exv10w12



 





Exhibit 10.12




SIEMENS




MANUFACTURE AND SUPPLY AGREEMENT




          This Agreement made as of this 14” day of November 2003 by and between Siemens
Medical Solutions, USA, Inc., acting through and on behalf of its Oncology Care Systems
Group having a business address at 4040 Nelson Avenue, Concord,
CA 94520 (“Seller”)
and Tomo Therapy, Incorporated, having a business address at 1240 Deming Way, Madison,
WI 53717 (“Buyer”).



W I T N E S S E T H :




          WHEREAS, Seller has experience and expertise in the manufacturing, and/or support of
RF Systems Assemblies; and



          WHEREAS, Buyer wishes to have Seller use its expertise to continue manufacturing
and/or supporting the products (herein collectively referred to as “Products”) listed in Exhibit A
for the period specified in this Agreement; and



          NOW, THEREFORE, for good and valuable consideration, the adequacy of which is
hereby acknowledge, the Seller and Buyer do hereby agree to covenant and promise the following:




	 	1.	 	SCOPE






Commencing on the effective date of this Agreement Buyer shall provide Seller
with a twelve (12) month rolling forecast, which shall be updated on a monthly basis.
The initial forecast will be accompanied by a firm purchase order for the first six (6)
months and a projection of orders for the next six (6) months, subject to the lead time
stated in Exhibit B. In accordance with this Agreement, Buyer shall issue a
purchase order to Seller by no later than November 30, 2003. Seller will provide the
personnel, technical services and facilities necessary in order to manufacture the
Products for Buyer.




Neither party shall be deemed to be in default of this Agreement if prevented from
performing any obligation hereunder for any reason beyond its reasonable control
including, without limitation, governmental laws and regulations, terrorists acts, Acts
of God or the public, calamities, floods, and storms.




	 	2.	 	PURCHASE ORDER PLACEMENT






Every three (3) months, thereafter, firm purchase orders shall be issued on
the first of each rolling month for Products to be delivered in the third full calendar
month, following the month in which Seller receives the purchase order. Buyer may delay
delivery by as much as 30 days, provided such delay notice is delivered to Seller not
less than 90 days prior to the originally scheduled delivery date.




As a condition of this Agreement, Buyer agrees to a firm minimum buy procurement of
[  *  ] sets of Accelerator Assembly, part number
[  *  ] for each of the two years
commencing with the effective date of this Agreement. Said purchase orders shall be
binding to the parties and any successors or assigns. Notwithstanding the above, the
Buyer will provide the purchasing forecast for Seller’s planning purpose only.



Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	1
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology







 


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.



 









 





SIEMENS





Seller shall formally acknowledge Buyer’s purchase orders and provide a
confirmation of delivery dates (lead time is 90 days). Seller shall maintain as necessary,
an appropriate level of IS0 certification and compliance to IS0
9001. Seller further warrants that all Products sold to Buyer under this Agreement
comply with the requirements of the U.S. Food and Drug Administration (“FDA”) and the
FDA’s Good Manufacturing Practices (“GMP”) with respect to the manufacture, package,
assembly and testing for the Products




Seller shall formally notify Buyer of any Product changes that affects form fit or
function (class one).




	 	3.	 	PACKAGING






Packaging of the Products shall be in a manner adequate to ensure undamaged arrival
at Buyer’s business address, when transported by airplane, ship, truck or railroad. All
deliveries shall be accompanied by a shipping list.




	 	4.	 	TERM






The term of this Agreement is two (2) years from date of signature.
Seller may elect to automatically extend this Agreement for additional one (1) year
increments upon written Amendment to this Agreement signed by both parties.




	 	5.	 	PRICING






The pricing for Products shall be in accordance with Exhibit A and shall be
valid for a period of one (1) year following the effective date of this Agreement. At the
end of each year, Seller will review prices for an increase not to
exceed [  *  ] of then
current price.




Excepting Seller’s inability to deliver, if at the end of the first 12
months of this Agreement, the Buyer is unable to meet the minimum purchase
quantity of [  *  ] sets of Accelerator Assembly stated in Exhibit B, then Seller
will review prices for an increase not to exceed an additional 10%.




