Exhibit 10.2
Confidential Materials omitted and filed separately
with the Securities and Exchange Commission. Asterisks
denote omissions.
LICENSE AND MANUFACTURING AGREEMENT
BETWEEN
VISION-SCIENCES, INC.
AND
3DV SYSTEMS LTD.
----------------
This License and Manufacturing Agreement ("Agreement") is made as of
August 6, 1998 between (1) Vision-Sciences, Inc. ("VSI"), a Delaware corporation
with its principal place of business at ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ , and (2) 3DV Systems Ltd. ("3DV"), an Israeli company with its principal
place of business at ▇▇▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇.
RECITALS:
A. VSI is engaged in the development and sale of endoscopes and related
technologies and products, and 3DV is engaged in the development and manufacture
of 3D digital cameras and 3D imaging technologies and the design and development
of products embodying those technologies; and
B. VSI desires to license from 3DV certain exclusive rights with
respect to 3DV's technologies in certain fields and to acquire exclusively from
3DV (subject to specified exceptions) certain products manufactured by or on
behalf of 3DV and having application in or used in those fields in accordance
with the terms hereof; and
C. 3DV desires to grant such rights and manufacture and sell such
products in accordance with the terms hereof; and
D. The parties, together with RDC ▇▇▇▇▇▇ Development Corporation Ltd.,
a company organized under the laws of the State of Israel ("RDC"), are entering
into an Investment Agreement of even date herewith (the "Investment Agreement")
providing for among other things an investment by VSI in 3DV and the
establishment of a close strategic alliance between the parties.
NOW, THEREFORE, for and in consideration of the foregoing, of the
mutual covenants and undertakings contained herein and of other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties intending to be legally bound, hereby agree as
follows:
1. Definitions
-----------
1.1. "3DV Component" means a camera component or other imaging
module or device that is covered by 3DV Proprietary Rights, or
made by a process covered by 3DV Proprietary Rights, which 3DV
Proprietary Rights are enforceable in any country in which
the camera (or component thereof) or other imaging module or
device is made, used or sold, and which camera (or component
thereof) or device is at the lowest level of integration that
is reasonably practicable, such as a camera or other imaging
component for inclusion in an endoscope or other product of
VSI or an Approved Assign.
1.2. "3DV Proprietary Rights" means any and all rights of 3DV or
its Affiliates, anywhere in the world, with respect to (i) the
patents and patent applications (including continuations and
continuations in part to the extent claiming the same or
similar subject matter) described on Exhibit I (the "Basic
Patents") and (ii) any subsequent patents or patent
applications covering improvements, modifications and
enhancements to the Basic Patents and claiming subject matter
which could not be lawfully practiced without a license or
right to use the Basic Patents, together with all trade
secrets and other intellectual property rights of 3DV
disclosed in the Basic Patents or in any of such other patents
or patent applications.
1.3. "Affiliate" means, with respect to a corporation or other
entity, any entity controlling, controlled by, or under common
control with such first entity.
1.4. "Approved Assigns" means any assignee of VSI of any rights and
obligations of VSI under this Agreement which shall be
approved by 3DV in writing; provided that 3DV hereby agrees
that Asahi Optical Co., a company organized under the laws of
Japan ("AOC") shall constitute an Approved Assign.
1.5. "Claims" has the meaning set forth in Section 5.1.
1.6. "Confidential Information" has the meaning set forth in
Section 8.1.
1.7. "Digital Still Camera" means a camera designed and/or used
primarily to capture still images (as opposed to full motion
video) in digital form, which camera includes a 3DV Component
or otherwise is covered by 3DV Proprietary Rights, or made by
a process covered by 3DV Proprietary Rights, which 3DV
Proprietary Rights are enforceable in any country in which the
device is designed, made, used or sold.
1.8. "Disclosing Party" shall have the meaning given in Section
8.1.
2
Confidential Materials omitted and filed separately with the
Securities and Exchange Commission. Asterisks denote
omissions.
1.9. "EO Element" means the electro optic shutter technology
described in the Basic Patents.
1.10. "Exclusive VSI Field" means the field represented by the use,
market and application of devices designed and/or used
primarily in, or capable of substantial use in, any of the
following application areas: (i) [**] systems; (ii) [**]
systems; (iii) [**] systems; and (iv) [**] systems [**].
1.11. "Nonconformities" has the meaning set forth in Section 3.4.
1.12. "Product" means a device designed, made, used, offered for
sale or sold by or for VSI or an Approved Assign, which device
includes a 3DV Component or otherwise is covered by 3DV
Proprietary Rights, or made by a process covered by 3DV
Proprietary Rights, which 3DV Proprietary Rights are
enforceable in any country in which the device is designed,
made, used or sold.
