Private Label Manufacturing and Supply Agreement - Diatron Messtechnik GmbH and ABAXIS Inc.
PRIVATE LABEL MANUFACTURING AND SUPPLY AGREEMENT
THIS PRIVATE LABEL MANUFACTURING AND SUPPLY AGREEMENT (this "Agreement")
is made as of this 13th day of November, 2003 (the "Effective Date"), by and
between Diatron Messtechnik GmbH., a corporation organized under the laws of
Austria and having its principal place of business at Ameisgasse 49-51/2A, 1140
Vienna ("Supplier"), and Abaxis, Inc., a California corporation having its
principal place of business at 3240 Whipple Road, Union City, California 94587,
USA ("Purchaser").
BACKGROUND
Supplier is a supplier of hematology analyzers for use in the human and
veterinary blood analysis market and Purchaser wishes to purchase Supplier's
products for use in the veterinary market. Supplier agrees to sell to Purchaser,
and Purchaser agrees to purchase, the products described below, subject to the
terms and conditions contained in this Agreement, for distribution by Purchaser
under its own trademarks and tradenames.
AGREEMENT
Supplier and Purchaser agree as follows:
1. Purchase and Sale Obligations.
1.1 General. Supplier hereby appoints Purchaser as Supplier's
reseller of the products specified on Schedule A (Products) attached to this
Agreement and incorporated herein by this reference (the "Products"). Subject to
the terms and conditions of this Agreement, Purchaser agrees to purchase, and
Supplier agrees to sell the Products. With respect to the HMII Hematology
Analyzer described on Schedule A (Products) as of the Effective Date, Supplier
appoints Purchase as Supplier's exclusive worldwide distributor. The parties may
modify the Products subject to this Agreement from time to time by annexing a
revised Schedule A (Products) to this Agreement. Supplier agrees that Supplier
will not (and will not permit any third party to) distribute any other products
of Supplier which are hematology products, in the veterinary market in the
United States, Canada, Australia, New Zealand, Japan and/or in such other
geographic territories as the parties may mutually agree in writing.
1.2 Minimum Purchase Commitment and Exclusivity. Purchaser agrees to
order from Supplier for delivery during each Contract Year during the term of
this Agreement, the minimum number of Products, per Contract Year, as is
specified on Schedule B attached hereto and incorporated herein (the "Minimum
Purchase Commitment"). Contract Year shall mean each twelve (12)-month period
commencing with the date Products are first available for
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shipment to Purchaser. Supplier agrees, subject to Purchaser's strict compliance
with the terms and conditions of this Agreement including, without limitation,
Purchaser's compliance with the Minimum Purchase Commitment, that it will not,
directly or indirectly, knowingly sell products with the same form, fit and
function of the Products into the veterinary market in competition with the
Products. The failure to meet the Minimum Purchase Commitment shall not
constitute an Event of Default as defined in Section 14.2 (Termination Upon
Event of Default) of this Agreement unless and/or until the amount Purchaser
orders for delivery during any Contract Year falls below seventy-five percent
(75%) of the then applicable Minimum Purchase Commitment. Supplier agrees to
disclose to Purchaser any inquiries, sales leads or information it receives from
potential purchasers of Products in territories set forth in Section 1.1
(General).
1.3 Governmental Rules and Regulations. Supplier's obligation to
ship orders to Purchaser under this Agreement shall be subject to Supplier's
right and ability to make such sales and obtain required licenses and permits,
under all applicable decrees, statutes, rules and regulations of a government
and/or agency with competent jurisdiction presently in effect or which may be in
effect hereafter.
2. Orders, Payment and Delivery.
2.1 Orders. Purchaser shall order Products from Supplier under this
Agreement by submitting to Supplier a written purchase order specifying the
Products, quantities and requested delivery dates required to enable Supplier to
fill the order. Each purchase order submitted to Supplier is subject to
acceptance by Supplier at its offices to which such order was submitted.
Supplier shall have no liability to Purchaser with respect to orders which are
not accepted by Supplier; provided, however, that Supplier will not unreasonably
reject any orders for Products which do not require any modifications or
additions, other than the modifications of Supplier's products specified in
Section 3.1 (Customization for the Veterinary Market) hereto. Subject to the
foregoing, Supplier may reject, in its sole discretion, any order for customized
Products. In the event Supplier has not given Purchaser notice of acceptance or
rejection of a purchase order within ten (10) business days of receipt thereof,
such order shall be deemed accepted. The purpose of the purchase order to be
issued under this Agreement is for specifying the Products, quantities and
requested delivery dates only; no terms and conditions of Purchaser's purchase
orders, Supplier's order acknowledgment or any other document or instrument of
Purchaser or Supplier shall be binding upon the other party or amend or modify
this Agreement in any manner.
2.2 Prices. The purchase price for Products sold under this
Agreement shall be determined in accordance with Schedule A (Products) hereto
from the date hereof until the end of the first Contract Year. After the first
Contract Year, Supplier may modify the prices for Products, upon notice to the
Purchaser; provided such prices do not increase more than five percent (5%) in
any one Contract Year, unless justified by cost increases incurred by Supplier
from third-party suppliers. Supplier agrees to provide Purchaser with ninety
(90) days prior written notice of any price change and Supplier agrees to honor
the price in effect prior to any notice with respect to orders (i) placed prior
to the price change effective date and (ii) not modified or canceled by
Purchaser. All sales are F.O.B. Vienna or Budapest (Incoterms 2000). Purchaser
agrees to separately pay all expenses incurred by Supplier in the shipment and
delivery
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of ordered Products, including without limitation freight charges, import duties
and insurance premiums. Purchaser shall determine, in its sole discretion, the
price at which Purchaser resells Products to Purchaser's customers.
2.3 Shipment and Delivery. Shipments will be made to the warehouse
facilities of Purchaser in Union City, California, USA or Darmstadt, Germany, as
designated by Purchaser in advance of each shipment. Shipments will be made by
air to Union City and by truck to Darmstadt. In the event Purchaser requests
express delivery or shipment by air instead of by truck or by courier service,
Purchaser agrees to pay all additional expenses required by such request.
Supplier will use commercially reasonable efforts to meet Purchaser's requested
delivery schedules for Products. For Supplier's first purchase order, the latest
shipment date shall be 90 days after receipt of purchase order. In any other
event, Supplier agrees to ship the ordered quantity of Products within thirty
(30) days after receipt of the applicable purchase order, unless the quantity of
Products ordered in such purchase order exceeds the number of products
forecasted (pursuant to Section 2.6 (Forecasts)) by twenty-five percent (25%) or
greater, in which case, Supplier agrees to ship those Products ordered in excess
of the forecast within ninety (90) days after receipt of such purchase order.
Should orders for Products exceed Supplier's available inventory, Supplier will
allocate its available inventory and make deliveries on such basis as Supplier
deems equitable, as agreed to by both parties. Unless otherwise specified in
Purchaser's purchase order, Supplier shall be authorized to make deliveries in
installments. Purchaser shall make any claims for shortage or damage of Products
with the common carrier promptly upon receipt of the order and provide Supplier
with written notice of such a claim. Except in the case of negligence on the
part of Supplier or Supplier's failure to package Products as set forth below,
Supplier will not have responsibility for Products damaged in shipment and
Purchaser must handle all claims for damage with the carrier. As between
Supplier and Purchaser, Products shall be deemed accepted by Purchaser unless,
within ninety (90) days of delivery of the Products, Purchaser affirmatively
rejects the Products, by written notice detailing the reasons for rejections.
