EXHIBIT 10.40*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03***OEM PURCHASE AGREEMENT**     This OEM Agreement (the “Agreement”) is made as of the 29th day of July, 2003 (the “EffectiveDate”) between Cardiac Science, Inc., a Delaware corporation (“Supplier” or “Cardiac Science” or“CSI”), a medical device developer and manufacturer of external defibrillators having its principalplace of business at 1900 Main Street, Irvine, CA 92614 and GE Medical Systems InformationTechnologies, Inc., a Wisconsin corporation (“GEMS-IT”), having its principal place of business at8200 W. Tower Avenue, Milwaukee, WI 53223. The parties hereby agree as follows:1. SCOPE OF AGREEMENT 1.1 General. This Agreement specifies the terms and conditions underwhich Supplier will manufacture, sell, license and support the OEM Products listed inExhibit A to this Agreement. The OEM Products are regarded as “OriginalEquipment Manufacturer” products that will be sold separately or incorporated intoGEMS-IT Products for resale worldwide under GEMS-IT’s private label. The OEMProducts and the GEMS-IT Products will be marketed, serviced, and supported byGEMS-IT’s field organization and channel partners, subject to the marketing, service,and support obligations of Supplier pursuant to this Agreement. Nothing in thisAgreement shall in any way limit the right of GEMS-IT to develop, produce, market, selland distribute any products whatsoever. Nothing is this Agreement shall in any waylimit the right of Cardiac Science to develop, produce, market, sell or distribute anyproducts that utilize its proprietary STAR® biphasic defibrillation technology andproprietary RHYTHMx® software analysis algorithm and pacing technology, or any otherCardiac Science technology, collectively (the “CSI Proprietary Technology”) as long asCardiac Science otherwise complies with its obligations set forth in Section 1.7 ofthis Agreement. In connection with the execution of this Agreement and partially inconsideration of the agreements set forth herein, Cardiac Science has issued to GEMS-ITthat certain warrant dated the Effective Date to purchase 1,000,000 shares of commonstock, par value $0.001 per share, of Cardiac Science.  1.2 Project Scope. This Agreement includes an engineering and productdevelopment project (the “Development Project”) whereby Cardiac Science, among otherthings listed in the Specification and Development Project Plan set forth in Exhibit B,will integrate its proprietary STAR® biphasic defibrillation technology and proprietaryRHYTHMx® software analysis algorithm and pacing technology collectively (the “CSIProprietary Technology”) into the OEM Products. The Development Project shall beperformed at Cardiac Science’s sole expense. The parties agree that time is of theessence with respect to Cardiac Science’s completion of the Development Project andcommencement of deliveries of the OEM Products, and Cardiac Science shall make itscommercially reasonable best efforts to complete the Development Project and begindeliveries of the OEM Products not later than twelve (12) months of the Effective Date.  1.3 GEMS-IT License. Under this Agreement GEMS-IT will deliver andlicense (the “License”) to Cardiac Science the following relating to its existingCardioServ basic and CardioServ SpO2 products on an as-is basis, without warranty ofany kind (including without limitation any warranty of merchantability or fitness for aparticular purpose): models, molds, overlay tools, equipment, copies of designs anddocumentation and other materials that may reasonably be required by Cardiac Scienceto complete the Development Project (the “GEMS-IT CardioServ Property”).Supplier shall be [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*   responsible for all costs and expense of transporting the GEMS-IT CardioServProperty to its facilities and shall be responsible for all risk of loss once suchproperty is removed from GEMS-IT’s premises. Supplier shall adequately insure suchproperty while it is in its possession. GEMS-IT shall make the GEMS-IT CardioServProperty available to Supplier for its use no later than ninety (90) days precedingthe date Cardiac Science has identified to GEMS-IT in writing as the date itreasonably expects to be able to deliver the- first units of OEM Products (the“Expected First Delivery Date”); provided, that Cardiac Science has provided GEMS ITwith written notice of the Expected First Delivery Date at least one hundred andtwenty (120) days preceding such date. If Cardiac Science has not been able todeliver the first units of OEM Products by September 30, 2004, upon GEMS IT’srequest Cardiac Science shall promptly return all GEMS-IT CardioServ Property at itscosts and expense to a mutually agreed upon GEMS-IT location. For purposes of thepreceding two sentences, “delivery of the first units of OEM Products” shall meandelivery meeting the requirements of the First Delivery Date as defined in Section1.6 below. The License shall be free of royalty or any charge and shall be limitedto Cardiac Science’s use of the GEMS-IT CardioServ Property to manufacture the OEMProducts for GEMS-IT for exclusive worldwide sale by GEMS-IT. Cardiac Science shallmake no other use of the GEMS-IT CardioServ Property. Upon expiration of the Term ofthis Agreement and in the event the Agreement is not renewed by mutual agreement ofthe parties for an additional term, the license for the GEMS-IT CardioServ Propertyshall survive beyond the original term and be free of cost, fees, licenses androyalties to Cardiac Science. If the Agreement is terminated earlier than its Term,Cardiac Science shall be obligated to promptly return the GEMS-IT CardioServProperty in accordance with the applicable provisions above.  1.4 Manufacture Authority. Under this Agreement Cardiac Science shallhave the right to manufacture the OEM Products, which will include the GEMS-ITCardioServ Property. Cardiac Science shall have no rights to, and shall not, label,market, distribute or sell the OEM Products in the name or with the Marks of anyoneother than GEMS-IT (unless GEMS-IT directs otherwise). In addition, Cardiac Scienceshall not permit or authorize any third party to do any of the foregoing.  1.5 Eligible Purchasers. This Agreement enables GEMS-IT, GEMS-ITAffiliates and GEMS-IT Subcontractors to purchase OEM Products from Supplier under theterms of this Agreement or any subsequent Product Addendum. Unless a Product Addendumspecifically refers to and amends a term of this Agreement, the terms and conditions ofthis Agreement will control and take precedence over any conflicting terms in a ProductAddendum.  1.6 Term of Agreement. This Agreement will commence as of the EffectiveDate and continue for a 3 year period (the “Term”) after the date of the first deliveryto GEMS IT by Cardiac Science of the OEM Products capable of commercial resale byGEMS-IT in the United States and European countries accepting the CE Mark (the “FirstDelivery Date”), unless terminated earlier under the terms of this Agreement. GEMS ITmay terminate this Agreement if Cardiac Science is not able to reasonable demonstrateto GEMS IT that is has commenced Alpha testing (Phase 3 of the Development ProjectPlan) by not later than June 15, 2004. In addition, if the First Delivery Date hasnot occurred by not later than September 30, 2004, GEMS-IT may at its option terminatethis Agreement. After the initial Term, this Agreement may be renewed only upon thewritten agreement of the parties. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* 1.7 Exclusive Relationship. This Agreement enables GEMS-IT to sell the OEMProducts on a worldwide exclusive basis. In consideration of GEMS-IT’s undertakingsset forth in this Agreement, including GEMS-IT’s minimum purchase obligations setforth in Section 3.4 below, from and after the Effective Date until expiration of theTerm, Cardiac Science shall not (directly or indirectly through a third party)develop, manufacture, license or sell any products that (i) incorporate the CSIProprietary Technology and (ii) provide the substantially the same functionality(including user interface) as the OEM Products, without the prior written consent ofGEMS IT. For purposes of this section, Cardiac Science’s Powerheart CRM and PowerheartAED products shall not be deemed to provide substantially the same functionality asthe OEM Products.2. DEFINITIONS   The following capitalized terms will have these meanings throughout this Agreement. 2.1 “Affiliate” means any person or entity directly or indirectly controlling,controlled by, or under common control with a party to this Agreement. “Control”shall be defined as direct or indirect power to direct or cause the direction of themanagement or policies of another person or entity, whether through the ownership ofvoting securities, by contract, or otherwise.  2.2 “CSI Proprietary Technology” means Cardiac Science’s proprietary STAR®biphasic defibrillation technology, proprietary RHYTHMx® software analysis algorithmand pacing technology, all of which shall be integrated into the OEM Products pursuantto this Agreement.  2.3 “Development Project” shall have the meaning set forth in Section 1.2.  2.4 “Delivery Date” means the date specified in an Order for the deliveryof OEM Products by Supplier to the destination required under the Order.  