(A)
IF THE ASP FOR ALL R2 SHOWCASE UNITS (EXCLUDING BETA, DEMONSTRATION,
TRAINING AND NON-CAD ENABLED UNITS) SOLD BY R2 DIRECTLY TO END-USERS IN ANY
GIVEN QUARTER FALLS BELOW
(
),
THEN VTAL'S TRANSFER PRICE AS SET FORTH IN EXHIBIT C IN THE SUBSEQUENT QUARTER
WILL BE DECREASED BY THE SAME PERCENTAGE THAT THE ASP OF ALL SUCH R2 SHOWCASE
UNITS FALLS BELOW SUCH
FIGURE.
BY WAY OF NON-LIMITING
EXAMPLE, IF THE ASP ON SUCH R2 SHOWCASE UNITS WERE
IN A GIVEN
QUARTER, THEN THE TRANSFER PRICE FOR THE MINIMUM NUMBER OF UNITS REQUIRED TO BE
PURCHASED BY VTAL IN THE SUBSEQUENT QUARTER WOULD DROP BY
(
).
(B)
IF VTAL DESIRES TO PURCHASE MORE THAN THE MINIMUM DURING ANY QUARTER IN
WHICH VTAL'S TRANSFER PRICE IS BELOW
IN THE US AND
OUTSIDE THE US, AS PER THE CALCULATION NOTED ABOVE, VTAL MUST SUBMIT A SIGNED
PURCHASE ORDER FROM EACH CUSTOMER FOR ALL UNITS ABOVE THE MINIMUM THAT IT
PURCHASES IN THAT QUARTER IN WHICH THE TRANSFER PRICE WAS LOWERED PURSUANT TO
THIS SECTION, AND VTAL MUST SUBSEQUENTLY VERIFY PLACEMENT OF SUCH UNITS AT A
CUSTOMER LOCATION.
OTHERWISE, PRICES FOR ADDITIONAL UNITS BEYOND THE MINIMUM
FOR WHICH THERE ARE NO SIGNED PURCHASE ORDERS WILL BE SET AT THE SUBSEQUENT
QUARTER'S TRANSFER PRICES AS CALCULATED IN SECTION 8.5 (A) ABOVE. SO LONG AS THE
ASP FOR ALL R2 SHOWCASE UNITS IS AT LEAST
DURING A QUARTER, THE
TRANSFER PRICES NOTED IN EXHIBIT C WILL APPLY FOR THE NEXT QUARTER.
IF R2 FAILS
TO SELL ANY SUCH R2 SHOWCASE UNITS DURING A QUARTER, THE TRANSFER PRICE FROM THE
PREVIOUS QUARTER WILL CONTINUE FOR THE SUBSEQUENT QUARTER.
8.7
MAINTENANCE.
VTAL SHALL PAY R2 A NON-REFUNDABLE, FLAT FEE AS SET FORTH IN
EXHIBIT C, FOR EACH MAINTENANCE PROGRAM SOLD TO A CUSTOMER, IN ACCORDANCE WITH
THE PAYMENT TERMS SET FORTH IN SECTION 8.10.
VTAL SHALL NOT BE REQUIRED TO
CONTINUE MAKING PAYMENTS UNDER THIS SECTION 8.7 IF THE SOURCE CODE TO THE R2
PRODUCT IS RELEASED TO VTAL PURSUANT TO THE ESCROW AGREEMENT ATTACHED AS EXHIBIT
F.
8.8
AUDITS.
EACH PARTY SHALL HAVE THE RIGHT, AT ITS OWN EXPENSE, TO INSPECT
THOSE ACCOUNTING RECORDS OF THE OTHER PARTY NECESSARY TO VERIFY COMPLIANCE WITH
THE TERMS OF THIS AGREEMENT.
SUCH INSPECTIONS SHALL TAKE PLACE UPON NOT LESS
THAN FIFTEEN (15) DAYS PRIOR WRITTEN NOTICE, AND DURING THE AUDITED PARTY'S
NORMAL BUSINESS HOURS.
THE AUDITED PARTY SHALL PROMPTLY PAY THE DIFFERENCE,
PLUS INTEREST, ON ANY UNDERPAYMENTS REVEALED IN THE AUDIT.
FURTHER, IF AN AUDIT
REVEALS AN UNDERPAYMENT OF MORE THAN FIVE PERCENT (5%), THE AUDITED PARTY SHALL
ALSO PAY THE COST AND EXPENSES RELATED TO THE AUDIT.
8.9
UPGRADES AND NEW FEATURES.
UPGRADES AND NEW FEATURES FOR THE R2 PRODUCT,
IF ANY, ARE SUBJECT TO AN ADDITIONAL FEE TO BE AGREED IN GOOD FAITH NEGOTIATIONS
BETWEEN THE PARTIES; PROVIDED THAT SUCH FEE SHALL NOT BE MORE
THAN
(
) OF THE LIST PRICE FOR THE CORRELATING
UPGRADE OR NEW FEATURE MADE TO THE LUNG NODULE