, covenant or condition hereof, as a third party beneficiary or otherwise other than any individual or entity entitled to indemnification under Section 22 of this Agreement, subject in all cases to the limitation of liability set forth in Section 26 of this Agreement.
28. NO AGENCY OR PARTNERSHIP
Nothing contained in this Agreement, including any Schedule or Exhibit hereto, shall be construed to permit any party hereto or any employee of a party hereto to act as an agent or employee of the other. This Agreement does not create a joint venture or partnership between NxStage and Customer, instead such parties shall be construed as independent contractors.
29. SEVERABILITY
In the event any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect, the validity, legality or enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby, provided however if any such term is an essential element of this Agreement without which either party would not have entered into this Agreement, the parties shall promptly negotiate in good faith a replacement therefor, failing which this Agreement may be terminated by either party.
30. NO WAIVER
No failure or delay on the part of either party in exercising any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any such right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The remedies herein provided are cumulative and not exclusive of any remedies provided by law.
31. PUBLICITY
No publicity release or announcement concerning this Agreement or the transactions contemplated hereby shall be made without advance written approval thereof by NxStage and Customer. NxStage and Customer agree to cooperate in issuing any press release or other public announcement concerning this Agreement or the transactions contemplated hereby. NxStage and Customer shall each furnish to the other drafts of all such press releases or announcements prior to their release. Nothing contained in this Section 31 shall prevent any party from making any disclosures required under the Securities Exchange Act of 1934 or under the rules and regulations of any national securities exchange on which such party’s shares of capital stock are listed; provided however, that if this Agreement is required to be publicly filed,
the party obligated to file shall endeavor in good faith to obtain the consent of the other party hereto with respect to the form of the document to be filed and a request for confidential treatment of all sensitive business terms contained herein.
32. INTERPRETATION; COUNTERPARTS; PDF/FACSIMILE SIGNATURES AND JOINT PREPARATION
All section headings contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine, or neuter as the context requires. The words “include”, “includes” and “including”, and words of similar import, shall be deemed to be followed by the phrase “without limitation”. Unless the context expressly by its terms requires otherwise, (a) any reference to any law herein shall be construed as referring to such law as from time to time enacted, repealed or amended, (b) any reference herein to any individual or entity shall be construed to include such individual’s or entity’s permitted successors and assigns, (c) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be conferred to refer to this Agreement in its entirety and not to any particular provision hereof, and (d) all references herein to Sections, Schedules, or Exhibits shall be construed to refer to Sections, Schedules, or Exhibits of this Agreement. This Agreement may be executed in any number of counterparts and any party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. This Agreement shall become binding when one or more counterparts taken together shall have been executed and delivered by each of the parties hereto. The parties hereto agree that facsimile or PDF transmission of original signatures shall constitute and be accepted as original signatures. Each party hereto (i) has participated in the preparation of this Agreement; (ii) has read and understands this Agreement; and (iii) has been represented by counsel of its own choice in the negotiation and preparation of this Agreement. Each party hereto represents that this Agreement is executed voluntarily and should not be construed against any party hereto solely because it drafted all or a portion hereof. Customer represents that it has the authority to enter into this Agreement on behalf of all of the Authorized Customer Locations, and that all such Authorized Customer Locations shall be bound by the terms hereof.
33. REMOVAL/DISCONTINUATION OF PRODUCT EVENT
NxStage may not remove or stop providing any Product(s) listed on Schedule B, unless it (a) provides Customer with at least [**] days advance written notice of any such Product(s) it intends on removing from Schedule B or no longer providing, as applicable, and the effective date of such event and (b) removes any such Product(s) from [**] of its agreements with its customers or stops providing any such Product(s) to all of its customers.
34. ARBITRATION
Any dispute arising out of or relating to this Agreement, including the breach, termination or validity thereof, shall be finally resolved by confidential binding arbitration. The parties hereto shall mutually select one arbitrator, or if the parties are unable to agree, the American Arbitration Association (the “AAA”) shall select such arbitrator. The arbitration shall be governed by the Commercial Arbitration Rules of the AAA then in effect. The place of arbitration shall be New Castle County, Delaware. The arbitrator’s authority to grant relief shall be subject to the United States Arbitration Act at 9 U.S.C. 1-16 et seq. (the “Arbitration Act”), the provisions of this Agreement, and the ABA-AAA Code of Ethics for Arbitrators in Commercial Disputes. The arbitrator shall determine the rights and obligations of the parties according to the substantive and procedural laws of the State of Delaware. The arbitrator shall
have no power or authority to make awards or issue orders of any kind or amount other than as expressly permitted by this Agreement. The decision of the arbitrator shall follow the plain meaning of the relevant documents. The decision of and award by the arbitrator shall be final, binding and conclusive upon such parties. Judgment upon any award rendered by the arbitrator may be entered in any court having jurisdiction. All post award proceedings shall be governed by the Arbitration Act.
35. ADDITIONAL PRODUCTS
During the Term, NxStage shall provide to Customer and the Authorized Customer Locations the right to purchase and/or lease all products manufactured, licensed, sold or distributed by NxStage or any of its affiliates (including products and product lines acquired by NxStage or any of its affiliates as a result of an acquisition, merger or other transaction involving NxStage or any of its affiliates) that: (a) are indicated for the treatment of chronic renal failure in the home setting, (b) are or that become Commercially Available and which are not already covered by this Agreement or by any other agreement, whether written or oral, between the parties, and (c) in the case of products and product lines acquired by NxStage or any of its affiliates as a result of an acquisition, merger or other transaction involving NxStage or any of its affiliates, NxStage is not restricted by the terms of any agreement relating to such acquired products or product lines entered into prior to the acquisition by NxStage or any of its affiliates of such products or product lines, or pursuant to any regulatory order or consent decree, from selling such products and product lines to Customer and the Authorized Customer Locations (such products are collectively referred to as “Additional Products” and individually as an “Additional Product”). NxStage shall endeavor in good faith to include Customer in NxStage’s then-current market release processes for FDA cleared products that are not yet Commercially Available, but which are indicated for the treatment of chronic renal failure in the home setting. NxStage shall include Customer in all of its and its affiliates’ distributions of customer announcements regarding NxStage’s or its affiliates’ current, new or forthcoming Additional Products. NxStage shall offer or cause any of its affiliates to offer any such Additional Product(s) to Customer and the Authorized Customer Locations at a purchase price and on such terms and conditions as are negotiated by NxStage and Customer in good faith. NxStage covenants and agrees that it shall only make an offer for the sale of any Additional Product(s) to Customer’s Vice-President of Clinical Operations, Chief Medical Officer, Group Vice-President, or Vice-President of Home Therapies or equivalent position, and not to any Authorized Customer Location directly. If NxStage or one of its affiliates acquires any Additional Product(s) as a result of an acquisition, merger or other transaction involving NxStage or any of its affiliates with an individual or entity with which Customer or an Authorized Customer Location, as applicable, already has a written purchase or rebate arrangement (a “Prior Agreement”), NxStage covenants and agrees that it shall continue to abide by the pricing and rebate provisions of such Prior Agreement or if Customer requests, such Additional Product(s) shall be included in this Agreement on terms to be negotiated and determined by the parties as provided in this Section 35.
36. AUDIT RIGHT
If Customer: (a) disagrees with any computation or statement delivered by NxStage to Customer with respect to the Active NxStage Home Patient Census (as defined in Section 1 of Schedule B-5 - Additional Product Discount [**]) (each, a “Disputed Statement”) or (b) wants to ensure NxStage’s compliance with the [**] (as defined in Section 1 of Schedule D - Preferred Relationship), Customer may: (i) in the case of a Disputed Statement have a nationally recognized independent accounting firm selected by Customer (the “Customer Firm”) audit such Disputed Statement, at Customer’s sole cost and expense, within [**] days after the receipt of such Disputed Statement or (ii) in the case of ensuring NxStage’s compliance with the [**], have the Customer Firm commence an audit of the [**], at Customer’s sole cost and expense, within [**] during the Term; provided that Customer must provide NxStage at least [**] days advance written notice of any such audit, and provided further that, Customer shall only have the right to have the Customer Firm audit the [**] during the Term. Any audit of NxStage’s compliance with the [**] (and of
the calculation of any [**] (as defined in Section 1 of Schedule D - Preferred Relationship) or any Disputed Statement may cover no more than the [**] period prior to any such audit. Customer will direct the Customer Firm to render a determination within [**] days of the commencement of the audit, and NxStage and Customer and each of their respective agents and employees will cooperate with the Customer Firm during its engagement. The Customer Firm shall execute a confidentiality agreement in a form reasonably acceptable to NxStage and Customer. The Customer Firm shall conduct any such audit during NxStage’s normal business hours or at such other times as may be mutually agreed to by the parties. In the event the Customer Firm’s audit in the case of: (A) any Disputed Statement results in a number different from that set forth in any such Disputed Statement or (B) ensuring compliance with the [**] identifies a failure by NxStage to comply with the [**], Customer shall deliver a written notice (an “Objection Notice”) to NxStage setting forth in detail any and all items of disagreement discovered in connection with any such audit and provide to NxStage a copy of all written materials received by Customer from the Customer Firm in connection with the audit that do not include any Confidential Information. If NxStage does not object to an Objection Notice within [**] days of its receipt of such Objection Notice, then NxStage will, as applicable, (I) make any payment owed relating to a Disputed Statement, (II) make any required payment of the [**] to Customer, or (III) offer to Customer the [**] (as defined in Section 1 of Schedule D -Preferred Relationship) within [**] days of NxStage’s receipt of such Objection Notice. If in the case of any audit of any Disputed Statement Customer does not deliver an Objection Notice within [**] days of the completion of the audit, the calculations set forth in any such Disputed Statement shall be deemed final, conclusive and binding on the parties. If in the case of any audit of the [**], Customer does not deliver an Objection Notice within [**] days of the completion of such audit, the [**] for such audited period shall be deemed to have been satisfied. NxStage and Customer will use their commercially reasonable efforts to resolve any disagreements relating to any Disputed Statement or the [**] following NxStage’s receipt of an Objection Notice, but if they do not obtain a final resolution within [**] days after NxStage has received an Objection Notice, then either NxStage or Customer may refer the items in dispute to a nationally recognized independent public accounting firm as to which Customer and NxStage mutually agree (the “Firm”), to resolve any remaining disagreements. NxStage and Customer will direct the Firm to render a determination within [**] days of the commencement of the audit, and NxStage and Customer and each of their respective agents and employees will cooperate with the Firm during its engagement. The determination of the Firm will be conclusive and binding upon NxStage and Customer, and NxStage or Customer, as applicable, will make any payment owed or issue any credit (including the [**]) to the other party pursuant hereto or NxStage will offer to Customer the [**], as applicable, within [**] days of the Firm’s determination. The Firm shall execute a confidentiality agreement in a form reasonably acceptable to NxStage and Customer. With respect to any audit to ensure compliance with the [**], if it is finally resolved by the parties hereto or determined by the Firm that NxStage is not in compliance with the [**] by more than [**] then NxStage shall: (x) be responsible for [**] of the out-of-pocket costs and expenses of any such audit, including the costs and expenses of the Firm and (y) reimburse Customer for [**] reasonable out-of-pocket costs and expenses incurred by Customer in connection with the initial audit by the Customer Firm, including the costs and expenses of the Customer Firm. With respect to any audit to ensure compliance with the [**], if it is finally resolved by the parties hereto or determined by the Firm that NxStage is in compliance with the [**] within [**] then Customer shall be responsible for [**] of the out-of-pocket costs and expenses of any such audit, including the costs and expenses of the Firm. With respect to any audit of any Disputed Statement and not related to the [**], NxStage and Customer shall bear that percentage of the fees and expenses of the Firm equal to the proportion of the dollar value of the unresolved disputed issues determined in favor of the other party hereto. NxStage covenants and agrees that in the event it is determined through any audit conducted pursuant to this Section 36 that NxStage is a party to any agreement or arrangement with a third party which includes any of the Products covered by this Agreement that is not in compliance with the [**] (a “Non-Compliant Agreement”) NxStage shall (1) pay to Customer in the form of a credit to be applied against future purchases hereunder, an amount equal to the [**]; (2) amend any such Non-Compliant Agreement to bring the [**] such Non-Compliant Agreement
into compliance with the [**] as soon as it can be amended per its terms, and (3) pay to Customer any MFN Rebate thereafter owed relating to any such Non-Compliant Agreement until such time as such Non-Compliant Agreement is amended per its terms so as to be in compliance with the [**].
