Exhibit 10.70
FIRST AMENDMENT TO EXCLUSIVITY AGREEMENT
This First Amendment (the
“Amendment”) is made as of September 5, 2007, by
and between Cardiac Science Corporation, a Delaware corporation
f/k/a Cardiac Science, Inc. (“Supplier” or
“Cardiac Science” or “CSC”), a medical
device developer and manufacturer of automated external
defibrillators having its principal place of business at 3303 Monte
Villa Parkway, Bothell, Washington, USA 98021 and GE Medical
Systems Information Technologies, Inc., a Wisconsin corporation
d/b/a GE Healthcare (“GEMS-IT”), having its principal
place of business at 8200 W. Tower Avenue, Milwaukee, WI
53223.
W I T
N E S S E T H:
WHEREAS, CSC and GEMS-IT are parties
to that certain OEM Purchase and Supply Agreement dated
July 29, 2003, as amended by (i) Addendum 1 thereto dated
March 24, 2004 (“Addendum One”), (ii) Amendment
One thereto dated August 10, 2004 (“Amendment
One”), (iii) Second Amendment thereto dated
February 14, 2005 (“Amendment Two”), and
(iii) Third Amendment thereto dated June 10, 2005
(“Amendment Three”). The OEM Purchase and Supply
Agreement, Addendum One, Amendment One, Amendment Two and Amendment
Three are collectively referred to herein as the “OEM
Purchase and Supply Agreement”.
WHEREAS, CSC and GEMS-IT are also
parties to that certain Exclusive Distribution Agreement dated
June 10, 2005 (“Exclusivity Agreement”), which
supplements the terms of the OEM Purchase and Supply
Agreement.
WHEREAS, CSC and GEMS-IT desire to
supplement and further amend the Exclusivity Agreement as set forth
herein.
1
NOW THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Construction . Except
as provided in this Amendment, the terms and conditions set forth
in the Exclusivity Agreement shall remain unaffected by the
execution of this Amendment. To the extent any provisions or terms
set forth in this Amendment conflict with the terms set forth in
the Exclusivity Agreement, the terms set forth in this Amendment
shall govern and control. Terms not otherwise defined herein, shall
have the meanings set forth in the Exclusivity Agreement or OEM
Purchase and Supply Agreement, as applicable. This Amendment
supplements the OEM Purchase and Supply Agreement and not that
certain OEM Purchase Agreement entered into by the parties on July
29, 2003.
2. Exclusivity . The
parties agree that Section 3 of the Exclusivity Agreement is
hereby amended to include the following language immediately after
the first sentence:
“The Parties agree that GEMS-IT’s exclusive rights
under this Section 3 shall not preclude direct sales by CSC of
the OEM Products and Parts and Accessories (as suc