2.5 “Documentation” means the user and technical manuals and otherdocumentation that Supplier will make available for the use of the OEM Products.  2.6 “Eligible Purchasers” mean those parties authorized to purchase OEMProducts under this Agreement as listed in Section 1.5 above.  2.7 “Forecast” means GEMS-IT’s estimate of its purchase requirements over asix-month period, or such other period designated by the parties.  2.8 “GEMS-IT Products” means the GEMS-IT products or systems that willincorporate the OEM Products and that will be marketed and sold to end-user customersby GEMS-IT and its distributors.  2.9 “GEMS-IT Property” means all property, including without limitation,the GEMS-IT CardioServ Property and all other models, tools, equipment, copies ofdesigns and documentation and other materials that may be furnished to Supplier byGEMS-IT or on GEMS-IT’s behalf or separately paid for by GEMS-IT for use by Supplier inconnection with this Agreement. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* 2.10 “Intellectual Property Rights” means all rights in patents, copyrights,moral rights, trade secrets, mask works, Marks and other similar rights.  2.11 “Lead Time” means the time between the date an Order is sent and the DeliveryDate.  2.12 “Marks” means the trademarks, service marks, trademark and service markapplications, trade dress, trade names, logos, insignia, symbols, designs or othermarks identifying a party or its products.  2.13 “Noncomplying Product” means any OEM Product received by GEMS-IT thatdoes not materially comply and/or perform in accordance with the Specifications, orotherwise does not materially comply with the requirements of an Order or otherprovisions of this Agreement, including applicable warranties. Noncomplying Productsinclude, without limitation, dead-on-arrival products, overshipments and earlyshipments.  2.14 “OEM Products” means the products listed in Exhibit A, all relatedDocumentation, Parts and other deliverables provided pursuant to this Agreement. Forthe avoidance of doubt, Cardiac Science shall incorporate the CSI ProprietaryTechnology into the OEM Products pursuant to the Development Project.  2.15 “Orders” means a written or electronic purchase order or release issued byGEMS-IT to Supplier for purchase of the OEM Products.  2.16 “Parts” means the replacement parts, components, consumables or other productsthat may be supplied in conjunction with or as additions to the OEM Products.  2.17 “Product Addendum” means an addendum to this Agreement entered intobetween Supplier and an Eligible Purchaser naming additional OEM Products and productspecific requirements in addition to those requirements specified in this Agreement.  2.18 “Software” means any software or firmware included or bundled with the OEMProducts, as designated in the description of OEM Products in Exhibit A.  2.19 “Specifications” means the technical and functional requirements forthe OEM Products as specified or referenced in Exhibit B or as agreed to by the partiesin writing.  2.20 “Technical Information” means Supplier’s manufacturing information andtechnology deemed necessary by GEMS-IT to support OEM Products and to exerciseany manufacturing rights provided under this Agreement, including, but not limited to:(i) specifications, software, schematics, software source code, designs, drawings orother materials pertinent to the most current revision level of manufacturing of theOEM Products; (ii) copies of all inspection, manufacturing, test, verification andquality control procedures and any other work processes; (iii) jig, fixture and toolingdesigns; (iv) supplier history files; (v) support documentation; and (vi) anyadditional technical information or materials agreed to by the parties.  2.21 “Technical Materials” means jigs, fixtures and tools used by Supplierto manufacture the OEM Products, other than the GEMS-IT Property, and any productionsoftware (including without limitation source code) used in such manufacture. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*3. ORDER AND SHIPMENT OF OEM PRODUCTS 3.1 Orders. Each delivery of OEM Products will be initiated by an Orderissued to Supplier by GEMS-IT. Each Order will include: (i) unit quantity; (ii)unit price; (iii) shipping destination; (iv) Delivery Date; and (v) other instructionsor requirements pertinent to the Order. GEMS-IT may schedule regular intervals fordeliveries by an appropriate Order setting forth the intervals. To the extent of anyinconsistency between the terms of an Order and the terms of this Agreement, the termsspecified in this Agreement will control and take precedence.  3.2 Order Acknowledgment. An Order will be deemed to have been placed as ofthe date of receipt of the Order by Supplier. Supplier will promptly confirm thereceipt of an Order electronically or through facsimile to GEMS-IT within two (2)working days after receipt by Supplier of the Order. Orders within Forecasts and LeadTime requirements of this Agreement will be deemed accepted upon receipt by Supplier.If a GEMS-IT Order exceeds the Forecast or shortens the Lead Time, Supplier will useits commercially reasonable best efforts to fill such excess or accommodate suchshorter Lead Time.  3.3 Emergency Orders. If GEMS-IT deems it necessary, GEMS-IT may orderOEM Products by facsimile on an emergency basis (“Emergency Order”) subject to theavailability of such OEM Products in Supplier’s inventory. Supplier will use itscommercially reasonable best efforts to ship the Emergency Order to GEMS-ITs stipulateddestinations within 8 work hours after the receipt by Supplier. GEMS-IT will pay anyadditional expenses related to such Emergency Orders.  3.4 Forecasts and Minimum Purchases. GEMS-IT will provide a six monthrolling Forecast of its projected Orders. Any quantities listed in any Forecast orother correspondence between the parties are only estimates made as an accommodationfor planning purposes and do not constitute a commitment on GEMS-IT’s part to purchasesuch quantity. GEMS-IT may revise any Forecasts in its sole discretion. During theTerm of the Agreement, GEMS-IT shall purchase from Supplier a minimum of four hundredand twenty five (425) units of the OEM Products per calendar quarter, commencing withthe first full calendar quarter after the First Delivery Date; provided that (i) theOEM Products are fully approved for sale throughout Europe by July 1st, 2004 inaccordance with Section 14.3, (ii) the OEM Products perform in accordance, and fullycomply, with the Specifications, and (iii) the aforementioned regulatory approvalsremain in full effect in accordance with Section 14.3. If any of the above conditionsare not satisfied, then GEMS IT’s minimum purchase obligations will be of no force andeffect. Any purchases in excess of a 425 unit minimum quarterly requirement will counttoward the next minimum quarterly purchase requirement (i.e. GEMS IT’s total minimumpurchase requirement over the Term of this Agreement (assuming the conditions set forthabove are satisfied) will not exceed 5,100 units).  3.5 Lead Time. Supplier will determine the Lead Time for each OEM Productand will provide GEMS-IT with written notice of such Lead Time, which in no event willexceed four (4) weeks without GEMS-IT’s prior written consent. Supplier must giveGEMS-IT no less than 30 days advance notice to approve or reject any proposed increasein Lead Time. CSI and GEMS-IT will review lead-time reduction opportunities twocalendar quarters after date of first shipment. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* 3.6 Inventory Requirement. Supplier will maintain a protective inventory equalto seventy- five (75) units or no less than two (2) weeks supply of each OEM Product.If this inventory is depleted, Supplier will replenish the inventory as soon aspossible after depletion. In addition, Supplier will rotate its supply of OEMProducts in inventory to maintain a fresh stock of inventory.  3.7 Order Changes. GEMS-IT may, without charge, postpone, decrease,increase, or cancel any Order by notice to Supplier at least thirty (30) days prior tothe Delivery Date. If GEMS-IT postpones, decreases, or cancels an Order after suchtime period, Supplier will be entitled to reimbursement by GEMS-IT for actual costsincurred by Supplier as a direct result of such postponement, decrease, or cancellationthat are not recoverable by Supplier within a reasonable period of time.  3.8 Shipment Requirements. All Orders are required to be shippedcomplete. Freight expenses, insurance, and duties will be paid directly by GEMS-IT.Supplier will give GEMS-IT immediate notice if it knows that it cannot meet a DeliveryDate or that only a portion of the OEM Products will be available for shipment to meeta Delivery Date. If due to Supplier’s failure to make a timely shipment to meet aDelivery Date, Supplier will pay for any resulting increase in the freight cost overthat which GEMS-IT would have been required to pay. For partial shipments, Supplierwill ship the available OEM Products unless directed by GEMS-IT to reschedule shipment.If Supplier ships any OEM Product by a method other than as specified in thecorresponding Order, Supplier will pay any resulting increase in the cost of freight.GEMS-IT may utilize drop shipment options to any GEMS-IT designated deliverydestination. If GEMS-IT designates a drop shipment location outside the country inwhich the Order is placed, GEMS-IT agrees to pay any additional costs associated withthe shipment.  