1.13. "Receiving Party" shall have the meaning given in Section 8.1.
2. Licenses and Other Intellectual Property Matters
------------------------------------------------
2.1. Subject to the provisions of Article 3, 3DV hereby grants to
VSI a worldwide, perpetual (subject to the provisions of
Section 10), royalty-free license under all 3DV Proprietary
Rights to:
2.1.1. Design, have designed, make, have made, use, offer for sale,
sell and import Products, and adapt, distribute, perform and
display designs, computer software and other works of
authorship covered by 3DV Proprietary Rights, on a sole and
exclusive basis within the Exclusive VSI Field, including all
rights to the integration of 3DV Components into such products
and the distribution and sale of such products, in the
Exclusive VSI Field, but excluding the right to manufacture
and supply the 3DV Component (or the EO Element, as the case
may be), which shall be reserved exclusively to 3DV except in
the specific circumstances described in Section 3.1,
2.1.2. Design, have designed, make, have made, use, offer for sale,
sell and import Digital Still Cameras, and adapt, distribute,
perform and display designs, computer software and other works
of authorship covered by 3DV Proprietary Rights in connection
with Digital Still Cameras, on a nonexclusive basis, but
excluding the right to manufacture and supply the 3DV
Component (or the EO Element, as the case may be), which shall
be reserved exclusively to 3DV except in the specific
circumstances described in Section 3.1.
3
2.2. VSI shall have the right to sublicense all or any part of its
rights under Section 2.1 to any Approved Assign or to assign
all or any part of its rights under Section 2.1 together with
its other relevant rights under this Agreement; provided that
such Approved Assign is bound to respect the rights of 3DV
pursuant to this Agreement.
2.3. Notifications of Related Inventions
2.3.1. 3DV shall promptly upon request or otherwise on or about every
six months during the term of this Agreement disclose to VSI
any invention, discovery, design, computer software or other
technology having applications in the Exclusive VSI Field and
which relates to the subject matter described by the 3DV
Proprietary Rights that is created, conceived or reduced to
practice by 3DV or its personnel during the term of this
Agreement, whether pursuant to Article 3 or otherwise. A
disclosure shall consist of a written summary sufficient to
convey a clear understanding of the nature, purpose, operation
and characteristics of the invention, discovery, design,
computer software or other technology to the extent available.
Upon request, 3DV shall provide to VSI any information
reasonably required by VSI for the evaluation or use thereof.
3DV shall consult with VSI concerning the patenting or other
legal protection of each such invention, discovery, design,
computer software or other technology. After doing so, , it
shall be 3DV's right to apply for, prosecute and maintain
patents and other forms of legal protection included in the
3DV Proprietary Rights and having applications in the
Exclusive VSI Field; provided that 3DV shall not unreasonably
refuse to take actions to apply for, prosecute and maintain
patents and other forms of legal protection when such actions
are reasonably requested by VSI, and if 3DV does refuse to
take such actions, 3DV shall assign to VSI all right, title
and interest in and to the affected patent, patent
application, or other legal protection to the extent, and only
to the extent, necessary to enable VSI to apply for, prosecute
and maintain in its name and on its behalf, and VSI thereafter
shall have the right, but not the obligation, to apply for,
prosecute and maintain, such patent, patent application or
other form of legal protection without consulting 3DV.
2.3.2. VSI shall promptly upon request or otherwise on or about every
six months during the term of this Agreement disclose to 3DV
any invention, discovery, design, computer software or other
technology having applications in the Exclusive VSI Field and
which relates to the subject matter described by the 3DV
Proprietary Rights that is created, conceived or reduced to
practice by VSI or its personnel during the term of this
Agreement (collectively, "VSI Rights"), whether pursuant to
Article 3 or otherwise. A disclosure shall consist of a
written summary sufficient to convey a clear understanding of
the nature, purpose, operation and characteristics of the
invention, discovery, design, computer software or other
technology. Upon request, VSI shall provide to
4
3DV any information reasonably required by 3DV for the
evaluation or use thereof. VSI shall consult with 3DV
concerning the patenting or other legal protection of each
such invention, discovery, design, computer software or other
technology. After doing so, it shall be VSI's right to apply
for, prosecute and maintain patents and other forms of legal
protection included in the VSI Rights and having applications
in the Exclusive VSI Field; provided that VSI shall not
unreasonably refuse to take actions to apply for, prosecute
and maintain patents and other forms of legal protection when
such actions are reasonably requested by 3DV, and if VSI does
refuse to take such actions, VSI shall assign to 3DV all
right, title and interest in and to the affected patent,
patent application, or other legal protection to the extent,
and only to the extent, necessary to enable 3DV to apply for,
prosecute and maintain in its name and on its behalf, 3DV
thereafter shall have the right, but not the obligation, to
apply for, prosecute and maintain, such patent, patent
application or other form of legal protection without
consulting VSI.