The parties acknowledge that they may mutually agree in writing in the future
that the foregoing period of time be reduced. Such reasons for rejection may be
non-conformance of the Products to the technical specifications described on
Schedule A (Products), damage in connection with bodily injury and property
damage arising out of any defect in the Products made intentionally,
unintentionally or negligently by Supplier during manufacturing and packaging,
and the breach of any material provision of this agreement by Supplier. If no
such notice of rejection is received, Purchaser shall be deemed to have accepted
delivery provided, however, the acceptance of delivery shall in no way diminish
or affect the product warranty given by Supplier in Section 6 (Warranty and
Repairs). If Purchaser rejects a shipment, Purchaser shall promptly return a
sample of the defective Product to Supplier in accordance with Supplier's
instructions, to enable Supplier to, within thirty (30) days, inspect and
determine whether the Product is defective; provided that Purchaser shall retain
the rest of the Products pending such determination. It is Purchaser's
responsibility to properly store and handle all Products pending inspection
and/or return. If rejection was timely effected and Supplier determines the
Products to be defective, Supplier agrees to repair or replace the Products or
cancel an unpaid invoice or refund the amounts paid with respect to such
defective Product which is returned to Supplier, at Supplier's option.
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All shipments shall be accompanied by a quality control release report
(the form and contents of which shall be mutually agreed upon by the parties)
for each unit of Product shipped by Supplier. Unless Purchaser requests
otherwise, all Products ordered by Purchaser shall be packed for shipment and
storage in accordance with Schedule A (Products). It is Purchaser's obligation
to notify Supplier of any special packaging requirements (which shall be at
Purchaser's expense).
2.4 Payment. Purchaser agrees to pay amounts invoiced by Supplier
for Products without offset or deduction for any reason whatsoever except as
otherwise provided in Section 2.3 (Shipment and Delivery), within thirty (30)
days from the date of invoice payable in Euro. If Purchaser fails to pay any
amount when due, Purchaser agrees to pay all costs and expenses, including
without limitation reasonable attorney's fees, incurred by Supplier in
collecting such overdue amounts, together with interest on such unpaid amount at
the lesser of one and one-half percent (1-1/2%) per month or the greatest amount
permitted by applicable law. Supplier reserves the right at any time after
Purchaser fails to make any payment within sixty (60) days after the due date,
to require payment for all Products delivered hereunder to be made by
irrevocable letter of credit. If Supplier elects to have payment made by letter
of credit, Purchaser shall select the issuing bank, which must be acceptable to
Supplier. Any such letter of credit shall be governed by Uniform Customs and
Practice for Documentary Credits (UPC) 500.
2.5 Title and Risk of Loss. Title to and risk of loss of the
Products shall pass to Purchaser upon the earlier of delivery of the Products to
Purchaser or to a carrier at Supplier's point of shipment.
2.6 Forecasts. Purchaser shall submit a rolling twelve (12)-month
sales forecast to Supplier every three (3) months on the first day of each
calendar quarter first following the Effective Date of this Agreement (or, if
the Effective Date of this Agreement is within thirty (30) days before any of
such dates, commencing on the second such date after the Effective Date of this
Agreement). Such sales forecast shall include expected sales quantities per
month, order dates, shipping dates and Product requirements. If the most recent
forecast becomes materially inaccurate at any time, Purchaser shall promptly
provide Supplier with updated information. The forecast information for months
four (4) through twelve (12) of the sales forecast shall be for planning
purposes only and Purchaser is not required to purchase the Products projected
to be sold on the sales forecast. The Purchaser shall issue a purchase order and
purchase the Products included in the first three (3) months of each forecast,
in accordance with the provisions of Section 2.1 (Orders).
3. Substitutions and Modifications; Discontinued Products; Quality
Assurance.
3.1 Customization for the Veterinary Market. Supplier agrees to
modify Supplier's product in accordance with the technical specifications set
forth on Schedule A (Products). It is anticipated that this work will include
modifications to the embedded software and/or the keypad and/or the interface.
Supplier and Purchaser shall collaborate to ensure the proper interface,
connection and interoperability between the software of Supplier's product and
that of the VetScan, a product of Purchaser. Technical specifications of the
interfaces of Supplier's products and their modifications according to
Purchaser's requirements for the
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Products are set forth on Schedule D (Interface). Purchaser agrees to assist
Supplier in the translations, revisions and editing work to provide an operating
manual in English for the Products.
3.2 Reagents for Products. Purchaser shall be responsible for
producing or procuring from third parties reagents for use in the Products.
Supplier shall assist Purchaser in the procurement of reagents as well as inform
Purchaser in writing of any changes in the performance of the Products that
affect the specifications of the then-current reagent used on the Products with
at least ninety (90) days prior notice.
3.3 Product Changes. Except with respect to Products ordered
pursuant to a purchase order which has been accepted by Supplier as described in
Section 2.1 (Orders) Supplier shall have the right, at any time and from time to
time, to make substitutions and modifications to the Products (including
software improvements); provided, however, that Supplier agrees to consider that
Purchaser's use of the Products is in the veterinary market in making any such
substitutions or modifications. In the event that any proposed substitution or
modification affects, in Supplier's reasonable judgment, the form, fit or
function of a Product, Supplier shall give Purchaser written notice of such
proposed substitution or modification at least thirty (30) days prior to its
taking effect and Purchaser shall have the right, during such thirty (30)-day
period, to order Products without such substitution or modification for delivery
within fifteen (15) days after the expiration of such thirty (30)-day period.
Any changes that affect the Product performance, operation or documentation
shall be provided to the Purchaser in writing with no less than ninety (90) days
notice. Purchaser shall have the right, at any time and from time to time to
request substitution and/or modification to the Products. In the event of such
request Supplier agrees to review and consider the requested modifications and
notify Purchaser whether it is feasible and/or practical to make the
modifications requested. In the event Supplier notifies Purchaser the
modifications are feasible and practical, it will also notify Purchaser of the
estimated modification costs and estimated time for manufacturing the modified
Product. All work requested by Purchaser, other than that set forth in Sections
3.1 (Customizations for the Veterinary Market), 6 (Warranty and Repairs) and 8.1
(Clinical Studies), will be charged on a time and materials basis, at an initial
rate of fifty Euros ((euro)50) per employee per hour, for a minimum of 3.5 hours
for each request (or as may be otherwise mutually agreed upon by the parties).
3.4 Discontinued Products. Supplier agrees to notify Purchaser in
writing not less than one (1) year in advance of the discontinuance of any
Product. In the event Supplier is unable to manufacture the Products for
Purchaser (due to bankruptcy, fire, or other event of force majeure), then
Purchaser will have the right to manufacture the Products (or have the Products
manufactured for Purchaser), and, in exchange, pay a reasonable royalty or
license fee for such right. The parties will establish an escrow account
providing for the deposit of updated copies of all information reasonably
necessary for the manufacture of the Products with a third party (to be agreed
upon by the parties) under terms to be agreed upon in good faith between the
parties and such third party. Purchaser agrees to cover the costs for
establishing and maintaining of said escrow account. Supplier will deposit in
the escrow account all information reasonably necessary for the manufacture of
the Products prior to shipment of the first order of Products.
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The conditions for the transfer of know-how related to such manufacture shall be
agreed upon separately in good faith by the parties.
3.5 Quality Assurance. The Product shall be manufactured in
accordance with ISO 9001 standards. Purchaser shall be permitted to inspect
facilities in which the Products are developed and produced upon reasonable
advance written notice to Supplier, during business hours at times reasonably
convenient to both parties; provided, however, that Purchaser acknowledges that
all information obtained in the course of any such inspection shall be deemed
proprietary information pursuant to Section 4 (Confidentiality) of this
Agreement. Supplier shall be permitted to inspect Purchaser's storage and
handling procedures of the Product upon reasonable advance written notice to
Purchaser during business hours at times reasonably convenient to both parties;
provided, however, that Supplier acknowledges that all information obtained in
the course of any such inspection shall be deemed proprietary information
pursuant to Section 4 (Confidentiality) of this Agreement.