37. ADDITIONAL NXSTAGE COVENANTS
(a) Notice of [**]. NxStage shall promptly notify Customer of [**] any Product and explain to Customer the impact [**] may have on Customer’s or any Authorized Customer Locations’, as applicable, use of any such affected Product, it being understood that nothing herein shall limit in any way the need for all users of each Product to read the labeling associated with each such Product as then in effect.
(b) Notice of [**]. NxStage shall promptly notify Customer of any [**] (at NxStage’s reasonable discretion) [**] which demonstrates on or after the Effective Date that (i) [**] (it being understood that such notification obligation shall not relate to the manner in which a physician may choose to prescribe therapy with such Product) which renders [**] or (ii) [**] (each, a “[**]”). Customer, upon receipt of a notice of a [**] with respect to [**] shall have the right, in its sole and absolute discretion, to [**] at a time and location to be mutually agreed to by Customer and NxStage, but in no event later than [**] days after the receipt of such notice, a [**] subject to such [**]; provided that any such [**] shall be [**] set forth in a written amendment mutually agreed to by the parties hereto; and provided further that so long as any such [**] is consistent with the [**] (to the extent that it may then be in effect), nothing in this Section 37(b) shall require NxStage to: (A) offer a [**] to Customer with respect to any such [**] that is [**] offered by NxStage with respect to any such [**] to any individual or entity that is not a party hereto or (B) agree to any [**] that is not commercially reasonable for NxStage’s business.
38. COMPLIANCE WITH [**]
(a) During the Term, NxStage shall abide by the following [**] which are attached as Exhibit C hereto: (a) [**] provided that [**] covering such activities and NxStage may use information included on the NxStage patient prescription to [**], (b) [**], (c) [**], (d) [**], provided that [**] will not apply so long as NxStage [**], (e) [**], (f) [**], and (g) [**] (collectively, the “[**]”).
(b) Notwithstanding Section 38(a), NxStage shall have no obligation to abide by any term of the [**] that is in conflict with any term of this Agreement. Customer shall provide notice to NxStage of any violation of Section 38(a), as determined by Customer in its reasonable discretion, and NxStage shall take Reasonable and Corrective Action (as defined below). NxStage’s failure to take Reasonable and Corrective Action within [**] days (which period may be extended in the event NxStage is working in good faith to take Reasonable and Corrective Action but requires more than [**] days to complete such action) of receiving notice of any violation of Section 38(a) from Customer shall be considered a breach of this Agreement entitling Customer, as its [**] to [**] terminate this Agreement. For purposes of this Agreement, “Reasonable and Corrective Action” shall mean a [**] consisting of an action or actions designed to [**]. Notwithstanding the foregoing, if NxStage commits a [**] of this Section 38(a), Customer shall have the right to [**] terminate this Agreement and seek any and all remedies available to it at law or in equity, including damages, subject to the other provisions hereof, [**]. For purposes of this Section 38, the term [**] means taking an action [**]. NxStage represents and warrants to Customer that it will use commercially reasonable efforts to inform and advise each of its employees or agents whose duties or responsibilities may implicate or otherwise involve any of the matters set forth in this Section 38 of the terms and conditions of this Section 38.
39. APPROVAL OF [**]
(a) During the Term, NxStage shall obtain Customer’s prior written approval, which will not be unreasonably withheld of: (i) [**] and (ii) all [**] that are in the cases of subparagraphs (i) and (ii) related to any [**] NxStage or any of its affiliates, including the [**] (the “[**]”), that are [**] NxStage to: (A) [**] (it being understood that the provisions of this Section 39 relating to the [**] shall not apply to any [**] that are [**] NxStage to any [**]), (B) any [**] (specifically excluding [**]), (C) any [**] (as defined below) while at a [**], or (D) any [**] that is or has been using any [**]. For purposes of this Section 39, “[**]” shall mean any [**] Customer or any of its affiliates.
(b) Customer’s Vice President, [**] agrees to use his or her commercially reasonable efforts to notify NxStage of his or her decision with respect to the approval of the [**] within [**] business days following the receipt of a request by NxStage to approve the [**]; provided that if Customer’s Vice President, [**] fails to notify NxStage of his or her decision with respect to the approval of the [**] within such [**] business day period, such request to approve the [**] will be deemed denied. If Customer’s Vice President, [**] does not approve any [**], he or she shall provide to NxStage the reason(s) for non-approval and, whenever possible, what would be reasonably required for subsequent approval, as determined by Customer in its sole and absolute discretion.
(c) Customer shall provide notice to NxStage of any breach of this Section 39, as determined by Customer in its reasonable discretion, and NxStage shall take Reasonable and Corrective Action. NxStage’s failure to take Reasonable and Corrective Action within [**] days (which period may be extended in the event NxStage is working in good faith to take Reasonable and Corrective Action but requires more than [**] days to complete such action) of receiving notice of any breach of this Section 39 from Customer shall be considered a breach of this Agreement entitling Customer, as its [**], to [**] terminate this Agreement. Notwithstanding the foregoing, if NxStage commits a [**] of this Section 39, Customer shall have the right to [**] terminate this Agreement and seek any and all remedies available to it at law or in equity, including damages, subject to the other provisions hereof, [**]. For purposes of this Section 39, the term [**] means taking an action [**]. NxStage represents and warrants to Customer that it will use commercially reasonable efforts to inform and advise each of its employees or agents whose duties or responsibilities may implicate or otherwise involve any of the matters set forth in this Section 39 of the terms and conditions of this Section 39.
(d) Notwithstanding Section 39(a), Customer agrees that the following items shall not be subject to Customer’s approval requirement with respect to [**]: (i) [**] that NxStage believes in its sole reasonable discretion to be part of its [**] for use of its [**], provided that NxStage agrees to use commercially reasonable efforts to provide such [**] to Customer no later than when NxStage provides such [**] of NxStage, (ii) [**] related to NxStage [**] that are not directed exclusively at [**] and (iii) [**] not related to [**] that are provided to a [**] directly from NxStage (and, if such [**] are related to [**] without any inducement from NxStage or any of its affiliates) and such [**].
[SIGNATURE PAGE FOLLOWS]
[SIGNATURE PAGE TO SECOND AMENDED AND RESTATED NATIONAL SERVICE PROVIDER AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and effective as of the Effective Date.
| CUSTOMER: | ||
| DAVITA HEALTHCARE PARTNERS INC. | ||
| By: | /s/ XxXxxx Xxxxxxx | |
| Name: | XxXxxx Xxxxxxx | |
| Title: | Group VP | |
| NXSTAGE: | ||
| NXSTAGE MEDICAL, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |
| Name: | Xxxxxxx X. Xxxxxxx | |
| Title: | CEO | |
Exhibit A
Cycler Log File Decoding Document
[**]
Exhibit B
[**] Example
[**]
1 page was omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment.
Exhibit C
[**]
[**]
29 pages were omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment.
Schedule A
Authorized Customer Locations
[**]
4 pages were omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment.
Schedule B
Program and Pricing
Schedule B
(References to Schedule B within the Agreement, include references to Schedules X-0, X-0, X-0, X-0 and B-5)
Unless otherwise noted in this Schedule B, the pricing for each Product set forth on this Schedule B is only valid for [**] patients of the Authorized Customer Locations for which NxStage has received a Patient Prescription Monthly Standing Order signed by a physician during the Term. This Schedule B sets forth the pricing, discounts, rebates and other payment terms related to the purchase or rental, as applicable, of the System One (including Cycler and PureFlow SL, or Cycler, Warmer and Stand, as the case may be), the Monthly Dialysis Supplies, and other related supplies as set forth herein.
Schedule B-1
Chronic Outpatient Therapy
Monthly Dialysis Supplies
| 1. | Monthly Dialysis Supplies Pricing |
The pricing set forth in the table below titled “NxStage Price List - Monthly Dialysis Supply Packages” applies to the purchase of Monthly Dialysis Supplies each month for System One patients of each Authorized Customer Location that have a Patient Prescription Monthly Standing Order. Monthly Dialysis Supplies for each patient of each of the Authorized Customer Locations will be shipped each month to such patient based on the prescribed frequency and the inventory needs of such patient, as reported by such patient to NxStage’s customer service department. As set forth in the table below titled “NxStage Price List - Monthly Dialysis Supply Packages”, the pricing on Customer’s monthly invoice for Monthly Dialysis Supplies will be calculated based on the Active NxStage Chronic Patient Census (as defined below) for each Authorized Customer Location, on a per Authorized Customer Location basis, at the end of the immediately preceding month. For purposes of this Schedule B, “Active NxStage Chronic Patient Census” shall be defined to mean for each Authorized Customer Location, as of the end of each calendar month during the Term, the number of [**] patients at such Authorized Customer Location that have an active Patient Prescription Monthly Standing Order and are then receiving dialysis with the System One. The Active NxStage Chronic Patient Census shall not include patients prescribed to receive therapy with the System One in connection with an evaluation of daily therapy, home therapy or the System One (such as under NxStage’s “Experience the Difference” program). In addition, for purposes of this Schedule B-1 only, the Active NxStage Chronic Patient Census shall not include patients subject to a New Agreement.
The PureFlow SL pricing set forth in the table below titled “NxStage Price List - Monthly Dialysis Supply Packages” is only valid where a patient’s incoming water quality meets panel 1 and panel 2 of the EPA Safe Drinking Water Act. Customer shall provide reasonable evidence of incoming water quality to NxStage upon NxStage’s reasonable request. The PureFlow Express (Bags) pricing set forth in the table below titled “NxStage Price List - Monthly Dialysis Supply Packages” is only valid for patients within [**] miles of the applicable Authorized Customer Location responsible for that patient’s care. If a patient is more than [**] miles from the applicable Authorized Customer Location responsible for that patient’s care, additional charges to be mutually agreed to by NxStage and Customer may apply to the PureFlow Express (Bags) pricing set forth in the table below titled “NxStage Price List - Monthly Dialysis Supply Packages”.
Schedule B-1 (continued)
Chronic Outpatient Therapy Agreement
Monthly Dialysis Supplies
The table below sets forth the pricing for the Monthly Dialysis Supplies based on each Authorized Customer Locations’ Active NxStage Chronic Patient Census and the prescribed treatment frequency and fluid volume of each such Authorized Customer Locations’ patients. For purposes of the table below, “EOD” means every other day.