3.9 GEMS-IT Option To Accept Overshipments. If Supplier ships more OEMProducts than ordered, the amount of the overshipment may either be kept by GEMS-IT forcredit against future Orders or returned to Supplier pursuant to Article 6below, at GEMS-IT’s election.  3.10 No Advance Shipment. If OEM Products are delivered two (2) days inadvance of the Delivery Date, GEMS-IT may, at its option, either return the OEMProducts pursuant to Article 6 below or keep the OEM Products with payment dueas provided in Section 4.3 below.  3.11 Title And Risk Of Loss. Shipments will be F.O.B. Cardiac Science’sMinnetonka, MN factory or Copenhagen, Denmark warehouse facility. GEMS IT will electat which location it (or its designated carrier) will take delivery of the OEM Productsfrom Cardiac Science. Except as otherwise provided in this Agreement, associatedfreight expenses and duties will be paid directly by GEMS-IT. Title to OEM Producthardware and media ordered under this Agreement and risk of loss or damage will passfrom Supplier to GEMS-IT upon Supplier’s delivery of the OEM Products to the commoncarrier specified by GEMS-IT, subject to the provisions in Sections 3.13 and 3.14 belowwith respect to packing and handling.  3.12 Packing List. Each delivery of OEM Products to GEMS-IT must include apacking list that contains at least: (a) The Order number and the GEMS-IT part number; [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* (b) The quantity of OEM Products or Parts shipped; and  (c) The date of shipment. 3.13 Packaging. Supplier must preserve, package, handle, and pack all OEMProducts so as to protect the OEM Products from loss or damage, in conformance withgood commercial practice, the Specifications, GEMS IT’s indication of “ship to” addressand method of transportation, government regulations, and other applicable standards.  3.14 Responsibility For Damage. Supplier will be liable for any loss ordamage due to its failure to properly preserve, package, handle, or pack OEM Products.GEMS-IT will not be required to assert any claims for such loss or damage against thecommon carrier involved.4. PRICES AND PAYMENT TERMS 4.1 OEM Product Prices. Supplier’s prices for the OEM Products are listedin Exhibit C, in U.S. currency unless otherwise stated, and may not beincreased without GEMS-IT’s written consent. The prices for Parts will be Supplier’spublished prices, less any applicable discounts as set forth inExhibit C,unless the parties agree to a price schedule for Parts. OEM Products and Parts willalso be subject to any applicable prompt payment discounts. Supplier and GEMS-ITagree to review OEM Product prices annually. If, during the Term, Suppliereffectuates cost reductions in its manufacturing and delivery processes, it will passsuch reductions to GEMS-IT and amend the prices accordingly. GEMS-IT has an annual [ *]% cost reduction target, but acknowledges that Supplier may not be able to achievesuch target and will not be liable to GEMS-IT for any such failure to achieve thistarget as long as Supplier is using commercially reasonable efforts to reduce its costsof manufacturing and delivering the OEM Products.  4.2 Changed Prices. If during the Term changed prices or price formulas areput in effect by mutual agreement of GEMS-IT and Supplier, or reduced prices or priceformulas are otherwise put in effect by Supplier, such prices or price formulas (ifresulting in lower prices than the then current price) will apply to all Orders issuedby GEMS-IT after the effective date of such prices or price formulas and to allunshipped Orders.  4.3 Payment Procedure. Payment for OEM Products will be 2% / 15, Net 75days from the invoice date for the OEM Products following shipment by Supplier.GEMS-IT will not be liable for payments or any costs related to unordered orNoncomplying Products.  4.4 Sales Taxes And Duties. Prices are exclusive of all taxes or dutiesafter delivery to the designated destination (other than taxes levied on Supplier’sincome) that Supplier may be required to collect or pay upon shipment of the OEMProducts. Any such taxes or duties must appear as a separate item on Supplier’sinvoice. GEMS-IT agrees to pay such taxes or duties unless GEMS-IT is exempt from suchtaxes or duties. Where applicable, GEMS-IT will provide Supplier with an exemptionresale certificate.5. NONCOMPLYING PRODUCTS 5.1 Acceptance. GEMS-IT shall inspect the OEM Products within a reasonableperiod of time upon receipt at the shipping destination and may reject any NoncomplyingProducts. GEMS-IT may elect in its sole discretion to return a Noncomplying Product forreplacement or repair at Supplier’s expense. In addition, GEMS-IT may return for repair [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*   or replacement an entire lot of OEM Products if a tested sample of that lotcontains Noncomplying Products. Any OEM Products not rejected by written notice toSupplier within sixty (60) days of GEMS-IT receipt shall be deemed accepted.Acceptance by GEMS IT of any OEM Products shall in no way limit GEMS IT’s rightsunder any applicable warranties for the OEM Products. Supplier shall providereasonable assistance to GEMS-IT in accordance with GEMS IT’s corrective actionprocedures (which have been described to Supplier) in order to determine whetherany of the Products are Noncomplying Products. No returns will be accepted withouta Return Materials Authorization (“RMA”). GEMS-IT shall provide a SCAR report withany non-complying product being returned. Other than as permitted in this Section5.1 or under the terms of a warranty covering the OEM products, goods may not bereturned to Supplier without Supplier’s consent.  5.2 Repair Period. Supplier shall ship replacement or repaired OEMProducts to GEMS-IT as promptly as possible, but not later than ten (10) working daysafter Supplier’s receipt of Noncomplying Product.6. RETURN OF PRODUCTS 6.1 Return Materials Authorization. All OEM Products returned by GEMS-ITto Supplier must be accompanied by a RMA. Unless further verification is reasonablyrequired by Supplier, Supplier will supply an RMA within two work days after receivingGEMS-IT’s written request.  6.2 Return Charges. All Noncomplying Products returned by GEMS-IT toSupplier, and all replacement or repaired OEM Products shipped by Supplier to GEMS-ITto replace Noncomplying Products, will be at Supplier’s risk and expense, includingtransportation charges (round trip charges for replacement or repaired OEM Products).  6.3 Duty To Remove Marks Or Destroy Noncomplying Products. Supplier agreesnot to sell, transfer distribute or otherwise convey any part, component, product orservice bearing or incorporating GEMS-IT Marks, part numbers or other identifiers,including any GEMS- IT packaging, copyrights or code, to any party other than toEligible Purchasers. Supplier will remove from all rejected, returned or unpurchasedOEM Products any such GEMS- IT Marks or identifiers, even if such removal would requiredestruction of the OEM Products. Supplier further agrees not to represent that suchOEM Products are built for GEMS-IT or to GEMS-IT specifications. Supplier will defendand indemnify GEMS-IT against any claims, losses, liabilities, costs or expenses thatGEMS-IT may incur as a result of Supplier’s breach of this obligation.7. ENGINEERING PROCESS OR DESIGN CHANGES 7.1 Supplier Proposed Changes. Supplier will not, without the priorwritten consent of GEMS-IT, make or incorporate in OEM Products any of the followingchanges (collectively, “Engineering Changes”): (1) Process or design changes which affect the intended use,function or quality of the OEM Products;  (2) Geographical relocation of manufacturing processes; or [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* (3) Process step discontinuances affecting the electrical performance, themechanical form, fit, or function, the environmental compatibility or chemicalcharacteristics, software compatibility, or the life, reliability, or qualityof OEM Products. 7.2 Notice Of Proposed Change. Supplier will give GEMS-IT notice of anyproposed Engineering Change, and will provide evaluation samples and otherappropriate information as specified by GEMS-IT at least 90 days prior to the firstproposed shipment of any OEM Products involving an Engineering Change. Regardless ofwhether GEMS- IT approves a proposed Engineering Change, Lead Time will not be changedexcept as provided in Section 3.5 above.  7.3 GEMS-IT Proposed Changes. GEMS-IT may, from time to time, requestchanges to Specifications. Such changes will not be effective unless agreed to inwriting by Supplier. If any such change reasonably and directly affects the pricesor delivery schedules of OEM Products, the Parties shall agree in writing to theadjustment. In addition, if during the Term, Supplier develops enhancements to itsproprietary STAR® biphasic defibrillation technology and proprietary RHYTHMx®software analysis algorithm and pacing technology, Supplier will provide GEMS IT withprompt notice of such development. Supplier agrees to incorporate, at GEMS ITreasonable request, such enhancements into the OEM Products; provided that suchincorporation does not materially increase the cost of manufacturing the OEM Products.  