	 	6.	 	PAYMENT TERMS






The Payment terms are net 30 days after the receipt of invoice from Seller. All
Products shipped are FOB Concord, CA.




	 	7.	 	WARRANTY






All Products provided under this Agreement shall be in accordance with the
Seller’s specifications. Except for [  *  ], which is warranted for one (1)
year from the date of delivery, Seller warrants all other Products to be free from defects
in materials and workmanship for a period of six (6) months from the date of delivery.




Seller
shall only perform an inspection and test of returned Accelerator
Assembly Product part number [  *  ] to confirm that there is a defect during warranty period. Seller at
its option will repair or replace defective Product within 30 business days after receipt
at Seller’s facility.



Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	2
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology






 









 





SIEMENS





Buyer’s remedy is contingent on (1) prompt written notification of the defect;
(2) the cause of the defect not being the result of misuse, accident, neglect, alteration,
improper testing, storage, installation or negligence on the part of the Buyer; and (3)
return of the Products to Buyer’s manufacturing location with shipment and in-transit loss
or damage at the risk and expense of the Buyer. Such repair, replacement or credit shall
constitute fulfillment of all liability of Buyer to Seller whether based in contract,
tort, and indemnity or otherwise.




In
the event, Seller is unable to confirm a failure for an
Accelerator Assembly Product, which has been returned to Seller under warranty, Seller shall invoice
Buyer at the current manufacturing rate of [  *  ], at an amount not to exceed the
current labor value of the Product.




EXCEPT AS EXPRESSLY SET FORTH IN
THE PRECEDING SENTENCES AND/OR IN SPECIFICATIONS,
SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO THE PRODUCTS.




	 	8.	 	LIMITATION OF LIABILITY






NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED OR CONSTRUED TO BE CONTAINED
IN THIS AGREEMENT, EXCEPT FOR NEGLIGENCE OR WILLFUL MISCONDUCT RESULTING IN BODILY INJURY,
SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SELLER’S LIABILITY TO THE OTHER SHALL NOT EXCEED THE SUMS PAID BY BUYER TO SELLER UNDER
THIS AGREEMENT. BUYER ACKNOWLEDGES THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN
ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.




	 	9.	 	TERMINATION






If either party materially breaches its obligations in this Agreement, the other
party may terminate this Agreement by giving not less than 30 days notice to the other
party. Termination will not occur if the defaulting party, within such thirty (30) day
period, remedies such breach to the reasonable satisfaction of the non-defaulting party.




This Agreement may be terminated immediately by the other party without the
requirement of prior notice, if the other party suspends operations, files or suffers
to be filed against it a petition in bankruptcy, or the like, executes an
assignment for the benefit of creditors, or is adjudicated as bankrupt.




	 	10.	 	EXPORT






Each party agrees that it will not knowingly (i) export or re-export, directly or
indirectly, any technical data (as defined by the U.S. Export Administration
Regulations), including software received from the other under this Agreement, (ii)
disclose such technical data for



Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	3
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology






 









 





SIEMENS





use in, or (iii) export or re-export, directly or indirectly, any direct
product of such technical data, including software, to any destination to which such export
or re-export is restricted or prohibited by U.S. or non-U.S. law without obtaining prior
authorization from U.S. Department of State and other competent government authorities to
the extent required by those laws. This clause shall survive termination or cancellation of
this Agreement.




	 	11.	 	INDEMNIFICATION






	 	a)	 	Bodily injury, Disability or Death






Notwithstanding any other provisions hereof, each party agrees to indemnify the other,
its officers, agents, servants and employees against claims, damages demands, suits actions
judgments, liabilities, defaults, or costs and expenses, including attorney’s fees, arising
from claims made against or liability imposed upon the other, by a court of competent
jurisdiction as the results of claims alleging personal injury, disability, death or
property damage or any form or type or wrongdoing or loss arising from either party’s
failure to perform its respective obligations hereunder. In Buyer’s case, such
indemnity obligations shall also apply to claims arising out of or in connection with
Buyer’s assembly and resale of the Products, including without limitation, Buyer’s burden of
customer training, service and support, its representations made in the course of reselling
or distributing the Products, and its distribution of related materials and literature




For Buyer, indemnification for the bodily injury, disability, death or property damage
shall be limited to the sum of $2,000,000 in any twelve (12) month period, commencing on
October lst of any year. For Seller, indemnification shall be limited to the cumulative
total value of the Products purchase under the life of this Agreement. Notwithstanding the
aforementioned, under no circumstances, excepting gross negligence or willful misconduct,
will Seller’s liability exceed the cumulative total value of the Products purchased under
the life of this Agreement.