NxSTAGE PRICE LIST — MONTHLY DIALYSIS SUPPLY PACKAGES*
| [**] | ||||||||||||||||||||||||||||||||||
| Part # |
Tx Freq & Volume |
[**] | [**] | [**] | [**] | [**] | [**] | [**] | [**] | |||||||||||||||||||||||||
| Discount off Contract Price |
[**] | [**] | [**] | [**] | [**] | [**] | ||||||||||||||||||||||||||||
| PureFlow SL |
||||||||||||||||||||||||||||||||||
| PF-17-N-6-SUP |
6x week 17L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-20-N-4-SUP |
4x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-20-N-5-SUP |
5x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-20-N-6-SUP |
6x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-20-N-7-SUP |
7x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-20-N-E-SUP |
EOD 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-25-N-4-SUP |
4x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-25-N-5-SUP |
5x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-25-N-6-SUP |
6x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-25-N-7-SUP |
7x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-25-N-E-SUP |
EOD 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-30-N-4-SUP |
4x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-30-N-5-SUP |
5x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-30-N-6-SUP |
6x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-30-N-7-SUP |
7x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-30-N-E-SUP |
EOD 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-35-N-4-SUP |
4x week 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-35-N-5-SUP |
5x week 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-35-N-6-SUP |
6x week 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-35-N-E-SUP |
EOD 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-40-N-4-SUP |
4x week 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-40-N-5-SUP |
5x week 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-40-N-6-SUP |
6x week 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-40-N-E-SUP |
EOD 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-50-N-4-SUP |
4x week 50L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-50-N-5-SUP |
5x week 50L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-50-N-6-SUP |
6x week 50L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-50-N-E-SUP |
EOD 50L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-60-N-4-SUP |
4x week 60L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-60-N-5-SUP |
5x week 60L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-60-N-6-SUP |
6x week 60L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| PF-60-N-E-SUP |
EOD 60L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| [**] | ||||||||||||||||||||||||||||||||||
| Part # |
Tx Freq & Volume |
[**] | [**] | [**] | [**] | [**] | [**] | [**] | [**] | |||||||||||||||||||||||||
| Discount off Contract Price |
[**] | [**] | [**] | [**] | [**] | [**] | ||||||||||||||||||||||||||||
| EXPRESS (Bags) |
||||||||||||||||||||||||||||||||||
| EX-15-N-4-SUP |
4x week 15L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-15-N-5-SUP |
5x week 15L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-15-N-6-SUP |
6x week 15L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-15-N-7-SUP |
7x week 15L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-15-N-E-SUP |
EOD 15L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-20-N-4-SUP |
4x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-20-N-5-SUP |
5x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-20-N-6-SUP |
6x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-20-N-7-SUP |
7x week 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-20-N-E-SUP |
EOD 20L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-25-N-4-SUP |
4x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-25-N-5-SUP |
5x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-25-N-6-SUP |
6x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-25-N-7-SUP |
7x week 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-25-N-E-SUP |
EOD 25L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-30-N-4-SUP |
4x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-30-N-5-SUP |
5x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-30-N-6-SUP |
6x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-30-N-7-SUP |
7x week 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-30-N-E-SUP |
EOD 30L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-35-N-4-SUP |
4x week 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-35-N-5-SUP |
5x week 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-35-N-6-SUP |
6x week 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-35-N-E-SUP |
EOD 35L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-40-N-4-SUP |
4x week 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-40-N-5-SUP |
5x week 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-40-N-6-SUP |
6x week 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-40-N-E-SUP |
EOD 40L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-45-N-4-SUP |
4x week 45L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-45-N-5-SUP |
5x week 45L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-45-N-6-SUP |
6x week 45L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| EX-45-N-E-SUP |
EOD 45L | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | [** | ] | |||||||||||||||||
| * | [**] |
| 2. | Reserve Quantity Inventory Pricing |
If at the time of the initial Patient Prescription Monthly Standing Order for each patient, a reserve of [**] of Monthly Dialysis Supplies is required (the “Reserve Quantity Inventory”), the pricing for such Reserve Quantity Inventory shall be determined as set forth in the table below:
Reserve Quantity Inventory
(placed at the time of initial patient prescription)
| [**] | [**] of the pricing set forth in the table above titled “NxStage Price List - Monthly Dialysis Supply Packages” based on the Active NxStage Chronic Patient Census achieved by the Authorized Customer Location managing such patient and such patient’s prescribed treatment frequency and fluid volume | |
| [**] | [**] of the pricing set forth in the table above titled “NxStage Price List - Monthly Dialysis Supply Packages” based on the Active NxStage Chronic Patient Census achieved by the Authorized Customer Location managing such patient and such patient’s prescribed treatment frequency and fluid volume | |
| 3. | Pricing Eligibility Requirement. |
Customer shall not be eligible for any discounts or rebates under this Schedule B-1 unless (a) Customer is not in breach of any of the provisions of the Agreement (taking into account any applicable cure period set forth in the Agreement), and (b) Customer is current in all of its payment obligations to NxStage, and no payment owed by Customer to NxStage hereunder is past due; provided that the discounts or rebates set forth in this Schedule B-1 may be earned if Customer’s past due undisputed invoices are less than [**] in total. Amounts disputed in good faith by Customer pursuant to the provisions of Section 6 of the Agreement or any other agreement between NxStage and Customer shall not impact Customer’s eligibility for any of the discounts or rebates set forth in this Schedule B-1.
| 4. | New Authorized Customer Locations Pricing. |
Upon the date on which a new Authorized Customer Location treats its [**] home hemodialysis patient using the System (the “Initiation”), such Authorized Customer Location shall be eligible for pricing on the Monthly Dialysis Supplies based on an Active NxStage Chronic Patient Census of [**] patients as set forth in the table above titled “NxStage Price List - Monthly Dialysis Supply Packages” during the first [**] months following Initiation (the “Startup Pricing”); provided that such new Authorized Customer Location must satisfy the following two conditions to obtain such Startup Pricing:
(i) Commencing with [**] month in which Initiation of such new Authorized Customer Location takes place through month [**] after Initiation of such new Authorized Customer Location, such new Authorized Customer Location must identify and submit Patient Prescription Monthly Standing Orders for at least [**] eligible to be included in such Authorized Customer Location’s Active NxStage Chronic Patient Census during such period.
(ii) Such new Authorized Customer Location must have at least [**] patients eligible to be included in such Authorized Customer Location’s Active NxStage Chronic Patient Census by the last day of month [**] following Initiation to obtain the Startup Pricing commencing with month [**] through month [**] after Initiation of such new Authorized Customer Location.
Commencing with month [**] after the Initiation of such new Authorized Customer Location and each month thereafter or if the above conditions are not met by such new Authorized Customer Location at any time during the time periods set forth above, the pricing for the Monthly Dialysis Supplies for such new Authorized Customer Location shall be based on the Active NxStage Chronic Patient Census actually achieved by such new Authorized Customer Location in each such month thereafter as set forth in the above table titled “NxStage Price List - Monthly Dialysis Supply Packages”. NxStage shall in good faith extend the Startup Pricing at a new Authorized Customer Location upon written request from Customer; provided that Customer is and has been pursuing
commercially reasonable efforts to secure Medicare home hemodialysis certification since the treatment of its [**] home hemodialysis patient using the System at such new Authorized Customer Location and such Medicare home hemodialysis certification has not yet been received.
NxStage, for purposes of this Schedule B, will combine the Active NxStage Chronic Patient Census of each Authorized Customer Location that is in any geographical county, group of counties or subdivisions thereof in the Continental U.S. and Hawaii set forth on Attachment B-1 to this Schedule B-1.
Schedule B-2
Chronic Outpatient Therapy Agreement
Ancillary/Replacement Supplies
| 1. | ANCILLARY PRODUCTS AND CUSTOMER AUTHORIZATION |
The pricing set forth in the table below titled “Ancillary/Replacement Supplies” applies to all Ancillary/Replacement Supplies (as defined below) purchased by Customer or any Authorized Customer Location during the Term. All purchases of Ancillary/Replacement Supplies must be initiated by a valid purchase order. NxStage will not ship any Ancillary/Replacement Supplies to any Authorized Customer Location without the prior consent of such Authorized Customer Location. For purposes hereof, “Ancillary/Replacement Supplies” means the individual products set forth in the table below not explicitly included in Monthly Dialysis Supplies or items the use of which exceeds any patient’s applicable prescribed treatment frequency or is above standard usage levels.