7.4 Safety Standard Changes. Supplier will immediately give notice toGEMS-IT if any upgrade, substitution or other change to an OEM Product is required tomake that product meet applicable safety standards or other governmental statutes,rules, orders or regulations, even those that are not defined as Engineering Changes inSection 7.1 above. All affected OEM Products already purchased by GEMS-IT may,at GEMS-IT’s election, either be returned to Supplier for upgrade to current revisionsor upgraded by Supplier or GEMS-IT in the field pursuant to the procedures outlined inSection 14.6 below.8. QUALITY 8.1 Quality Program. Supplier agrees to maintain an objective qualityprogram for all OEM Products. Supplier’s program will be (i) in accordance with thecurrent revision of GEMS-IT’s Supplier Quality System Requirements, (ii) consistentwith regulatory requirements applicable for products of the same type as the OEMProducts and for the jurisdictions where regulatory approvals for the OEM Products havebeen obtained, and (iii) if applicable, any additional or substitute qualityrequirements agreed to by the parties. Supplier will, upon GEMS-IT’s request,provide to GEMS-IT copies of Supplier’s program and supporting test documentation.Supplier shall maintain device history records for each OEM Product shipped to GEMS-IT,including the date of manufacture, identifying lot codes and serial numbers, andprovide that information to GEMS-IT upon request.  8.2 GEMS-IT’s Right To Inspect. GEMS-IT has the right to inspect, atSupplier’s plant, the OEM Products and associated manufacturing processes.Manufacturing processes may be inspected at any time during the Term. GEMS-IT’sinspection may be for any reason reasonably related to this Agreement, including toassure Supplier’s compliance with GEMS-IT’s requirements and with the regulatoryand quality provisions of this Agreement. GEMS-IT’s right of inspection will applyas well to any vendor or subcontractor of Supplier. Supplier will inform such vendorsor subcontractors of GEMS- [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*   IT’s right to inspect, and, if necessary, use all reasonable effort to securesuch rights for GEMS-IT.  8.3 Continuing Guarantee for SELLER as required by the FD&C Act and OtherApplicable Law. The articles comprising each shipment for delivery hereafter madeby Supplier to or on the order of GEMS-IT are hereby guaranteed by Supplier as of thedate of shipment or delivery to be on that date: (a) manufactured and released asfinished devices in accordance with the applicable provisions of the Federal Food, Drugand Cosmetic Act (FDCA) as amended (21 U.S.C. Section 301 et seq.) relating toadulterated or misbranded devices; (b) not an article which may not, under theprovisions of sections 404 or 405 of the FDCA, be introduced into interstate commerce;(c) in compliance with the provisions of sections 510, 513, and 515 of the FDCA. Thisguarantee is continuing and shall remain in full force and effect until revoked inwriting.  8.4 Compliance with Quality System Regulation. Supplier represents andwarrants that it is in substantial compliance with 21 CFR part 820 with respect to theOEM Products existing as of the date of this Agreement, and Supplier shallsubstantially comply with 21 CFR part 820 with respect to any future OEM Products whichmay become subject to this Agreement. Supplier shall be responsible for obtaining CEMarking for the OEM Products. Supplier also represents and warrants that it is insubstantial compliance with any and all quality-related laws, rules and regulations ofany other country worldwide with respect to the OEM Products existing as of the date ofthis Agreement, and Supplier shall substantially comply with such laws, rules andregulations with respect to any future OEM Products which may become subject to thisAgreement.9. LIMITED WARRANTIES AND SUPPORT OBLIGATIONS 9.1 Warranty Period. All warranties set forth in Section 9.2 below willsurvive any inspection, delivery, acceptance, or payment by GEMS-IT and (except for thewarranty included in Section 9.2(2) below) will survive indefinitely. The warrantyincluded in Section 9.2(2) below shall be in effect for the one year period followingthe date of shipment of the OEM Product to GEMS-IT’s end-user customers.  9.2 Limited Warranty. Supplier warrants that, during the applicableWarranty Period, each OEM Product will: (1) Be manufactured, processed, and assembled by Supplier or bycompanies under Supplier’s direction.  (2) Conform and perform in accordance with the Specifications, andother criteria referred to in this Agreement or agreed to by the parties inwriting.  (3) Be new, except as otherwise provided by the parties.  (4) Be free from defects in design, material and workmanship.  (5) Be free and clear of all liens, encumbrances, restrictions, andother claims against title or ownership. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* (6) Not violate or infringe any third party Intellectual Property Rights, andSupplier warrants that it is not aware of any facts upon which such claimcould be made. If Supplier learns of any claim or any facts upon which claimcould be made, it will promptly notify GEMS-IT of this information. 9.3 Warranty Obligation. During the applicable Warranty Period, Suppliershall be obligated to repair or replace any OEM Product that does not conform orperform in accordance with the warranties set forth in Section 9.2 above. In addition,GEMS IT shall have such other rights and remedies available at law or otherwiseavailable under this Agreement for breach of the foregoing warranties.  9.4 Service Availability. Supplier agrees to make its service personnelavailable to GEMS- IT personnel (via phone and/or fax) during regular business hours atno cost to GEMS-IT to address support obligations under this Agreement. If required, onan emergency basis, Supplier agrees on a worldwide basis to make on-site serviceavailable at an additional charge to GEMS-IT. The cost for on-site service shall bemutually determined by the Parties on a case by case basis.9.4.1 Warranty Service Logistics and Availability. Supplier agrees to makeits service personnel available to GEMS-IT personnel (via phone and/or fax) duringregular business hours at no cost to GEMS-IT to address support obligations underthis Agreement. If required, on an emergency basis, Supplier agrees on a worldwidebasis to make on-site service available at an additional charge to GEMS-IT. The costfor on-site service shall be mutually determined by the Parties on a case by casebasis.9.4.2 Customer Service. a. Customer service calls will be handled byGEMS-IT. If customer calls GEMS-IT with Product Warranty issue (GEfields Warranty call), GEMS-IT will inform Supplier of Warranty call andwill receive a RMA from Supplier. GEMS IT’s customer will return theproduct for repair or replacement to Supplier’s facility in Minnetonka,MN (for Americas) or Copenhagen, Denmark (for Europe, Asia, Africa andMiddle East).  b. If GEMS IT’s customer calls requiring in-fieldservice, GEMS-IT will bill customer as appropriate per GEMS-IT policies(flat rate paid by GEMS-IT). GEMS-IT will inform Supplier of customerissue and will receive a RMA from Supplier. GEMS-IT or its customerwill return product to Supplier facility as outlined in 9.4.2(a) above.Supplier will repairs and returns product to customer. Supplier willbill GEMS-IT flat rate per unit, which rate shall be negotiated withannual adjustments based in CPI). GEMS-IT will bill customer for servicecall.  c. If customer calls requiring Parts, GEMS-IT willinform Supplier and request direct shipment of Parts to GEMS-ITcustomer. Supplier will bill GEMS-IT at agreed upon cost of Parts andGEMS-IT will bill customer. 9.5 Service Period. During the Term and for a period of at least [ * ]following the last shipment to GEMS-IT of the applicable OEM Product ordered by GEMS-IThereunder, Supplier shall make available necessary replacement parts, technical supportand repair service (or at Supplier’s sole discretion, exchange units for the OEMProducts) for purchase by GEMS-IT and third party users of the OEM Products atSupplier’s then- current prices for such replacement parts, technical support andrepair services and exchange units (unless otherwise covered by warranty or serviceagreement). [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* 9.6 DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTYMAKES ANY OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, REGARDING ANY OEM PRODUCTS ORTHE GEMS-IT CARDIOSERVE PROPERTY, OR REGARDING THEIR MERCHANTABILITY OR THEIR FITNESSFOR ANY PARTICULAR PURPOSE.10. OBSOLESCENCE AND MANUFACTURING RIGHTS FOR DISCONTINUED PRODUCTS 10.1 Buy Rights. Supplier acknowledges its obligation to manufacture, supplyand support the OEM Products without interruption for the Term of the Agreement. If,however, Supplier seeks to discontinue the supply or support of any OEM Product duringthe Term of the Agreement (a “Discontinued Product”), Supplier will give notice toGEMS-IT no less than 12 months in advance of the last date the Discontinued Product canbe ordered. After receipt of notice of discontinuance, GEMS-IT may, at its option: (1) Purchase from Supplier such quantity of the DiscontinuedProduct as GEMS-IT deems necessary for its future requirements; and  (2) Manufacture the Discontinued Product under the manufacturingrights granted in Section 10.2 below, without payment to Supplier ofany royalties or other charges. 