In the event that a claim is made against a Party seeking indemnification for bodily
injury disability or death, that Party shall promptly notify the other party of the claim,
allow the other Party to defend it in the name of such Party and to fully cooperate with its
insurers, if relevant, and its counsel in the defense against the claim.




	 	b)	 	Intellectual Property Infringement






The Seller agrees, at its cost and expense, to defend any claim, suit or legal proceeding
asserted or brought against the Buyer or the Buyer’s customers, that any Product, or the use
thereof, infringes any United States patent, copyright or other intellectual property rights of a
third party, provided the Seller is notified promptly in writing of such claim, suit or legal
proceeding, and given full and complete authority to defend the same, and given such information as
the Buyer may have regarding the same as may be reasonably required for the defense of the same.
The Seller shall pay all damages, awards and costs, awarded. The Seller shall not be responsible
for any settlement negotiated and agreed to by the Buyer or any other party without the consent of
the Seller. The Seller shall have the right, at its own election and at its own expense, to either
(a) procure for the Buyer the right to continue to distribute and use such Products or part or
component, thereof or (b) modify the same so that it becomes non-infringing provided
that the functionality, level of performance, features and quality thereof are not affected, or, if
neither of the foregoing alternatives is commercially



Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	4
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology






 









 





SIEMENS





reasonable, the Seller may repurchase such Product (the repurchase price is to
be based on the original price paid by the Buyer less depreciation on a straight line
basis over five (5) years, commencing with the date of installation and start
up of such Product). The Buyer shall have the right, at its own election, to return any
such affected Product to the Seller for refund of the purchase price as set forth above,
and to cancel any outstanding Orders or further deliveries of the Product, without any
liability to the Seller with respect thereto.




Notwithstanding the foregoing, the Seller shall not have any liability to the Buyer
under the provision of Section 7 (b), that (i) is based upon the interconnection and/or the
use of a Product, or part thereof, in combination with products or other devices outside
the scope of this Agreement without the prior written consent of the Seller, which are not
made by the Seller whether or not supplied hereunder, or (ii) for use in any
manner for which the Product, or part thereof, was not designed or created. Also, the Buyer
shall hold the Seller harmless against any expense, judgment or loss for infringement of
any patent or copyright that results from the Seller’s compliance with the incorporation of
designs specifications furnished by the Buyer. In addition, to the extent it is empowered,
the Seller agrees to pass on to the Buyer patent infringement indemnification received from
suppliers to the Seller of the Products or part thereof not designed by or for the Seller
but furnished hereunder.




The foregoing states the entire liability of the Parties with respect to infringement
of intellectual property rights by the Products or any part thereof.




	 	c)	 	Product Liability Insurance






Buyer covenants that it will maintain product liability insurance adequate to fulfill
the indemnification obligation hereunder in each such 12-month period commencing on October
1st of each year. Seller is self-insured and covenants that it has sufficient capital to
meet all obligations hereunder.




	 	12.	 	CONFIDENTIALITY






During
the term of this Agreement and for five (5) years after the latter of
either the termination of this Agreement or the termination of the last Statement of Work
under this Agreement, each party shall use the same efforts it uses to protect its own
confidential information (but in any event, no less than reasonable efforts to prevent its
disclosure) to hold in strict confidence and to require its personnel to hold in strict
confidence and not disclose to any third party without the prior written consent of the
disclosing party, and not use in any manner except in accordance with the terms of this
Agreement, any confidential business or technical information of the other party in its
possession which is related to any Product or Statement of Work or any confidential
business or technical proprietary information obtained from the other party (or any of its
Affiliates) in connection with the transactions contemplated hereunder.