ANCILLARY/REPLACEMENT SUPPLIES
| Part Number |
Category |
Description |
Quantity |
Purchase Price |
||||||
| ANC-101 |
Consumables | Replacement Priming Line with medication port |
30/Case | [** | ] | |||||
| ANC-200 |
Consumables | Drain Line extension |
24/Case | [** | ] | |||||
| CAR-124 |
Consumables | Cartridge w/o preattached dialyzer |
6/Case | [** | ] | |||||
| CAR-170 |
Consumables | Cartridge Express |
6/Case | [** | ] | |||||
| CAR-171 |
Consumables | Cartridge Express with anticoagulation line |
6/Case | [** | ] | |||||
| CAR-172 |
Consumables | Cartridge Express with medication ports |
6/case | [** | ] | |||||
| DTK-001 |
Consumables | Dialysate Test Kit |
100/Case | [** | ] | |||||
| FWS-206-B |
Consumables | Comfortmate™ Warmer Disposable w/ 6 MLA lines |
24/Case | [** | ] | |||||
| FWS-209-B |
Consumables | Comfortmate Warmer Disposable w/ 9 MLA lines |
24/Case | [** | ] | |||||
| FWS-304 |
Consumables | Express Warmer Disposable w/ 4 MLA lines |
24/Case | [** | ] | |||||
| FWS-308 |
Consumables | Express Warmer Disposable w/ 8 MLA lines |
24/Case | [** | ] | |||||
| PAK-001 |
Consumables | PureFlow™ XX XXX |
Each | [** | ] | |||||
| RFP-204 |
Consumables | Express Premixed Dialysate, 5L, Lactate 40 mEq/L, 1K |
2/Case | [** | ] | |||||
| RFP-205 |
Consumables | Express Premixed Dialysate, 5L, Lactate 35 mEq/L, 3K |
2/Case | [** | ] | |||||
| RFP-207 |
Consumables | Express Premixed Dialysate, 5L, Lactate 45 mEq/L, 1K |
2/Case | [** | ] | |||||
| RFP-209 |
Consumables | Express Premixed Dialysate, 5L, Lactate 45 mEq/L, 2K |
2/Case | [** | ] | |||||
| SAK-301 |
Consumables | PureFlow XX XXX, 60L Lactate 45 mEq/L, 1K |
2/Case | [** | ] | |||||
| SAK-302 |
Consumables | PureFlow XX XXX, 60L Lactate 40 mEq/L, 1K |
2/Case | [** | ] | |||||
| SAK-303 |
Consumables | PureFlow XX XXX - 50L Lactate 45 mEq/L, 1K |
2/Case | [** | ] | |||||
| SAK-304 |
Consumables | PureFlow XX XXX - 60L Lactate 45 mEq/L, 2K |
2/Case | [** | ] | |||||
| SAK-305 |
Consumables | PureFlow XX XXX - 40L Lactate 45 mEq/L, 1K |
2/Case | [** | ] | |||||
| SAK-306 |
Consumables | PureFlow XX XXX - 50L Lactate 45 mEq/L, 2K |
2/Case | [** | ] | |||||
| SAK-307 |
Consumables | PureFlow XX XXX - 50L Lactate 40 mEq/L, 1K |
2/Case | [** | ] | |||||
| TNPK-204 |
Consumables | Ten cases of RFP-204 |
10 Cases/Each | [** | ] | |||||
| TNPK-205 |
Consumables | Ten cases of RFP-205 |
10 Cases/Each | [** | ] | |||||
| TNPK-207 |
Consumables | Ten cases of RFP-207 |
10 Cases/Each | [** | ] | |||||
| TNPK-209 |
Consumables | Ten cases of RFP-209 |
10 Cases/Each | [** | ] | |||||
| NX0153-P |
Accessories | Wheeled Base/Cycler Stand |
Each | [** | ] | |||||
| NC1012 |
Accessories | Soft-sided Travel Case |
Each | [** | ] | |||||
| NC1079 |
Accessories | Hard-sided Travel Case |
Each | [** | ] | |||||
| NX2000-3 |
Accessories | PureFlow SL Wheeled Base |
Each | [** | ] | |||||
| FW-300-1 |
Accessories | Express Fluid Warmer Accessory Kit |
Each | [** | ] | |||||
| NX0642 |
Accessories | Cycler Base and Fluid Detection Sensor |
Each | [** | ] | |||||
| NX0664 |
Accessories | Fluid Detection Sensor |
Each | [** | ] | |||||
| APM517 |
Accessories | Molded Plastic Cycler Replica |
Each | [** | ] | |||||
| NC1816-1** |
Packaging | Cycler Packaging |
Each | [** | ] | |||||
| NC3219** |
Packaging | FW-200 Packaging |
Each | [** | ] | |||||
| NX0601** |
Packaging | FW-300 Packaging |
Each | [** | ] | |||||
| NX0624** |
Packaging | FW-300-1 Packaging |
Each | [** | ] | |||||
| NC0742** |
Packaging | Cycler Stand (NX0248-P) box |
Each | [** | ] | |||||
| NC0380** |
Packaging | IV pole shipping tube |
Each | [** | ] | |||||
| NC2980** |
Packaging | PureFlow SL Control Unit Packaging |
Each | [** | ] | |||||
| NX0464** |
Packaging | PureFlow Chassis Packaging |
Each | [** | ] | |||||
| NC2320* |
Documentation | NxStage System One Cycler Users Guide |
Each | [** | ] | |||||
| NC2327* |
Documentation | PureFlow SL Users Guide |
Each | [** | ] | |||||
| NC1760 |
Documentation | Express Fluid Warmer User Guide (included in FW-300-1) |
Each | [** | ] | |||||
| NC0118* |
Documentation | ComfortMate Fluid Warmer User Guide |
Each | [** | ] | |||||
| NC1344 |
Documentation | Troubleshooting Rinseback Tool |
Each | [** | ] | |||||
| NX0232-R |
Replacement Parts - Cycler | Jewel Box Computer |
Each | [** | ] | |||||
| NX0740-A |
Replacement Parts - Cycler | ConNxBox™ Computer (AT&T) |
Each | [** | ] | |||||
| NX0740-S |
Replacement Parts - Cycler | ConNxBox™ Computer (Sprint) |
Each | [** | ] | |||||
| NC0746* |
Replacement Parts - Cycler | USB thumb drive |
Each | [** | ] | |||||
| NX0233* |
Replacement Parts - Cycler | Phone line connection kit (splitter, cord, instructions) |
Each | [** | ] | |||||
| NX0424 |
Replacement Parts - Cycler | Adapter Feet for Cycler on PureFlow SL without Cycler Base |
4/Pkg | [** | ] | |||||
| NX0429-P |
Replacement Parts - Cycler | Saline hook |
Each | [** | ] | |||||
| NX0593 |
Replacement Parts - Cycler | Filter tilter |
Each | [** | ] | |||||
| NX0248-01 |
Replacement Parts - Cycler | Table top stand and 4-hanger top for IV pole |
Each | [** | ] | |||||
| NX0248-02 |
Replacement Parts - Cycler | IV pole |
Each | [** | ] | |||||
| 228 |
Replacement Parts - Cycler | 4-hanger top for IV pole |
Each | [** | ] | |||||
| NC1292 |
Replacement Parts - Cycler | Screws to attach pole to stand |
Each | [** | ] | |||||
| NC0384 |
Replacement Parts - Cycler | Screws to attach hanger to pole |
Each | [** | ] | |||||
| 86,557,030 |
Replacement Parts - Cycler | 0.5 meter Warmer (FW-200) cord |
Each | [** | ] | |||||
| NX0599 |
Replacement Parts - Cycler | Express Fluid Warmer Bag Cover |
Each | [** | ] | |||||
| NX0600 |
Replacement Parts - Cycler | Express Fluid Warmer Bottom Mount |
Each | [** | ] | |||||
| NX0484 |
Replacement Parts - Cycler | Express Fluid Warmer Top Mount |
Each | [** | ] | |||||
| NX0485 |
Replacement Parts - Cycler | Express Fluid Warmer Collapsible Pole |
Each | [** | ] | |||||
| 86,557,300 |
Replacement Parts - XXXX | 0 meter Chassis Interconnect cord |
Each | [** | ] | |||||
| NC3822 |
Replacement Parts - PFSL | Replacement air filter & guard cover |
Each | [** | ] | |||||
| NC3823 |
Replacement Parts - PFSL | Replacement air filter & guard filter |
Each | [** | ] | |||||
| NC0985 |
Replacement Parts - PFSL | Xxxx Guest Check Valve |
Each | [** | ] | |||||
| NC1148 |
Replacement Parts - PFSL | Aerator Adapter 15/16-27 Male X 55/ |
Each | [** | ] | |||||
| NC1176 |
Replacement Parts - XXXX | 00’ Power cord |
Each | [** | ] | |||||
| NC1180 |
Replacement Parts - PFSL | Drain Saddle Valve |
Each | [** | ] | |||||
| NC1196 |
Replacement Parts - PFSL | Diverter Aerator - Pull Down |
Each | [** | ] |
| NX0305 |
Replacement Parts - PFSL | Water connection kit - under sink |
Each | [** | ] | |||||
| NX0306 |
Replacement Parts - XXXX | 00’ Drain Line Kit |
Each | [** | ] | |||||
| NX0415 |
Replacement Parts - PFSL | Water connection kit - faucet |
Each | [** | ] | |||||
| NX0416 |
Replacement Parts - PFSL | Water connection kit - washer hook up |
Each | [** | ] | |||||
| NX0509 |
Replacement Parts - PFSL | USB cable (J1) |
Each | [** | ] | |||||
| NX0513 |
Replacement Parts - PFSL | Control Unit adapter |
2/Case | [** | ] | |||||
| NX0516 |
Replacement Parts - PFSL | PureFlow SL drain line replacement (NC0991 Raw) |
Each | [** | ] | |||||
| NX0517 |
Replacement Parts - PFSL | Water Supply Line Replacement |
Each | [** | ] | |||||
| NX2000-4* |
Replacement Parts - PFSL | Pretreatment Kit (includes hookups, wtr lines, drain) |
Each | [** | ] | |||||
| SED-001 |
Replacement Parts - PFSL | Sediment filter for pre-treatment kit |
Each | [** | ] |
| * | May be included in a [**] redeployment kit (NX0730, NX0731, as needed) for each new patient start. |
| ** | Shipping is [**] of the packaging material. |
| 2. | VACATION/TRAVEL SUPPLIES/PUREFLOW EXPRESS BAG ALLOTMENT |
The pricing for Monthly Dialysis Supplies set forth in the table in Schedule B-1 titled “NxStage Price List - Monthly Dialysis Supply Packages” is extended to each patient of each of the Authorized Customer Locations when traveling within the Continental United States as long as: (a) NxStage is given at least [**] business days’ notice of the change in delivery site for each such patient, (b) NxStage receives a prescription using the NxStage System One Vacation and Travel Form from each such patient’s physician requesting travel delivery at least [**] business days in advance of the requested change in delivery site for each such patient, and (c) NxStage is not required to alter standard case shipping volumes to satisfy special travel/vacation delivery requirements (the “Travel Delivery Pricing”). No patient of any Authorized Customer Location may receive the Travel Delivery Pricing for more than [**] trips for a maximum of [**] weeks per calendar year (the “Travel Pricing Limitation”). Any requests for the Travel Delivery Pricing (i) in excess the Travel Price Limitation, (ii) to locations outside of the Continental United States, (iii) in non-standard shipping volumes, or (iv) which are made with less than [**] business days’ notice, shall be subject to (x) approval from NxStage and (y) additional shipping charges. NxStage shall act in good faith to make additional travel/vacation deliveries to the Authorized Customer Locations’ patients at no additional charge, and shall give due consideration to any vacation time unused by the Authorized Customer Locations’ other patients. All shipments of Monthly Dialysis Supplies to any patient of any Authorized Customer Location shall be adjusted to account for any Monthly Dialysis Supplies delivered to any such traveling patient of any Authorized Customer Location pursuant to Section 2 of this Schedule B-2. In connection with the delivery of any Monthly Dialysis Supplies pursuant to Section 2 of this Schedule B-2, NxStage will not arrange for delivery of Cyclers, Cabinets, Control Units or Warmers. Each patient of the Authorized Customer Locations shall be responsible for transporting Cyclers, Cabinets, Control Units, or Warmers, as applicable, according to the shipping directions provided by NxStage in the device Operator’s Manuals and other supplements as required, and Customer shall be responsible for any damages to such Cyclers, Cabinets, Control Units, or Warmers, as applicable, as a result of the transportation of such Cyclers, Cabinets, Control Units, or Warmers, as applicable, by a patient of any Authorized Customer Location.
| 3. | PUREFLOW EXPRESS PREMIXED DIALYSATE BAGS ALLOTMENT |
Moreover, an allotment of PureFlow Express Premixed Dialysate bags will be made available to Customer for distribution to the Authorized Customer Locations’ NxStage PureFlow SL patients [**] charge to allow for vacation, travel, and other usage. Allotments shall be made on an Authorized Customer Location basis. As of March 1, 2013, Customer’s aggregate balance was [**] cases. Thereafter, the balance shall be recalculated at the end of each calendar month per Authorized Customer Location according to the following formula:
| • | Add: [**] cases of PureFlow Express Premixed Dialysate bags multiplied by the [**] of such Authorized Customer Location’s patients then prescribed to receive and receiving PureFlow SL Monthly Dialysis Supplies at home at the start of that calendar month; |
| • | Add: [**] cases of PureFlow Express Premixed Dialysate bags multiplied by the [**] of such Authorized Customer Location’s [**] PureFlow SL [**] that start at home during that [**] (adjusted, as appropriate, for [**]); and |
| • | Subtract: Actual shipments during that calendar month of cases of PureFlow Express Premixed Dialysate bags to such Authorized Customer Location’s patients then prescribed to receive and receiving PureFlow SL Monthly Dialysis Supplies, not including cases of PureFlow Express Premixed Dialysate bags: (a) purchased as part of an initial reserve inventory shipment in any such calendar month, (b) shipped in connection with a Product Recall (as defined in Schedule C) as to any such PureFlow Express Premixed Dialysate bags shipped by NxStage to any Authorized Customer Location for its PureFlow SL patients in any such calendar month, or (c) reshipped to its PureFlow SL patients in connection with any defects or damages in the shipment of any such cases of PureFlow Express Premixed Dialysate bags as further described in Sections 5(c) and 9 of the Agreement. |
If the calculated balance as described above is negative, NxStage shall xxxx Customer for such negative balance at the pricing set forth in the table in Section 1 of Schedule B-1 titled “NxStage Price List - Monthly Dialysis Supply Packages” and the balance will be reset to [**] to start the subsequent calendar month. Any positive balance shall
be carried to the subsequent calendar month, provided such positive balance, in cases, will never exceed the number of such Authorized Customer Location’s patients then prescribed to receive and receiving PureFlow SL Monthly Dialysis Supplies at the end of that month multiplied by [**]. Balance information shall be provided to Customer upon Customer’s request.
