Summit Technology
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NovaMed Agreement
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An Opportunity for Rapid Expansion into the
Business of Laser Vision Correction
CONFIDENTIAL INFORMATION
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NovaMed/Summit Agreement as originally adopted October 2, 1998, as amended April
2, 1999, as further amended May 21, 1999, and as amended and restated July 7,
1999.
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The following proposal will allow NovaMed rapid expansion into the exciting
expanding field of Laser Vision Correction * .
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As discussed on previous occasions, Summit Technology extends this
extraordinary offer to NovaMed because of our strong belief that NovaMed
has developed an excellent record of accomplishment in the business of
Ophthalmology. NovaMed's local and regional posture in the marketplace
has proven successful and we believe that you are well positioned to
provide Laser Vision Correction to your markets and patient base. We
strongly believe that, in Xxx Xxxxxx, M.D., you have chosen a Medical
Director of Refractive Surgery who can help orchestrate this important
strategic initiative.
However, you can not do it alone. You need a strong partner who shares
your vision and your drive to succeed. Summit Technology has:
> An approved laser platform that is technologically advanced and
yields superior results, as Xx. Xxxxxx has repeatedly reported.
> A financially secure company that is committed to be a total
refractive resource to its customers - as previously stated, Summit
is exploring many opportunities that will allow us to deliver
additional products and services to our customers. We expect to go
well beyond being "just a laser company".
> A core competency in Education - Physician, Laser Center, Optometric
CoManagement and Staff Training at all levels.
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* Confidential portions omitted and filed separately with the Commission.
Finally, and most importantly you are partnering with our people. Our field
management and home office management and staff are highly skilled in the area
of Refractive Surgery and can offer NovaMed a level of expertise and commitment
you will not find in any other company. We know this business and we know how
to help you create and capture your desired share of the marketplace.
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The Financial Agreement
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A second laser for the *
Summit Technology will place a second Apex Plus Examiner laser in the *
practice on a * for an Omnicard fee of * . We will also
include * during the term of the relevant Omnicard Plus Agreement to
be executed in connection with the purchase of such laser (the form of
Omnicard Plus Agreement to be executed by the parties is attached hereto as
Exhibit A (the "Omnicard Agreement")). Summit agrees to continuously
maintain the software on these lasers * such that the software is
always consistent with the highest level of software relevant and legally
available for such lasers (including, without limitation, any software
necessary to perform clinical studies work), which standards shall be, at a
minimum, those standards necessary for the laser to perform (i) to
manufacturer warranty specifications, (ii) future FDA-approved procedures,
when approved, and (iii) any FDA approved clinical studies work, including
such work contemplated in that certain letter agreement dated September 29,
1998 between a NovaMed affiliated physician and Summit Technology, Inc.
(the "Letter Agreement"). The fees set forth herein are * . This
Agreement contemplates that, except for the Omnicard fees, the * in
connection with the leasing, operation and maintenance (as per our Gold
Standard Service Agreement) of the lasers will be for * . Summit is
not responsible for any consumable or disposable products not normally
supplied by Summit.
In addition to the second laser for this site, Summit will allow NovaMed to
add up to * additional Apex Plus lasers in the * . NovaMed has
elected to place one of the * additional * . The terms and
conditions of this first * will be at the same * , and on the
same terms and conditions as above. In the event NovaMed elects at any
time to
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* Confidential portions omitted and filed separately with the Commission.
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add another laser * , then the per procedure fee will be
* following NovaMed's acceptance of such laser; * .
In the event NovaMed elects to place one of the * , then the *
following NovaMed's acceptance of such laser; * .
Lasers in other localities
The following lasers may be ordered at the discretion of NovaMed at any
time through 1999 (those lasers set forth in Tier One, Tier Two and the
Special Considerations) and nothing herein shall be construed as requiring
NovaMed to order any such lasers. The relevant economics under each
category will apply to any laser in such category, irrespective of whether
or not all lasers contemplated in the category are ordered by NovaMed.
Each of these lasers will * during the term of the relevant Omnicard
Plus Agreement to be executed in connection with each purchased laser.
Summit agrees to continuously maintain the software on these lasers *
such that the software is always consistent with the highest level of
software relevant and legally available for such lasers (including, without
limitation, any software necessary to perform clinical studies work), which
standards shall be, at a minimum, those standards necessary for the laser
to perform (i) to manufacturer warranty specifications, (ii) future FDA-
approved procedures, when approved, and (ii) any FDA approved clinical
studies work, including such work contemplated in the Letter Agreement.
The fees set forth herein are inclusive of * . This Agreement
contemplatesthat except for the * , the only * in connection with the
leasing, operation and maintenance of the lasers (as per our Gold Standard
Service Agreement) * . Summit is not responsible for any consumable or
disposable products not normally supplied by Summit as per its standard
practice.
As contemplated herein (including the fees set forth above for the
additional laser placed in * , the Omnicard fees will be a * . As
used herein, the term "Procedure" means any ophthalmic procedure performed
with the Equipment, the purpose or effect of which is to alter refraction,
but does not include (a) bona fide retreatments or enhancements as
permitted under Summit's Retreatment Policy (Exhibit E) or (b) procedures
performed on Leasing Party's staff or on other physicians and optometrists.
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* Confidential portions omitted and filed separately with the Commission.
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With respect to maintenance, the parties hereto acknowledge and agree that
the Gold Standard Service Agreement is attached for informational purposes
to describe the general terms of maintenance services to be provided by
Summit. Nothing therein or herein is intended to require any additional
payments or obligations to be made by NovaMed in excess of the Omnicard
payments described herein, other than for after hours service, If
requested. Further, the parties acknowledge that, notwithstanding anything
contained in the Gold Standard Service Agreement: (i) Summit's service
obligations are not limited by the number of pulses performed; (ii) the
term of Summit's service obligations are as set forth in this agreement and
not as set forth in the Gold Standard Service Agreement (iii) the Omnicard
payments included herein include * ; (iv) the assignment limitations of
the Gold Standard Service Agreement are superseded by those contained in
the Omnicard Plus Agreement; (v) the invoicing and integration (i.e. entire
agreement) provisions of the Gold Standard Service Agreement are not
applicable; (vi) there will be no additional charge for after hours service
on the systems in place at * or any other system that averages at
least * over a consecutive * period; and (vii) "maintenance"
shall mean all maintenance on the lasers which is necessary for them to
perform (a) to manufacturer warranty specifications, (b) future FDA-
approved procedures, when approved, and (c) any FDA-approved clinical
studies work, including, without limitation, such work contemplated in the
Letter Agreement. The parties agree that this paragraph regarding
maintenance shall apply to all lasers covered in this Agreement.
Tier One-Apex Plus Laser placements 1 and 2
Procedures *
Procedures *
Procedure *
We propose a * for each laser. An initial * "ramp up" time,
where * is required, is followed by a scheduled * . This period
will require staged * as follows: months * ; months * ; months
* ; months * ; months * . Any purchases in a given month which
are in excess of the * will be credited towards * (i.e. NovaMed is
satisfying the * so long it is * on a rolling methodology).
Upon completion of * procedures, NovaMed has the option to continue
using the laser at the reduced cost of * (with * ), renegotiating
the agreement or terminating the
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* Confidential portions omitted and filed separately with the Commission.
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agreement, all as set forth in the relevant Omnicard Plus Agreement. Unless
NovaMed is in default under the relevant Omnicard Plus Agreement, Summit
may not terminate, or elect not to renew, such agreement.
Tier Two-For Apex Plus Laser placements 3, 4, 5, 6, 7 and 8 to be
installed at the discretion of NovaMed, Summit will extend the following
discounted schedule for each laser:
Procedures * @ *
Procedures * @ *
Procedures * @ *
There will be an * for each laser. The schedule for such * will be as
follows:
Months * *
Months * *
Months * *
Months * *
Months * *
Any purchases in a given month that are * towards future months (i.e.
NovaMed is * so long as it is * on a rolling methodology).
Upon completion of * procedures, NovaMed has the option to * ,
renegotiating the agreement or terminating the agreement, all as set forth
in the relevant Omnicard Plus Agreement. Unless NovaMed is in default
under the relevant Omnicard Plus Agreement, Summit may not terminate, or
elect not to renew, such agreement.
Special Considerations: *
*
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* Confidential portions omitted and filed separately with the Commission.
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In exchange for a payment of approximately * to be made, Summit would
like to propose the following:
A * commitment to Summit for * at the reduced * rate of *
Procedure *
The * preformed through September 1998 on the Summit Laser (Serial
No. 7106) will be included toward the overall * .
Here we propose an * for the laser (Serial No. 7106). An initial *
"ramp up" time, where * is required, is followed by a scheduled monthly
* . This period will require staged * as follows: months * ;
months * ; months * ; months * ; months * . Any purchases in
a given month which are in excess of the * will be credited towards
future months (i.e. NovaMed is satisfying the * so long it is achieving
* )
Upon completion of * procedures, NovaMed has the option to continue
using the laser at the reduced cost of * , with * , renegotiating
the agreement or terminating the agreement, all as set forth in the
relevant Omnicard Agreement. Unless NovaMed is in default under the
relevant Omnicard Agreement, Summit may not terminate, or elect to not
renew, the Omnicard Agreement
*
In consideration of the current lease agreement Summit would like to
propose the following:
A * commitment to Summit for * at the reduced * price of
* .
Procedures * .
The * procedures performed through September 1998 on the Summit Laser
(Serial No. 5202) will be included toward the total procedural * .
Here we propose an * for the laser (Serial No. 5202). An initial *
"ramp up" time, where * is required, is followed by a scheduled
monthly * . This period will require staged * as follows: months
* ; months * ; months * ; months * ; months
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* Confidential treatment requested.
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* . Any purchases in a given month which are in excess of the * will be
credited towards future months (i.e. NovaMed is satisfying the * so long
it is achieving * on a rolling methodology).