4. Confidentiality. Supplier and Purchaser agree that certain information
supplied by each to the other during the term of this Agreement, including,
without limitation, the Products, the documentation and the intellectual
property and technology underlying the Products, the information for
customization pursuant to Section 3.1 (Customization for the Veterinary Market)
and information contained on purchase orders or regarding Purchaser's ordering
or delivery patterns is proprietary, secret, confidential or non-public. All
such information shall be held in confidence by the receiving party, shall be
used only for the purposes of this Agreement and shall not be disclosed to any
person other than an employee with a need to know the information in order to
fulfill the obligations of the receiving party hereunder. Information shall not
be subject to the provisions of this Section 4 (Confidentiality) if shown by
recipient's records to be: (i) in the public domain at the time of disclosure or
thereafter through no fault of the recipient; (ii) known to the receiving party
at the time of disclosure; (iii) disclosed to the receiving party without an
obligation of confidentiality by a third party with the legal right to make such
free disclosure; (iv) developed independently by the receiving party by
personnel without access to or knowledge of the information disclosed; or (v)
clinical studies set forth in Section 8.1 (Clinical Studies) and other
developments and improvements of products, parts, programs and interfaces which
are not specifically proprietary or confidential information of Purchaser or any
third party. The receiving party may disclose information to the extent
requested or required by a governmental or judicial entity, provided such
disclosure is limited to the fullest extent permitted by applicable law.
All documentation with respect to the Products (except information
contained in or for use in manuals, promotional materials or educational
materials to be provided to Purchaser's customers), are furnished solely for
Purchaser's internal use. Purchaser may make copies of such documentation to
satisfy its internal requirements, provided that all such copies include
appropriate copyright and proprietary information notices. No other copies or
use of such documentation, or any portion thereof, shall be made without the
prior written approval of Supplier. From time to time, Purchaser shall provide
Supplier with feedback, comments or suggestions regarding the Products
(collectively, "Feedback"). Feedback, if any, will be the property of the
Supplier and may be freely used by Supplier in Supplier's business. Feedback
specifically excludes any proprietary or Confidential Information of Purchaser.
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Upon termination of this Agreement, Purchaser shall return or, at
Supplier's request, destroy all confidential, proprietary or secret information
of Supplier in Purchaser's possession. The obligations of the parties pursuant
to this Section 4 (Confidentiality) shall survive the expiration or earlier
termination of this Agreement for a period of five (5) years.
5. Product Trademarks and Copyrights.
5.1 Trademark Usage. Purchaser agrees that the Products purchased
and/or licensed hereunder shall be sold or leased by Purchaser only under the
trademarks, tradenames or logos (collectively the "Purchaser Marks") of
Purchaser.
5.2 Notices. Purchaser shall not alter or remove any copyright,
trademark, trade secret, proprietary and/or other legal notices of Supplier or
third parties contained on or in the Products. The existence of any such
copyright notice shall not be construed as an admission, or be deemed to create
a presumption, that any publication of such Products has occurred.
5.3 Logos. Supplier shall label all Products with Product serial
numbers, Product electrical data, Purchaser Marks and such other label
information as may be specified by Purchaser. Purchaser shall provide Supplier
with camera-ready artwork necessary for the labeling of the Products, which
shall include, without limitation: Purchaser Marks, Product serial numbers,
electrical data label information, and such additional information as may be
specified by Purchaser. Supplier shall be responsible for the costs of such
labeling. Supplier shall be responsible for ensuring that the Products and all
labeling conform to applicable rules and regulations with respect to electrical
standards established by Underwriter's Laboratories ("UL") for the United States
and Canada and by Conformite Europeen ("CE"). Purchaser shall be responsible for
the costs of registration. The parties will discuss in good faith the
apportionment of costs for ensuring conformity of the Products to rules of other
applicable standard setting organizations in the applicable jurisdictions.
Purchaser shall be responsible for the costs of registration with such other
standard setting organizations in the applicable jurisdictions.
5.4 Trademark License. Purchaser hereby grants to Supplier a
non-exclusive, non-transferable right to use the Purchaser Marks solely on the
Products ordered by Purchaser hereunder and associated packaging. Supplier
agrees to the following:
(a) to comply with Purchaser's guidelines and instructions
regarding use of the Purchaser Marks as communicated to Supplier from time to
time;
(b) in the event Purchaser notifies Supplier that such use is
not in conformance with Purchaser's guidelines and instructions, to promptly
bring such use into conformance;
(c) to ensure that all use of the Purchaser Marks will not
reflect adversely upon the good name or good will of Purchaser and that all
Products in connection with which the Purchaser Marks are used are of high
standard and workmanship and of such nature,
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style, appearance and quality as shall be adequate and suited to the protection
of the Purchaser Marks and the goodwill associated therewith;
(d) not to use the Purchaser Marks (or any part thereof) as
part of, or in combination with, any other names or trademarks without
Purchaser's prior written approval;
(e) not to register (or aid any third party in registering)
the Purchaser Marks (or confusingly similar mark) or take any action
inconsistent with Purchaser's ownership of the Purchaser Marks in any
jurisdiction; and
(f) that all usage of the Purchaser Marks will be on behalf
of, and inure to the benefit of, Purchaser.
6. Warranty and Repairs.
6.1 Warranty. Supplier warrants that the Products manufactured and
sold by it will be free from defects in material and workmanship, and will
substantially conform to the technical specifications described in Schedule A
(Products), in normal use and service for a period and under the terms set forth
in Schedule C (Warranty Terms), annexed hereto and made a part hereof. The
warranty set forth in this Section 6.1 (Warranty) shall be void to the extent of
(i) any modification of a Product (except for repairs made by Purchaser) by any
person or entity other than Supplier, (ii) misuse or abuse of a Product or
documentation by Purchaser or Purchaser's customers or end users, (iii)
negligence or wrongdoing of Purchaser or Purchaser's customers or end users,
(iv) accident, disaster or event of force majeure, (v) use of a Product or
documentation in any manner inconsistent with this Agreement, (vi) causes
external to a Product such as, but not limited to, power failure or electrical
power surges, (vii) improper storage of a Product, (vii) use of a Product in
combination with products, equipment or software not supplied by Supplier or by
Purchaser or (viii) use of a Product in combination with products, equipment or
software supplied by Purchaser without Supplier's technical approval. Purchaser
shall pay Supplier for services performed by Supplier not covered by this
Section 6.1 (Warranty) at Supplier's then current time and materials rates.
6.2 Repairs. Purchaser shall be responsible for proper installation,
service, maintenance and repair of the Products as well as for coordinating
repair requests from Purchaser's customers or end users and for resolution of
such repair requests. If Purchaser cannot resolve a repair request through
Purchaser's technical support personnel or by providing spare parts, Purchaser
shall first coordinate with Supplier's technical support personnel for
resolution of such repair request. In exceptional cases and after thorough
troubleshooting Purchaser shall ask for written authorization to return Products
to Supplier for repair. It is Supplier's option to choose the carrier when
Supplier is responsible for transportation costs. Except for rejected Products
set forth in Section 2.3 (Shipment and Delivery) and for Products covered by the
warranty in Section 6.1 (Warranty) which are returned within the one (1)-year
warranty period, Purchaser shall be responsible for (a) paying the cost of
mailing the Products to repair facilities designated by Supplier, (b) paying
Supplier for its labor costs at Supplier's then current time rates and (c)
providing replacement Products on a loan basis to Purchaser's customers or end
users. Supplier shall return repaired Products to Purchaser within thirty (30)
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days of receipt of such Products and pay the cost or return mailing for Products
received prior to the end of the one (1)-year warranty period; otherwise
Purchaser shall be responsible for paying the cost of return mailing for
Products received after the one (1)-year warranty period as well as paying
Supplier for its services at Supplier's then current time and materials rates.