10.2 GEMS-IT’s Right To Manufacture. Subject to the terms of Section 10.1above, Supplier grants to GEMS-IT during the Term of this Agreement, under Supplier’sIntellectual Property Rights, a non-exclusive, world-wide, royalty-free license to use,modify, reproduce, import, manufacture, distribute, offer for sale and sell theDiscontinued Product during the Term of this Agreement. GEMS-IT may sublicense theserights to third parties, provided any such third party complies with the terms of thisAgreement and any associated obligations of confidentiality. In the event GEMS-ITelects to exercise this right: (1) Supplier will release to GEMS-IT all Technical Information orother materials necessary for the manufacture of the Discontinued Product.GEMS-IT will keep all Technical Information confidential in accordance with theterms of Article 17 below.  (2) Supplier will furnish to GEMS-IT all Technical Materials attheir book value within thirty (30) days after GEMS-IT has notified Supplier ofits exercise of its rights under this Article 10. If the materialsare not delivered within this time period, GEMS-IT will have the right tocollect such materials at Supplier’s plant or offices and Supplier agrees toassist GEMS-IT in such collection. GEMS-IT will pay amounts due on suchmaterials within 35 days after receipt of Supplier’s invoice or receipt of thematerials, whichever is later. If GEMS-IT has to use measures to collect thematerials itself, it may deduct its costs from the book value of the materials.  (3) Supplier will furnish to GEMS-IT within seven days afterGEMS-IT’s written request, the names and addresses of Supplier’s sources forParts not manufactured by Supplier, including the appropriate part numbers forcommercially available equivalents of electronic parts. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* (4) Supplier will furnish to GEMS-IT without charge all Partscatalogues, schematics, material lists, engineering change orders, andother servicing documentation deemed necessary by GEMS-IT to service andsupport the Discontinued Product.  (5) Supplier will assign to GEMS-IT any license rights it may havewith third parties for software, documentation or any intellectual propertyused in the manufacture of the Discontinued Product. 10.3 Return of CSI Information, Intellectual Property, etc. After the Termof this Agreement, all information, intellectual property, and other property of CSI,including but not limited to the CSI Proprietary Technology, shall be returnedimmediately, and any licenses and other rights under this Section 10 shall immediatelycease.11. MARKETING AND LICENSING 11.1 Marketing Authority. Supplier hereby grants to GEMS-IT the exclusiveright to promote, sell and distribute OEM Products worldwide. GEMS-IT will have theauthority to market the OEM Products and the GEMS-IT Products containing the OEMProducts to the extent it deems appropriate, in its sole discretion. GEMS-IT will havethe right to use its own business and license terms for all marketing and distributionof the OEM Products and GEMS-IT Products.  11.2 No Rights In Marks. Except as otherwise specified in the privatelabeling section below, nothing in this Agreement should be construed to grant eitherparty any rights in the Marks of the other party. Supplier acknowledges, however, thatGEMS-IT may use the name of the OEM Products in advertising and marketing the OEMProducts or the GEMS-IT Products. The OEM Products will be affixed with applicablepatent numbers copyright notices, including Cardiac Science STAR® andRHYTHMx® marks identifying the CSI Proprietary Technology, sufficient to give noticeas to the rights of the parties in their respective products.  11.3 Private Labeling. Supplier will ensure that the OEM Products sold toGEMS-IT contain the GEMS-IT Marks, serial number and packaging specified byGEMS-IT and conforming to GEMS-IT specifications for external appearance (which willnot require any material change in form or dimensions of the OEM Products or requirecommercially unreasonable actions). GEMS-IT shall provide Supplier with a list ofsequential serial numbers to be applied to each OEM Product and shipping container bySupplier and Supplier shall apply such numbers per GEMS-IT’s instructions. In addition,and without limiting the foregoing, Supplier will ensure that each OEM Product labelincludes the following statement: “Manufactured for GE Medical Systems InformationTechnologies by Cardiac Science — STREET ADDRESS, CITY, STATE.” Except as providedherein, Supplier will have no other right or license in any GEMS-IT Marks.  11.4 Documentation License. Supplier hereby grants GEMS-IT anon-exclusive, non- transferable, worldwide fully paid up license to use, reproduce,distribute and prepare derivative works in GEMS-IT’s name all Documentation and otherinformation, other than confidential information, furnished by Supplier under thisAgreement. GEMS-IT has the right to use or modify the Supplier’s Product documentationor excerpts therefrom, for instance as follows: Functional description,Instruction sheet and product labels, Operators aids, Promotion information, andProduct/Function description. Supplier shall provide GEMS-IT with this Productdocumentation free of charge both as a print version [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*and on data media in readable form. These rights with respect to theDocumentation will extend to GEMS-IT Subsidiaries and third party channels ofdistribution. GEMS-IT may reproduce such Documentation without Supplier’s logo orother identification of source, subject to affixing copyright notices to all copiesof Documentation. These rights with respect to the Documentation will extend toGEMS-IT Subsidiaries and third party channels of distribution.12. INTELLECTUAL PROPERTY PROTECTION 12.1 Ownership. Except as expressly provided herein, neither Party grantsto the other Party any license or intellectual property right, either by implication,estoppels or otherwise in and to its products, patents, trademarks, documentation orconfidential information. Except in the case of GEMS-IT’s need to service OEM Products,GEMS-IT shall not: (a) reverse engineer, decompile, disassemble or otherwise tamperwith the OEM Products; (b) install, integrate, adapt or use the OEM Products except asdescribed in the Documentation; (c) remove or alter any proprietary designs notices orMarks contained in or on the OEM Products, Documentation or related materials or (d)authorize any third party, including any of GEMS-IT distributors or end user customers,to do any of the foregoing.  12.2 Duty To Defend. Except in the event that GEMS-IT exercises its rightsto manufacture Discontinued Products pursuant to Article 10 hereof, Supplier willdefend, indemnify and hold harmless GEMS-IT, its Affiliates and its Subsidiaries,subcontractors and customers from any claim that any OEM Product, any Software,Documentation or a Supplier Mark, or any product provided as part of Supplier’s supportservices constitutes an unauthorized use or infringement of any third party’sIntellectual Property Rights. Supplier will pay all costs, damages and expenses(including reasonable attorneys’ fees) incurred by GEMS- IT, its Subsidiaries,subcontractors or customers and will pay any award with respect to any such claim oragreed to in any settlement by Supplier of such a claim.  12.3 GEMS-IT’s Duty To Notify. GEMS-IT will give Supplier prompt notice ofany such claim or action, and will give Supplier the authority, information, andreasonable assistance (at Supplier’s expense) necessary to defend. If Supplier doesnot diligently pursue resolution of the claim nor provide GEMS-IT with reasonableassurances that it will diligently pursue resolution, then GEMS-IT may, without in anyway limiting its other rights and remedies, defend the claim.  12.4 Remedies For Infringing Products. If the use or combination of anyproduct provided hereunder is enjoined (the “Infringing Product”), Supplier will, atits sole expense and option: (1) Procure for GEMS-IT and its customers the right to continueusing or combining the Infringing Product;  (2) Replace the Infringing Product with a non-infringing product ofequivalent function and performance; or  (3) Modify the Infringing Product to be non-infringing, withoutdetracting from function or performance. 12.5 Limitations. Supplier will be relieved of its indemnificationobligations under this Article 12 to the extent that the claim arises solelyand directly from Supplier’s [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*compliance with a GEMS-IT Specification, provided that all implementations ofthat Specification constitute an unauthorized use or infringement of a third partyIntellectual Property Right.13. IMPORT / EXPORT COMPLIANCE 13.1 Country Of Origin Certification. Upon GEMS-IT’s request, Supplierwill provide GEMS-IT with an appropriate certification stating the country of originfor OEM Products, sufficient to satisfy the requirements of the customs authorities ofthe country of receipt and any applicable export licensing regulations, including thoseof the United States. In addition, Supplier will provide NAFTA certification (ifSupplier determines the OEM Products qualify).  