| 4. | REDEPLOYMENT PACKAGES |
If at any time during the Term, the use of a System by any patient of any Authorized Customer Location that is no longer on NxStage therapy is transferred to another patient of any Authorized Customer Location for any reason, NxStage shall at any Authorized Customer Locations’ request provide the Products set forth in the table below to such other patient depending on the type of System transferred to such other patient (a “Redeployment Package”), [**] to Customer:
Redeployment Packages
| 5. | NEW PATIENT PACKAGES |
Each new patient of any Authorized Customer Location using Product NXS-02-PUR (in the case of a purchase by Customer on behalf of the applicable Authorized Customer Location at the pricing set forth on Schedule B-3) or Product NXS-02-MTM (in the case of a rental by Customer on behalf of the applicable Authorized Customer Location at the pricing set forth on Schedule B-3) shall receive the following Products:
Each new patient of any Authorized Customer Location using Product NXS-03-PUR (in the case of a purchase by Customer on behalf the applicable Authorized Customer Location at the pricing set forth on Schedule B-3) or Product NXS-03-MTM (in the case of a rental by Customer on behalf of the applicable Authorized Customer Location at the pricing set forth on Schedule B-3) shall receive the following Products:
Schedule B-3
Chronic Outpatient Therapy Agreement
Equipment Rental or Purchase
| 1. | PURCHASE OF SYSTEMS |
The pricing set forth in the table below titled “Purchased Systems” applies to all purchases of Systems during the Term. All purchases of Systems must be initiated by a valid purchase order. The pricing set forth in the table below titled “Purchased Systems” is on a per System basis. All purchased Systems will be in good working order. Systems purchased may or may not be new. NxStage represents and warrants to Customer that any purchased Systems that are not new will be in the same operating condition as a new System.
PURCHASED SYSTEMS
| Part Number |
Item |
[**] | [**] | |||||||
| NXS-03-PUR |
Cycler (incl. Warmer & Stand), PFSL Control Unit, and Cabinet |
[** | ] | [** | ] | |||||
| NXS-02-PUR |
Cycler (Including Warmer and Stand) |
[** | ] | [** | ] | |||||
| NXS-01-PUR |
Cycler only |
[** | ] | [** | ] | |||||
| XX0000-0 |
XXXX Control Unit |
[** | ] | [** | ] | |||||
| XX0000-0 |
XXXX Cabinet |
[** | ] | [** | ] | |||||
| FW-200 |
Comfortmate Warmer and Stand |
[** | ] | [** | ] | |||||
| FW-300 |
Express Warmer and Stand |
[** | ] | [** | ] | |||||
| 2. | RENTAL OF SYSTEMS |
The pricing set forth in the table below titled “Rental Systems” applies to all rentals of Systems during the Term. All rentals of Systems must be initiated by a valid purchase order. The pricing set forth in the table below titled “Rental Systems” is on a per System basis. All rental Systems will be in good working order. Rental Systems may or may not be new.
RENTAL SYSTEMS
| Part Number |
Item |
[**] | [**] | Code | Return Charge** |
|||||||||||
| NXS-03-MTM |
System for PFSL Patient (Cycler, Warmer, Stand, Control Unit, and Cabinet) |
[** | ] | [** | ] | DSC-018 | [** | ] | ||||||||
| NXS-02-MTM |
System for Bag Patient (Cycler, Warmer, Stand) |
[** | ] | [** | ] | DSC-014 | [** | ] | ||||||||
| NX2000-1-MTM |
PFSL Control Unit Only* |
[** | ] | [** | ] | DSC-015 | [** | ] | ||||||||
| NX2000-2-MTM |
PFSL Cabinet Only* |
[** | ] | [** | ] | DSC-016 | [** | ] | ||||||||
| FW-X00-MTM |
Warmer and Stand Only* |
[** | ] | [** | ] | DSC-017 | [** | ] | ||||||||
| * | Notwithstanding any other term of the Agreement, including the terms set forth in Sections 9 and 11, rental and return charges shall apply when the number of Warmers or Stands in possession by Customer or any Authorized Customer Location exceeds the number of rented or purchased Cyclers under the Agreement, and when the number of PFSL Control Units or PFSL Cabinets exceed the number of rented or purchased systems for PFSL patients. Such calculation shall be performed on an Authorized Customer Location basis. |
| ** | Charged at the time equipment is returned to NxStage. |
| 3. | RENTAL CAP |
During the Term, including any extension thereof, the total number of Systems Ones (i.e. XXX-00-XXX, XXX-00-XXX, XX0000-0-XXX, XX0000-0-XXX or FW-X00-MTM) that Customer may rent from NxStage shall not exceed [**] (the “Rental Cap”) of the aggregate number of System Ones (i.e. NXS-03-PUR or NXS-02-PUR) (less any returns) that Customer purchased from NxStage from the Effective Date through the date of any calculation of the Rental Cap. The minimum rental period for any System must be for [**] full [**]. All rentals of Systems will be billed at the start of the calendar month. All rentals of a System will be automatically extended on a month-to-month basis until [**] days advance written cancellation notice is provided by Customer to NxStage.
| 4. | [**] EQUIPMENT |
| Part Number |
Item |
Monthly Price | ||||
| NXS-03-TRN |
Cycler (incl. Warmer and Stand), PFSL Control Unit and Cabinet |
[** | ] | |||
| NXS-02-TRN |
Cycler (incl. Warmer and Stand) |
[** | ] | |||
Customer may rent up to [**] Systems (i.e., Cycler, Warmer, and Stand, which may also include the PFSL Control Unit and Cabinet) in the aggregate across all of its Authorized Customer Locations (the “[**]”) on a month-to-month basis at the prices in the table below to be used solely for purposes of [**] (each, a “[**] System” and collectively, the “[**] Systems”).
To be eligible to rent a [**] System [**] set forth above the following conditions must be satisfied:
| • | The applicable [**] System (Cyclers, Warmers, Stands, and any PFSL Control Units and Cabinets) must be designated by serial number as [**] equipment; |
| • | The applicable [**] System may only be used in the [**] facility at the applicable Authorized Customer Location and may not be sent to a patient’s home; and |
| • | Customer shall train [**] patients per calendar quarter at the Authorized Customer Location at which such applicable [**] System has been placed (collectively, the “[**] Conditions”). |
If Customer does not meet the [**] Conditions with respect to a [**] System in any calendar quarter, [**] shall be given for such [**] System during any subsequent calendar quarter until the [**] Conditions are once again satisfied. Once the [**] Conditions are again satisfied in a calendar quarter, the [**] will be reinstated for the immediately following calendar quarter and each calendar quarter thereafter in which the [**] Conditions are satisfied. If Customer elects to stop renting a [**] System, it shall have the option to redeploy such [**] System to a patient with a current Patient Prescription Monthly Standing Order or to return such [**] System to NxStage. If Customer elects to redeploy a [**] System, Customer will pay the appropriate monthly rental charge as described in Section 2 of this Schedule B-3. If Customer elects to return a [**] System, it shall pay the appropriate return shipping charges.
The [**] Systems shall be subject to the Rental Cap. NxStage shall in good faith [**] the [**] every [**] period during the Term commencing with June 30, 2013 and every [**] period thereafter (i.e., [**]) to that number of [**] Systems then rented in the Continental U.S. and Hawaii to other customers with NxStage home patients.
| 5. | SITE STARTUP/ADDITIONAL SITES |
Customer must notify NxStage when it desires to add any new home hemodialysis program site as an Authorized Customer Location to Schedule A to the Agreement. Customer shall not be restricted from adding any new home hemodialysis program site as an Authorized Customer Location to Schedule A in any continental U.S. location; provided that (a) NxStage in-service and [**] has been scheduled for each such new home hemodialysis program site (and NxStage shall use commercially reasonable efforts to promptly provide any such requested in-service and [**]), (b) Customer provides written certification to NxStage that at least [**] at such new home hemodialysis program site has been trained on the proper use and operation of the System One by other personnel of Customer or any Authorized Customer Location trained on the use of the System One, and (c) such new home hemodialysis program site has developed appropriate policies and procedures and [**] materials relating to the System One.
| 6. | OTHER |
NxStage will on occasion supply products sourced from other suppliers as part of any Authorized Customer Locations’ Monthly Dialysis Supplies. NxStage reserves the right to supply its own products, once the same are Commercially Available, or to change the supplier of these products from time to time. NxStage expects to make additional products available for purchase by Customer and the Authorized Customer Locations from time to time.
Schedule B-4
Chronic Outpatient Therapy Agreement
Delivery Services
The table below sets forth the pricing for any special or expedited delivery services requested by Customer or any Authorized Customer Location and not included in the Purchase Price for any Product for which Customer or any Authorized Customer Location is requesting special or expedited delivery services. Any special or expedited delivery charges must be approved by Customer or the Authorized Customer Location requesting such special or expedited delivery services. The pricing for the special or expedited delivery services set forth in the tables below may be amended at NxStage’s discretion with [**] days advanced written notice to Customer.
The table below also sets forth the Standard Delivery Services (as defined below) that are subject to the requirements of this Schedule B-4 provided by NxStage to Customer and the Authorized Customer Locations [**]. For purposes of this Agreement, the term “Standard Delivery Services” means to the extent applicable to each Product the following: (a) the delivery of each such Product to the location designated on the applicable Patient Prescription Monthly Standing Order for a patient which location shall be either: (i) such patient’s front door and if such patient is not home to a protected area near such patient’s home or (ii) the Authorized Customer Location of such patient, (b) inside delivery (over-the-threshold) of each such Product at a patient’s home; provided that if a delivery consists of [**] or fewer boxes of the Monthly Dialysis Supplies, such delivery may be shipped via a small package carrier in which case inside delivery is not available for such delivery, (c) the placement of each such Product to a location in a patient’s home for treatment administration or storage, as applicable, (d) upon the termination of therapy with respect to a patient, the picking up of each such Product from such patient’s home and the return of each such Product to the applicable Authorized Customer Location of such patient, and (e) the swapping of each System that is not in Good Working Order (as defined in Section 2 of Schedule C) and in need of the services set forth in Section 2 of Schedule C to the Agreement for a replacement System that is in Good Working Order; provided that nothing herein shall require NxStage to hook up, assemble, or test any Product.