If any Product is returned to an authorized Supplier service location specified
by Supplier within the warranty period set forth above, and upon examination
Supplier determines to its satisfaction that such Product is covered by the
warranty in Section 6.1 (Warranty), within the warranty period set forth herein,
Supplier will, at its option and as Purchaser's sole and exclusive remedy for a
breach of this warranty, repair or replace the Product or the defective part
hereof or refund the original purchase price of the Product to the Purchaser
within thirty (30) days after receipt of the defective Product. Purchaser agrees
to purchase an adequate stock of spare parts for the Products and Products to be
loaned to Purchaser's customers of the Products, for use during servicing of
Products under warranty repair.
6.3 Disclaimer. Except for the warranty set forth in this Section 6
(Warranty and Repairs) and Section 11 (Representations and Warranties), Supplier
disclaims all warranties, whether express or implied, oral or written, with
respect to the Products, including without limitation, all implied warranties of
merchantability or fitness for any particular purpose. Laws from time to time in
force in certain jurisdictions may imply warranties that cannot be excluded or
can only be excluded to a limited extent, and this Agreement shall be read and
construed subject to any such statutory provisions. Purchaser shall be
responsible for any warranty it extends, either directly or indirectly,
expressly or by operation of law, beyond the warranty expressly granted in this
Section 6 (Warranty and Repairs). Supplier is not responsible for (i) damages
caused by Purchaser's failure to perform Purchaser's responsibilities or (ii)
damages due to deterioration during periods of storage by Purchaser longer than
those periods set forth in the Product documentation.
7. Consequential Damages Waiver; Limitation of Liability. EXCEPT FOR
LIABILITY ARISING UNDER SECTION 4 (CONFIDENTIALITY) AND A PARTY'S OBLIGATIONS
UNDER SECTION 12 (INDEMNITIES) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH
PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME.
8. Supplier's Support Obligations.
8.1 Clinical Studies. Supplier agrees to complete, at its own
expense, clinical studies to establish and validate normal dosages, ranges and
studies (i) for the species ferret, mouse, rabbit and rat within six (6) months
of Effective Date; (ii) for other species to include (without limitation) sheep,
goat, pig, monkey (species to be identified and subject to availability for
Supplier) and cow within twelve (12) months of Effective Date; and (iii) for
such other species as the parties may mutually agree, in the time frames for
which the parties may mutually agree. In each case, Supplier will deliver
Purchaser a copy of the results and data from said studies, upon the completion
of said results.
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8.2 Training. Supplier agrees to provide to Purchaser five (5) days
of service and technical training for Purchaser personnel at Supplier's
production facility in Budapest. For service training and technical training,
Supplier will provide the training facility, training materials and training
personnel. Purchaser shall be responsible for the travel, hotel, and other
living expenses of its personnel being trained. In the event that Purchaser
requires or requests training in excess of that specified in this Section 8.2
(Training), all required training will occur within the first year of this
Agreement, on dates mutually agreed between the parties.
8.3 Post-Warranty Service. For a period of two (2) years after the
last to expire of the warranty periods of the Products ordered during the term
of this Agreement, Supplier agrees to provide reasonable e-mail technical
support to Purchaser with respect to high level, complex issues which require
personnel experienced in the field of hematology for resolution. Purchaser shall
be responsible to its customers and end users for all post-warranty support and
maintenance. In the event Purchaser requests provision of post-warranty service
by Supplier other than as expressly provided in this Agreement, such will be
provided, at Supplier's discretion, on a time and materials basis. Supplier
shall make available to the Purchaser spare parts and assemblies for seven (7)
years after the date of the last unit shipped to Purchaser. A list of Supplier's
current standard prices for spare parts is attached hereto as Schedule E (Spare
Parts Price List).
8.4 Marketing and Promotional Materials. Supplier shall provide
existing promotional materials and technical consultation to Purchaser for
Purchaser's development of its own internal promotional and educational
materials. Purchaser shall be solely responsible for the costs of developing
promotional and educational materials for Purchaser's customers and end users.
9. Product Recalls. Supplier shall be responsible for all Product recalls.
Supplier agrees to take any and all actions, at its sole cost and expense, which
are reasonably necessary and appropriate to effectuate a Product corrective
action, including, without limitation, a Product recall, provided, however that
Purchaser agrees to cooperate with Supplier in such action, including, without
limitation contacting customers and assisting in the transfer of Products, as
directed by Supplier, if necessary. Supplier agrees to respond within a
reasonable period to any question or request for information received by
Purchaser from its customers pertaining to the production of Product. Each party
agrees to provide to the other party all necessary information in its possession
arising out of a recall or corrective action program or similar program,
including a Supplier quality assurance program. Upon thirty (30) business days
written notice, each party shall, at a time and place mutually agreeable to the
parties, have the right to audit and inspect the other's facilities and/or
records relating to such party's obligations under this Agreement and with
respect to the Products. All information that the inspecting party obtains in
the course of such inspection or audit shall be treated as "Confidential
Information," in accordance with Section 4 (Confidentiality) of this Agreement.
10. Software.
10.1 Title. Notwithstanding the references in this Agreement to the
purchase of Products by Purchaser, the parties intend and agree that the
veterinary software programs
Page 10
<PAGE>
included or embedded in the Products (the "Programs") necessary for the
operation of the Products are being licensed by Supplier to Purchaser on an
exclusive basis, and are not being sold by Supplier or purchased by Purchaser.
Supplier or the ultimate owner of the Programs, as the case may be, shall retain
title to the Programs.
10.2 Limited Use License. Supplier hereby grants to Purchaser a
nontransferable, royalty-free license (with right of sublicense through
Purchaser's channels of distribution) to use the Programs in connection with the
use, sale and/or distribution of Products. Purchaser shall retain and shall not
alter or obscure any notices, markings or other insignia which are affixed to
the Programs, related documentation or any part thereof. Purchaser shall not
have the right to disassemble, decompose or otherwise reverse engineer the
Programs. The foregoing license as to Purchaser (but not as to any customers or
end users who have purchased the Products) shall terminate upon the expiration
or earlier termination or expiration of this Agreement.
11. Representation and Warranties. Each party hereby represents and
warrants to the other party as of the Effective Date as follows:
11.1 Authorization. Such party (i) has the corporate power and
authority and the legal right to enter into the Agreement and perform its
obligations hereunder, and (ii) has taken all necessary corporate action on its
part required to authorize the execution and delivery of the Agreement and the
performance of its obligations hereunder. The Agreement has been duly executed
and delivered on behalf of such party, and constitutes a legal, valid, binding
obligation of such party and is enforceable against it in accordance with its
terms subject to the effects of bankruptcy, insolvency or other laws of general
application affecting the enforcement of creditor rights and judicial principles
affecting the availability of specific performance and general principles of
equity whether enforceability is considered a proceeding at law or equity.
11.2 Absence of Litigation. Supplier is not aware of any pending or
threatened litigation (and has not received any communication) which alleges
that the Products infringe upon any intellectual property rights of a third
party.
11.3 Consents. All necessary consents, approvals and authorizations
of all governmental authorities and other persons or entities required to be
obtained by such party in connection with the Agreement have been obtained.