Such confidential information specifically may include, without limitation, all
engineering drawings, specifications and other technical documentation, any proposed design
and specifications for future products and products in development, marketing plans, costs
and pricing information, and all third party information required to be maintained in
confidence. Promptly following termination of this Agreement or upon the request by or for
the disclosing party, the receiving party shall surrender to the disclosing party or
destroy all



Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	 
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology






5









 





SIEMENS





materials remaining in its possession containing any such confidential
information including all copies, extracts, or transcriptions, regardless of media.




For purposes of this Agreement and the Products and Statement of Work, information shall
not be deemed confidential:




	 	a)	 	if such information is generally available from public sources other
than as a result of the breach of this Agreement
	 
	 	b)	 	if such information is
received from a third party not under any obligation to keep such information confidential
	 
	 	c)	 	if the recipient can demonstrate that such information was independently
developed by the recipient without use of any confidential information of the other party
or its Affiliates; and
	 
	 	d)	 	if such information is marketing material such as
catalogs or leaflets distributed to third parties as a part of sales and promotions.






Neither party shall be liable to the other for a breach of these confidentiality
obligations to the extent it is required by law or any governmental body to disclose any
confidential information of the other party; provided, however, unless otherwise required
by such governmental body or such law, the party providing such information to such
governmental body or disclosing the same pursuant to requirement of law shall first notify
the other party so as to enable the other party opportunity to take steps it deems
appropriate to protect its confidential or proprietary information.




	 	13.	 	GOVERNING LAW






This Agreement is governed by and construed in accordance with the laws of the
State of California, USA, without regards to conflict of law provisions thereof. Assignment
of this Agreement may be made only upon the written consent of both parties; provided,
however, that Seller may assign this Agreement to any parent, affiliate or subsidiary
corporation upon notice to Buyer. Any attempted assignment or transfer of any of the rights,
duties or obligations of this Agreement without the prior written consent of either party
shall be void. If consent is given, this Agreement shall be binding upon and
inure to the benefit of the assigns.



Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	6
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology






 









 





SIEMENS




IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly
authorized representatives as of the date first written above.



	 	 	 	 	 	 	 	 	 
	Siemens Medical Solutions USA, Inc.	 	 	 	TomoTherapy Incorporated
	Oncology Care Systems Division	 	 	 	1240 Deming Way
	Concord, CA 94520	 	 	 	Madison, WI 53717
	“Seller”	 	 	 	“Buyer”
	 
	 	 	 	 	 	 	 	 
	By: Ajit Singh, Ph.D.	 	 	 	By: Mr. John Barni
	Title: President	 	 	 	Title: CEO
	 
	 	 	 	 	 	 	 	 
	Signature:

	 	/s/ Ajit Singh
	 	 	 	Signature:
	 	/s/ John Barni
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	11/17/03
	 	 	 	Date:
	 	11/18/03
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	By: Mr. Bernd Haetzel	 	 	 	 	 	 
	Title: Vice-President Finance and Administration	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Signature:

	 	/s/ Bernd Haetzel	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Date:

	 	11-13-03	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	 





Siemens Medical Solutions USA, Inc.




									
	 	 	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue

Concord, CA 94520
	 	7
	 	Tel: (925) 246-8200

Fax: (925) 246-8284
	 	ww.siemensmedical.com/oncology







 










 





SIEMENS




COVER PAGE




AMENDMENT THREE



to




Manufacturing and Supply Agreement




MSA-50047-WMG




Between




SIEMENS MEDICAL SOLUTIONS USA INC.

Oncology Care Systems

4040 Nelson Avenue

Concord, CA 94520




And




TomoTherapy, Inc.

1240 Deming Way

Madison, WI 53717




Siemens Medical Solutions USA, Inc.




							
	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 
	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 






 









 





	 	 	 
	SIEMENS

	 	MSA- 50047-WMG

Amendment 03






This Amendment Three to the Manufacturing and Supply Agreement dated November 14,
2003 between Siemens Medical Solutions USA, Inc. and TomoTherapy, Inc. is hereby entered
into retroactively as of October 1, 2005.