PUREFLOW SL
| Part Number |
Service |
Charge | ||||
| Standard |
Standard Delivery Services |
[** | ] | |||
| DSC-001 |
Inside delivery (over-the-threshold) with an appointment and a [**] hour delivery window.* |
[** | ] | |||
| DSC-002 |
After hours delivery (after 5 PM)* |
[** | ] | |||
| DSC-003 |
Weekend/holiday delivery* |
[** | ] | |||
| DSC-004 |
Redelivery/partial delivery (e.g. patient refusal) |
[** | ] | |||
| DSC-012 |
Additional deliveries per month ([**] delivery per month is standard) |
[** | ] | |||
| DSC-022 |
Assisted swaps for PureFlow SL Control Unit Assisted swaps for Cycler |
[** | ] | |||
PUREFLOW EXPRESS (BAGS)
| Part Number |
Service |
Charge | ||||
| Standard |
Standard Delivery Services |
[** | ] | |||
| DSC-001 |
Inside delivery (over-the-threshold) with an appointment and a [**] hour delivery window.* |
[** | ] | |||
| DSC-004 |
Redelivery/partial delivery (e.g., patient refusal) |
[** | ] | |||
| DSC-002 |
After hours delivery (after 5 PM)* |
[** | ] | |||
| DSC-003 |
Weekend/holiday delivery* |
[** | ] | |||
| DSC-005 |
Additional deliveries per month (one delivery per month is standard) |
[** | ] | |||
| DSC-022 |
Assisted swaps for Cycler |
[** | ] | |||
EQUIPMENT/OTHER
| Part Number |
Service |
Charge | ||||
| Standard |
Standard Delivery Services |
[** | ] | |||
| DSC-006 |
Hardware/Supplies pickup from patient and return to Authorized Customer Location |
[** | ] | |||
| DSC-007 |
Equipment packaging |
[** | ] | |||
| DSC-010 |
After hours emergency delivery (after 5 PM)* |
[** | ] | |||
| DSC-011 |
Request of shipment in less than normal lead time ([**] business days) |
[** | ] | |||
| DSC-009 |
Cleaning of NxStage Equipment is available on a “swap” basis. Equipment returned for cleaning will be exchanged with “like new” equipment. Customer is responsible for equipment repairs beyond normal use and wear. |
[** | ] | |||
| DSC-021 |
Hardware/Supplies delivery for new patient starts |
[** | ] | |||
OFF SCHEDULE SHIPMENTS
| Part Number |
Service |
Charge | ||||
| DSC-013 |
Shipping & handling for supplies & boxes |
[** | ] | |||
| Freight |
Equipment replacements (damage, loss) |
[** | ] | |||
| * | Where available - not available in all areas |
| + | Customer or an Authorized Customer Location, as applicable, will only be charged this fee if Customer requests the applicable service and Customer is not in compliance with the Pricing Eligibility Requirement (as described in Section 3 of Schedule B-1). |
The Standard Delivery Services are provided by NxStage, [**] to Customer and the Authorized Customer Locations with respect to patients of Customer and the Authorized Customer Locations residing within a [**] mile radius of the Authorized Customer Location responsible for such patients’ care; provided that Customer is in compliance with the [**]. NxStage shall use its commercially reasonable efforts to provide the Standard Delivery Services to at least [**] of the Authorized Customer Locations’ patients residing within a [**] mile radius of the Authorized Customer Location responsible for such patients’ care. Whether or not Customer is in compliance with the [**] for each patient residing outside a [**] mile radius of the Authorized Customer Location responsible for each such patient’s care, [**] charges may apply for the Standard Delivery Services.
Schedule B-5
Chronic Outpatient Therapy Agreement
Additional Product Discount [**]
| 1. | Additional Product Discount |
Each [**] during the Term, Customer shall be eligible to receive an additional discount off of the Purchase Price of all Monthly Dialysis Supplies purchased by Customer and the Authorized Customer Locations each such [**] (the “Additional Discount”), which Additional Discount will be equal to the discount percentage set forth opposite the tier of the Active NxStage Home Patient Census (as defined below) achieved by Customer and the Authorized Customer Locations as set forth in the table below as of the last day of the immediately preceding [**].
| Active NxStage Home Patient Census Tiers |
Discount Percentage | |||
| [**] |
[** | ] | ||
For purposes of clarity, NxStage acknowledges and agrees that the applicable Additional Discount in each [**] during the Term will apply to all purchases of the Monthly Dialysis Supplies purchased by Customer and the Authorized Customer Locations for patients of Customer and the Authorized Customer Locations with then current and active Patient Prescription Monthly Standing Orders in each such applicable [**] and not just the purchases of the Monthly Dialysis Supplies purchased by Customer and the Authorized Customer Locations for patients of Customer and the Authorized Customer Locations that fall within the applicable tier in each such applicable [**].
For purposes hereof, “Active NxStage Home Patient Census” is defined to mean the Authorized Customer Locations’ aggregate Active NxStage Chronic Patient Census, less the number of patients of the Authorized Customer Locations: (A) prescribed to receive therapy with the System One in a nursing home or an in-center self-care setting (it being understood that patients performing home care in assisted living facilities or similar facilities shall be counted for purposes of the Active NxStage Home Patient Census; provided that such patients’ therapy is not performed in a facility where such facility staff or Customer or Authorized Customer Location staff is performing or assisting with the treatment, or where more than [**] is receiving therapy with a [**] System One in such facility or where [**] or more System One patients are in such facility), (B) that have not completed, as of the end of the applicable calendar month, at least Three Full Months of Therapy (as defined below) at one or more Authorized Customer Locations, (C) acquired by Customer or any Authorized Customer Location in connection with a [**] Acquisition or the entry into of a [**] Management Contract with any [**] Site (each, an “Acquired [**] Site”, and the acquisition of each such Acquired [**] Site hereinafter referred to as a “[**] Site Acquisition” and collectively as the “[**] Site Acquisitions”) during the Term (the “Excluded [**] Transactions”, and such acquired patients, as set forth in this subsection (C) shall be hereinafter referred to as the “Excluded [**] Transaction Patients”), (D) acquired by Customer or any Authorized Customer Location on or after the Effective Date (1) through the purchase of facilities (other than [**] Sites) which have, or did have, any type of program with NxStage with respect to the purchase, sale or rental of the System One for home use during the [**] months prior to the closing date of the acquisition (each, an “Acquired Non-[**] Site”, and the acquisition of each such Acquired Non-[**] Site hereinafter referred to as a “Non-[**] Site Acquisition” and collectively as the “Non-[**] Site Acquisitions”), or (2) under any management contract, joint venture or other similar transaction entered into subsequent to the Effective Date with any facility (other than any [**] Site) (each, a “Non-[**] Site”) which has, or did have, any type of program with NxStage with respect to the purchase, sale or rental of the System One during the [**] months prior to the effective date of any such management contract, joint venture or similar transaction (each, a “Non-[**] Management Contract Site”) (the management contract, joint venture or similar transaction relationship with such Non-[**] Management Contract Sites hereinafter referred to as “Non-[**] Management Contracts”, and together with the Non-[**] Site Acquisitions, collectively the “Excluded Non-[**] Transactions”) (such acquired patients, as set forth in subsections (1) and (2) of this subsection (D) shall be hereinafter referred to as the “Excluded Non-[**] Transaction Patients”), (E) that are added subsequent to the Acquisition Date (as defined below) of any Acquired [**] Site, Acquired Non-[**] Site or Non-[**] Management Contract Site if the number of the net added patients from such sites exceeds more than [**] of the Authorized Customer Locations’ aggregate net increase in the Active NxStage Chronic Patient Census at any time on or before December 31, 2015, or (F) that are added by any [**] Site from and after the effective date of any [**] Management Contract entered into by such [**]
Site (the “Excluded New [**] Management Contract Patients”, and together with the Excluded [**] Transaction Patients and the Excluded Non-[**] Transaction Patients, the “Excluded Acquired Patients”). The number of Excluded [**] Transaction Patients and Excluded Non-[**] Transaction Patients shall be measured as of the effective date of the applicable [**] Management Contract or Non-[**] Management Contract, and as of the closing date of the applicable [**] Site Acquisition or Non-[**] Site Acquisition (each of such dates referred to herein for purposes of this paragraph as the “Acquisition Date”), and shall also include all patients that transfer from the relevant [**] Site or Non-[**] Site to an Authorized Customer Location during the [**] months prior to the applicable Acquisition Date (the “Excluded Pre-Acquisition Date Patient Transfers”). All Excluded Acquired Patients which transfer to an Authorized Customer Location subsequent to the Acquisition Date, as well as all Excluded Pre-Acquisition Date Patient Transfers shall also be excluded from the Active NxStage Home Patient Census. The number of Excluded Acquired Patients shall continue to be deducted at all times during the Term from the Active NxStage Home Patient Census, irrespective of whether or not such Excluded Acquired Patients are no longer on therapy with the System One at any time during the Term.
For purposes hereof, “Three Full Months of Therapy” is defined to mean each patient that has completed a treatment regimen of at least ninety (90) contiguous days of home therapy with the System One with the first such day of such ninety (90) contiguous days of home therapy with the System One commencing on such date that each such patient has his or her first home training session and treatment with the System One and continuing until each such patient has completed at least ninety (90) contiguous days of treatment with the System One; provided that: (i) any documented hospitalization of each such patient shall not be deemed an interruption in each such patient’s ninety (90) contiguous days of treatment with the System One as long as Customer has provided notice to NxStage of any such documented hospitalization as required pursuant to Section 10 of the Agreement and (ii) any interruption in each such patient’s treatment with the System One as a result of such patient’s traveling shall not be deemed an interruption in each such patient’s ninety (90) contiguous days of treatment with the System One.
All discounts and rebates provided pursuant to this Schedule B, are “Discounts or Other Reductions in Price” to Customer under 42 U.S.C. § 1320a-7b(b)(3)(A) of the Social Security Act, and shall be properly reported by Customer on applicable Medicare and Medicaid claims and cost reports in accordance with the terms and conditions of Section 7 of the Agreement.
| 2. | [**] |
Each [**] (as defined below) on and after [**], NxStage shall have the right to [**] each such [**] as follows:
(a) In the event that at the end of an applicable [**], the Active NxStage Home Patient Census at the end of such applicable [**] has increased by [**] over the Active NxStage Home Patient Census at the end of the [**] immediately preceding such applicable [**], then NxStage shall have the right in the immediately following [**] to [**] or
(b) In the event that at the end of an applicable [**], the Active NxStage Home Patient Census at the end of such applicable [**] has increased between [**] and [**] over the Active NxStage Home Patient Census at the end of the [**] immediately preceding such applicable [**], then NxStage shall have the right in the immediately following [**] to [**] or
(c) In the event that at the end of an applicable [**], the Active NxStage Home Patient Census at the end of such applicable [**] has increased between [**] and [**] over the Active NxStage Home Patient Census at the end of the [**] immediately preceding such applicable [**], then NxStage shall have the right in the immediately following [**] to a [**].
NxStage shall not have the right to [**] at the end of any [**] on and after [**], in the event that at the end of any such applicable [**], the Active NxStage Home Patient Census at the end of any such applicable [**] has increased by [**] or more over the Active NxStage Home Patient Census at the end of the [**] immediately preceding any such applicable [**]. For purposes of this Agreement, the term “[**]” means each [**].
As a non-limiting example of the foregoing, if the Active NxStage Home Patient Census as of the end of the [**] increased by [**] over the Active NxStage Home Patient Census as of the end of the [**], then NxStage would not have the right to [**] for the [**]. If the Active NxStage Home Patient Census as of the end of the [**] increased by [**] over the Active NxStage Home Patient Census as of the end of the [**], then NxStage would have the right to [**] for the [**] by an amount not to exceed [**].
The parties agree that Customer’s Active NxStage Home Patient Census as of the end of the [**].
Attachment B-1 to Schedule X-0
Xxxxxxx
XXXXXXXXXX X-0 to SCHEDULE B-1 - MARKET DEFINITIONS
16 pages were omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment.