11.4 Intellectual Property. To the best of Supplier's knowledge,
Supplier has sufficient legal and/or beneficial title and ownership under
Supplier's intellectual property rights or sufficient license rights necessary
for Supplier to fulfill Supplier's obligations under this Agreement and that
Supplier is not aware of any communication alleging that Supplier has infringed
the intellectual property rights of any third party. In the event that Supplier
becomes aware that a Product may infringe a patent of a third party, Supplier
agrees to disclose such patent to Purchaser. Supplier further agrees (i) to
inquire of the applicable third party as to whether a license under such patent
is available, and if so, (ii) to negotiate, in good faith, a license under such
patent which would permit Purchaser to distribute the applicable Product as
contemplated hereunder. If Supplier does not negotiate such a license in good
faith and
Page 11
<PAGE>
Purchaser in good faith believes, from a business perspective, that a license
under such patent is appropriate, Supplier agrees that Purchaser may contact the
applicable third party in order to negotiate a license under such patent and
Supplier agrees to reimburse Purchaser for any monies paid by Purchaser to the
applicable third party under such patent license. As used herein, "intellectual
property rights" means all patent rights, copyrights, trademarks, trade secret
rights, and know-how rights necessary or useful to make, have made, use, offer
for sale, sell, have sold, import and export the Products.
12. Indemnities.
12.1 By Supplier. Supplier shall indemnify, defend and hold
Purchaser harmless from and against any damages, claims, suits, actions, causes
of action, demands, liabilities, losses, costs and expenses (including without
limitation reasonable attorneys' fees and disbursements and court costs) as a
result of or arising out of any claim (a) that the Products supplied hereunder
infringe any patent or valid copyright of a third party; or (b) the Products
supplied hereunder have caused bodily injury or property damage provided that
(i) Purchaser shall have promptly provided Supplier written notice of such claim
and reasonable cooperation, information and assistance in connection therewith
and (ii) Supplier shall have sole control and authority with respect to the
defense, settlement, or compromise thereof. Should any Product delivered
hereunder become or, in Supplier's opinion be likely to become, the subject of
such a claim under subsection (a), above, Supplier may, at its option, either
procure for Purchaser the right to continue purchasing and using such Products,
or replace or modify such Products so that they become non-infringing. In the
event neither of these options is practicable, Supplier may accept the return of
the infringing or potentially infringing Products, in exchange for a refund of
the purchase price therefor, amortized over a period of three (3) years. In any
such event, Supplier may withhold further shipments of infringing or potentially
infringing Products.
Supplier shall have no liability or obligation to Purchaser hereunder with
respect to any infringement or claim thereof based upon (i) compliance with
designs, plans or specifications of Purchaser, (ii) use of the Products by
Purchaser in combination with devices or products not purchased hereunder where
the Products would not themselves be infringing, (iii) use of Products by
Purchaser in an application or environment for which such Products were not
designed or contemplated as specified in Schedule A (Products), (iv)
modifications of the Products by anyone other than Supplier where such
modifications directly are the cause of the infringement. The foregoing states
the entire liability of Supplier with respect to infringement of intellectual
property rights by the Products.
12.2 By Purchaser. Purchaser shall indemnify, defend and hold
Supplier harmless from and against any damages, claims, suits, actions, causes
of action, demands, liabilities, losses, costs and expenses (including without
limitation reasonable attorneys' fees and disbursements and court costs) as a
result of or arising from any representations or warranties made by Purchaser to
customers or end users which (a) exceed the scope of the representations or
warranties made by Supplier to Purchaser pursuant to Sections 6 (Warranty and
Repairs) and 11 (Representations and Warranties) of this Agreement; or (b)
contradict the documentation and/or information made available to Purchaser by
Supplier regarding specifications, performance and intended use of the Products,
provided that (i) Supplier shall have promptly
Page 12
<PAGE>
provided Purchaser written notice thereof and reasonable cooperation,
information and assistance in connection therewith, and (ii) Purchaser shall
have sole control and authority with respect to the defense, settlement or
compromise thereof.
13. Compliance with Laws. Purchaser shall comply with all laws, rules,
regulations, governmental requirements and industry standards applicable to the
purchase, sale, leasing, licensing, marketing, demonstration, installation,
servicing, repair or use of the Products supplied to Purchaser hereunder,
including, without limitation those relating to the maintenance and availability
of records. Without in any way limiting the foregoing, Purchaser shall not
export any Product documentation or technical data relating thereto to any
jurisdiction without first obtaining all necessary export permits and
clearances, and in no event shall Purchaser export any Product in violation of
any applicable law or regulation, whether foreign or domestic. In furtherance
of, but without limiting the foregoing, Purchaser represents and covenants that
it has read, understood and will comply with the anti-bribery provisions of the
US Foreign Corrupt Practices Act.
14. Term and Termination.
14.1 Term. Unless earlier terminated pursuant to this Section 14
(Term and Termination) or renewed for one (1)-year terms by written agreement of
the parties hereto, this Agreement shall terminate five (5) years from the
Effective Date.
14.2 Termination Upon Event of Default. Upon the occurrence of an
Event of Default (as defined below), the non-defaulting party, in its sole
discretion, shall have the right to terminate this Agreement, in addition to any
other remedy or remedies which may be available to it under this Agreement, at
law or in equity. In addition, upon the occurrence of an Event of Default by
Purchaser, Supplier shall have the right to cancel any or all unfilled orders
for Products submitted by Purchaser.
The following events shall be deemed "Events of Default" with respect to
the party engage in such activity:
(a) Either party breaches its obligations under Section 4
(Confidentiality) or 10 (Software);
(b) Either party fails to perform any of its covenants,
obligations or responsibilities under this Agreement which failure remains
uncured for thirty (30) days after notice thereof from the non-defaulting party;
provided that the non-defaulting party delivers written notice to the defaulting
party within ninety (90) days of the alleged default;
(c) The dissolution, termination of existence, liquidation,
insolvency or business failure of either party, or the appointment of a
custodian or receiver for either party or any part of its property if such
appointment is not terminated or dismissed within sixty (60) days;
(d) The institution by either party of any proceeding under
the United States Bankruptcy Code or any other federal, national or state
bankruptcy, reorganization,
Page 13
<PAGE>
receivership, insolvency or other similar law affecting the rights of creditors
generally or the making by either party of a composition or any assignment or
trust mortgage for the benefit of creditors; and
(e) The institution against either party of a proceeding under
the United States Bankruptcy Code or any other federal, national or state
bankruptcy, reorganization, receivership, insolvency or other similar law
affecting the rights of creditors generally, which proceeding is not dismissed
within sixty (60) days of filing.
14.3 Termination for Convenience. Either party may terminate this
Agreement upon twelve (12) months prior notice to the other.
14.4 Duties Upon Termination. Upon the termination of this Agreement
for any reason whatsoever:
(a) Purchaser shall pay to Supplier in full within thirty (30)
days of such termination, all amounts owed to Supplier. Supplier shall be
entitled to set off and deduct from any money due Purchaser under this
Agreement, any and all amounts due Supplier from Purchaser; and
(b) Purchaser shall promptly return to Supplier any and all
Supplier-owned Products or other equipment, materials, documentation or data in
the possession of Purchaser for whatever reason or purpose, such Products,
equipment, materials, documentation and data to be in the same condition as when
delivered to Purchaser, reasonable use, wear and tear excepted; and
(c) Supplier shall promptly return to Purchaser any and all
Purchaser-owned equipment, materials, documentation or data in the possession of
Supplier for whatever reason or purpose, such equipment, materials,
documentation and data to be in the same condition as when delivered to
Supplier, reasonable use, wear and tear excepted.