Upon completion of * procedures, NovaMed has the option to continue using
the laser at the reduced cost of * per procedure, with * , renegotiating
the agreement or terminating the agreement, all as set forth in the
relevant Omnicard Agreement. Unless NovaMed is in default under the
relevant Omnicard Agreement, Summit may not terminate, or elect to not
renew, the Omnicard Agreement.
Additional Agreements
1. Termination of Omnicard Plus Agreement. With respect to any lasers
procured by NovaMed under the Agreement, NovaMed will have the right to
terminate immediately, without penalty, any Omnicard Plus Agreement
relating to such lasers if the FDA withdraws or materially restricts its
approval of the Apex Plus excimer laser for use in the manner currently
permitted as of the date of this Second Amendment; provided, however, that
in the event of such a termination, NovaMed shall continue to be
responsible for any remaining lease payments under the applicable Lease
Agreement with HealthCapital Financial Group LLC ("HealthCapital Lease")
affecting such lasers. Notwithstanding the foregoing, nothing in this
Paragraph 1 shall be construed to apply to any future or pending FDA
approvals not yet obtained by Summit as of the date of this Second
Amendment.
2. Replacement of Lasers. This Paragraph 2 is subject to the terms and
conditions of Paragraph 3 hereof. The parties hereto acknowledge and agree
that NovaMed desires to be in a position to continuously adapt to new and
progressive technologies in the laser vision correction industry.
Accordingly, at any time during the term of any Omnicard Plus Agreement and
HealthCapital Lease, NovaMed shall have right to * . Upon NovaMed
tendering such an election, any * (including any * contemplated in the
Agreement, Omnicard Plus Agreement and HealthCapital Lease with r espect to
the original laser (the "Original Laser Agreements") * , and the parties
contemplate that comparable agreements will be executed by the parties with
respect to the * ; provided, however, that, notwithstanding the foregoing,
NovaMed will continue to be responsible for any remaining lease payments
under the applicable HealthCapital Lease * , with any remaining * either
being, at NovaMed's election, * ; provided further, that NovaMed may *
through HealthCapital * as contemplated in the foregoing proviso
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* Confidential portions omitted and filed separately with the Commission.
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(ii) * . The terms and conditions of the * will be on terms substantially
similar in nature as the terms and conditions of the * , including,
without limitation, those terms and conditions relating to term,
maintenance (hardware and software) and supplies; provided, however, that
the parties hereto acknowledge and agree that:
(a) Pricing. * .
(b) * . * .
3. Commercial Reasonableness/Good Faith. * . Accordingly, each party
hereto shall use all commercially reasonable efforts and shall negotiate in
good faith to effect the restructuring contemplated in Paragraph 2 hereof,
after taking into account any differing pricing mechanics between the old
and new lasers. If the parties shall fail to reach an agreement after
expending such commercially reasonable efforts and negotiating in good
faith, then the Original Laser Agreement will remain in place. In the event
of a restructuring pursuant to Paragraph 2 hereof, the parties further
acknowledge and agree that notwithstanding any other provision hereof
(including Paragraph 2) all systems subject to the Original Laser
Agreements remain subject to the applicable Summit Laser Patent License
associated with such system. NovaMed will not use or transfer any such
system other than in full compliance with the terms of such Laser Patent
License.
4. Applicability. The terms and conditions of Paragraphs 1-3 immediately
preceding this Paragraph 4 shall apply to all lasers procured by NovaMed
under the Agreement, including, without limitation, those lasers procured
prior to July 7, 1999.
5. Summit Installations. Except as otherwise expressly indicated below,
the following will apply with respect to all existing and future lasers
procured by NovaMed under the Agreement:
(a) NovaMed, * , may elect to require Summit to install its
* on any * (including, without limitation, * at a * ;
(b) * , NovaMed, * , may elect to require Summit to * on
any future laser procured by NovaMed under the Agreement after the date of
this Second Amendment. Notwithstanding Section 5(a) hereof, the parties
hereto agree that * currently located in *;
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* Confidential portions omitted and filed separately with the Commission.
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(c) At NovaMed's election, Summit will * ;
(d) As soon as available, Summit will install the * on the two
existing Summit lasers located * at a * ; and
(e) At NovaMed's election, Summit will install the * on any
laser at a * .
All of the foregoing contained in subparagraphs (a) through (e) of this
Paragraph 5 will be installed by Summit as soon as commercially
practicable.
Miscellaneous Considerations:
* . When the * lasers purchased from Summit at NovaMed locations
* , Summit will * . When the * in all NovaMed locations * ,
Summit will * .
NovaMed/Summit Research Program. The Letter Agreement details a
comprehensive research initiative that includes * separate IDE studies
for NovaMed participation and naming Xx. Xxxxxx as medical monitor.
The terms and conditions set forth in the Letter Agreement relating to
NovaMed shall be incorporated herein. Note that the reference to "seven
centers" in Paragraphs 3 and 4 of the Letter Agreement are intended to be
NovaMed operated centers in the markets in which NovaMed conducts current
or future operations, including, without limitation, Chicago, St. Louis,
Louisville, Richmond and Kansas City.
NovaMed Staff Training. Summit will confirm to a * , three-day
orientation and training session for the staff members in each NovaMed
laser practice. They will also be available for telephone follow up and
consultation for those practices. After one month, they will return to the
practice to audit, critique and mentor these individuals. To the extent
necessary, Summit will also provide during the term at * the
necessary technical support and training with respect to any upgrades in
the equipment or software provided herein.
NovaMed Market Development. As your strategic partner, Summit Technology
will help in the future market development of NovaMed by looking for
appropriate partners for your
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*Confidential portions omitted and filed separately with the Commission.
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enterprise. We will attempt to aid in the NovaMed outreach in core
locations as well as help identify new regional opportunities.
Upon the request of NovaMed, Summit will provide to NovaMed financial
statements of Summit on a quarterly basis (the quarterly 10k), which
financial statements shall be substantially similar to those required to be
furnished in accordance with The Securities Exchange Act of 1934, as
amended.
Each laser shipped under this agreement will be subject to the Omnicard
Plus Agreement in the form of Exhibit A, Summit Laser Patent License, and a
Lease Agreement with HealthCapital Financial Group, LLC (the form of which
is attached hereto as Exhibit C (the "HealthCapital Lease") (except that no
Lease Agreements will required in connection with the lasers described
herein under * and * sections herein). * . From the
Omnicard fee proceeds collected by Summit under the Omnicard Agreements,
Summit on behalf of NovaMed, and subject in every instance to timely
receipt of all payments due from NovaMed, will then forward to
HealthCapital all payments under the HealthCapital Lease to satisfy
NovaMed's obligations thereunder.
The terms and conditions set forth in the Terms and Conditions of Software
License and Sale (Exhibit D) are incorporated herein by reference.
NovaMed acknowledges, represents and warrants that it has leased the
Equipment based on its professional judgment and expressly disclaims any
reliance upon any statements made by Summit or any agent of Summit unless
provided herein or otherwise stated in Summits Equipment documentation.
Summit warrants that the Equipment will function within the operating
parameters described in the User's Manual when operated by properly trained
individuals and serviced only by Summit personnel. Except as expressly
stated herein, and subject to Summit's service and maintenance obligations
described above, Summit has made no representation or warranty regarding
the Equipment and its liability hereunder is expressly limited to repair or
replacement of the Equipment, at Summit's election. Notwithstanding the
foregoing, and without in any way admitting liability, nothing herein
contained is intended to prevent NovaMed from taking such legal action
against Summit as it deems appropriate in the event any NovaMed or any
NovaMed practice is sued by a patient alleging personal injury as a result
of treatment on a Summit laser. SUMMIT MAKES NO WARRANTY, EXPRESS OR
IMPLIED, AS TO ANY MATTER WHATSOEVER, INCLUDING,
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* Confidential portions omitted and filed separately with the Commission.
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WITHOUT LIMITATION, THE DESIGN OR CONDITION OF THE EQUIPMENT, ITS
MERCHANTABILITY OR ITS FITNESS OR CAPACITY OR DURABILITY FOR ANY PARTICULAR
PURPOSE, THE QUALITY OF THE MATERIAL OR THE WORKMANSHIP OF THE EQUIPMENT.
IN NO EVENT WILL SUMMIT BE LIABLE FOR LOST PROFIT, INJURY TO GOODWILL OR
ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
Emphasis Discs are for NovaMed use only and are not permitted for resale or
use elsewhere. Please see the emphasis(R) disc package insert for
additional terms, conditions, and warranty information applicable to the
emphasis(R) disc product, all of which are incorporated herein by
reference. Purchase of emphasis(R) discs does not constitute any actual or
implied license to use the laser disc in any country other than the country
of original delivery and does not constitute any actual or implied license
to use any Summit laser system or other Summit product, emphasis(R) discs
may not be resold without the express written consent of Summit Technology,
Inc.
Except as may be otherwise expressly provided herein concerning future
transactions which may be consummated at NovaMed's election, this agreement
constitutes a binding commitment to perform the transactions and make
payments contemplated hereunder including the minimum procedure
requirements referenced herein.
By Summit Technology Accepted By
/s/ Xxxxx Xxxxx /s/ Xxxxxxx X. Xxxxxx
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Xxxxx Xxxxx, Marketing and Sales Manager Xxxxxxx X. Xxxxxx,
President
NovaMed Eyecare Mgmt., LLC
/s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx X. Xxxxxx, Xx., Director of Sales
/s/ P. Xxxxxxx Xxxxxx
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P. Xxxxxxx Xxxxxx
V.P. Marketing & Sales
Summit Technology, Inc.
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LIST OF EXHIBITS
A. Form of OmniCard Plus Agreement
B. Form of Gold Standard Service Agreement
C. Form of Health Capital Lease
D. Terms and Conditions of Software License and Sale
E. Summit Retreatment Credit Policy
EXHIBIT A
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OMNICARD PLUS AGREEMENT
This Agreement is entered into on October 2, 1998 between Summit Technology,
Inc., a Massachusetts Corporation having its principal offices at 00 Xxxxxxx
Xxxxx, Xxxxxxx, XX 00000 ("Summit") and NovaMed Holdings, Inc. having its
principal offices at 000 Xxxxx Xxxxxxxx Xxx, Xxxxx 0000, Xxxxxxx, XX 00000
("Customer").