The parties hereto agree to the following modifications:



1. Section 2. Purchase Order Placement





DELETE
in its entirety and REPLACE in lieu thereof the following:




“Buyer will provide Seller an annual blanket purchase order for the Products. Buyer may
delay delivery by as much as 30 days, provided such delay notice is delivered to
Seller not less than 60 days prior to the originally scheduled delivery date.




As
a condition of this Agreement, Buyer agrees to take delivery of a
minimum of [  *  ] Accelerator
Assemblies per year, comprised of either part number [  *  ] or part number [  *  ], commencing with the effective date of this
Agreement. Said minimum shall be binding upon the parties and any their successors or assigns.
Notwithstanding the above, the Buyer will provide the purchasing forecast for Seller’s planning
purpose only.




Seller shall formally acknowledge Buyer’s purchase orders by fax or email and provide a
confirmation of delivery dates.




All products shall be delivered in full on or 5 days before the scheduled due date.



2. Section 4. Term





DELETE
in its entirety and REPLACE in lieu thereof the following:




“This
Agreement shall remain in full force and effect until October 1,
2010.
This Agreement shall be automatically renewed for additional renewal terms of twelve (12)
months each, unless either Party gives the other Party at least one (1) year prior written
notice of election to terminate this Agreement effective at the end of the then current term.
In the event that the Seller elects to terminate this Agreement in accordance with the
above terms, the Buyer shall have the right to place a “last time” Purchase Order no
later than 90 days prior to the termination of this Agreement to provide Buyer with
sufficient quantity to meet the Buyer’s expected product needs for the one (1) year period
immediately following termination of this Agreement. The Parties will negotiate in good faith
the delivery schedule for each product covered by such “last time” Purchase Order, but it is
presumed that Buyer will take delivery of those products equally over the first nine months
after termination of the Agreement.



Siemens Medical Solutions USA, Inc.




							
	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 
	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 






2









 





	 	 	 
	SIEMENS

	 	MSA- 50047-WMG

Amendment 03






3. Section 5. Pricing





DELETE Section 5 in its entirety and REPLACE in lieu thereof the following:




“The pricing for Products shall be in accordance with Exhibit B and shall be valid
until September 30, 2010.



4. Section 6. Payment Terms





DELETE Section 6 in its entirety and REPLACE in lieu thereof the following:




“Delivery is F.O.B. or F.C.A. origin (INCO Terms 2000), whichever is
applicable. Buyer shall specify the carrier and its account number with carrier by so
indicating on the face of its purchase order.”



5. Section 7. WARRANTY





DELETE Section 7 in its entirety and REPLACE in lieu thereof the following:




“Seller warrants maintaining as necessary, an appropriate level of IS0
certification and compliance to IS0 13485. Seller further warrants that all
Products sold to Buyer under this Agreement comply with the requirements of the U.S. Food and
Drug Administration (“FDA”) and the FDA’s Good Manufacturing Practices (“GMP”) with
respect to the manufacture, package, assembly and testing for the Products and that all Products
provided under this Agreement shall be in accordance with the Seller’s specifications.




Except for part numbers [  *  ] and [  *  ], which are warranted for one (1) year from the
date of delivery, Seller warrants that all other Products will be free from defects in materials
and workmanship for a period of six (6) months from the date of delivery.




Seller
shall only perform an inspection and test of returned Accelerator
Assembly Products [  *  ] to confirm that there is a defect during warranty
period. Seller at its option will repair or replace defective Product within 30 business days
after receipt at Seller’s facility. Though not obligated to do so, Seller at its sole unilateral
option, may elect to conduct inspection and test on other Products under this Agreement.




Buyer’s remedy is contingent upon (1) prompt written notification of the defect; (2) the
cause of the defect not being the result of misuse, accident, neglect, alteration, improper
testing, storage, installation or negligence on the part of the Buyer; and (3) return of the
Products to Buyer’s manufacturing location with shipment and in-transit loss or damage at the
risk and expense of the Buyer. Such repair, replacement or credit shall constitute fulfillment
of all liability of Buyer to Seller whether based in contract, tort, and indemnity or
otherwise.