14.5 Survival. Notwithstanding anything to the contrary in this
Agreement, the parties agree that the following provisions shall survive
expiration or earlier termination of this Agreement: 4 (Confidentiality), 6
(Warranty and Repairs), 7 (Consequential Damages Waiver; Limitation of
Liability), 8.3 (Post-Warranty Service), 9 (Product Recalls), 12 (Indemnities),
14.4 (Duties Upon Termination), and 15 (Miscellaneous).
15. Miscellaneous.
15.1 Force Majeure. Supplier shall not be liable in any respect for
failure to ship or for delay in shipment of Products pursuant to accepted orders
where such failure or delay shall have been due wholly or in part to the
elements, acts of God, acts of Purchaser, acts or civil or military authority,
fires, floods, epidemics, quarantine restrictions, war, armed hostilities,
riots, strikes, lockouts, breakdown, differences with workers, accidents to
machinery, delays in transportation, delays in delivery by Supplier suppliers or
any other cause beyond the reasonable control of Supplier. Upon such occurrence,
Supplier shall immediately notify Purchaser as soon as practicable of such
inability and of the period for which such inability is expected to continue,
Page 14
<PAGE>
and any time for performance hereunder shall be extended by the actual time of
delay caused by the occurrence; provided, that the Supplier uses commercially
reasonable efforts to mitigate any damages incurred by the Purchaser. Products
on which delivery is delayed due to any cause within Purchaser's control may be
placed in storage by Supplier for Purchaser's account and at Purchaser's risk.
Purchaser shall be liable for all costs and expenses incurred by Supplier in
storing Products for Purchaser.
15.2 Assignment and Corporate Reorganization. Neither this Agreement
nor any rights granted hereby may be assigned by either party voluntarily or by
operation of law without the other party's prior written consent (which will not
be unreasonably withheld) and any such attempted assignment shall be null and
void. For purposes of this Agreement, "assignment" shall be deemed to include
the transfer of all or substantially all of the assets of, or a majority
interest in the voting stock of, either party, or the merger of either party
with one or more entities. This Agreement shall inure to the benefit of and be
binding upon any successor or assign of either party.
15.3 Equitable Relief. Nothing in this Agreement will prevent a
party from bringing an action for equitable or injunctive relief in any court of
competent jurisdiction to compel the other party to comply with its obligations
under the Agreement.
15.4 Applicable Law and Jurisdiction. This Agreement shall be
governed by and construed in accordance with the internal laws of the State of
California without reference to the conflict of laws provisions thereof.
15.5 Relationship of the Parties. Nothing contained in this
Agreement shall be deemed to constitute either party as the agent or
representative of the other party, or both parties as joint venturers or
partners for any purpose. Neither party shall be responsible for the acts or
omissions of the other party, and neither party will have authority to speak
for, represent or obligate the other party in any way without prior written
authority from the other party.
15.6 Registration. In the event that this Agreement is required to
be registered with any governmental authority, Purchaser shall cause such
registration to be made and shall bear any expense or tax payable in respect
thereof.
15.7 Entire Agreement. This Agreement constitutes the entire
agreement between Supplier and Purchaser and shall not be amended, altered or
changed except by a written agreement signed by the parties hereto. Any terms
and conditions in any purchase order or other instrument issued by Purchaser or
Supplier or any of Purchaser's customers in connection with this Agreement which
are in addition to or inconsistent with the terms and conditions of this
Agreement shall not be binding on either party and shall not be deemed to amend
or modify this Agreement. Each party acknowledges that it is not entering into
this Agreement on the basis of any representations not expressly contained
herein.
15.8 Waivers. No delay or omission on the part of either party to
this Agreement in requiring performance by the other party or in exercising any
right hereunder shall operate as a waiver of any provision hereof or of any
right or rights hereunder; and the waiver,
Page 15
<PAGE>
omission or delay in requiring performance or exercising any right hereunder on
any one occasion shall not be construed as a bar to or waiver of such
performance or right, or of any right or remedy under this Agreement, on any
future occasion. A waiver must be in writing, executed by the party against
which enforcement is sought, in order to be enforceable.
15.9 Notices. Whenever, by the terms of this Agreement, notice,
demand or other communication shall or may be given to either party, the same
shall be in writing and shall be addressed to the other party at its address
first set forth above, or to such other address or addresses as shall from time
to time be designated by written notice by either party to the other in
accordance with this Section 15.9 (Notices). All notices shall be sent by
registered or certified mail, return receipt requested, by delivery or by
Federal Express or other comparable courier providing proof of delivery, and
shall be deemed duly given and received (i) if mailed, on the tenth business day
following the mailing thereof, or (ii) if sent by courier or if delivered, the
date of its receipt (or, if such day is not a business day, the next succeeding
business day).
15.10 Section Heading. Section headings are for descriptive purposes
only and shall not control or alter the meaning of this Agreement.
15.11 Rights and Remedies. All rights and remedies of either party
hereunder shall be cumulative and may be exercised singularly or concurrently.
The failure of either party, in any one or more instances, to enforce any of the
terms of this Agreement shall not be construed as a waiver of future enforcement
of that or any other term.
15.12 Severability. If any provision of this Agreement shall for any
reason be held illegal or unenforceable, such provision shall be deemed
separable from the remaining provisions of this Agreement and shall in no way
affect or impair the validity or enforceability of the remaining provisions of
this Agreement, unless removal of the invalidated provision renders another
provision impossible to perform or inconsistent with the intent of the parties.
15.13 Modifications, Amendments. Modifications and amendments to
this Agreement must be in writing, executed by the party against which
enforcement thereof is sought.
15.14 No Rights by Implication. No rights or licenses with respect
to the Products are granted or deemed granted hereunder or in connection
herewith, other than those rights expressly granted in this Agreement.
Page 16
<PAGE>
IN WITNESS WHEREOF, Supplier and Purchaser hereby have duly executed this
Agreement under seal as of the day and year first above written.
PURCHASER ABAXIS, INC.
By: /s/ Richard Schoen
--------------------------
Name: Richard Schoen
Title: VP, Sales & Marketing
SUPPLIER DIATRON MESSTECHNIK GMBH
By: /s/ Gabor Lengyel
--------------------------
Name: Gabor Lengyel
Title: Managing Director
November 24, 2003
Page 17
<PAGE>
Schedule A
--------------------------------------------------------------------------------
*** Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [****]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
SCHEDULE A
PRODUCTS
Product Price per Unit
------- --------------
HMII Hematology Analyzer [****]*
(including CE and UL markings, power cord,
English language operator manual, standard
accessories)
*Prices are to be understood as F.O.B. Vienna or Budapest (Incoterms 2000).