1. DUTIES OF CUSTOMER
a. Customer agrees to purchase from Summit during the term of this
Agreement, for each (both) laser systems referenced on Schedule "A" the minimum
quantity of Omnicards at the purchase price pursuant to Schedule "A", a copy of
which is attached hereto and made a part hereof.
b. Customer agrees to pay for the Omnicards within thirty (30) days of
the invoice date at the total prices listed in Schedule "A". If Customer fails
to make such payments within ten (10) days after written notice from Summit
specifying such failure, then Summit may discontinue shipments of Omnicards and
make further sales of Omnicards to Customer on a C.O.D. basis.
c. Customer agrees to meet all terms and conditions contained in the
lease contract with HealthCapital Financial Group, LLC ("HealthCapital") (Lease
numbers H239, H240 & H241) for the equipment described therein (the
"HealthCapital Lease").
2. DUTIES OF SUMMIT
Summit agrees to forward to HealthCapital, or its successors and assigns,
on a timely basis as provided in the HealthCapital Lease, the monthly lease
payment collected by Summit through Omnicard financing premiums included in the
Omnicard prices in Schedule "A", on a monthly basis, under such HealthCapital
Lease identified in Section 1.c, provided the Customer fully performs the duties
described in Section 1(a) and (b) above. Summit shall make such HealthCapital
Lease payments as required under said lease on Customer's behalf and with
Customer's full permission under the terms and conditions of HealthCapital's
Lease and HealthCapital shall accept same from Summit. Customer shall receive
written notice that each such monthly payment from Summit to HealthCapital has
been made. Notwithstanding Summit's duties set forth in the preceding
sentences, Customer acknowledges and agrees that the HealthCapital Lease
document is a separate and distinct agreement between Customer and HealthCapital
and nothing herein is intended or should be construed as a guaranty of any of
Customer's obligations thereunder or as otherwise obligating Summit thereunder
in any way, it being acknowledged that Summit's sole obligation is to timely
forward the lease payments received from Customer to HealthCapital subject to
Summit's timely receipt of the corresponding payment from Customer. Customer
further acknowledges, that provided Customer is in compliance with the
provisions of this Agreement, it is solely responsible for the financial
liability (other than the lease payments to be made by Summit and paid on
Customer's behalf to HealthCapital hereunder), and for all UCC filing fees,
insurance charges, property taxes, sales taxes and any other expenses required
by the HealthCapital Lease. Notwithstanding the foregoing, in the event that
Summit shall fail to make any payment to HealthCapital (despite having received
the corresponding payment from Customer) under the terms of the HealthCapital
Lease, and Customer makes such payment directly to HealthCapital, Customer shall
have the right to setoff the amount of such payment against any subsequent
amounts due and owing Summit under this Agreement.
3. RELEASE OF OBLIGATIONS/TERMINATION OF AGREEMENT
a. Customer may release itself from its obligations to fully perform the
duties described in Section 1 above by either: (i) purchasing all Omnicards
specified in Schedule "A" (e.g., the aggregate minimum purchase obligation due),
or (ii) completely paying off all remaining financial liabilities to
HealthCapital under the HealthCapital Lease identified In Section 1.c above,
plus immediately pay to Summit the difference between the aforesaid
HealthCapital payoff and the aggregate unpaid minimum Omnicard purchase
obligation.
b. The parties agree that if Customer fails to fully perform the duties
described in Section 1(a) or (b) above or if Customer is in default of the
HealthCapital Lease (provided that Customer shall have the opportunity to cure
any such failure to perform or default within thirty (30) days following
Customer's receipt of written notice from Summit specifying the nature of such
failure to perform or default), Summit may, at its sole discretion: (i)
terminate this Agreement with thirty (30) days prior written notice and (ii)
immediately demand payment from the Customer for the remaining aggregate unpaid
minimum purchase obligation due hereunder.
4. TERM
Unless either party terminates this Agreement pursuant to Section 3 above,
or as set forth in this Paragraph 4, the term of this Agreement shall be for a
period of 36 months from the date of Summit's signature below (the "Initial
Term"). The Initial Term and any Renewal Term (as defined below) shall
automatically be renewed and extended on the same terms and conditions contained
herein for consecutive one-year periods (each a "Renewal Term"), unless Customer
shall give written notice to Summit electing to terminate this Agreement not
less than sixty (60) days prior to the end of the Initial Term or any Renewal
Term. In addition, Customer may terminate this Agreement as follows: (i) at any
time upon attaining the minimum purchasing requirements as specified in Schedule
"A" (the "Purchasing Criteria"); (ii) upon thirty (30) days' written notice to
Summit at any time after (A) satisfying the Purchasing Criteria or (B) the
Initial Term, provided all the Purchasing Criteria have been satisfied; or (iii)
the bankruptcy, dissolution or liquidation of Summit; provided further, that if
Customer terminates this Agreement in accordance with the foregoing prior to the
expiration of the HealthCapital Lease, Summit acknowledges and agrees that it
will be obligated to pay, on Customer's behalf, all remaining payments due and
owing under the HealthCapital Lease, provided Customer shall have made all
required minimum payments to Summit hereunder. Summit may only terminate this
Agreement pursuant to Section 3 above.
5. MISCELLANEOUS
a. Entire Agreement. This Agreement is the entire Agreement between the
parties, and all prior negotiations, representations or agreements between the
parties are merged into this Agreement, except for the executed NovaMed-Summit
Agreement entitled "An Opportunity for Rapid Expansion in the Business of Laser
Vision Correction" (hereinafter referred to as the "NovaMed Agreement"), the
Summit Laser Patent License and all other documents and agreements referenced
herein or in the NovaMed Agreement. In the event of any conflict between the
NovaMed Agreement and this Agreement, the terms and conditions of the NovaMed
Agreement shall govern and control.
b. Amendments. This Agreement may be amended in whole or in part only by
an agreement in writing signed by Customer and Summit.
c. Governing Law. This Agreement and the rights of the parties hereunder
shall be governed by and construed in accordance with the laws of the State of
Massachusetts including all matters of construction, validity, performance and
enforcement and without giving effect to principles or conflict of laws.
d. Waiver. The waiver of either party of a breach of any provision of
this Agreement shall not operate or be construed as a waiver of any subsequent
breach by any party.
e. Assignment. Customer shall not assign or transfer this Agreement
without the prior written consent of Summit provided, however, that Customer
will have the right to assign its rights, duties and obligations hereunder,
without Summit's consent: (i) in connection with and in contemplation of a
reorganization, merger, consolidation or sale of all or substantially all of the
capital stock or assets of Customer (or any other transaction substantially
similar in effect); provided in each instance that NovaMed is not then in
default hereunder (the parties hereto acknowledge and agree that the
contemplation or consummation of the transaction described in this Section
5(e)(i) will not constitute such a default) and that such proposed assignee has
agreed to fully perform NovaMed's obligations hereunder and under all related
agreements, including the Summit Laser Patent License and, in the reasonable
judgment of Summit (such judgement to not be unreasonably withheld or delayed)
has the financial capability to so perform, or (ii) to any affiliate (as
hereinafter defined) of Customer (subject to such affiliate agreeing to be bound
as aforesaid). As used herein "affiliate" shall mean any person, firm or entity
which directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, any person, firm or entity, and
shall include, without limitation, any direct or indirect subsidiary of NovaMed
Holdings, Inc. Any attempt to assign any rights, duties or obligations which
arise hereunder without such permission shall be void.
f. Attorneys' Fees. The prevailing party shall be awarded its reasonable
attorneys' fees, costs and disbursements to be paid by the non-prevailing party
in any action on or concerning this Agreement.
g. Notices. Any notice, request, demand or other communication given
pursuant to the terms of this Agreement shall be in writing and shall be served
by personal service or by mail at the address of the receiving party set forth
in this Agreement (or at such other address as such party shall in writing have
advised the other party). All notices or demands by mail shall be certified or
registered mail, return receipt requested, and shall be deemed complete upon
mailing.
h. Severability. In the event any one or more of the provisions in this
Agreement shall for any reason be held to be void, invalid, illegal or
unenforceable in any respect, such shall not affect any other provisions hereof,
but this Agreement shall be construed as if such void, invalid, illegal or
unenforceable provision had never been contained herein and the remainder of
this Agreement shall continue in full force and effect.
i. Ambiguities. Ambiguities, if any, in this Agreement shall not be
construed against either party, irrespective of which party may be deemed to
have authored the ambiguous provision.
CUSTOMER: NOVAMED HOLDINGS, INC. SUMMIT TECHNOLOGY, INC.
BY:(X) BY:(X)
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Name: Name:
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Title: Title:
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Date: Date:
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Agreed and accepted:
HEALTHCAPITAL FINANCIAL GROUP, LLC
BY:(X)
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Name:
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Title:
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Date:
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Schedule "A"
Purchasing Criteria
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Location #1: * (Serial Number 7128)
Omnicard Purchase
Months Price *
------ ----------------- -------
* * *
* * *
* * *
* * *
* * *
* * *
* Upon Customer completing * , the Omnicard Purchase Price shall be * and
any * in excess of * will be * .
** Once * are completed and paid for, the Omnicard Purchase Price shall
be * .
Location #2: * (Serial Number 7122)
Omnicard Purchase
Months Price *
------ ----------------- -------
* * *
* * *
* A commitment of * is the * for the two Summit lasers at this location.
Location 3: * (Serial Number 5123)
Omnicard Purchase
Months Price *
------ ----------------- -------
* * *
* * *
* * *
* * *
* * *
* * *
* Upon Customer completing * , the Omnicard Purchase Price shall be * and
any * in excess of * will be * .
** Once * are completed and paid for, the Omnicard Purchase Price shall
be * .