2.3.3. 3DV shall promptly upon request or otherwise on or about every
six months disclose to any Approved Assign any patents and
patent applications of 3DV having application in the Exclusive
VSI Field and which is or, upon the establishment of any such
rights of VSI as aforesaid will be, includable within the
meaning of 3DV Proprietary Rights and the Approved Assign
shall promptly upon request or otherwise about every six
months disclose to 3DV any patents or patent applications of
the Approved Assign or its affiliates having application in
the subject matter areas described by the 3DV Proprietary
Rights.
2.4. The parties acknowledge that certain devices outside the
Exclusive VSI Field may be capable of incidental uses in the
Exclusive VSI Field and that such incidental uses by third
parties may be difficult or impossible to discover or control.
3DV, however, shall not directly or indirectly engage, or
assist any other person, corporation or other entity to
engage, in the design, development, manufacture, sale,
marketing or use of any device in the VSI Field anywhere in
the world during the term of this Agreement. 3DV acknowledges
that its obligations under this Section 2.6 are founded upon
valuable consideration, necessary to protect the legitimate
interests of VSI, and reasonable with respect to geographic
and temporal scope.
3. Manufacturing of 3DV Components
-------------------------------
3.1. Notwithstanding the provisions of Article 2, 3DV shall have
the exclusive right to manufacture for VSI and Approved
Assigns, and sell to VSI and Approved Assigns, the 3DV
Component to be included in a Product manufactured and sold by
or for VSI or an Approved Assign; provided, however, that such
right shall be suspended with respect to any model of 3DV
Component, and VSI and
5
Approved Assigns may manufacture or have manufactured such
model of 3DV Component pursuant to the license granted in
Section 2.1, if (i) 3DV elects by written notice to VSI or an
Approved Assign not to manufacture that model of 3DV
▇▇▇▇▇▇▇▇▇, (▇▇) ▇▇▇ does not or cannot manufacture that model
of 3DV Component and sell such 3DV Component to VSI or an
Approved Assign for a price that is fair and reasonable and
which is at a price that is the most favorable price offered
or granted to any non-Affiliate of 3DV, or (iii) 3DV does not
or cannot supply that model of 3DV Component in quantities
sufficient to meet the requirements of 3DV and VSI or an
Approved Assign according to the pre-arranged schedule as
determined from time to time. Notwithstanding the foregoing,
the exclusive manufacturing rights reserved to 3DV shall not
expire or otherwise be suspended under this Section 3.1 unless
and until VSI or the Approved Assigns, as the case may be,
shall have provided reasonable notice of the basis for such
expiration or suspension and an opportunity to cure or
otherwise address the problem that would otherwise give rise
to such basis for the expiration or suspension of 3DV's
manufacturing rights.
3.2. At the request of VSI or an Approved Assign, 3DV shall
cooperate in determining specifications, performance
requirements and other qualities of 3DV Components necessary
for their integration into Products. If the design or
development of 3DV Components for inclusion into Products will
require significant research or development, 3DV and VSI or an
Approved Assign may enter into an agreement concerning
collaborative research or joint development relating thereto.
Such an agreement may provide terms for the design and
development of 3DV Components by 3DV in accordance with
specifications and a schedule consistent with the requirements
of VSI or an Approved Assign and provide for testing of 3DV
Components to ensure compliance with such specifications. 3DV
also shall cooperate in any inspection or validation of its
manufacturing processes that may be required by regulatory
authorities having jurisdiction over 3DV Components or
Products.
3.3. At any time during the term of this Agreement, VSI or an
Approved Assign (each a "purchaser") may order 3DV Components
from 3DV by submitting a purchase order therefor to 3DV. The
price and delivery schedule and terms of payment for such 3DV
Components shall be negotiated in good faith between 3DV and
the purchaser, as the case may be. Unless 3DV elects not to
supply a model of 3DV Component, 3DV shall not unreasonably
refuse to accept, or delay its acceptance of, any such
purchase order in accordance with a pre-arranged schedule
determined from time to time, and if 3DV does so, clauses (i)
through (iii) of Section 3.1 shall apply. Upon the acceptance
of any such purchase order, 3DV shall deliver the 3DV
Components ordered, in accordance with the requirements of
this Agreement and the specifications, delivery schedule and
other requirements applicable under the purchase order. All
such
6
deliveries shall be F.O.B. the port of export (in accordance
with Incoterms 1990), unless the purchase order specifies
otherwise.