HMII TECHNICAL SPECIFICATIONS
[****]
Schedule A
<PAGE>
--------------------------------------------------------------------------------
*** Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [****]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
SCHEDULE B
MINIMUM PURCHASE COMMITMENTS
1. Minimum Purchase Units of Products
First 12 months following availability [****] unit order at beginning
of Product for shipment to Purchaser of First Contract Year
("Contract Year")
[****] unit order in the second
quarter of First Contract Year
[****] unit order in the third
quarter of First Contract Year
[****] unit order in the fourth
quarter of First Contract Year
Second Contract Year [****] unit order in each
quarter of Second Contract Year
Third through Fifth Contract Years Minimum of [****] units/month or
such greater amount as the
parties shall determine and
agree
2. Minimum Order Quantity [****] units/order
Schedule B
<PAGE>
SCHEDULE C
WARRANTY TERMS
The Supplier's warranty for the Products extends for the later of:
(a) twelve months (12) from the date the product is shipped to
Purchaser, or
(b) twelve months (12) from the date on which the Product is installed
for use by a veterinary customer but no later than eighteen months
(18) from the date the Product is shipped to Purchaser, provided
Purchaser sends Supplier an Installation Report as attached herewith
within thirty (30) days from date of installation including serial
number of the Product and date of installation.
o The warranty gives Purchaser the right to have the defective part replaced
free of charge (labor, travelling expenses and other costs related with
the repair not included).
o All claims under warranty have to be submitted to Supplier within ninety
(90) days after the malfunction has been observed. Purchaser's complaint
shall be accompanied by a detailed report on the defect and on any
measures taken in order to rectify it. The report shall include serial
number and software version of the Product and other data to be requested
by Supplier (e.g. print-out of self-test, measurement results, data base
tables, etc.).
o Purchaser shall inform Supplier on replacement of following parts and
assemblies if replacement was carried out by using parts from stock or
removed from an other instrument:
- PPB board and its parts
- COMB board
- Reagent Sensor board
- HV board
- Display
- Amplifier board
- Diluter block
- Microdiluter block
- XY movement block
o Delicate parts such as printed circuit boards, diluter modules, motors,
apertures, chambers, parts made of glass, etc. must be sent back in a
suitable and protective packing.
o Shipping out spare or repaired parts respectively Products will be
Supplier's responsibility. Supplier is free to choose the carrier. The
transportation expenses of returning defective parts or Products from
Purchaser to Supplier shall be Supplier's responsibility.
o Supplier reserves the right to inspect the defective part or Products on
its return in order to determine the origin of the fault, and if the
defect is found not to be covered by the warranty,
Schedule C
<PAGE>
Supplier reserves the right to bill Purchaser for the spare part and labor
required. In any case any defective part is to be returned to Supplier in
90 days after the replacement was sent, otherwise Supplier will be
entitled to bill Purchaser for the supplied material. Purchaser shall be
authorized to return defective parts accumulated in its inventory in one
shipment quarterly or along with other regular shipment. Supplier will use
commercially reasonable efforts to meet Purchaser's requested delivery
schedules for warranty replacements. Unless otherwise specified in
Purchaser's warranty claims, Supplier shall be authorized to make
deliveries of spare parts under warranty on accumulated basis in one
shipment per month or along with other regular shipment.
o After having been replaced the defective part becomes the property of
Supplier.
o Supplier, at its expense and upon thirty (30) days notice to Purchaser,
will have the right to examine (during Purchaser's normal business hours
and on a date to be mutually agreed upon) Purchaser's relevant books and
records in order to verify Purchaser's compliance with Section 6 (Warranty
and Repairs) and this Schedule C (Warranty Terms). Such books and records
will be made available at the place where these records are kept in the
ordinary course of business, and may not be copied or removed by Supplier.
All information acquired by Supplier in the course of such examination
will be treated as the Confidential Information of Purchaser pursuant to
Section 4 (Confidentiality).
Schedule C
<PAGE>
INSTALLATION REPORT
MODEL_________________________________________________________________
SERIAL No.____________________
INSTALLATION DATE_____________________________________________________
PURCHASER'S SIGNATURE_________________________________________________
SCHEDULE C
<PAGE>
SCHEDULE D
INTERFACES
VetScan interface
Receive VetScan data.
Store received data temporarily, to avoid losing not printed VS data. Match
received VetScan data to stored hematology result. If matched include received
data in printout.
Sample ID dialog
Implement patient type "drop-down" list (integrated species selection).
Reorganize dialog (to include: Sample ID, Date, Patient ID, Patient Name,
Species selection, Age and Gender). Reorganize patient selection and limits
setting.
Icons with text
Replace symbols with texts, where needed, for English software version.
[GRAPHIC OMITTED] EXIT [GRAPHIC OMITTED] SPECIES
[GRAPHIC OMITTED] CANCEL [GRAPHIC OMITTED] OK
[GRAPHIC OMITTED] REPEAT [GRAPHIC OMITTED] MENU
[GRAPHIC OMITTED] PT. ID [GRAPHIC OMITTED] LIMITS
Standby Mode
Diatron will validate extended Standby Mode to allow customers to leave the
instrument on in this configuration when not in use. Recommendations on how
often to Shut Down the HMII will be provided based on Diatron findings.
Schedule D
<PAGE>
Status / ready screen
[GRAPHIC OMITTED] [GRAPHIC OMITTED] [GRAPHIC OMITTED]
Implement streamlined User Ready Screen with Blank status and instructions to
begin analysis (as depicted).
Implement "screen saver" feature to indicate functions (as depicted).
[GRAPHIC OMITTED] [GRAPHIC OMITTED] [GRAPHIC OMITTED]
[GRAPHIC OMITTED] [GRAPHIC OMITTED]
Screen saver should turn LCD backlight off.
Hide Lyse
Remove lyse option from user level
Enable lyse option on service level
Enable uploading patient type settings from media
Patient Results
All out of normal range results will be highlighted (inverse text on HMII
screen) for easy identification by the user.
Printout format
Make printout with numerical and graphical representation
Parameter - result - flag - numerical range (without brackets) - graphical range
Simplify printer settings
Implement printout options in printer settings: None / Text / Graph / Both
Help / info messages
All help and information messages will be reviewed and approved by Abaxis for
proper English terminology.
Schedule D
<PAGE>
Measurement options
Move needle setting icon to be menu item in Measurement Local Menu Make needle
setting interactive (user defined tube types)
[GRAPHIC OMITTED]
[GRAPHIC OMITTED]
Reagent consumption and Preventive maintenance notifications
Instrument should keep track of used reagent volumes, and notify user when
reagents are calculated to run low. Instrument should instruct and help user to
perform preventive maintenance tasks, like cleaning bottom of washing head,
checking and / or replacing peristaltic pump, depending on uptime or measurement
cycles
QC profiles limited to 3
Current 6 QC levels (profiles) should be limited to three: Dog, Cat, Normal
Normal should be kept, as factory QC uses human control.
QC parameters tested out of range will be indicated by a highlighted (inverse
text on HMII screen) line for easy identification by the user.
Calibration
Default user
calibration method to be implemented as automatic calibration determined by 3
measures. Calibration parameters out of acceptable range will be indicated by a
highlighted (inverse text on HMII screen) line for easy identification by the
user.
Calibration measures producing error flags are considered unacceptable for
calibration and user will be notified of the rejection.