-------------------------------------------------------------------------------
As it relates to all locations referenced above, any * in a given month
which are * will be * (i.e. NovaMed is satisfying the * so long
as it is * for each individual location). These schedules will commence
contemporaneous with the commencement date of the relevant HealthCapital Lease.
------------------
* Confidential portions omitted and filed separately with the Commission.
EXHIBIT B
---------
SUMMIT TECHNOLOGY, INC.
GOLD STANDARD/TM/ SERVICE AGREEMENT (DOMESTIC)
Customer: System Model and Serial No.:
------------------------- ---------------
Customer Contact: Installation Site:
----------------- -------------------------
Billing Address:
------------------ -------------------------
Effective Date:
------------------- -------------------------
Telephone: Term: [ ] One Year [ ] Three Years
------------------------ [ ] Customer Initials
Fax:
------------------------
This Service Agreement by and between Summit Technology, Inc. ("Summit") and
_____________ ("Customer") shall commence on the Effective Date referred to
above and shall remain in force until the earlier of (check one) [ ] twelve
months after the Effective Date or 600,000 laser pulses, whichever comes first,
or [ ] thirty-six months after the Effective Date or 1,800,000 laser pulses,
whichever comes first.
For each Laser System listed above, Summit hereby agrees to provide to Customer
the maintenance services described below, and Customer agrees to pay for such
services, in each instance subject to and in accordance with the terms and
conditions of this Agreement. Please see reverse for additional terms and
conditions.
A. Schedule of Services:
1. Preventative Maintenance. Summit will provide Customer with four
scheduled preventative maintenance visits during the term of this
Agreement. At each preventative maintenance visit, Summit will:
replace ArFl gas bottle and filter, check energy output, clean cooling
system and heat exchanger grill, verify full operation of your system,
replace connectors, gaskets and filters as needed, verify high voltage
output, check cooling oil level, align laser, leak-test bottle, check
valve connections, check vacuum system, check multi-power supply,
clean instrument panel, align HeNe aiming laser, clean or replace all
optics as necessary and check printer and printer paper operation.
2. Unscheduled Service. During the term of this Agreement, Summit will
provide unscheduled service visits, at no additional cost, between the
hours of 8:00 am. and 5:00 p.m., Monday through Friday. In most
instances, Summit will provide an on-site technician within 48 hours
(see reverse for details). Any service visits that you authorize
outside of these hours or on weekends will be separately billed at the
rate set forth below.
3. Parts and Labor. Summit will provide all parts (including ArFl gas,
printer paper and beam profile cards) and labor (during the hours
specified above) necessary to service and maintain your laser
according to Summit's published operating specifications at no
additional charge. Except as specified above, all disposables,
consumables and software upgrades arc excluded.
4. Emergency Telephone Consultation. Summit will provide emergency
telephone consultation 24 hours per day, seven days per week.
B. Schedule of Charges:
1. Covered Services. For each Laser System listed above, Customer will
pay Summit an annual service fee, payable either in twelve equal
consecutive monthly installments of $__________ each or in a single
lump sum payment, due on or before the Effective Date, of
$___________. If this is a three year Agreement, the service fee will
be _____________.
2. After Hours Services. If Customer requests a service visit before 8:00
a.m., after 5:00 p.m. or on weekends, Customer will pay Summit at the
rate of $105 per hour per technician. Parts remain covered at no
additional charge as provided herein.
This Service Maintenance Agreement shall replace any previous service agreements
or warranties between Summit and the Customer and shall cover only the System
bearing the serial number indicated above.
EXECUTED this ____ day of ______________________, 19___.
CUSTOMER: SUMMIT TECHNOLOGY, INC.
By:
--------------------------- ------------------------
ADDITIONAL TERMS AND CONDITIONS
-------------------------------
1. Summit Responsibilities. During the term of this Agreement, Summit will
provide the services ("Agreement Services") listed on the facing page under
the heading "Schedule of Services." The following shall be applicable to
the Agreement Services:
(a) Preventative Maintenance. Summit will contact Customer quarterly to
schedule preventative maintenance visits on mutually convenient
weekdays between the hours of 8:00 a.m. and 5:00 p.m.
(b) Unscheduled Service. Summit will use best efforts (within reason) to
have a service technician on site within the time period set forth in
the facing page of this Agreement under "Schedule of Services" (or as
soon as practicable thereafter). Customer acknowledges that Summit
cannot and does not absolutely guarantee response time to service
calls.
(c) Modifications for Safety or Reliability. If Summit determines that a
modification to the System (whether hardware or software) is necessary
to address safety or reliability concerns identified by Summit, then
Summit will install the modification in the System as soon as
practical.
(d) System Verification. Summit reserves the right to verify the condition
of Customer's System prior to becoming obligated hereunder if
Customer's System has ever been serviced by someone other than a
Summit authorized service representative, or if Customer's System has
not been serviced by Summit for more than 45 days prior to the
Effective Date.
2. Customer Obligations. Customer's obligations are as follows:
(a) Payments. Customer will pay all Summit invoices within 30 days.
(b) Tests. Customer will conduct such tests of the System and submit the
results in such format at such times as Summit reasonably requests.
(c) Conformity With Manuals. Customer will comply in all material respects
with the manuals and instruction materials provided by Summit
regarding this System, its use and its maintenance.
(d) Cooperation. Customer will cooperate with Summit in performing its
duties including the scheduling of service calls and providing access
to the System, an acceptable work environment for Summit personnel at
the Installation Site, and adequate space for storage of spare parts,
tools and the like. Customer bears the risk of loss for spare parts
stored at the Installation Site.
(e) Installation Site. Customer will maintain the Installation Site in
accordance with Summit's recommendations and will not move, permit the
movement of or tamper with the System without Summit's prior knowledge
and direct participation.
(f) No Outside Services. Customer will not permit anyone other than
Summit's service representative to perform maintenance, to repair or
to adjust the System.
(g) No Unapproved Parts or Gas. Customer will use only Summit approved
parts and gas in the System and only Summit approved disposables with
the System.
(h) Customer Presence. For the safety of Summit's personnel, Customer or
one of its representatives will be present at the Installation Site at
all times when a Summit person is servicing the System.
3. Exclusions. Unless this is a Platinum Standard/TM/ Agreement, repairs or
service required after the System has fired the maximum number of pulses
set forth on the facing page of this Agreement are not covered. Further,
this Agreement does not entitle Customer to, or obligate Summit to provide,
any service or products not specifically identified in paragraph 1 hereof.
Without limitation, the Agreement Services donot include: (a) any repairs
or service attributable to Customer's failure to comply with any of its
obligations under Paragraph 2 or to accidents, casualty loss, other acts of
God; (b) any disposable products, consumable supplies (other than gas,
printer paper and beam profile cards, which are included), halogen filters
or accessories; or (c) services associated with relocation, installation
(such as site preparation) or removal of the System. Services or products
not included in the Agreement Services may be purchased from Summit on a
case by case basis at Summit's then current charges if such services are
then available from Summit.
4. Charges and Invoicing. If Customer has elected monthly payments, Summit
will invoice Customer for the Agreement Services on a monthly basis, in
advance, one month prior to the start of each month. If this is a three
year Agreement, and Customer has not paid in full as of the Effective Date,
Summit will invoice Customer periodically, as agreed by Customer and
Summit. Summit will invoice Customer for other services as incurred. All
invoices must be paid in full within 30 days. After 30 days, interest on
the unpaid balance will accrue at 1% per month. Prices are quoted exclusive
of taxes. Customer will pay (or reimburse Summit for) all taxes except
those based on Summit's income.
5. Term and Termination. If this is a one year Agreement, this Agreement shall
have a term of one year commencing on the Effective Date. If this is a
three year Agreement, this Agreement shall have a term of three years
commencing on the Effective Date. Each twelve month period following the
Effective Date is referred to as an "Agreement Year." Customer may elect to
convert a one year Agreement to a three year Agreement at any time during
the term, in which case the price adjustment will be prorated over the
balance of the three year term. This Agreement may be terminated by either
party immediately upon written notice to the other if the other breaches
one or more of its obligations hereunder.
6. Limited Warranty, Force Majeure and Limitation of Liability. Summit
warrants that the services provided hereunder will be performed in a
workmanlike manner in accordance with reasonable commercial standards.
Summit does not warrant that the operation of the System will be
uninterrupted or error free. THE WARRANTY STATED IN THE FIRST LINE OF THIS
SECTION AND REMEDIES SET FORTH HEREUNDER ARE EXCLUSIVE AND IN LIEU OF ALL
OTHERS, ORAL OR WRITTEN, EXPRESS, IMPLIED OR STATUTORY, RESPECTING THIS
AGREEMENT, AND THE MAINTENANCE SERVICES AND PARTS PROVIDED HEREUNDER,
SUMMIT MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR INDEMNIFICATION
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE RESPECTING THIS AGREEMENT OR THE SERVICES
AND PRODUCTS PROVIDED HEREUNDER.
7. Limitation of Liability. Summit will neither be deemed in default of any
obligation hereunder nor will Summit be liable for any failure or delay in
performance which results directly or indirectly from "Acts of God," acts
of civil or military authorities, civil disturbance, war, strikes, fire,
theft or vandalism or other causes beyond Summit's reasonable control. IN
NO EVENT SHALL SUMMIT BE LIABLE TO CUSTOMER FOR (A) ANY SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF SUMMIT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGES OR (B) ANY DAMAGES RESULTING FROM LOSS OF
USE, PATIENTS OR PROFITS, OR ANY DEFECT IN THE SYSTEM, WHETHER IN AGREEMENT
OR TORT ACTION, INCLUDING NEGLIGENCE. IN NO EVENT SHALL SUMMIT'S LIABILITY
EXCEED THE TOTAL MAINTENANCE CHARGES PAID OR PAYABLE WITH RESPECT TO THE
SYSTEM DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF THE
DAMAGE. Customer acknowledges that the charges which apply to the Agreement
Services are based in part upon the limited warranty and limitation of
liabilities and remedies set forth in this Agreement.