If an Accelerator Assembly Product has been returned to Seller under warranty
and Seller is unable to confirm a failure for it after Buyer has had a full opportunity to
verify the cause of the failure, explain the same to Seller, and Seller has conducted tests
necessary to confirm the failure, Seller shall invoice Buyer at the manufacturing rate of
[  *  ], at an amount not



Siemens Medical Solutions USA, Inc.




							
	 	 	 	 	 	 	 
	Oncology Care Systems Group
	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 
	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 







3










 




			
	SIEMENS
	 	MSA-50047-WMG
Amendment 03






	 	 	to exceed the equivalent of [  *  ]. Seller must obtain a purchase order from
the Buyer for testing beyond the amount of [  *  ].
	 
	 	 	EXCEPT AS EXPRESSLY SET FORTH IN THE PRECEDING SENTENCES AND/OR IN SPECIFICATIONS, SELLER
MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO
THE PRODUCTS.”




6.
Section 11. INDEMNIFICATION



DELETE the second paragraph in Section 11 and REPLACE in lieu thereof the
following:





	 	 	“Each party’s maximum liability to the other party relating to claims for property damage shall
be limited to a maximum of $2,000,000 for performance under this Agreement.”




7.
Section 12. CONFIDENTIALITY



DELETE Section 12 and REPLACE in lieu thereof the following:





	 	 	“During the term of this Agreement and for five (5) years after the latter of
either the termination of this Agreement or the termination of the last Statement of Work under
this Agreement, each party shall use the same efforts it uses to protect its own confidential
information (but in any event, no less than reasonable efforts to prevent its disclosure) to
hold in strict confidence and to require its personnel to hold in strict confidence and not
disclose to (1) any employee, director, or agent that does not need to know such information for
the purpose of carrying out this Agreement or (2) any third party without the prior written
consent of the disclosing party, and not use in any manner except for purposes of carrying out
this Agreement and otherwise in accordance with the terms of this Agreement, any confidential
information of the other party in its possession. Such confidential information specifically may
include, without limitation, all engineering drawings, specifications and other technical
documentation, any proposed design and specifications for future products and products in
development, marketing plans, costs and pricing information, all third party information
required to be maintained in confidence, and any other information that the
disclosing party has marked as confidential. Promptly following termination of this Agreement or
upon the request by or for the disclosing party, the receiving party shall surrender to the
disclosing party or destroy all materials remaining in its possession containing any such
confidential information including all copies, extracts, or transcriptions, regardless of media.
	 
	 	 	For purposes of this Agreement and the Products and Statement of Work, information shall not
be deemed confidential:






	 	a)	 	if such information is generally available from public sources other than as a result
of the breach of this Agreement;
	 
	 	b)	 	if such information is received from a third party not under any obligation
to keep such information confidential;





	 	 	 	 	 	 	 
	Siemens Medical Solutions USA, Inc.
	 
	 	 	 	 	 	 
	Oncology Care Systems Group

	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 

	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 





4









 




			
	SIEMENS
	 	MSA-50047-WMG
Amendment 03












	 	c)	 	if the recipient can demonstrate that such information was independently
developed by the recipient without use of any confidential information of the other party
or its Affiliates; and
	 
	 	d)	 	if such information is marketing material such as catalogs or leaflets
distributed to third parties as a part of sales and promotions.






	 	 	Neither party shall be liable to the other for a breach of these confidentiality
obligations to the extent it is required by law or any governmental body to disclose any
confidential information of the other party; provided, however, unless otherwise required by
such governmental body or such law, the party providing such information to such governmental
body or disclosing the same pursuant to requirement of law shall first notify the other party
so as to enable the other party opportunity to take steps it deems appropriate to protect its
confidential or proprietary information.”




8. ADD: New Section 15. Notices





	 	 	“All contractual notices from one party to the other under this Agreement shall be
in writing and either personally delivered or sent via certified mail, (E-mail or other
electronic media are not acceptable), postage prepaid and return receipt requested to:





	 	 	 	 	 
	 

	 	Buyer:
	 	TomoTherapy, Inc.
	 

