OBTAINED BY
SUCH PARTY IN CONNECTION WITH THIS AGREEMENT HAVE BEEN OBTAINED.
2.4
NO CONFLICT. THE EXECUTION AND DELIVERY OF THIS AGREEMENT AND THE
PERFORMANCE OF SUCH PARTY'S OBLIGATIONS HEREUNDER (A) DO NOT CONFLICT WITH OR
VIOLATE ANY REQUIREMENT OF APPLICABLE LAWS OR REGULATIONS, AND (B) DO NOT
CONFLICT WITH, OR TO ITS KNOWLEDGE CONSTITUTE A DEFAULT UNDER, ANY CONTRACTUAL
OBLIGATION OF SUCH PARTY.
***Confidential Treatment Requested
5
3.
DEVELOPMENT
3.1
BIOSITE MATERIALS. FROM TIME TO TIME DURING THE DEVELOPMENT AND
MANUFACTURE OF THE BNP ASSAY AND THE BNP CALIBRATOR AND CONTROLS, BIOSITE SHALL
DELIVER TO BECKMAN SUCH QUANTITY OF [***] AS MAY BE REASONABLY REQUIRED BY
BECKMAN AND ORDERED BY BECKMAN UNDER THIS SECTION, AND ANY OTHER MATERIALS THE
PARTIES AGREE TO IN WRITING, IF ANY, (THE [***] AND SUCH OTHER MATERIALS
INDIVIDUALLY AND COLLECTIVELY THE "BIOSITE MATERIALS") SOLELY FOR USE BY BECKMAN
TO [***]. BIOSITE SHALL ACKNOWLEDGE EACH SUCH ORDER IN THE FORM OF A WRITTEN
ORDER CONFIRMATION. PRIOR TO DELIVERY OF ANY SUCH BIOSITE MATERIALS, THE PARTIES
SHALL AGREE IN GOOD FAITH UPON MUTUALLY ACCEPTABLE TERMS REGARDING
SPECIFICATIONS AND DELIVERY SCHEDULES FOR SUCH BIOSITE MATERIALS. BIOSITE SHALL
USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER TO BECKMAN BIOSITE MATERIALS THAT
CONFORM TO SUCH SPECIFICATIONS AND IN ACCORDANCE WITH SUCH SCHEDULES. IF BECKMAN
DETERMINES IN GOOD FAITH THAT THE BIOSITE MATERIALS DO NOT MATERIALLY CONFORM TO
SUCH SPECIFICATIONS, BECKMAN SHALL SO NOTIFY BIOSITE IN WRITING AND INCLUDE WITH
SUCH NOTIFICATION A REASONABLE DESCRIPTION OF SUCH NON-CONFORMANCE. SUBJECT TO
SECTION 10, AS BECKMAN'S SOLE AND EXCLUSIVE REMEDY HEREUNDER, BIOSITE SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO PROMPTLY REPLACE ANY SUCH NON-CONFORMING
BIOSITE MATERIALS. BECKMAN SHALL USE THE BIOSITE MATERIALS DELIVERED BY BIOSITE
SOLELY FOR PURPOSES OF [***] PURSUANT TO THE TERMS OF THIS AGREEMENT. IN
CONSIDERATION FOR THE SALE OF THE BIOSITE MATERIALS TO BECKMAN UNDER THIS
SECTION 3.1, BECKMAN SHALL PAY TO BIOSITE AN AMOUNT EQUAL TO [***] TO [***] SUCH
[***]. BIOSITE SHALL INVOICE BECKMAN FOR SUCH AMOUNT AT THE TIME OF EACH
DELIVERY OF SUCH BIOSITE MATERIALS, AND BECKMAN SHALL PAY TO BIOSITE THE AMOUNT
OF EACH SUCH INVOICE WITHIN [***] AFTER RECEIPT BY BECKMAN OF SUCH INVOICE. IF
BECKMAN'S OBLIGATION TO PERFORM UNDER THIS AGREEMENT IS SUBSTANTIALLY PREVENTED
OR MATERIALLY HINDERED BY BIOSITE'S FAILURE TO SUPPLY CONFORMING BIOSITE
MATERIALS ACCORDING TO THE DELIVERY SCHEDULE FOR SUCH BIOSITE MATERIALS, BECKMAN
SHALL HAVE THE RIGHT TO PROVIDE WRITTEN NOTICE THEREOF TO BIOSITE. BECKMAN'S
FUTURE [***] TO PERFORM UNDER THIS AGREEMENT, AND ANY OTHER RELATED OBLIGATIONS
(INCLUDING RELATED INDEMNITY OBLIGATIONS) AFFECTED BY SUCH FAILURE, SHALL BE
SUSPENDED, RELIEVED AND/OR DISCHARGED SOLELY TO THE EXTENT THAT AND FOR SO LONG
AS BECKMAN'S PERFORMANCE IS OR WAS SUBSTANTIALLY PREVENTED OR MATERIALLY
HINDERED BY SUCH FAILURE. EXCEPT AS REQUIRED BY BECKMAN QUALITY SYSTEMS, BECKMAN
SHALL DESTROY ALL UNUSED QUANTITIES OF THE BIOSITE MATERIALS IMMEDIATELY UPON
THE EXPIRATION OR TERMINATION OF THIS AGREEMENT. [***] FOR [***] BY BIOSITE
[***] THE BIOSITE MATERIALS OR ANY [***] OF THE [***] OR THE [***].
3.2
[***]