13.2 Country Of Origin Marking. Supplier will mark each OEM Product, or thecontainer if there is no room on the OEM Product, with the country of origin inaccordance with U.S. Government regulations (Supplier shall only mark “Made in USA” onproducts or containers if the product meets the U.S. Government Federal TradeCommission requirements for use of such a label). Supplier will, in marking OEMProducts, comply with the requirements of the customs authorities of the country ofreceipt.  13.3 Duty Drawback. If OEM Products delivered under this Agreement areimported by the GEMS-IT as the importer of record in the country of receipt, Supplierwill, upon GEMS- IT’s request, provide GEMS-IT with documents required by the customsauthorities of the country of receipt to prove importation and to transfer dutydrawback rights to GEMS-IT.  13.4 Export Compliance. (a) In performing its obligations under this Agreement, Suppliershall comply with all applicable export laws, regulations and rulesadministered by the United States Customs Service, the Bureau of Industry andSecurity and the Food and Drug Administration, as well as all other applicablefederal, state or local laws, regulations or requirements of the United Statesand any other nation. Supplier shall obtain all applicable permits andlicenses necessary to perform its obligations under this Agreement.  (b) If Supplier obtains Bureau of Industry and Security commodityclassifications for the OEM Products, Supplier shall provide a copy of theCCATS document, including any revisions thereto during the Term of thisAgreement. If Supplier obtains any U.S. Customs Rulings relating thereto,Supplier shall provide copies of the resulting revisions.  (c) Supplier shall indemnify and save harmless GEMS IT, itsaffiliates, officers, directors, employees, successors and assigns from any andagainst any losses, damages, liabilities, fines, penalties, andexpenses (including reasonable attorney’s fees) arising out of or resultingfrom the failure to comply with this provision, provided that GEMS IT givesSupplier prompt written notice of any such claim and requisite authority,information and assistance to defend such claim.  (d) During the Term and for a period of five (5) years thereafter,Supplier shall keep accurate and complete export documentation records relatingthe OEM Products in accordance with U.S. Export regulations and FDArequirements and the [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*requirements of any other similar agency of any other nation that willhave jurisdiction over Supplier as a result of its performance of itsobligations under this Agreement. If the U.S. Government or other governmentor agency requests the production of such records, Supplier shall copy andproduce the records at no charge to GEMS IT. (e) Upon reasonable advance notice to Supplier and during normalbusiness hours, GEMS IT may, at its option and expense, conduct audits at anySupplier Service Location of documents relating to the OEM Products to assurethat Supplier is in compliance with all export and FDA laws, regulations andrequirements, including record keeping. GEMS IT may make copies of any recordsit reviews during its audits. Further, upon reasonable advance notice toSupplier, GEMS IT may request copies of any export documentation recordsrelating to the OEM Products, which Supplier will provide free of charge. Ifan audit reveals non- compliance, undercharges or overcharges, Supplierwill take appropriate measures to rectify the situation and bring theSupplier Service Location into compliance.  (f) During the Term and for a period of five (5) years thereafter,GEMS IT may request from Supplier copies of records deemed necessary to defendagainst any claim related to this Section 13.4 made by a third party, includingfederal, state or local government. Such records shall not be unreasonablywithheld.14. GOVERNMENTAL COMPLIANCE 14.1 Duty To Comply. Supplier agrees to comply with all federal, state,local and foreign laws, rules, and regulations applicable to its performance of thisAgreement or to OEM Products. Without limiting the generality of the foregoingsentence, Supplier represents that: (1) Supplier will comply with all applicable equal employmentopportunity and non- discrimination requirements prescribed byPresidential Executive Orders, including the requirements ofExecutive Order 11246, the Vocational Rehabilitation Act, and theVietnam Era Veterans’ Readjustment Assistance Act;  (2) Each chemical substance contained in OEM Products is on theinventory of chemical substances compiled and published by the EnvironmentalProtection Agency pursuant to the Toxic Substances Control Act;  (3) All OEM Products will be shipped in conformance with governmentor freight regulations and requirements applicable to chemicals; and  (4) Supplier will provide complete and accurate material safetydata sheets prior to shipping any OEM Product. 14.2 Procurement Regulations. For OEM Products purchased under thisAgreement for incorporation into products to be sold under a federal contract orsubcontract, those applicable procurement regulations that are required by federalstatute or regulation to be inserted in contracts or subcontracts will be deemedincorporated in this Agreement and made to apply to all Orders. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* 14.3 Regulatory Approvals. Supplier shall be solely responsible foridentifying, obtaining, and maintaining at its sole cost and expense all regulatory andother necessary and/or appropriate approvals for the development, manufacture, or saleof any OEM Product in the following countries: All European countries, Russia,Turkey, South Africa, Egypt, Morocco, Tunisia, Algeria, Libya, Israel, Jordan, Syria,Iraq, Iran, Saudi Arabia, Kuwait, Oman, Yemen, U.A.E., Qatar, Bahrain, China, Taiwan,India, Pakistan, Afghanistan, South Korea, Australia, New Zealand, Singapore,Indonesia, Malaysia, Thailand, Vietnam, Mexico, Brazil, Argentina, Chile, Peru,Colombia and Bolivia. Supplier shall have obtained all such approvals by not laterthan 30 days following the First Delivery Date. If any such approval is notobtained, subsequently revoked, terminated or suspended, Supplier shall immediatelynotify GEMS IT of such occurrence. If any such lack of obtainment, revocation,termination or suspension lasts for more than thirty (30) days, a proportionalreduction in the minimum purchase obligations under Section 3.4 shall be made for anycalendar quarter in which such country-specific approvals are not in place for the fullduration of the calendar quarter (the “Pending Approvals”) as follows: minimumpurchase obligation shall equal 425 units less the product of 425 multiplied by the sumof the “% reductions” for each specific Pending Approval calculated using the data setforth on Exhibit D hereto. Cardiac Science shall obtain Regulatory Approval in theUnited States in order to facilitate the sale of the OEM Products in such Internationalmarkets that require FDA clearance. Regulatory Approval in Canada and Japan shall besought based on mutual consent of both GEMS-IT and Supplier and only after such time asboth GEMS-IT and Supplier agree on the Specifications, and certain modification to theform factor for the proposed OEM Product to be marketed in the aforementionedcountries. Failure to receive Regulatory Approval in Canada and Japan shall have noproportional reduction in the minimum purchase obligation as outlined in Section 3.4herein.  14.4 Complaint Handling. GEMS-IT will be responsible for the coordinationof customer complaint investigations. As determined by GEMS-IT, Supplier willinvestigate customer complaints at no charge and supply GEMS-IT with awritten report summarizing the cause for the complaint and any corrective actionsrequired within 14 days of receipt by Supplier of such complaint, it being understoodthat, depending on the nature of the complaint and investigation, the initial (14-day)response may be limited in scope and then followed up by a complete response as soon asreasonable practicable thereafter.  14.5 Duty to Report Incidents. GEMS-IT and Supplier shall inform eachother in writing, within 5 business days from knowledge of a reportable event, of allincidents relating to the subject matter of the Agreement that must be reportedaccording to the FDA Medical Device Reporting regulation (21 CFR Part 803) or theEuropean Medical Device Vigilance regulations or that must be registered according toother national regulations such as Canadian medical device regulations, includingwithout limitation incidents involving death or serious injury, malfunctions that, ifrecurrent, may cause or contribute to death or serious injury or other material qualityproblems or concerns. GEMS-IT will be responsible for reporting such incidents to theappropriate regulatory authority. Supplier shall fully cooperate with GEMS-IT as may benecessary to comply with any reporting obligations regarding such incidents or qualityconcerns.  