	 	 	 	1240 Deming Way
	 

	 	 	 	Madison, WI 53717
	 

	 	 	 	ATTENTION: Bob Evensen
	 
	 	 	 	 
	 

	 	Seller:
	 	Siemens Medical Solutions USA, Inc.
	 

	 	 	 	Oncology Care Group
	 

	 	 	 	4040 Nelson Avenue
	 

	 	 	 	Concord, CA 94520
	 

	 	 	 	ATTENTION: Manager, Strategic Procurement







	 	 	or to such other person or places as either party may designate from time
to time by notice hereunder. Such notices shall be deemed effective upon personal delivery
or deposit in the mails in accordance herewith.”




9. ADD: New Section 16. Conflicts with Other Terms and Conditions





	 	 	“This Agreement contains all of the terms and conditions as they relate to the
relationship between Buyer and Seller. Any terms and conditions, other than price, quantity,
and shipping instructions, which may be specified on Buyer’s purchase order or on any Buyer’s
Order Acknowledgement Form, are null and void unless expressly agreed upon in writing by
Seller’s representative responsible for Contract Administration.”





	 	 	 	 	 	 	 
	Siemens Medical Solutions USA, Inc.
	 
	 	 	 	 	 	 
	Oncology Care Systems Group

	 	4040 Nelson Avenue
	 	Tel: (925)246-8200
	 	 
	 

	 	Concord, CA 94520
	 	Fax: (925)246-8284	 	www.siemensmedical.com/oncology





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	SIEMENS
	 	MSA-50047-WMG
Amendment 03










10.
Exhibit A. Statement of Work (Performance Specification
Requirements)




     DELETE
in its entirety and REPLACE in lieu thereof the following Exhibit A:



STATEMENT OF WORK

(Performance Specification Requirement)



Product Documents: In addition to “Accelerator Tomo 6MV Design Specification
11.000207 Rev. E.”, which is the governing document for the
rectangular waveguides (OCS P/N: [  *  ]) and “Accelerator Tomo 6MV Design Specification 1 1.000236 Rev. A.”, which is the
governing document for the round waveguides (OCS P/N: [  *  ]); the following
Seller’s Product documents are hereby incorporated by reference.




	 	 	 
	Part Number	 	Description
	 
	 	 
	[  *  ]

	 	AFC ASSY, G39
	[  *  ]

	 	ACCELERATOR ASSY,TOMO 6V
	[  *  ]

	 	PWR SPL ASSY,ION PMP,12V-A20
	[  *  ]

	 	DRIVE ASSY-MAGN TUNER-M5
	[  *  ]

	 	DOSE CHAMBER ASSY
	[  *  ]

	 	RF CIRCULATOR ASSY,KD2-G36
	[  *  ]

	 	INJECTOR ASSY,ELECT-G45
	[  *  ]

	 	TARGET ASSY,MONO 6MV / PRIMART
	[  *  ]

	 	RF,DETECTOR MOUNT ‘N’
	[  *  ]

	 	ATTENUATOR,RF 20DB N 250 watts
	[  *  ]

	 	O-RING,BUNA-N 3.975-ID M4152TR
	[  *  ]

	 	ACCELERATOR ASSY, TOP TOMO
	[  *  ]

	 	TARGET, SPINNING TUNGSTEN











	 	 	 	 	 	 	 
	Siemens Medical Solutions USA, Inc.
	 
	 	 	 	 	 	 
	Oncology Care Systems Group

	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 

	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 






6










 





			
	SIEMENS
	 	MSA-50047-WMG
Amendment 03





11. Exhibit B — Product Pricing





	 	 	DELETE in its entirety and REPLACE in lieu thereof the following Exhibit B:





EXHIBIT B




PRODUCT PRICING




	 	 	 	 	 	 	 	 	 	 	 	 	 
	PN	 	 	Description	 	Base Price	 	 	Lead Times	 
	 	[  *  ]	 	 	AFC ASSY, G39
	 	$	[  *  ]	 	 	60 days
	 	[  *  ]	 	 	ACCELERATOR ASSY, TOMO 6V
	 	$	[  *  ]	 	 	90 days
	 	[  *  ]	 	 	PWR SPL ASSY, ION PMP, 12V-A20
	 	$	[  *  ]	 	 	42 days
	 	[  *  ]	 	 	DRIVE ASSY-MAGN TUNER-M5
	 	$	[  *  ]	 	 	75 days
	 	[  *  ]	 	 	DOSE CHAMBER ASSY
	 	$	[  *  ]	 	 	120 days
	 	[  *  ]	 	 	RF CIRCULATOR ASSY, KD2-G36
	 	$	[  *  ]	 	 	75 days
	 	[  *  ]	 	 	INJECTOR ASSY, ELECT-G45
	 	$	[  *  ]	 	 	65 days
	 	[  *  ]	 	 	TARGET ASSY, MONO 6MV / PRIMART
	 	$	[  *  ]	 	 	90 days
	 	[  *  ]	 	 	RF,DETECTOR MOUNT ‘N’
	 	$	[  *  ]	 	 	60 days
	 	[  *  ]	 	 	ATTENUATOR, RF 20DB N 250 watts
	 	$	[  *  ]	 	 	60 days
	 	[  *  ]	 	 	0-RING,BUNA-N 3.975-ID M4152TR
	 	$	[  *  ]	 	 	60 days
	 	[  *  ]	 	 	ACCELERATOR ASSY, TOP TOM0
	 	$	[  *  ]	 	 	90 days
	 	[  *  ]	 	 	TARGET, SPINNING TUNGSTEN
	 	$	[  *  ]	 	 	90 days







	 	 	[  *  ]
	 
	 	 	Seller shall be entitled to the following break-point discounts on part numbers
[  *  ] and [  *  ] when a twelve (12) month non-cancelable purchase order is placed for the
following corresponding quantities. Each twelve (12) month period shall run from October 1st of
each year through September 30th of the following year.
	 
	 	 	The below stated discount break-points apply to all quantities stated on
the aforementioned twelve (12) month purchase order.





	 	 	 
	Discount	 	Quantities of PIN [  *  ] and/or [  *  ]
	[  *  ]%

	 	If yearly PO quantity is 65 units or less
	[  *  ]%

	 	If yearly PO quantity is between 66 and 85 units
	[  *  ]%

	 	If yearly PO quantity is between 86 and 100 units
	[  *  ]%

	 	If yearly PO quantity is between 101 and 130 units





The parties will negotiate in good faith the discount for quantities exceeding one hundred
thirty (130) units per year of part numbers [  *  ] and [  *  ].




	 	 	 	 	 	 	 
	Siemens Medical Solutions USA, Inc.
	 
	 	 	 	 	 	 
	Oncology Care Systems Group

	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 

	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 





7










 




			
	SIEMENS
	 	MSA-50047-WMG
Amendment 03





     Except as modified herein, all other Terms and Conditions shall remain unchanged and apply hereto
in full force.



SIGNATURE PAGE



IN WITNESS WHEREOF, the parties have caused this Amendment One to be executed by their duly
authorized representatives as of the date written below.




	 	 	 
	Siemens Medical Solutions USA Inc.

	 	TomoTherapy, Inc.
	Oncology Care Systems Group
	 	 
	 
	 	 
	By:    Mr. Martin Wentzlik

	 	By:    Fred Robertson
	Title: Chief Fiancial Officer

	 	Title: CEO
	 
	 	 
	Signature:
/s/ Mr. Martin Wentzlik


	 	Signature: /s/ Fred Robertson
	 
	 	 
	Date: 01/11/06

	 	Date: January 23, 2006
	 
	 	 
	By:    Mr. Rolf Reimann
	 	 
	Title: VP, Plant Management
	 	 
	 
	 	 
	Signature: /s/ Rolf Reimann
	 	 
	 
	 	 
	Date: 01/11/2006
	 	 






	 	 	 	 	 	 	 
	Siemens Medical Solutions USA, Inc.
	 
	 	 	 	 	 	 
	Oncology Care Systems Group

	 	4040 Nelson Avenue
	 	Tel: (925) 246-8200
	 	www.siemensmedical.com/oncology
	 

	 	Concord, CA 94520
	 	Fax: (925) 246-8284	 	 





8