SECTOR WORKPLACE TESTING; NON-HOSPITAL BASED OCCUPATIONAL HEALTH CENTERS
OR CLINICS; INDUSTRIAL LABORATORIES; NON-HOSPITAL MILITARY ON-SITE TESTING
PROGRAMS (I.E., ADCO, RECRUITING CENTERS); HIGH SCHOOL, COLLEGE, UNIVERSITY AND
PROFESSIONAL SPORTS PROGRAMS; GOVERNMENT AGENCIES; PUBLIC CARRIERS; AND
VETERINARY CLINICS AND ANIMAL TESTING.
(G)
NOTHING HEREIN SHALL PROHIBIT BIOSITE FROM:
(I)
PROMOTING, MARKETING, DISTRIBUTING AND
SELLING THE [***] TO [***] (OR ITS AFFILIATES) WITHOUT RESTRICTION;
(II)
DISTRIBUTING (BUT NOT SELLING) PRODUCTS
WITHIN THE TERRITORY ONLY FOR PURPOSES OF PRE-MARKET CLINICAL TESTING OR
EVALUATION OF PRODUCTS OR TESTING OF PRODUCT IMPROVEMENTS OR ENHANCEMENTS PRIOR
TO MARKET INTRODUCTION;
(III)
PROMOTING, MARKETING, SOLICITING AND
RECEIVING ORDERS FOR THE SALE
BY FHC, ITS SUBDISTRIBUTORS LISTED ON SCHEDULE G
(WITH FHC'S CONSENT), AND ITS [***] DISTRIBUTOR OF PRODUCTS WITHIN THE TERRITORY
AS ALLOWED UNDER THE TERMS AND CONDITIONS OF THIS AGREEMENT;
(IV)
PROMOTING, MARKETING, SELLING AND DISTRIBUTING
ANY PRODUCT DIRECTLY TO A CUSTOMER, (A) WHICH STATES IN WRITING TO FHC (EITHER
DIRECTLY OR THROUGH BIOSITE BUT THAT NEVERTHELESS IS A WRITING ON CUSTOMER
LETTERHEAD) THAT SUCH CUSTOMER WILL ONLY BUY SUCH PRODUCT DIRECTLY FROM BIOSITE
(OR ANY OTHER BIOSITE DISTRIBUTOR PROPERLY APPOINTED UNDER THE TERMS AND
CONDITIONS OF THIS AGREEMENT), BUT ONLY AFTER BIOSITE IDENTIFIES THE CUSTOMER TO
FHC AND SPECIFIES THE REASON SUCH CUSTOMER REFUSES TO BUY FROM FHC; AND
(V)
PROMOTING, MARKETING, SELLING AND
DISTRIBUTING ANY PRODUCT IN ANY TERRITORY OR TO ANY MARKET SEGMENT DURING THE
[***] (IF APPLICABLE AS DESCRIBED IN SECTION 6(A) OF THIS AGREEMENT) OR IN THE
EVENT THAT FHC EXERCISES THE OPT OUT RIGHT DESCRIBED IN SECTION 3(B).
(H)
NOTWITHSTANDING ANY LANGUAGE TO THE CONTRARY
IN THIS AGREEMENT, THE PARTIES AGREE TO EXERCISE DUE DILIGENCE AND GOOD FAITH
FOR THEIR MUTUAL BENEFIT IN JOINTLY NEGOTIATING AND ENTERING INTO AGREEMENTS
WITH GROUP PURCHASING ORGANIZATIONS (INTEGRATED DELIVERY NETWORKS OR SIMILAR
ENTITIES) FOR PRODUCTS.
NEITHER BIOSITE NOR FHC SHALL NEGOTIATE OR EXECUTE AN
AGREEMENT WITH A GROUP PURCHASING ORGANIZATION (INTEGRATED DELIVERY NETWORK OR
SIMILAR ENTITY) FOR PRODUCTS WITHOUT THE WRITTEN CONSENT OF THE OTHER, WHICH
SHALL NOT BE UNREASONABLY WITHHELD.
ANY REQUEST FOR SUCH CONSENT SHALL BE
ANSWERED BY THE OTHER PARTY WITHIN THIRTY (30) DAYS.
FHC SHALL PAY ANY GROUP
PURCHASING ORGANIZATION'S ADMINISTRATIVE FEES APPLICABLE TO FHC'S NATIONAL
CONTRACTS.
BIOSITE SHALL PAY ANY GROUP PURCHASING ORGANIZATION'S ADMINISTRATIVE
FEES APPLICABLE TO BIOSITE'S NATIONAL CONTRACTS.
EACH OF FHC AND BIOSITE SHALL
PAY [***] OF THE ADMINISTRATIVE FEES IMPOSED BY [***] REGARDING THE PURCHASE OF
THE PRODUCTS THROUGH FHC, PROVIDED THAT NEITHER PARTY CAN AMEND THE AMOUNT OF
ADMINISTRATIVE FEE IMPOSED BY [***] WITHOUT THE OTHER PARTY'S PRIOR WRITTEN
CONSENT.
THE LANGUAGE CONTAINED IN THIS SECTION 2(H) SHALL CONTROL OVER ANY
CONFLICTING LANGUAGE CONTAINED IN THIS AGREEMENT.
* Confidential Treatment Requested
5
(I)
IF FHC IN GOOD FAITH ENTERS INTO A
WRITTEN AGREEMENT (EXCLUDING A PURCHASE ORDER OR MULTI-PRODUCT AGREEMENT (AS
DEFINED BELOW)) WITH A CONTRACT CUSTOMER (AS DEFINED BELOW) RELATING TO THE
PURCHASE AND SALE OF PRODUCTS, SUCH WRITTEN AGREEMENT SHALL BE SUBSTANTIALLY IN
THE FORM OF BIOSITE'S THEN-CURRENT FORM WRITTEN AGREEMENT FOR THE