14.6 Recalls and Field Corrections. In the event of any recall, productwithdrawal or field correction of any OEM Product that is required by a governmentalagency, by Supplier, or by GEMS-IT for safety or efficacy reasons, the parties agreethat (a) they shall promptly notify each other and (b) they shall fully cooperate witheach other concerning [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*   the necessity and nature of such action. GEMS-IT shall be the point of contactfor purchasers of any OEM Product (whether directly or through its distributors) andshall be responsible for making any and all applicable regulatory authority contactsand for coordination of any recall or field correction activities involving such OEMProducts, whether or not such action was requested by Supplier. In the event thatany OEM Product requires field correction or is recalled as a result of (a) thesupply by Supplier of a Noncomplying Product or (b) the grossly negligent orintentionally wrongful act or omission of Supplier or its affiliates or theirrepresentatives, then Supplier shall bear all costs and expenses, including but notlimited to the costs and expenses related to such recall or field correction,communications and meetings with all required regulatory agencies, replacementstock, service labor, installation, travel, notifying customers of such recall andany replacement product to be delivered to those same customers, including shippingcosts. To the extent that any such recall or field correction is due in part to thenegligent or intentional acts or omissions of GEMS-IT, or the non-performance of theGEMS-IT Products, GEMS-IT shall be responsible for such costs and expenses equitablyin proportion to its fault.  14.7 Regulatory Agency Inquiries. If the FDA or any other regulatory bodywith authority over medical devices provides written notice to either party to inquireabout or investigate any OEM Product, the party notified shall use its best efforts togive notice thereof to the other party within one working day of receipt of suchcontact from the FDA or other body.  15. FORCE MAJEURE EVENTS  15.1 Delaying Causes. Subject to the provisions of this Article, Supplierwill not be liable for any delay in performance under this Agreement caused by any “actof God” or other cause beyond Supplier’s control and without Supplier’s fault ornegligence (a “delaying cause”). Notwithstanding the above, Supplier will not berelieved of any liability for any delay or failure to perform its defense obligationswith respect to third party Intellectual Property Rights or furnish remedies forInfringing Products as described in Article 12 above.  15.2 GEMS-IT Option. Supplier will immediately give GEMS-IT notice of anydelaying cause and its best estimate of the expected duration of such cause. In theevent of a delaying cause, GEMS-IT may act in its sole discretion to: (1) Terminate this Agreement or any part hereof as to OEM Products not shipped; or  (2) Suspend this Agreement in whole or in part for the duration ofthe delaying cause, buy similar products elsewhere, and deduct from anyquantities specified under this Agreement the quantity so purchased. 15.3 Resumption Of Agreement. If GEMS-IT elects to purchase other similarproducts in the event of a delaying cause, GEMS-IT may resume performance under thisAgreement once the delaying cause ceases and extend the Term up to the length of timethe delaying cause endured. Unless GEMS-IT gives notice of termination as providedabove within 30 days after notice from Supplier of the delaying cause, GEMS-IT will bedeemed to have elected to suspend this Agreement for the duration of the delayingcause. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03* 16. EVENTS OF DEFAULT  16.1 Notice Of Breach. If either party is in breach of any provision ofthis Agreement, the nonbreaching party may, by notice to the breaching party, except asotherwise prohibited by the United States bankruptcy laws, terminate the whole or anypart of this Agreement or any Order, unless the breaching party cures the breach within30 days after receipt of notice in writing.  16.2 Causes Of Breach. For purposes of Section 16.1 above, theterm “breach” includes without limitation any: i. Proceeding, whether voluntary or involuntary, in bankruptcy or insolvency by oragainst a party that is not dismissed within 60 days of its filing;  ii. Appointment, with or without a party’s consent, of a receiveror an assignee for the benefit of creditors;  iii. Failure by Supplier to make the minimum quarterly delivery ofOEM Products in accordance with the material requirements of this Agreement;  iv. Failure by GEMS-IT to purchase and pay for the agreed uponminimum quantity of the OEM Products for a given calendar quarter inaccordance with the provisions of Section 3.4.  v. Failure by Supplier to replace or repair Noncomplying Products in a timelymanner as required by Articles 5, 6 & 9 above; or  vi. Other failure by a party to comply with any material provisionof this Agreement with additional failure to provide the nonbreaching party,upon request, with reasonable assurances of future performance. 16.3 Rights Upon Breach. In addition to a party’s right to terminate thisAgreement upon breach, each party shall also have such other rights and remedies as maybe available to them at law or in equity or otherwise available under this Agreement.17. CONFIDENTIAL INFORMATION 17.1 Confidential Information. During the Term, a party (the “Recipient”)may receive or have access to certain information of the other party (the “Discloser”)that is marked as “Confidential Information,” including, though not limited to,information or data concerning the Discloser’s products or product plans, businessoperations, strategies, customers and related business information. TheRecipient will protect the confidentiality of Confidential Information with thesame degree of care as the Recipient uses for its own similar information, but no lessthan a reasonable degree of care. Confidential Information may only be used by thoseemployees of the Recipient who have a need to know such information for the purposesrelated to this Agreement. The parties acknowledge that all GEMS-IT Property,Technical Information and Forecasts are deemed Confidential Information to be protectedfor a term of three years from the date of disclosure.  17.2 Exclusions. The foregoing confidentiality obligations will not applyto any information that is (a) already known by the Recipient prior to disclosure, (b)independently [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*developed by the Recipient prior to or independent of the disclosure, (c)publicly available through no fault of the Recipient, (d) rightfully received froma third party with no duty of confidentiality, (e) disclosed by the Recipient withthe Discloser’s prior written approval, or (f) disclosed under operation of law.18. LIMITATION OF LIABILITY   UNLESS OTHERWISE STATED IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL ORCONSEQUENTIAL DAMAGES OF THE OTHER ARISING OUT OF ANY PERFORMANCE OF THIS AGREEMENT OR INFURTHERANCE OF THE PROVISIONS OR OBJECTIVES OF THIS AGREEMENT, REGARDLESS OF WHETHER SUCHDAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OFTHE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE ABOVE, SUPPLIER WILL BE RESPONSIBLEFOR ANY DAMAGES OF ANY KIND INCLUDED IN AN AWARD OR SETTLEMENT OF A THIRD PARTY CLAIM UNDERARTICLE 12 ABOVE AND SECTION 21.2 BELOW. 19. TERMINATION 19.1 Outstanding Orders. All Orders issued prior to the expiration of thisAgreement must be fulfilled pursuant to and subject to the terms of this Agreement,even if the Delivery Dates are after expiration. Upon termination of this Agreementfor Supplier’s breach, GEMS-IT may cancel any outstanding Order or require Orders to befulfilled even if a Delivery Date is after the date of termination.  19.2 Return Of GEMS-IT Property. Except as expressly providedotherwise in this Agreement, Supplier must return all GEMS-IT Property to GEMS-IT uponexpiration or termination. All such property must be in good condition, normal wearand tear excepted. GEMS-IT will determine the manner and procedure for return. GEMS-ITwill bear all return freight costs if return is due to GEMS-IT convenience or anuncured breach by GEMS-IT. Otherwise, Supplier will bear all such costs.  19.3 Continuation of License of GEMS-IT CardioServ Property. Upon expirationof the Term of this Agreement and in the event the Agreement is not renewed by mutualagreement of the parties for an additional term, the license of the GEMS-IT CardioServProperty shall survive beyond the original term free of cost, fees, licenses androyalties to Cardiac Science.  19.4 Surviving Provisions. Notwithstanding the expiration or earlytermination of this Agreement, the provisions regarding Warranties in Article9, Manufacturing Rights in Article 10, Marketing and Licensing inArticle 11, Intellectual Property in Article 12, Confidentiality inArticle 17, Limitation of Liability in Article 18, Transfer of GEMS-ITCardioServ Property in Article 19, and the Miscellaneous provisions below willeach survive in accordance with their terms.20. CRISIS MANAGEMENT 20.1 Communications. Supplier must maintain the ability to contact GEMS ITon a 24 hour a day, 7 day a week basis in order to communicate and manage crisissituations that threaten to or interrupt the Supply Chain. Likewise, Supplier must beavailable if GEMS IT wishes to contact Supplier on a 24/7 basis. Means ofcommunication may include, but [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*   are not limited to, phone, mobile phone or pager and interaction via email andthe Internet.  