8. Right to Subcontract. Summit reserves the right to subcontract the services
to be provided hereunder to qualified third parties. In such
event, the rights and obligations of Summit and Customer will not be
diminished.
9. Refurbished Parts. Summit reserves the right to use refurbished parts in
performing its obligations hereunder provided such parts meet all
specifications and are covered by the same warranty as new parts. All parts
removed from the System for replacement become the property of Summit.
10. Non-Assignment. Customer may not assign any of its obligations, rights or
remedies under this Agreement and any attempted such assignment shall be
null and void.
11. Non-Waiver. The failure or delay of either party to exercise any right or
remedy provided for herein shall not be deemed a waiver of that right or
remedy or of any other rights or remedies available hereunder.
12. Entire Agreement. This Agreement, including all the schedules hereto,
contains the entire understanding of Customer and Summit with respect to the
services provided hereunder and supersedes all prior oral or written
communications with respect to the subject matter hereof. This Agreement
and the rights and obligations of the parties hereunder shall be governed by
and construed in accordance with the laws of the Commonwealth of
Massachusetts.
13. Severability. If any provision or portion of this Agreement is held to be
unenforceable or invalid, the remaining provisions and portions thereof
shall nevertheless be given full force and effect, and the parties agree to
negotiate, in good faith, a substitute valid provision which most nearly
effects the parties' intent in entering this Agreement. Without limiting the
foregoing, it is expressly understood and agreed that each and every
provision of this Agreement which provides for a limitation of liability,
disclaimer of warranty or exclusion of damages is intended by the parties to
be survivable and independent of any other provisions. Further, in the
event that any remedy hereunder is determined to have failed of its
essential purpose, all limitations of liability and exclusions of damages
shall remain in effect.
14. Notices. All notices hereunder shall be in writing and shall be deemed to
have been duly given when delivered in hand, when sent by registered or
certified mail, return receipt requested, or when sent by commercial
overnight courier (such as Federal Express), to the address stated herein.
From time to time, either party may designate a different address by giving
notice of change of address in the manner herein provided.
EXHIBIT C
---------
--------------------------------------------------------------------------------
LESSOR: LEASE AGREEMENT NUMBER: ____
HEALTH CAPITAL FINANCIAL GROUP, LLC
0000 XXXXXXXXXX XXXXXX
XXXXXXX, XX 00000
--------------------------------------------------------------------------------
FULL LEGAL NAME AND ADDRESS OF LESSEE: SUPPLIER OF EQUIPMENT:
SUMMIT TECHNOLOGY, INC.
00 XXXXXXX XXXXX
XXXXXXX, XX 00000
--------------------------------------------------------------------------------
QTY LEASED EQUIPMENT DESCRIPTION, MODEL #, CATALOG #, SERIAL # OR OTHER
IDENTIFICATION
--------------------------------------------------------------------------------
SUMMIT APEX PLUS
LASER
--------------------------------------------------------------------------------
EQUIPMENT LOCATION: STREET ADDRESS:
(if different from above) City: State: Zip Code:
--------------------------------------------------------------------------------
AMOUNT OF EACH PAYMENT (PLUS SALES TAX, IF APPLICABLE) INITIAL TERM
ADVANCED PAYMENTS
TERMS:
--------------------------------------------------------------------------------
TERMS AND CONDITIONS OF LEASE AGREEMENT
1. LEASE AGREEMENT. Lessee hereby leases from Lessor, and Lessor leases to
Lessee, the personal property described above, together with any replacement
parts, additions, repairs or accessories now or hereafter incorporated in or
affixed to it (hereinafter referred to as the "Equipment").
2. ACCEPTANCE OF EQUIPMENT. Lessee agrees to inspect the Equipment and to
execute a Certificate of Acceptance, as provided by Lessor, after the Equipment
has been delivered and installed and is operable in accordance with manufacturer
specifications. Lessee hereby authorized Lessor to insert in this Lease
Agreement serial numbers or other identifying data with respect to the
Equipment. Copies of the Lease Agreement, as modified, will be delivered to
Lessee by Lessor.
3. DISCLAIMER OF WARRANTIES AND CLAIMS; LIMITATION OF REMEDIES. THERE ARE NO
WARRANTIES BY OR ON BEHALF OF LESSOR. Lessor acknowledges and agrees by his
signature below as follows:
(a) LESSOR MAKES NO WARRANTIES EITHER EXPRESS OR IMPLIED AS TO THE CONDITION OF
THE EQUIPMENT, ITS MERCHANTABILITY, ITS FITNESS OR SUITABILITY FOR ANY
PARTICULAR PURPOSE, ITS DESIGN, ITS CAPACITY, ITS QUALITY OR WITH RESPECT TO ANY
CHARACTERISTICS OF THE EQUIPMENT.
(b) Lessee has fully inspected the Equipment which it has requested Lessor to
acquire and lease to Lessee, and the Equipment is in good condition and to
Lessee's complete satisfaction;
(c) Lessee leases the equipment "as is" and with all faults;
(d) Lessee specifically acknowledges that the Equipment is leased to Lessee
solely for commercial or business purposes and not for personal, family,
household or agricultural purposes;
(e) If the Equipment is not properly installed, does not operate as represented
or warranted by the supplier or manufacturer, or is unsatisfactory for any
reason, regardless of cause or consequence, Customer's only remedy, if any,
shall be against the supplier or manufacturer of the Equipment and not against
Lessor.
The person signing below certifies that (1) he/she is a corporate officer,
partner or proprietor of the Lessee said is authorized to sign this Lease
Agreement and bind the Lessee and (2) the Lessee agrees to all terms on the from
and reverse aides. This document contains the entire agreement between the
Lessee and the Lessor, and no other oral or written agreements are in effect.
Lessee: NovaMed Eyecare Management, LLC Lessor: Health Capital Financial Group, LLC
------------------------------------------------------------------------------------
(X) Date: (X) Date:
------------------------------------------------------------------------------------
Name: Title: Name: Title:
------------------------------------------------------------------------------------
(f) Provided Lessee is not in default under the Lease, Lessor assigns to Lessee
any warranties made by the supplier or manufacturer of the Equipment.
(g) LESSEE SHALL HAVE NO REMEDY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES AGAINST
LESSOR; and
(h) NO DEFECT, DAMAGE OR UNFITNESS OF THE EQUIPMENT FOR ANY PURPOSE SHALL
RELIEVE LESSEE OF THE OBLIGATION TO PAY RENT OR RELIEVE LESSEE OF ANY OTHER
OBLIGATION UNDER THIS LEASE AGREEMENT. The parties have specifically
negotiated and agreed to the foregoing paragraph.
LESSEE ALSO UNDERSTANDS AND ACKNOWLEDGES THAT NO BROKER OR SUPPLIER, NOT ANY
SALESMAN, BROKER, OR AGENT OF ANY BROKER OR SUPPLIER, IS AN AGENT OF LESSOR. NO
BROKER OR SUPPLIER, NOR ANY SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLIER
IS AUTHORIZED TO WAIVE OR ALTER ANY TERM OR CONDITION OF THIS LEASE AGREEMENT,
AND NO REPRESENTATION AS TO THE EQUIPMENT OR ANY OTHER MATTER BY THE BROKER OR
SUPPLIER, NOR ANY SALESMAN, BROKER OR AGENT OF ANY BROKER OR SUPPLIER, SHALL IN
ANY WAY AFFECT CUSTOMER'S DUTY TO PAY THE RENTALS AND TO PERFORM CUSTOMER'S
OBLIGATIONS SET FORTH IN THIS LEASE AGREEMENT.
4. ASSIGNMENT BY LESSEE PROHIBITED. WITHOUT LESSOR'S PRIOR WRITTEN CONSENT,
LESSEE SHALL NOT ASSIGN THIS LEASE AGREEMENT OR SUBLEASE THE EQUIPMENT OR ANY
INTEREST THEREIN, OR PLEDGE OR TRANSFER THIS LEASE AGREEMENT, OR OTHERWISE
DISPOSE OF THE EQUIPMENT COVERED HEREBY. PROVIDED, HOWEVER, THAT LESSEE SHALL
HAVE THE RIGHT TO ASSIGN ITS RIGHTS, DUTIES AND OBLIGATIONS HEREUNDER, WITHOUT
LESSOR'S CONSENT: (i) IN CONNECTION WITH AND IN CONTEMPLATION OF A
REORGANIZATION, MERGER, CONSOLIDATION OR SALE OF ALL OR SUBSTANTIALLY ALL OF THE
CAPITAL STOCK OR ASSETS OF LESSEE (OR ANY OTHER TRANSACTION SUBSTANTIALLY
SIMILAR IN EFFECT) PROVIDED SUCH SUCCESSOR CORPORATION IS OF A CREDIT WORTHINESS
AND FINANCIAL CONDITION REASONABLE UNDER THE CIRCUMSTANCES; OR (ii) TO ANY
AFFILIATE (AS HEREIN AFTER DEFINED) OF LESSEE AS USED HEREIN "AFFILIATE" SHALL
MEAN ANY PERSON, FIRM OR ENTITY WHICH DIRECTLY OR INDIRECTLY, THROUGH ONE OR
MORE INTERMEDIARIES, CONTROLS OR IS CONTROLLED BY, OR IS UNDER COMMON CONTROL
WITH, ANY OTHER PERSON, FIRM OR ENTITY, AND SHALL INCLUDE, WITHOUT LIMITATION,
ANY DIRECT OR INDIRECT SUBSIDIARY OR NOVAMED HOLDINGS INC.
5. EXPENSE OF ENFORCEMENT AND SEVERABILITY. In the event of any legal action
with respect to this Lease Agreement, the prevailing party in any such action
shall be entitled to reasonable attorney fees, together with all costs and
expenses incurred in pursuit thereof. This Lease Agreement is intended to
constitute a valid and enforceable legal instrument and no provision of this
Lease Agreement that may be deemed unenforceable shall in any way invalidate any
other provision or provisions hereof, all of which shall remain in full force
and effect. Only "Counterpart No. 1" hereof shall be deemed an original for
chattel paper purposes.