Schedule C
Chronic Outpatient Therapy
Warranty; Service; and Recalls
| 1. | REPRESENTATIONS AND WARRANTIES |
EXCEPT AS OTHERWISE PROVIDED IN SECTION 12 OF THE AGREEMENT, NXSTAGE MAKES NO OTHER EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO ANY OF THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.
| 2. | SERVICE |
During the Term, including any extensions thereto, NxStage shall repair and service all Products supplied to Customer or any Authorized Customer Location hereunder (whether leased or purchased), so the same shall be in good working order and fit for the indications described in their User’s Guides and package inserts when used in accordance with the instructions for use provided in such User’s Guides and package inserts. NxStage’s obligation to provide the services set forth in this Section 2 of Schedule C shall survive any termination of this Agreement and shall continue for the Service Term (as defined below). For purposes hereof, the term “Service Term” shall mean (a) for each System purchased directly by Customer or any of its affiliates (including any Authorized Customer Location) from NxStage (whether under this Agreement or under an earlier expired or terminated contract), the [**] year period following the purchase date of each such System, and (b) for each System acquired by Customer, any Customer affiliate, or any Authorized Customer Location or its affiliates pursuant to any transaction or series of transactions pursuant to which Customer, any Customer affiliate, or any Authorized Customer Location or any of its affiliates: (i) acquired the equity interests of a dialysis facility of any third party possessing the voting power to elect a majority of such dialysis facility’s board of directors, board of managers or members, general partner, or managing member or manager, as the case may be (whether by merger, consolidation, reorganization, combination, sale or transfer of the equity interests of such dialysis facility, or otherwise acquires the right to control such dialysis facility whether by securityholder or voting agreement, proxy, power of attorney, or otherwise), (ii) acquired all or substantially all of the assets of a dialysis facility of any third party, or (iii) entered into a management contract, joint venture, or other similar transaction with a dialysis facility of any third party relating to the provision of chronic hemodialysis therapy at such dialysis facility (each, an “Acquired Dialysis Site”), the [**] year period following the purchase date of each such System by such Acquired Dialysis Site, if such System was purchased by such Acquired Dialysis Site with [**] to offset a portion of the purchase price, or the [**] year period following the purchase date of each such System by such Acquired Dialysis Site, if such System was not purchased with [**]. For purposes of clarification, Systems that were rented by an Acquired Dialysis Site at the time such Acquired Dialysis Site is acquired by Customer, any Customer affiliate, or any Authorized Customer Location or any of its affiliates and which are later purchased by Customer or any Authorized Customer Location hereunder shall have a Service Term equal to the [**] year period following the purchase date of each such System; provided that such purchase is at the Purchase Price outlined in Schedule B-3 and [**] are not used to offset any portion of the Purchase Price for such System. A schedule of all Systems and all such Systems’ applicable Service Term (including any Systems purchased by Customer or any Authorized Customer Location prior to the Effective Date) is included as Attachment C-1 to this Schedule C, and shall be updated by NxStage upon any such changes to such schedule.
During the Term for Systems within the Service Term, the fees for the services set forth in this Section 2 of this Schedule C shall be included in the [**]; provided that if a purchased System is not in use (i.e. no monthly purchase volume of Monthly Dialysis Supplies is associated with the System) for [**] consecutive months, a service reinstatement fee of [**] will be charged when the System is returned for service. After the Term for Systems within the Service Term, the fees for the services set forth in this Section 2 of this Schedule C shall be included in [**] (as set forth in a subsequent agreement to be negotiated and mutually agreed to between the parties hereto in good faith), it being understood that if NxStage chooses to segregate the fees for such services from the pricing for [**] with other customers purchasing the Systems for use in [**], it shall present Customer an opportunity to do so on terms negotiated and agreed to by the parties hereto in good faith.
During the Term for Systems outside of the Service Term, NxStage shall charge fees for the services set forth in this Section 2 of this Schedule C in accordance with the following:
| (i) | [**] for each System One Cycler purchased in combination with PureFlow (NxS-03-PUR); |
| (ii) | [**] for each System One Cycler purchased separately (without PureFlow) (NxS-02-PUR); or |
| (iii) | [**] for each PureFlow Control Unit and Cabinet (NxS-2001 and/or NxS-2002) not part of a NxS-03-PUR System. |
NxStage shall use commercially reasonable efforts to pair a System One Cycler (i.e., NxS-02-PUR) that is past its applicable Service Term with a System PureFlow Control Unit and Cabinet (i.e., NxS-2001 or NxS-2002) not part of a NxS-03-PUR System that is past its applicable Service Term in order to minimize Customer’s fees for the services set forth in this Section 2 of this Schedule C for System One Cyclers (i.e., NxS-02-PUR) and PureFlow Control Units and Cabinets (i.e., NxS-2001 or NxS-2002) not originally purchased together under SKU NxS-03-PUR. For purposes of clarity, the fees for the services set forth in this Section 2 of this Schedule C for a PureFlow Control Unit and Cabinet (i.e., NxS-2001 or NxS-2002) that is past its applicable Service Term and which cannot be paired with a System One Cycler (i.e., NxS-02-PUR) past its Service Term shall be [**] for such PureFlow Control Unit and Cabinet (i.e., NxS-2001 or NxS-2002).
After the Term for Systems outside of the Service Term, the fees for the services set forth in this Section 2 of this Schedule C for Systems purchased by Customer or any Authorized Customer Location, as applicable, directly from NxStage shall be the lower of (i) [**] per System per [**] or (ii) [**] of the average System service fees then charged by NxStage to other customers who have purchased the System for chronic renal replacement therapy; provided that for Systems for which more than [**] years have passed following their original purchase date, NxStage shall have no obligation to provide System repair services for Customer or any such Authorized Customer Location, as applicable, if, at such [**] year anniversary, NxStage has not elected to offer service for similarly aged Systems for less than [**] (a “No-Service Event”). In the event of a No-Service Event as to any System, NxStage acknowledges and agrees that Customer shall have the right to service and repair any such System subject to a No-Service Event or engage a third party to service and repair any such System subject to a No-Service Event; provided that NxStage shall have no obligation to provide parts needed to complete such service and repair in the event that NxStage is not then selling such parts to other chronic outpatient customers for similarly aged Systems. Customer agrees that the Systems purchased hereunder may only be serviced by NxStage at this time. Additional service charges for both rented and purchased Systems may apply in the event: (i) the System has been repaired by persons other than NxStage personnel or its authorized representatives, (ii) the replacement or repair is required due to the misuse or abuse of the System, as reasonably determined by NxStage, (iii) the System is used with non-NxStage sets, (iv) the replacement or repair is required for reasons other than defects in materials and workmanship or, in the case of equipment, normal wear and tear, as reasonably determined by NxStage, or (v) the System is not used in accordance with its instructions for use, as reasonably determined by NxStage.
As part of its ongoing service of Products then in use by Customer and/or the Authorized Customer Locations, NxStage, at its option, may conduct routine maintenance on the Products shipped to Customer or any Authorized Customer Location under this Agreement. Customer or the applicable Authorized Customer Location shall make all Products reasonably available to NxStage, at NxStage’s request, to conduct such maintenance; provided that such maintenance is conducted at mutually agreed upon times and upon prior notice. As part of an ongoing maintenance program, NxStage may elect to install reasonable Product upgrades, at no cost to Customer. Any upgrades that NxStage provides to a leased System One(s) will also be provided to all of Customer’s purchased System One(s) within a reasonable timeframe during the Term.
To obtain service of a damaged or defective Product from NxStage, Customer must contact NxStage’s customer service department. Prior authorization from NxStage must be obtained before any damaged or defective Product is returned for service by NxStage. Any damaged or defective Product requiring service must be cleaned, according to the directions on the labeling. If a damaged or defective Product is not cleaned, as instructed, NxStage shall charge Customer a [**] cleaning fee. NxStage will arrange for the shipment of all damaged or defective Products to be returned for service by NxStage. NxStage will not be responsible for servicing damaged or defective Products that have not been shipped according to the procedure set forth in this Schedule C. NxStage shall use its commercially reasonable efforts to repair or replace serviced Product within [**] hours of giving authorization for service. Repaired or replaced Products shall be in Good Working Order. Replaced Products may or may not be new, and they may or may not be the same Products originally shipped to Customer or the applicable Authorized Customer Location hereunder. For purposes of this Agreement, “Good Working Order” shall mean that the Product shall perform in accordance with its specifications and manuals, and be in physical condition and functionality equal to or better than that of the Product being replaced. In addition, NxStage shall use all commercially reasonable efforts to ensure that replacement Products provided to Customer or any Authorized Customer Location in connection with a service swap shall have an average days in service approximately equal to or less than the estimated days in service of the Product returned by Customer in connection with a service swap hereunder
Periodically, NxStage may elect to diagnose Product servicing issues remotely, through data analysis or phone interviews. If Product is returned at the insistence of Customer, an Authorized Customer Location or any of their respective patients, contrary to the recommendation of NxStage, and it is subsequently determined in the reasonable discretion of NxStage that such Product was in Good Working Order, Customer shall reimburse NxStage for the related costs of such return.
| 3. | RECALLS |
In the event that any governmental agency or authority requests a recall, a field corrective action, Product withdrawal or takes similar action in connection with any Product or in the event NxStage determines an event, incident or circumstance with respect to a Product has occurred that results in the need for a recall (each a “Product Recall”), NxStage shall promptly notify Customer within [**] of such governmental agency or authority request or action or of NxStage’s decision to voluntarily institute a Product Recall. In the event of a Product Recall of any Product, NxStage shall (a) reimburse Customer and the Authorized Customer Locations for reasonable handling expenses incurred in returning units of such Product to NxStage or otherwise implementing the Product Recall; and (b) use all commercially reasonable efforts to promptly repair or replace the Product subject to a Product Recall with another NxStage Product performing the same function in good working order. NxStage shall allocate replacement Products to Customer and the Authorized Customer Locations on a first-priority basis consistent with Customer’s and the Authorized Customer Locations’ then-current share of NxStage’s Product base that has been purchased, and consistent with the then-affected prescription items included in Customer’s and the Authorized Customer Locations’ Monthly Dialysis Supplies orders.
In addition to the foregoing, if NxStage is unable to repair or replace a recalled Cycler or PureFlow SL purchased by Customer or any Authorized Customer Location, such that such purchased Cycler or PureFlow SL is therefore rendered unusable and continues to be unusable for a period of [**] consecutive months (for purposes hereof, a purchased Cycler or PureFlow SL shall not be unusable if it can be used with other non-NxStage products, consistent with then-current product labeling), NxStage shall be obligated to pay Customer and the Authorized Customer Locations actual damages within [**] days of the expiration of such [**] month period (with the amount of such damages to be mutually agreed upon by the parties in good faith, up to the amount of Customer’s and the Authorized Customer Locations’ then-current [**] for the purchased Cyclers and/or Pure Flow SLs which Customer and the Authorized Customer Locations have been prevented from using for [**] consecutive months (measured as of the date of such Product Recall); provided that such [**] is calculated in good faith and in accordance with generally accepted accounting standards). NxStage’s obligation to make any payment pursuant to this Section 3 of Schedule C may be accelerated to the date of filing of a voluntary or involuntary bankruptcy proceeding with respect to NxStage or the date NxStage refunds, all or any significant portion of, the purchase price of any Cyclers and/or PureFlow SLs that have been the subject of a Product Recall (and where such refund is specifically provided solely in connection with, and due to, such Product Recall) to any other customer or group of customers that has purchased such Cyclers and/or PureFlow SLs for the treatment of chronic home hemodialysis patients (it being understood that Customer’s and the Authorized Customer Locations’ right to damages hereunder shall not be so accelerated if such refund involves no more than [**] Cyclers and/or PureFlow SLs in the aggregate across all other NxStage chronic customers). No other remedy shall be provided to Customer or any Authorized Customer Location in connection with a Product Recall, except as set forth in Section 22 of the Agreement.