20.2 Business Contingency Plan (BCP). Supplier must share with GEMS IT aBCP that includes Supplier’s plan for 24/7 communication with GEMS IT. The BCP willalso include basic information on Supplier’s upstream Supply Chain. For instance, thisinformation will include who Supplier’s Tier 1 and Tier 2 suppliers are, where theyare located and the means of transportation for this Supply Chain.21. MISCELLANEOUS 21.1 Notices. All notices to be given under this Agreement must be inwriting addressed to the receiving party’s designated recipient. Notices are validlygiven upon the earlier of confirmed receipt by the receiving party or three days orseven days for international notices after dispatch by courier or certified mail,postage prepaid, properly addressed to the receiving party. Notices may also bedelivered by telefax and will be validly given upon oral or written confirmation ofreceipt. Either party may change its address for purposes of notice by giving noticeto the other party in accordance with these provisions.  21.2 Indemnification. Supplier shall defend, indemnify, and hold harmlessGEMS-IT and its Affiliates from and against any losses, expenses, and liability(including attorney fees) to third parties for any and all claims of personal injuriesand/or damages arising out of the use of any OEM Product if such injuries and/ordamages are attributable to any part of such OEM Product, provided that GEMS-ITnotifies Supplier promptly in writing of any and all such claims.  21.3 Exhibits. Each Exhibit attached to this Agreement is deemed a part ofthis Agreement and incorporated herein wherever reference to it is made.             Exhibit A: Product List          Exhibit B: Product Specifications & Development Project Plan          Exhibit C: Suppliers Prices          Exhibit D: GEMS-IT Anticipated OEM Product Unit Volume by Country 21.4 Independent Contractors. The relationship of the partiesestablished under this Agreement is that of independent contractors and neither partyis a partner, employee, agent or joint venturer of or with the other. .  21.5 Assignment. Except for any assignment by GEMS IT to any Affiliate ofGEMS IT, neither this Agreement, nor any right, license, privilege or obligationprovided herein may be assigned, transferred or shared by either party without theother party’s prior written consent, and any attempted assignment or transfer is void.Any merger, consolidation, reorganization, transfer of substantially all assets of aparty, or other change in control or ownership will be considered an assignment for thepurposes of this Agreement (other than a merger of GEMS-IT with or into an Affiliate ofGEMS-IT). This Agreement will be binding on the successors and permitted assigns of theparties and the name of the party appearing herein will be deemed to include the namesof such party’s successors or permitted assigns to the extent necessary to carry outthe intent of this Agreement.  21.6 No Waiver. The waiver of any term, condition, or provision of thisAgreement must be in writing and signed by an authorized representative of the waivingparty. Any such [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*waiver will not be construed as a waiver of any other term, condition, orprovision except as provided in writing, nor as a waiver of any subsequent breachof the same term, condition, or provision. 21.7 Reference To Days. All references in this Agreement to “days” will,unless otherwise specified herein, mean calendar days.  21.8 Headings. The Section headings used in this Agreement are forconvenience of reference only. They will not limit or extend the meaning of anyprovision of this Agreement, and will not be relevant in interpreting any provision ofthis Agreement.  21.9 No Publication. Other than as required by SEC regulations whichrequire disclosure of certain material events, neither party may publicize or disclosethe terms of this Agreement to any third party, without the written consent of theother party. Without limiting the generality of the foregoing sentence, no pressreleases may be made without the mutual written consent of each party.  21.10 Severability. If any provision in this Agreement is held invalid orunenforceable by a body of competent jurisdiction, such provision will be construed,limited or, if necessary, severed to the extent necessary to eliminate such invalidityor unenforceability. The parties agree to negotiate in good faith a valid,enforceable substitute provision that most nearly affects the parties’ original intentin entering into this Agreement or to provide an equitable adjustment in the event nosuch provision can be added. The other provisions of this Agreement will remain infull force and effect.  21.11 Entire Agreement. This Agreement comprises the entire understandingbetween the parties with respect to its subject matters and supersedes any previouscommunications, representations, or agreements, whether oral or written. For purposesof construction, this Agreement will be deemed to have been drafted by both parties. Nomodification of this Agreement will be binding on either party unless in writing andsigned by an authorized representative of each party.  21.12 Governing Law. This Agreement will be governed in all respects by thelaws of the State of New York without reference to any choice of laws provisions.  21.13 Dispute Resolution. Any claim or controversy arising out of orrelating to the Agreement must be submitted and settled as set forth in this Section21.13. If any party to this Agreement alleges that any other party to this Agreementhas breached any of the terms of this Agreement, then the party alleging breach willinform the other party of such breach in writing. Upon receipt of such notice, theallegedly non-performing party will have 30 days to cure the alleged breach. If theparties do not agree that effective cure has been accomplished by the end of the 30-dayperiod, then upon written request of any party, a senior manager from each party willmeet in person and confer in good faith to resolve the dispute within 15 days of theexpiration of the prior 30-day period. If, after the above procedure, the disputeremains unresolved, either party may submit the dispute to the office of the AmericanArbitration Association (“AAA”) located in Chicago, Illinois for binding arbitration inaccordance with the AAA’s Commercial Arbitration Rules then in effect, as amended bythis Agreement. The law applicable to the arbitration, including theadministration and enforcement thereof, is the Federal Arbitration Act, 9 U.S.C.§§ 1-16, as amended from time to time. The cost of the arbitration, including thefees and expenses of the arbitrator(s), will be shared equally by the parties, with eachparty paying its own attorneys’ fees. The arbitrator(s) will have the [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*   authority to apportion liability between the parties, but will not have theauthority to award any damages or remedies not available under the express termsthis Agreement. The arbitration award will be presented to the parties in writing,and upon the request of either party, will include findings of fact and conclusionsof law. The award may be confirmed and enforced in any court of competentjurisdiction. Any post-award proceedings will be governed by the Federal ArbitrationAct. Nothing in this Section 21.13 shall preclude either party from seeking interimequitable relief in the form of a TRO or preliminary injunction. A request by aparty of a court for interim equitable relief shall not be deemed a waiver of theobligation to arbitrate hereunder.  21.14 Insurance. During the term of this Agreement, Supplier shall maintainat its own expense, commercial general liability insurance for bodily injury, death andproperty loss and damage (including coverages for product liability, contractualliability and personal injury liability) covering Supplier for claims, lawsuits ordamages arising out of its performance under this Agreement and any negligent orotherwise wrongful acts or omissions by Supplier or any employee or agent of Supplier.All such policies of insurance shall provide limits of liability in the minimum amountof three million dollars ($3,000,000) per occurrence with an annual aggregate of atleast five million dollars ($5,000,000). Supplier shall provide GEMS IT with a copy ofcertificates of insurance evidencing the existence of all coverage required hereunder. [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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*FINAL EXECUTABLE VERSION of OEM Purchase Agreement dated 7-29-03*     IN WITNESS WHEREOF, the parties have caused this Agreement to be signed by theirthereunto duly authorized representatives as of the date first above written.       Cardiac Science, Inc. GE Medical Systems    Information Technologies, Inc.       By: /s/ RAYMOND W. COHEN By: /s/ MICHAEL GENAU       Name: Raymond W. Cohen Name: Michael GenauTitle: President & CEO Title: Vice President & General Manager    Cardiology System [ * ]  designates portions of this document that have been omitted pursuant to a request forconfidential treatment filed separately with the commission.
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