6. LEASE PAYMENTS. Lessee agrees to pay the total Lease equal to the "Amount
of Each Payment" multiplied by the number of payments specified in "Initial
Term." Payments will be made in advance and periodically as specified in
"Terms" above. Payments shall be made by Lessee at Lessor's address set forth
above, or as otherwise directed by Lessor. Lessee shall not xxxxx, set off,
deduct any amount or reduce any payment for any reason. The first payment shall
be due on the date of acceptance of the Equipment by Lessee, and subsequent
payments shall be due on the same day of each succeeding month throughout the
term of the Lease Agreement. THIS LEASE AGREEMENT IS NOT CANCELABLE OR
TERMINABLE BY LESSEE EXCEPT AS PROVIDED IN PARAGRAPH 8 BELOW. In the event
Lessor shall not receive any payment to be made on behalf of Lessee under this
Lease in accordance with its terms, Lessor shall deliver written notice to
Lessee specifying the nature of such failure.
7. CHOICE OF LAW. This Lease Agreement shall not be effective until signed by
Lessor at its principal office listed above. This Lease Agreement shall be
considered to have been made in the state of Lessor's principal place of
business listed above and shall be interpreted in accordance with the laws and
regulations of the state of Lessor's principal place of business listed above.
Lessee agrees to jurisdiction in the state of Lessor's principal place of
business listed above in any action, suit or proceeding regarding this Lease
Agreement and concedes that it, and each of them, transacted business in the
state of Lessor's principal place of business listed above by entering into this
Lease Agreement. In the event of any legal action with regard to this Lease
Agreement or the Equipment covered hereby, Lessee agrees that venue may be laid
in the County of Lessor's principal place of business.
8. COMMENCEMENT, EXPIRATION AND RENEWAL. This Lease Agreement shall commence
upon Lessor's acceptance of it and Lessee's execution of a Certificate of
Acceptance provided by Lessor. Lessor shall have no obligation to Lessee under
this Lease Agreement if the Equipment, for whatever reason, is not delivered to
Lessee within 45 days after Lessee signs this Lease Agreement. Lessor shall have
no obligation to Lessee under this Lease Agreement if Lessee fails to execute
and deliver to Lessor a Certificate of Acceptance for the Equipment within 15
days after the Equipment is delivered to Lessee. Unless earlier terminated or
canceled by Lessor, this Lease Agreement shall expire upon the expiration of the
number of months (following Lessee's acceptance of the Equipment) set forth in
"Initial Term". This Lease Agreement shall be automatically continued and
renewed on a yearly basis for successive yearly terms, unless and until
otherwise terminated as hereinafter provided. Lessor or Lessee may terminate
this Agreement at the end of the initial fixed term or at the end of any renewal
period by giving written notice to the Lessor at least sixty (60) days prior to
the end of said initial fixed term or (as applicable) the anniversary date of
the annual automatic renewal period.
9. NO ORAL MODIFICATIONS; NO WAIVER. No provision of this Lease Agreement
shall be modified or rescinded unless in writing signed by a duly authorized
representative of Lessor. Waiver by Lessor of any provision hereof in one
instance shall not constitute a waiver as to any other instance.
10. LIMITED PREARRANGED AMENDMENTS; SPECIFIC POWER OF ATTORNEY. In the event
it is necessary to amend the terms of this Lease Agreement to reflect a change
in one or more of the following conditions: (a) Lessor's actual cost of
procuring the Equipment, or (b) Lessor's actual cost of providing the Equipment
to Lessee, or (c) A change in rental payments as a result of (a) or (b), above,
or (d) Description of the Equipment. Lessee agrees that any such amendment
shall be described in a letter from Lessor to Lessee, and unless 15 days after
the date of such letter Lessee objects in writing to Lessor, this Lease
Agreement shall be deemed amended and such amendments shall be incorporated in
this Lease Agreement herein as if originally set forth. A copy of such amended
lease will be delivered to Lessee promptly. Lessee grants to Lessor a specific
power of attorney for Lessor to use as follows: (1) Lessor may sign and file on
Lessee's behalf any document Lessor deems necessary to perfect or protect
Lessor's interest in the Equipment or pursuant to the Uniform Commercial Code;
and (2) Lessor may sign, endorse or negotiate for Lessor's benefit any
instrument representing proceeds from any policy of insurance covering the
Equipment to the extent that Lessee is in default under this Lease.
11. LOCATION. The Equipment shall be kept at the location specified above or,
if none is specified, at Lessee's address as set forth above and shall not be
moved without Lessor's prior written consent.
12. USE. Lessee shall use the Equipment in a careful manner, shall comply with
all laws relating to its possession, use, or maintenance, and shall not make any
alterations, additions, or improvement to the Equipment without Lessor's prior
written consent. All additions, repairs or improvements made to the Equipment
shall belong to Lessor.
13. OWNERSHIP; PERSONALITY. The Equipment is, and shall remain, the property
of Lessor, and Lessee shall have no right, title, or interest in the Equipment
except as expressly set forth in this Lease Agreement. The Equipment shall
remain personal property even though installed in or attached to real property.
14. SURRENDER. By this Lease, Lessee acquires no ownership rights in the
Equipment, and has no option to purchase same unless stated in Paragraph 24 or
by addendum to this Lease Agreement. Upon the expiration, or earlier
termination or cancellation of this Lease, or in the event of a default under
Paragraph 21, hereof, Lessee, at its expense, shall return the Equipment in good
repair, ordinary wear and tear resulting from property use thereof alone
excepted, by delivering it, packed and ready for shipment, to such place or
carrier in the continental United States as Lessor may specify.
15. LOSS AND DAMAGE. Lessee shall at all times after signing this Lease
Agreement bear the entire risk of loss, theft, damage or destruction of the
Equipment from any cause whatsoever, and no loss, theft, damage or destruction
of the Equipment shall relieve Lessee of the obligation to pay lease or to
comply with any other obligation under this Lease Agreement. In the event of
damage to any part of the Equipment, Lessee shall immediately place the same in
good repair at Lessee's expense. If Lessor determines that any part of the
Equipment is lost, stolen, destroyed, or damaged beyond repair, Lessee shall, at
Lessee's option, do one of the following: (a) Replace the same with like
equipment in good repair, acceptable to Lessor, or (b) Pay Lessor in cash the
following: (i) all amounts due by Lessee to Lessor under this Lease Agreement up
to the date of the loss; (ii) the accelerated balance of the total amounts due
for the remaining term of this Lease Agreement attributable to said item,
discounted to the present value at a discount rate of 5% as of the date of loss;
provided, however, that, if at the time of such loss or damage beyond repair,
Lessee is not in default hereunder, the determination of whether to proceed
under clause (a) or (b) hereof shall be made by Lessor and Lessee jointly. Upon
Lessor's receipt of payment as set forth above, Lessee shall be entitled to
title to the Equipment without any warranties. If insurance proceeds are used
to fully comply with this subparagraph, the balance of any such proceeds shall
go to Lessee to compensate for loss of use of the Equipment for the remaining
term of the Lease Agreement.
16. INSURANCE, LIENS; TAXES. Lessee shall provide and maintain insurance
against loss, theft, damage, or destruction of the Equipment in an amount not
less than the full replacement value of the Equipment, with loss payable to
Lessor subject to Section 15.
Lessee also shall provide and maintain comprehensive general all-risk liability
insurance including but not limited to product liability coverage, insuring
Lessor and Lessee with severability of interest endorsement, or its equivalent,
against any and all loss or liability for all damages, either to persons or
property or otherwise, which might result from or happen in connection with the
condition, use or operation of the Equipment, with such limits and with an
insurer satisfactory to Lessor. Each policy shall expressly provide that said
insurance as to Lessor and its assigns shall not be invalidated by any act,
omission, or neglect of Lessee and cannot be canceled without 30 days prior
written notice to Lessor. As to each policy Lessee shall furnish to Lessor a
certificate of insurance from the insurer, which certificate shall evidence the
insurance coverage required by this paragraph. Lessor shall have no obligation
to ascertain the existence of or provide any insurance coverage for the
Equipment or for Lessee's benefit. If Lessee fails to provide such insurance,
Lessor will have the right but no obligation after 10 business days' notice to
Lessee, to have such insurance protecting Lessor placed at Lessee's expense.
Such placement will result in an increase in Lessee's periodic payments, such
increase being attributed to costs of such insurance. Lessee shall keep the
Equipment free and clear of all levies, liens and encumbrances. Lessee shall pay
all charges and taxes (local, state, and federal) which may now or hereafter be
imposed upon the ownership, leasing, rental, sale, purchase, possession, or use
of the Equipment, excluding, however, all taxes on or measured by Lessor's net
income. If Lessee fails to pay said charges or taxes, Lessor shall have the
right, but shall not be obligated, to pay such charges or taxes, unless the same
are being disputed by Lessee pursuant to a proceeding commenced in good faith
and which diligently is being pursued and provided reserves with respect thereto
have been placed on the books of Lessee in accordance with GAAP. In that event,
Lessor shall notify Lessee of such payment and Lessee shall repay to Lessor the
cost thereof within 15 days after such notice is mailed to Lessee.
17. INDEMNITY. Lessee shall indemnify Lessor against any claims, actions,
damages, or liabilities including all attorney fees, arising out of or connected
with Equipment, except for any claims, actions, damages or liabilities which are
the result of any action by Lessor or its agents which constitutes gross
negligence or willful or wanton misconduct. Such indemnification shall survive
the expiration, cancellation, or termination of this Lease Agreement. Lessee
waives any immunity Lessee may have under any industrial insurance act, with
regard to indemnification of Lessor.
18. ASSIGNMENT BY LESSOR. Any assignee of Lessor shall have all of the rights
but none of the obligations of Lessor under this Lease Agreement. Lessee shall
recognize and hereby consents to any assignment of this Lease Agreement by
Lessor, and shall not assert against the assignee any defense, counterclaim, or
setoff that Lessee may have against Lessor. Subject to the foregoing, this
Lease Agreement inures to the benefit of and is binding upon the heirs,
devisees, personal representatives, survivors, successors in interest, and
assigns of the parties hereto. Lessor shall promptly notify Lessee of any such
assignment.
