DOES NOT CONFORM TO
THE RELEASE SPECIFICATIONS, THEN BIOSITE SHALL HAVE THE RIGHT TO REJECT THE
PORTION OF SUCH SHIPMENT OF THE BNP ASSAYS OR BNP CALIBRATOR AND CONTROLS THAT
IS DAMAGED OR FAILS TO SO CONFORM WITHIN THIRTY (30) DAYS AFTER BIOSITE'S
RECEIPT OF SUCH SHIPMENT BY PROVIDING WRITTEN NOTICE TO BECKMAN AND SPECIFYING
IN SUCH NOTICE THE GROUNDS FOR SUCH REJECTION. BECKMAN SHALL, AT ITS COST AND
EXPENSE, CURE SUCH REJECTION BY REPLACING SUCH DAMAGED OR NON-CONFORMING
SHIPMENT OR PORTION THEREOF WITH QUANTITIES OF BNP ASSAYS OR BNP CALIBRATOR AND
CONTROLS (A) IN BECKMAN'S CURRENT INVENTORY WITHIN TEN (10) BUSINESS DAYS AFTER
RECEIPT OF NOTICE OF BIOSITE'S REJECTION THEREOF, AND/OR (B) IF BECKMAN DOES NOT
HAVE SUFFICIENT CURRENT INVENTORY TO REPLACE SUCH DAMAGED OR NON-CONFORMING
SHIPMENT OR PORTION THEREOF, BY INCREASING ITS NEXT PRODUCTION RUN SUFFICIENT TO
SATISFY BIOSITE'S CURRENT ORDERS AND FORECAST AND TO REPLACE SUCH DAMAGED OR
NON-CONFORMING SHIPMENT OR PORTION THEREOF THAT WAS NOT REPLACED UNDER CLAUSE
(A) ABOVE. BECKMAN SHALL PROMPTLY INVESTIGATE ANY SUCH DAMAGED OR NON-CONFORMING
SHIPMENT TO DETERMINE THE CAUSE OF SUCH DAMAGE OR NONCONFORMANCE AND SHALL
PROVIDE BIOSITE WITH A REASONABLY DETAILED REPORT OF BECKMAN'S INVESTIGATIONS
AND ITS REMEDIES THEREFOR.
5.5
WARRANTY. BECKMAN WARRANTS THAT ALL THE BNP ASSAYS AND BNP
CALIBRATOR AND CONTROLS DELIVERED TO BIOSITE PURSUANT TO THIS AGREEMENT SHALL
CONFORM TO THE RELEASE SPECIFICATIONS, SHALL BE FREE FROM DEFECTS IN MATERIAL
AND WORKMANSHIP AND SHALL BE MANUFACTURED IN ACCORDANCE WITH GMP AND IN
COMPLIANCE WITH APPLICABLE LAWS AND REGULATIONS. SUBJECT TO SECTION 10,
BIOSITE'S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY IS THE REJECTION BY
BIOSITE AND CURE BY BECKMAN UNDER SECTION 5.4.3 ABOVE.
5.6
[***] BECKMAN. THE PARTIES ACKNOWLEDGE THAT BECKMAN IS THE
MANUFACTURER [***] OF THE BNP ASSAYS AND BNP CALIBRATOR AND CONTROLS, AND THE
MANUFACTURER AND DISTRIBUTOR OF BECKMAN ANALYZERS. IN SUCH CAPACITIES, BECKMAN
SHALL [***] FOR [***] OF THE [***] AND [***] AND BECKMAN SHALL HAVE THE EXPRESS
RIGHT TO ENGAGE IN THE PROMOTION OF THE BECKMAN ANALYZER, ALL IN ACCORDANCE WITH
THE GUIDELINES. BECKMAN SHALL NOT CONDUCT ANY ACTIVITIES DIRECTLY OR INDIRECTLY
[***] [***] OF THE [***] AND [***] EXCEPT IN ACCORDANCE WITH THE GUIDELINES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR THE GUIDELINES,
BIOSITE SHALL BE SOLELY RESPONSIBLE FOR THE COMMERCIALIZATION OF THE BNP ASSAYS
AND BNP CALIBRATOR AND CONTROLS.
5.7
JOINT COMMITTEE. THE JOINT COMMITTEE SHALL COMPRISE AN EQUAL
NUMBER OF REPRESENTATIVES FROM BIOSITE AND BECKMAN. EACH PARTY SHALL APPOINT ITS
***Confidential Treatment Requested
13
REPRESENTATIVES TO THE JOINT COMMITTEE FROM TIME TO TIME, AND MAY SUBSTITUTE ONE
OR MORE OF ITS REPRESENTATIVES, IN ITS SOLE DISCRETION, EFFECTIVE UPON WRITTEN
NOTICE TO THE OTHER PARTY OF SUCH CHANGE. THE PURPOSE OF THE JOINT COMMITTEE IS
TO OVERSEE AND IMPLEMENT THE GUIDELINES. NO MODIFICATION OF THE GUIDELINES, OR
IMPLEMENTATION THEREOF, SHALL BE EFFECTIVE UNLESS AND UNTIL UNANIMOUSLY APPROVED
BY THE JOINT COMMITTEE AND SET FORTH IN A WRITTEN DOCUMENT EVIDENCING SUCH
MODIFICATION SIGNED BY A DULY AUTHORIZED SIGNATORY