Schedule D
<PAGE>
--------------------------------------------------------------------------------
*** Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [****]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
SCHEDULE E
SPARE PARTS PRICE LIST
Prices are to be understood fob Vienna or Budapest
--------------------------------------------------------------------------------
LIST PRICE
EURO
----------------------
CODE ITEM NEW REFURBISHED
--------------------------------------------------------------------------------
A133 HVB BOARD WITH INVERTER (COMPL.) [****]
--------------------------------------------------------------------------------
A136 LCD DISPLAY [****]
--------------------------------------------------------------------------------
A137 LAMP FOR LCD [****]
--------------------------------------------------------------------------------
A192 DIMMPC (CPU) [****]
--------------------------------------------------------------------------------
A193 HEAT SINK FOR DIMMPC [****]
--------------------------------------------------------------------------------
A302 STEPPER MOTOR [****]
--------------------------------------------------------------------------------
A304 TIMING PULLEY FOR X [****]
--------------------------------------------------------------------------------
A305 TIMING PULLEY FOR Y [****]
--------------------------------------------------------------------------------
A308 OPTO SWITCH I. [****]
--------------------------------------------------------------------------------
A309 OPTO SWITCH II. [****]
--------------------------------------------------------------------------------
A310 WASHING HEAD [****]
--------------------------------------------------------------------------------
A402 SEALING RING FOR CHAMBERS [****]
--------------------------------------------------------------------------------
A403 U-SHAPED METAL FIXING FOR APERT. [****]
--------------------------------------------------------------------------------
A421 APERTURE 80 um [****]
--------------------------------------------------------------------------------
A422 GROUND ELECTRODE [****]
--------------------------------------------------------------------------------
A434 HGB MEASURING HEAD (COMPLETE) [****]
--------------------------------------------------------------------------------
A504 2/2 VALVE [****]
--------------------------------------------------------------------------------
A505 3/2 VALVE [****]
--------------------------------------------------------------------------------
A506 VALVE COIL FOR BOTH VALVES [****]
--------------------------------------------------------------------------------
A507 2/2 VALVE HEAD [****]
--------------------------------------------------------------------------------
A508 3/2 VALVE HEAD [****]
--------------------------------------------------------------------------------
A509 VALVE MEMBRANE [****]
--------------------------------------------------------------------------------
A531 PRESSURE SENSOR [****]
--------------------------------------------------------------------------------
A541 4/2 PLASTIC TUBE (SILICON) [****]
--------------------------------------------------------------------------------
A542 5/3 PLASTIC TUBE (SILICON) [****]
--------------------------------------------------------------------------------
A543 4/1.8 TYGON TUBE [****]
--------------------------------------------------------------------------------
A544 5/3 REAGENT TUBE [****]
--------------------------------------------------------------------------------
A545 3,2 mm T CONNECTOR [****]
--------------------------------------------------------------------------------
A546 Y CONNECTOR [****]
--------------------------------------------------------------------------------
A551 COLOR LOCKING RING [****]
--------------------------------------------------------------------------------
A552 COLOR LOCK NUT (INSIDE) [****]
--------------------------------------------------------------------------------
A553 COLOR CODING RING (OUTSIDE) [****]
--------------------------------------------------------------------------------
A554 LUER CONNECTOR FEMALE [****]
--------------------------------------------------------------------------------
A555 LUER CONNECTOR MALE [****]
--------------------------------------------------------------------------------
A556 2,3 mm T CONNECTOR [****]
--------------------------------------------------------------------------------
Schedule E
<PAGE>
--------------------------------------------------------------------------------
*** Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [****]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
A560 PERISTALTIC PUMP [****]
--------------------------------------------------------------------------------
A561 TUBING FOR PERISTALTIC PUMP [****]
--------------------------------------------------------------------------------
A563 CASSETTE FOR PUMP [****]
--------------------------------------------------------------------------------
A564 FIXING FOR PUMP (PAIR) [****]
--------------------------------------------------------------------------------
A565 CONNECTOR FOR PUMP (PAIR) [****]
--------------------------------------------------------------------------------
A640 INSTRUMENT FOOT [****]
--------------------------------------------------------------------------------
A701 POWER CORD ( 220V ) [****]
--------------------------------------------------------------------------------
A702 POWER CORD ( 110V ) [****]
--------------------------------------------------------------------------------
S800 THERMAL PRINTER (INTERNAL) [****]
--------------------------------------------------------------------------------
S801 MECHANICS FOR INTERNAL PRINTER [****]
--------------------------------------------------------------------------------
S802 ELECTRONICS FOR INTERNAL PRINTER [****] [****]
--------------------------------------------------------------------------------
S803 CASE FOR INTERNAL PRINTER [****]
--------------------------------------------------------------------------------
C400 MEASURING BLOCK EXCL. AMPLIFIER [****]
--------------------------------------------------------------------------------
C510 BUFFER RESERVOIR [****]
--------------------------------------------------------------------------------
J100 POWER & PNEUMATIC BOARD [****] [****]
--------------------------------------------------------------------------------
J110 CONTROL BOARD (COMB) [****] [****]
--------------------------------------------------------------------------------
J111 CONTROL BOARD INCL. DIMMPC [****]
--------------------------------------------------------------------------------
J132 FOIL KEYBOARD [****]
--------------------------------------------------------------------------------
J138 DISPLAY BOARD [****] [****]
--------------------------------------------------------------------------------
J140 AMPLIFIER BOARD [****] [****]
--------------------------------------------------------------------------------
J156 POWER SUPPLY [****]
--------------------------------------------------------------------------------
J157 MAINS SWITCH [****]
--------------------------------------------------------------------------------
J170 IDEEPROM BOARD [****]
--------------------------------------------------------------------------------
J214 DILUTER BOARD [****]
--------------------------------------------------------------------------------
J224 MICRODILUTER BOARD [****]
--------------------------------------------------------------------------------
J240 REAGENT SENSOR BOARD [****]
--------------------------------------------------------------------------------
J250 DILUTER BLOCK COMPLETE W. 2 MOTORS [****] [****]
--------------------------------------------------------------------------------
J251 SYRINGE+PISTON (MOUNTED/2ML) [****]
--------------------------------------------------------------------------------
J252 PISTON FIXING SCREW [****]
--------------------------------------------------------------------------------
J300 XY MOVMENT BLOCK [****] [****]
--------------------------------------------------------------------------------
J301 TIMING BELT FOR X [****]
--------------------------------------------------------------------------------
J302 TIMING BELT FOR Y [****]
--------------------------------------------------------------------------------
J306 GEAR FOR Y OPTO [****]
--------------------------------------------------------------------------------
J307 H&V MOTOR OPTO BOARD [****]
--------------------------------------------------------------------------------
J311 ASPIRATOR TIP [****]
--------------------------------------------------------------------------------
J501 VALVE UNIT I. ( valve 1-5 ) [****]
--------------------------------------------------------------------------------
J502 VALVE UNIT. II. ( valve 11-15 ) [****]
--------------------------------------------------------------------------------
J503 VALVE UNIT. VET. II. ( valve 11-16 ) [****]
--------------------------------------------------------------------------------
J530 PRESSURE SENSOR (COMPLETE) [****]
--------------------------------------------------------------------------------
J559 REAGENT TUBING SET (VET) [****]
--------------------------------------------------------------------------------
J610 MICRO SWITCH [****]
--------------------------------------------------------------------------------
J613 LED BOARD [****]
--------------------------------------------------------------------------------
J721 AMPLIFIER BOARD CABLE [****]
--------------------------------------------------------------------------------
J750 CABLE SET [****]
--------------------------------------------------------------------------------
J900 MICRODILUTER UNIT [****] [****]
--------------------------------------------------------------------------------
J901 MICRO PISTON [****]
--------------------------------------------------------------------------------
J902 MICRO SYRINGE COVER [****]
--------------------------------------------------------------------------------
Schedule E
<PAGE>
--------------------------------------------------------------------------------
*** Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as [****]. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
J903 ADAPTOR I. [****]
--------------------------------------------------------------------------------
J904 ADAPTOR II. [****]
--------------------------------------------------------------------------------
J905 ADAPTOR III. [****]
--------------------------------------------------------------------------------
S221 MACRO SYRINGE+PISTON [****]
--------------------------------------------------------------------------------
S222 LYSE SYRINGE+PISTON [****]
--------------------------------------------------------------------------------
S210 BEARING FOR DILUTOR [****]
--------------------------------------------------------------------------------
S211 SEEGER RING [****]
--------------------------------------------------------------------------------
Adaptor I: for 1-0,3 ml microtainers (Greiner, BD..) max. 011mm
AdaptorII: for 3ml vacutainers max. 012,5mm, max height 76mm
Adaptor III: for R&D 2ml blood control
Schedule E