19. SERVICE CHARGES; INTEREST. If Lessee shall fail to make any payment
required by this Lease Agreement within 10 days of the due date thereof, Lessee
shall pay to Lessor a service charge of 5% of the amount due; provided, however,
that not more than one such service charge shall be made on any delinquent
payment, regardless of the length of the delinquency. In addition, Lessee shall
pay to Lessor any actual additional expenses incurred by Lessor in collection
efforts, including but not limited to long-distance telephone charges and travel
expenses. Lessee shall pay to Lessor interest on any delinquent payment or
amount due under this Lease Agreement from the due date thereof until paid, at
the lesser of the maximum rate of interest allowed by law or 18% per annum.
20. TIME OF ESSENCE. Time is of the essence of this Lease, and this provision
shall not be implied waived by the acceptance on occasion of late or defective
performance.
21. DEFAULT. Lessee shall be in default if: (a) Lessee shall fail to make any
payment due under the terms of this Lease Agreement for a period of 10 days from
the due date thereof; provided, that Lessee shall have an opportunity to cure
such failure within ten (10) days after written notice from Lessor specifying
such failure, or (b) Lessee shall fail to observe, keep, or perform any
provision of this Lease, and such failure shall continue for a period of 10
days; provided, that Lessee shall have an opportunity to cure such failure
within ten (10) days after written notice from Lessor specifying such failure,
or (c) Lessee has made any misleading or false statement in connection with
application for or performance of this Lease Agreement, or (d) The Equipment or
any part thereof shall be subject to any lien, levy, seizure, assignment,
transfer, bulk transfer, encumbrance, application, attachment, execution,
sublease, or sale without prior written consent of Lessor, or (e) Lessee dies or
ceases to exist, or (f) Lessee defaults on any other agreement it has with
Lessor and Lessor notifies Lessee that such default is a default hereunder, or
(g) Any guarantor of this Lease Agreement defaults on any obligation to Lessor
or any of the above listed events of default occur with respect to any guarantor
or Lessee or any such guarantor files or has filed against it a petition under
the bankruptcy laws.
22. REMEDIES. If Lessee is in default, Lessor, with or without notice to
Lessee, shall have the right to exercise any one or more of the following
remedies, concurrently or separately, and without any election of remedies being
deemed to have been made: (a) Lessor may enter upon Lessee's premises and
without any court order or other process of law may repossess and remove the
Equipment, or render the Equipment unusable without removal, either with or
without notice to Lessee. Lessee hereby waives any trespass or right of action
for damages by reason of such entry, removal or disabling. Any such
repossession shall not constitute a termination of this Lease Agreement unless
Lessor so notifies Lessee in writing; (b) Lessor may require Lessee, at its
expense, to return the Equipment in good repair, ordinary wear and tear
resulting from proper use thereof alone excepted, by delivering it, packed and
ready for shipment to such place or carrier as Lessor may specify; (c) Lessor
may cancel or terminate this Lease Agreement and
may retain any and all prior payments paid by Lessee; (d) Lessor may declare all
sums due and to become due under this Lease Agreement immediately due and
payable, including as to any or all items of Equipment, without notice or demand
to Lessee; (e) Lessor may release the Equipment, without notice to Lessee, to
any third party, upon such terms and conditions as Lessor alone shall determine,
or may sell the Equipment, without notice to Lessee, at private or public sale,
at which sale Lessor may be the purchaser; (f) Lessor may xxx for and recover
from Lessee the sum of all unpaid leases and other payments due under this Lease
Agreement then accrued, all accelerated future payments due under this Lease
Agreement discounted to their present value at a discount rate of 5% as of the
date of default, plus Lessor's estimate at the time this Lease Agreement was
entered into of Lessor's residual interest in the Equipment, reduced to present
value at a discount rate of 5% as of the date of default, less the net proceeds
of disposition, if any, of the Equipment; (g) To pursue any other remedy
available at law, by statute or in equity. No right or remedy herein conferred
upon or reserved to Lessor is exclusive of any other right or remedy herein, or
by law or by equity provided or permitted, but each shall be cumulative of every
other right or remedy given herein or now or hereafter existing by law or equity
or by statute or otherwise, and may be enforced concurrently therewith or from
time to time. No single or partial exercise by Lessor of any right or remedy
hereunder shall preclude any other or further exercise of any other right or
remedy. If Lessor shall exercise any of the remedies set forth in clause (e),
the amount owing by Lessee hereunder shall be reduced by the net proceeds
received by Lessor as a result thereof.
23. MULTIPLE LESSEES. Lessor may, with the consent of any one of the Lessees
hereunder, modify, extend or change any of the terms hereof without consent or
knowledge of the others, without in any way releasing, waiving or impairing any
right granted to Lessor against the others. Lessees are jointly and severally
responsible and liable to Lessor under this Lease Agreement.
24. ADDITIONAL TERMS AND CONDITIONS. Provided it is not in default under
the terms and conditions of the above Lease, Lessee shall * .
/*/ Confidential portions omitted and filed separately with the Commission.
EXHIBIT D
---------
TERMS AND CONDITIONS OF SOFTWARE LICENSE AND SALE
-------------------------------------------------
1. (a) The goods to be shipped to you will include a copy of computer
software on a microchip (the "Copy"). This software (the "Software") is
protected under copyrights, trade secret rights and other proprietary rights
owned by or licensed to Seller (collectively, the "Seller Rights").
(b) Seller licenses the Copy to Buyer and, to the extent that it has the
right and power to do so, grants buyer the non-exclusive right and license under
the Seller Rights to use the Copy solely for the purpose of using the goods
supplied hereunder to perform phototherapeutic keratectomy, photorefractive
keratectomy, or any other procedures which Seller authorizes Buyer in writing to
use such goods to perform. Notwithstanding any other provision of this
Agreement, as between Seller and Buyer, Seller retains title to and ownership of
the Copy and of all Seller Rights.
(c) Except as expressly provided in Section 1(b), Seller does not grant
Buyer any right or license under the Seller Rights, including without limitation
any right or license to copy, create derivative works based on, distribute, or
publicly display or perform the Software or Copy, except that Seller grants
Buyer a non-exclusive license to create copies of the Software (or parts
thereof) in Random Access Memory to the extent that doing so is a necessary step
in using the Copy for the purposes authorized under paragraph 1(b) (the "RAM
Copy License"). The RAM Copy License may not be assigned, sublicensed or
otherwise transferred without Seller's prior written consent, which will not be
unreasonably withheld provided that such transfer is in connection with a
transfer of the goods acquired under this Agreement to a person or entity whose
use or anticipated use of such goods is reasonably acceptable to Seller.
(d) The term of the rights and licenses granted to Buyer under Sections
1(b) and 1(c) shall commence upon shipment of the goods and shall continue
thereafter in perpetuity, unless terminated as provided in this Section 1(d).
Such licenses and rights shall automatically terminate, without notice, upon any
breach by Buyer of this Agreement or any infringement or misappropriation by
Buyer of any Seller Rights.
2. All sales are subject to the terms and conditions hereof. No modifications
or additions hereto shall be binding on Seller unless consented to in writing
signed by Seller's duly authorized representative.
3. Goods shall be shipped to Buyer "FOB Waltham". Risk of loss and/or damage
to the goods shall pass to Buyer at such time as the goods are shipped to the
ship-to location on page one (1) of the contract ("Risk of Loss Date").
4. All Sales, use, VAT, duties, customs and similar taxes and charges which
the Seller may be required to pay or collect with respect to the goods covered
by this order shall be charged to Buyer, except as otherwise required by law.
5. Shipping, delivery and installation dates are approximate and are based
upon prompt receipt of all necessary information. If any shipment, delivery, or
installation hereunder shall be delayed through any act or neglect of the
carrier or any other person, including sub-contractors and suppliers, or by any
other labor difficulties, shortages of or inability to obtain shipping space or
transportation, fire, accident, government seizure or requisition, force
majeure, or by reason of any other cause whatsoever, whether domestic or
foreign, whether direct or indirect beyond the reasonable control of Seller.
Seller shall not be responsible therefor, and shipment, delivery, or
installation may be postponed or cancelled by Seller at its option without
liability hereunder.
6. In the event of a breach by Seller of any of the terms, provisions, or
warranties under this agreement, or a violation of any representation hereunder,
Seller's sole and exclusive liability and Buyer's sole and exclusive remedy
shall be limited to either (a) repair or replacement of any goods which are the
subject of any such breach, default or violation or (b) refund of the purchase
price of such goods, at Seller's option. Any claims shall be subject to the
provisions of Paragraph 5 above, and IN NO EVENT SHALL SELLER BE LIABLE FOR LOST
PROFIT, INJURY TO GOOD WILL OR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
7. This contract and any dispute arising thereunder, unless otherwise
stipulated or agreed to in writing, shall be construed according to and governed
by the laws of the Commonwealth of Massachusetts, USA without regard to the U.N.
Convention on Contracts for International Sales of Goods which otherwise might
form a part of such laws. THE PARTIES CONSENT TO THE SOLE JURISDICTION OF THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS FOR THE RESOLUTION OF ALL DISPUTES.
8. If any item or condition or part thereof contained is held invalid, the
remaining terms and conditions of this contract shall not be affected thereby.
9. No claim or right arising out of a breach of this contract can be
discharged in whole or in part by a waiver or renunication of the claim or right
unless the waiver or renunication is in writing signed by the aggrieved party.
10. Any deposits and/or down payments made or paid hereunder are non-
refundable.
TERMS AND CONDITIONS OF SOFTWARE LICENSE AND SALE (DOMESTIC)
------------------------------------------------------------
1. Satisfaction by Buyer of the requirements set forth in the attached "How to
Place an Order" shall constitute Buyer's commitment to purchase the goods
indicated on the front and license the Software (defined below) on the terms and
conditions specified herein. Seller reserves the right to reject all orders
prior to shipment in its sole discretion.