In the event NxStage elects to obtain recall insurance covering a Product Recall of any purchased Cyclers and/or PureFlow SLs, Customer and NxStage agree that the parties shall share the cost of such insurance coverage, up to a maximum amount of $200,000 per party per annum; provided that Customer shall consider in good faith requests made by NxStage to share insurance costs in excess of $200,000. Any recall insurance obtained by NxStage, shall name Customer and the Authorized Customer Locations (but no other customer of NxStage) as additional insureds. Any insurance payment to Customer or any Authorized Customer Location under such policy shall offset any damages determined to be owed to Customer or any Authorized Customer Location hereunder pursuant to the foregoing terms, with NxStage obligated to pay any remainder pursuant to the terms hereof.
If, during the Term, NxStage contractually agrees with one or more other customers purchasing any of NxStage’s home hemodialysis products in the continental United States to provide [**] provisions to such customer(s) that are more favorable to such customer(s) than are set forth in Section [**] of the Agreement and Sections [**] of this Schedule C, NxStage agrees that it shall promptly offer such [**] provisions to Customer, on a prospective basis; provided that such terms shall be offered to Customer to cover only [**] purchased by Customer and the Authorized Customer Locations which corresponds with the [**] purchased by [**] and provided further that such terms, if accepted by Customer, shall in no way alter the other provisions hereof.
Attachment C-1 to Schedule C
System Ones Subject to Expiration of Service Term
3 pages were omitted and filed separately with the Securities and Exchange Commission pursuant to a request for confidential treatment.
Schedule D
Preferred Relationship
Schedule D
Chronic Outpatient Therapy Agreement
Preferred Relationship
| 1. | MOST FAVORED NATIONS PRICING |
NxStage represents and warrants to Customer that commencing on the Effective Date through December 31, 2015, (i) Customer’s [**] in the Continental United States and Hawaii and calculated using the [**] (as defined below) (the “[**]”) shall be equal to or better than the pricing paid by any [**] (as defined below) to NxStage who has an [**] (as defined below) [**] and (ii) the [**] in the Continental United States and Hawaii shall be equal to or better than any purchase price paid to NxStage by any [**] (the “[**] MFN Covenant”). NxStage covenants and agrees that if at any time during the Term, [**].
For purposes of this Schedule D, the following terms have the following meaning:
(a) “[**]” means any home hemodialysis program site in the Continental United States or Hawaii: (i) [**], (ii) [**] has entered into a management contract covering the purchase of products for [**] patient therapy, including the System One, or (iii) held by [**] in a joint venture structure.
(b) “[**]” means for each [**], as of the end of each calendar month during each applicable measurement period, the number of [**] patients at such [**] that have an active Patient Prescription Monthly Standing Order and are then receiving dialysis with the System One.
(c) “[**]” means [**] in the Continental United States and Hawaii.
[**]
NxStage also represents and warrants to Customer that commencing on the Effective Date through December 31, 2015, the Purchase Price for each Product in the Continental United States and Hawaii shall be at least [**] lower than any purchase price paid to NxStage by any other purchaser (other than a [**]) who purchases [**] than the volume of each such Product which is purchased by Customer and the Authorized Customer Locations (the “[**] MFN Covenant”). The [**] MFN Covenant shall be measured individually for each Authorized Customer Location and apply to the purchase price paid to NxStage by any other purchaser (other than a [**]) of each applicable Product within a [**] mile radius of each such Authorized Customer Location.
NxStage also represents and warrants to Customer that commencing on the Effective Date through December 31, 2015, the rental rate for each Product in the Continental United States and Hawaii set forth in Sections 2 and 4 of Schedule B-3 shall be [**] than any rental rate paid to NxStage by any other individual or entity who rents [**] than the volume of each such Product set forth in Sections 2 and 4 of Schedule B-3 which is rented by Customer and the Authorized Customer Locations (the “Rental Covenant” and collectively with the [**] MFN Covenant and the [**] MFN Covenant, the “[**]”).
The [**] shall apply with respect to each agreement and each amendment to any agreement entered into and executed by NxStage on or after the Effective Date (i.e., March 1, 2013) with respect to the purchase or rental, as applicable, of one or more of the Products: provided that if at the end of any [**] (with the first measurement period to occur on [**]) the Active NxStage Home Patient Census at the end of such applicable [**] has increased by less than [**] over the Active NxStage Home Patient Census at the end
of the [**] immediately preceding such applicable [**] (with the first measurement period to measure growth in the Active NxStage Home Patient Census during the period from [**]), NxStage shall have the right to immediately terminate the [**] effective as of the first day of the immediately following [**] (with the earliest termination date of the [**] to be [**]).
All of Customer’s discounts and rebates in the Agreement, including any discounts associated with prepayment or early payment, whether or not such discounts are taken, will be included for the purposes of assessing compliance with the [**].
If on or after the Effective Date, NxStage offers another Active NxStage Customer (as defined below) the opportunity to apply a portion of previous System rental payments (e.g., percentage of rental payments over period of time) to the purchase of its Systems in the field, Customer will be given the opportunity to do the same within [**] days of written notification on a like number of Systems on similar terms; provided that any Systems purchased under such program will be subtracted from the Rental Cap for the remainder of the Term. For purposes of this Schedule D, the term “Active NxStage Customer” means any entity, other than Customer, with [**] sites/facilities located in a specific geographic market that has [**] patients trained and billed on the use of the System One through such sites/facilities and is using the System One or any related NxStage home hemodialysis products for chronic patient home hemodialysis therapy.
Commencing with the calendar quarter ended June 30, 2013 and each calendar quarter thereafter during the Term, NxStage agrees to calculate its compliance with the [**] and to promptly notify Customer (i.e., within [**] days of the end of any calendar quarter) in the event that the Purchase Price or rental rate set forth in Sections 2 or 4 of Schedule B-3, as applicable, provided by NxStage to any individual or entity that is not a party hereto is not in compliance with the [**].
In the event that: (i) the [**] for Monthly Dialysis Supplies or (ii) [**] provided by NxStage during any applicable calendar quarter does not comply with the [**] MFN Covenant, NxStage shall provide a rebate to Customer, which rebate shall be provided in the form of a credit to be applied against future purchases hereunder in an amount equal to the difference between [**] during any such applicable calendar quarter (each, a “[**] MFN Rebate”).
In the event that the rental rate set forth in Sections 2 or 4 of Schedule B-3 for any Product provided by NxStage during any applicable calendar quarter does not comply with the Rental Covenant, NxStage shall provide a rebate to Customer, which rebate shall be provided in the form of a credit to be applied against future rentals hereunder in an amount equal to the difference between [**] during any such applicable calendar quarter (each, a “Rental Rebate” and together with the [**] MFN Rebate, each, a “MFN Rebate” and collectively, the “MFN Rebates”).
In the event that the Purchase Price for any Product provided by NxStage during any applicable calendar quarter does not comply with the [**] MFN Covenant, NxStage shall give Customer the right to purchase any such affected Products on the same pricing contractual terms [**] that led to an individual or entity that is not a party hereto receiving pricing that is not in compliance with the [**] MFN Covenant at all Authorized Customer Locations within a [**] mile radius of the individual or entity that is not a party hereto that received pricing that is not in compliance with the [**] MFN Covenant (the “[**] MFN Non-Compliant Covenant Pricing Terms”).
In the event that Customer has a credit balance with NxStage within [**] days of the payment of any applicable MFN Rebate, NxStage shall deliver a check to Customer in an amount equal to such credit balance within [**] business days of the expiration of such [**] day period.
NxStage shall not be considered non-compliant with the [**] due to (A) philanthropic reasons, (B) Product evaluations, [**], Product sampling, or [**]; provided that, as soon as is commercially possible, NxStage gives the Authorized Customer Locations the opportunity to participate in a similar program at a similar scale), (C) credits provided for Product returns or missed treatments or discontinuations of patient therapy, or (D) [**].
| 2. | OTHER |
Customer represents and warrants to NxStage that it has not entered into any agreement which conflicts with the terms and conditions of the Agreement and that it will not do so during the Term. NxStage understands and acknowledges that neither Customer nor any of the Authorized Customer Locations have promised or committed to [**].
NxStage represents and warrants to Customer that: (a) it has not entered into any agreement which conflicts with the terms and conditions of the Agreement and that it will not do so during the Term, and (b) it shall not enter into any distributorship agreement or other similar agreement with any third party covering the sale, rental, licensing, leasing or distribution of the System One for chronic home hemodialysis in the Continental United States and Hawaii, except where any such agreements are consistent with the terms and conditions of the Agreement.
Schedule E
Hawaii
Schedule E
Chronic Outpatient Therapy Agreement
Hawaii
The following additional specific terms and conditions apply to the purchase of the Products and certain services for use in Hawaii for chronic patient therapy. The pricing in Schedule B-4 of the Agreement shall not apply with respect to any of the delivery services set forth in Schedule B-4 of the Agreement that are to be performed or provided to Hawaii. Additionally, if the terms and conditions of this Schedule E conflict with or are in addition to the terms of the rest of the Agreement, the terms of this Schedule E shall control with respect to the purchase of the Products and certain services for use in Hawaii for chronic patient therapy.
1. SYSTEMS AND MONTHLY SUPPLIES FOR HAWAII
All Systems for use in Hawaii will be purchased or rented, as applicable, at the pricing set forth in Schedule B-3 to the Agreement and shipped directly to the applicable Authorized Customer Location in Hawaii. Shipping to Hawaii shall be [**].
Only PureFlow SL Monthly Dialysis Supplies will be sold for use in Hawaii as set forth in this Schedule E. Express Monthly Dialysis Supplies will not be sold for use in Hawaii. Customer will purchase PureFlow SL Monthly Dialysis Supplies for chronic patients in Hawaii at the pricing set forth in the table titled “NxStage Price List - Monthly Dialysis Supply Packages” set forth in Schedule B-1 to the Agreement; provided that (a) PureFlow SL Monthly Dialysis Supplies must be shipped in [**] patient month quantities and (b) a [**] shipping charge for each PureFlow SL Monthly Dialysis Supply Package that is shipped to an Authorized Customer Location in Hawaii will be [**]. PureFlow SL Monthly Dialysis Supplies shipments will be based on the prescribed frequency and the inventory needs of the patient, as reported to NxStage by Customer.
Customer will purchase Ancillary/Replacement Supplies, including bags of pre-mixed dialysate to have as backup for PureFlow SL patients, at the pricing outlined in Schedule B-2 to the Agreement and shipping will be [**].
Systems shall be serviced consistent with the terms of Schedule C to the Agreement; provided that (i) System service swaps shall occur at a designated Customer center/warehouse in Hawaii, (ii) System service swaps will require a [**] business day lead time, and (iii) [**] shall pay the shipping charges as outlined in the table below for such System service swaps (such charges include shipment of a System from NxStage to Hawaii and from Hawaii back to NxStage). The shipping charges and any expedited shipping charges for System service swaps shall be [**]. No shipping charges will be applied to a System service swap that is required due to an out-of-box failure of a System (as determined by NxStage Technical Support) that has been shipped directly to an applicable Authorized Customer Location.
| Equipment |
Shipping Charge | |||
| Warmer |
[** | ] | ||
| PFSL Control Unit |
[** | ] | ||
| PFSL Chassis |
[** | ] | ||
| Cycler |
[** | ] | ||
| Jewel Box/ConNx Box |
[** | ] | ||
2. OTHER
Customer will provide the clinical support, training, and ongoing therapy expertise to support its Hawaiian patients. NxStage technical support will be generally accessible 24/7, but customer service, product orders, and service exchanges may only be initiated by Customer personnel.