2. (a) The goods to be shipped to you will include a copy of computer
software on a microchip (the "Copy"). This software (the "Software") is
protected under copyrights, trade secret rights and other proprietary rights
owned by or licensed to Seller (collectively, the "Seller Rights").
(b) Seller licenses the Copy to Buyer and, to the extent that it has the
right and power to do so, grants buyer the non-exclusive right and license under
the Seller Rights to use the Copy solely for the purpose of using the goods
supplied hereunder to perform phototherapeutic keratectomy, photorefractive
keratectomy, or any other procedures which Seller authorizes Buyer in writing to
use such goods to perform. Notwithstanding any other provision of this
Agreement, as between Seller and Buyer, Seller retains title to and ownership of
the Copy and of all Seller Rights.
(c) Except as expressly provided in Section 20(b), Seller does not grant
Buyer any right or license under the Seller Rights, including without limitation
any right or license to copy, create derivative works based on, distribute, or
publicly display or perform the Software or Copy, except that Seller grants
Buyer a non-exclusive license to create copies of the Software (or parts
thereof0 in Random Access Memory to the extent that doing so is a necessary step
in using the Copy for the purposes authorized under paragraph 2(b) (the "RAM
Copy License"). The RAM Copy License may not be assigned, sublicensed or
otherwise transferred without Seller's prior written consent, which will not be
unreasonably withheld provided that such transfer is in connection with a
transfer of the goods acquired under this Agreement to a person or entity whose
use or anticipated use of such goods is reasonably acceptable to Seller.
(d) The term of the rights and licenses granted to Buyer under Sections
2(b) and 2(c) shall commence upon shipment of the goods and shall continue
hereafter in perpetuity, unless terminated as provided in this Section 2(d).
Such licenses and rights shall automatically terminate, without notice, upon any
breach by Buyer of this Agreement or any infringement or misappropriation by
Buyer of any Seller Rights.
3. Unless Buyer notifies Seller to the contrary in writing prior to shipment,
the goods shall be shipped by Seller to Buyer at the address set forth on the
front hereof.
4. All sales are subject to the terms and conditions hereof. No modifications
or additions hereto shall be binding on Seller unless consented to in writing
signed by Seller' duly authorized representative.
5. SELLER RESERVES THE RIGHT TO REJECT ALL ORDERS PRIOR TO SHIPMENT IN ITS
SOLE DISCRETION, EXCEPT AS SET FORTH IN THE ATTACHED "STATEMENT OF LIMITED
WARRANTIES," ALL WARRANTIES OF ANY NATURE, EXPRESS OR IMPLIED, INCLUDING ANY
WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED
AND DISCLAIMED.
6. To secure payment, title to the goods to be sold hereunder shall pass to
Buyer at such time as all amounts due to Seller hereunder are paid in full by
Buyer.
7. Goods shall be shipper to Buyer "FOB Destination". Risk of loss and/or
damage to the goods shall pass to Buyer at such time as the goods are delivered
to the ship-to location on page one (1) of the contract ("Risk of Loss Date").
8. All Sales use, VAT, duties, customs and similar taxes and charges which the
Seller may be required to pay or collect with respect to the goods covered by
this order shall be charged to the Buyer, except as otherwise required by law.
9. Shipping, delivery and installation dates are approximate and are based
upon prompt receipt of all necessary information. If any shipment, delivery or
installation hereunder shall be delayed through any act or neglect of the
carrier or any other person, including sub-contractors and suppliers, or by any
other labor difficulties, shortages of or inability to obtain shipping space or
transportation, fire, accident, government seizure or requisition, force
majeure, or by reason of any other cause whatsoever, whether domestic or
foreign, whether direct or indirect beyond the reasonable control of Seller,
Seller shall not be responsible therefor, and shipment, delivery or installation
may be postponed or canceled by Seller at its option without liability
hereunder.
10. All claims of the Buyer arising under this contract shall be in writing and
notification thereof shall be delivered to the Seller no later than seven (7)
days after delivery to Buyer of the goods in question. Seller's representatives
shall be given the opportunity to investigate such claims. If the Buyer fails
to comply with the provisions of this paragraph, Buyer shall be deemed to have
approval and accepted the goods shipped or delivered under this contract. If
any goods delivered to Buyer are not in accordance with contract specifications,
Seller shall have the right, in its discretion, either to replace such non-
conforming goods or to refund the purchase price application thereto. No goods
shall be returned to Seller without Seller's written consent. No suit or legal
proceeding arising under this contract shall in any event be maintainable
against Seller unless commenced or made against Seller within one (1) year after
the expiration of the applicable warranty period and the lapse of such period
shall be complete bar to any recovery in any such suit or proceeding.
11. In the event of a breach by Seller of any of the terms, provisions, or
warranties under this agreement, or a violation of any representation hereunder,
Seller's sole and exclusive liability and Buyer's sole and exclusive remedy
shall be limited to either (a) repair ro replacement of any goods which are the
subject of any such breach, default or violation or (b) refund of the purchase
price of such goods, at Seller's option. Any claims shall be subject to the
provisions of Paragraph 9 above, and IN NO EVENT SHALL SELLER BE LIABLE FOR LOST
PROFIT, INJURY TO GOOD WILL OR ANY OTHER SPECIAL INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
12. If Buyer becomes insolvent or proceedings are instituted to declare Buyer
bankrupt, or a receiver is appointed Buyer in any court, Seller may, at its
option, terminate this contract, and upon such termination by Seller, any or all
claims or demands against Buyer held by Seller shall immediately become due and
payable. The Buyer represents to the Seller that he is financially solvent as of
the date of signing this Contract of Sale.
13. This contract and any dispute arising thereunder, unless otherwise
stipulated or agreed to in writing, shall be construed according to and governed
by the laws of the Commonwealth of Massachusetts, USA without regard to the U.N.
Convention on Contracts for International Sales of Goods which otherwise might
form a part of such laws. THE PARTIES CONSENT TO THE SOLE JURISDICTION OF THE
COURTS OF THE COMMONWEALTH OF MASSACHUSETTS FOR THE RESOLUTION OF ALL DISPUTES.
14. If any item or condition or part thereof contained is held invalid, the
remaining terms and conditions of this contract shall not be affected thereby.
15. This writing is intended by the parties as a final expression of their
agreement and is intended also as a complete and exclusive statement of the
terms of their agreement. No course of prior dealings between the parties
and no usage of the trade shall be relevant to supplement or explain any term
used in this contract. Whenever a term defined by the Uniform Commercial Code is
used in this contract the definition contained in the Code is to control, except
that the term "ex works" shall have the meaning ascribed to by the International
Chamber of Commerce as an incoterm.
16. No claim or right arising out of a breach of this contract can be
discharged in whole or in part y a waiver or renunciation of the claim or right
unless the waiver or renunciation is in writing signed by the aggrieved party.
17. Any deposits and/or down payments made or paid hereunder are non-
refundable.
18. Buyer hereby grants Seller a security interest in the goods and in the
proceeds and products thereof, to the fullest extent a security interest therein
is available under applicable law. Said security interest shall remain in
effect until the goods have been paid in full. Buyer agrees to sign such
separate security agreements, financing statements, or other documents which
(s)he may deem necessary to protect Seller's security interest or ownership from
the claims of third parties.
EXHIBIT E
---------
Summit Number: F440
Technology FORM/DATA SHEET Rev. B ECO#3410
Title: OMNICARD RETREATMENT CREDIT REQUEST Page 1 of 2
Summit Technology, Inc.
Retreatment Policy
1. For the purposes hereof, the term "Retreatment" shall mean the performance
of a refractive procedure with a licensed Summit excimer laser system on
the same human eye by reason of the ineffectiveness in whole or in part of
the initial refractive procedure performed on that eye with the same
licensed Summit excimer laser system; provided that the retreatment so
performed after the initial procedure is within two (2) years from the date
of the initial procedure and by the same practitioner who performed the
initial procedure.
2. Each Licensee under a Summit Laser Patent License shall be entitled to
obtain a credit under its Summit Patent License for any bona fide
Retreatment upon submitting to Summit a written application in the form
provided by Summit for this purpose from time to time, accompanied by
documentation in form and substance satisfactory to Summit evidencing that
the refractive procedure with respect to which such credit is applied for
is in fact a bona fide Retreatment.
3. Summit reserves the right to reject any application for a credit hereunder
for any reason and to amend this policy in any and all respects.
4. Each Licensee shall keep such records of all Retreatments and in such
detail as may be as required from time to time by Summit.
Summit Number: F440
Technology FORM/DATA SHEET Rev. B ECO#3410
Title: OMNICARD RETREATMENT CREDIT REQUEST Page 2 of 2
APPLICATION FOR RETREATMENT CENTER
Instructions: Please complete this form, sign it and fax or mail it to:
Summit Technology, Inc., Omnicard Department, 00 Xxxxxxx Xxxxx, Xxxxxxx, XX
00000, Fax No. (000) 000-0000.
1. Patient name and/or I.D. number:
-----------------------------------------
2. Original refractive procedure treatment date:
----------------------------
3. Original attempted correction: diopters
-----------------------------------------
CYL: SPH:
--------------------------------------------
4. Retreatment date:
--------------------------------------------------------
5. Reason for Retreatment:
--------------------------------------------------
6. Attempted correction for Retreatment diopters
-------------------------------------
CYL: SPH:
--------------------------------------------
The undersigned confirm that (a) the information set forth above is true
and correct, and (b) they will, if requested, cooperate with Summit in verifying
the foregoing information by making available to Summit relevant records and
patient files.
LICENSEE
--------------------------------
Signature and print name
TREATING PHYSICIAN CONTACT NAME
-------------------------------- ---------------------------------
Signature and print name
PHONE NUMBER
Date:--------------------------- ---------------------------------
Laser Serial Number: Omnicard # Used for
----------- Retreatment:
--------------------