3.4. Prior to each delivery of 3DV Components, 3DV shall test the
3DV Components in accordance with any test protocol
applicable under the purchase order or otherwise agreed to
between 3DV and the purchaser. 3DV shall give the purchaser
reasonable advance notice of any such testing, and the
purchaser shall have the right to participate in any such
testing. For each 3DV Component that is required to be so
tested, 3DV shall provide the purchaser with detailed test
data demonstrating that the 3DV Component conforms to the
applicable test criteria. Upon delivery of each shipment of
3DV Components, and in addition to any testing by 3DV required
by this Section 3.4, the purchaser shall have seven 7days
from the date of receipt to inspect and test all or any part
of such shipment to determine whether the 3DV Components in
the shipment (i) fail to conform to any applicable
requirements of this Agreement and the relevant purchase order
or (ii) have any defects in materials and workmanship
(collectively, "Nonconformities"). If the purchaser does not
discover any Nonconformities during such period and report
such Nonconformities to 3DV promptly upon discovery, the
purchaser shall be deemed to have accepted the shipment. If
the purchaser discovers and reports any Nonconformities within
such period, then (x) if the purchaser has so inspected and
tested only part of the shipment, 3DV shall so inspect and
test, or pay for the inspection and testing of, the remainder
of the shipment, and (y) 3DV shall, at 3DV's expense, either
(A) promptly correct all Nonconformities found through such
inspection and testing or (B) replace such nonconforming 3DV
Components with conforming 3DV Components and, at 3DV's
request, cost and direction, the purchaser shall ship the
nonconforming 3DV Components back to 3DV. Once 3DV believes
it has corrected such Nonconformities, the purchaser shall
have another seven (7) day period to determine if there are
any Nonconformities in the shipment. If 3DV fails to correct
any material Nonconformity within seven (7) days after
receiving notice of such Nonconformity, the purchaser may
reject all or any part of the shipment containing the 3DV
Component with the Nonconformity.
3.5. 3DV shall invoice the purchaser for the price of any 3DV
Components ordered pursuant to this Article 3 upon the
shipment of such 3DV Components. Any properly invoiced such
amounts shall be payable 30 days after the purchaser's receipt
of 3DV's invoice or 15 days after the purchaser's acceptance
of the relevant 3DV Components, whichever is later.
3.6. For purposes of this Section 3 and solely with respect to AOC
as an Approved Assign hereunder, references in the definition
of the term 3DV Component in Section 1.1 to a camera (or
component thereof) or other imaging device shall mean and
refer to solely to an EO Element.
7
3.7. 3DV shall comply with all laws and regulations applicable to
its activities under this Section 3.
4. Representations and Warranties
------------------------------
4.1. The parties each represent and warrant that they have the
right, power and authority to enter into and to perform their
obligations under this Agreement.
4.2. 3DV represents and warrants that:
4.2.1. It is a corporation duly organized under the laws of Israel;
4.2.2. It has the right to grant the rights granted in Article 2;
4.2.3. This Agreement is not in violation of any obligation it has to
any third party;
3DV Components manufactured and sold by 3DV, and the subsequent use and resale
thereof, will not, to the best knowledge and belief of 3DV, infringe any patent,
trade secret, copyright, mask work right or other proprietary right of any third
party; and
4.3. VSI represents and warrants that:
4.3.1. It is a corporation duly organized under the laws of the State
of Delaware, United States of America; and
4.3.2. This Agreement is not in violation of any obligation it has to
any third party.
4.3.3. VSI and the Approved Assign have examined the Basic Patents,
were given adequate opportunity to ask questions and had
received all answers thereto and other information which they
had requested, all in satisfactory form and detail. VSI and
the Approved Assigns are fully aware that the technology of
3DV is at an early stage of development and that there can be
no assurances as to its feasibility or that it will ultimately
be matured or achieve the desired performance. VSI and the
Approved Assigns are experienced in the technological fields
which are relevant to 3DV's technology, and they are capable
of evaluating the economic risk which exists under these
conditions.
4.4. NEITHER PARTY MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTIES
OF ANY KIND (INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE).
8
5. Indemnity
---------
5.1. 3DV shall defend, indemnify and hold harmless VSI, Approved
Assigns, their customers and their respective directors,
officers, agents, employees and shareholders from and against
all claims, liabilities, suits, losses, damages and expenses
and any of the foregoing resulting from claims from third
parties, including costs and reasonable attorney's fees, but
excluding consequential or special damages ("Claims") relating
to or resulting from (i) the manufacture, of 3DV Components
manufactured by 3DV or (ii) any3DV Component manufactured and
sold by 3DV infringing upon, any patent, trade secret,
copyright, mask work right or other proprietary right of any
third party and 3DV shall take such commercially reasonable
actions as may facilitate or assist in the continued
manufacture, use and sale of such 3DV Component or modify the
design of the 3DV Component so as to render it noninfringing.
5.2. VSI and Approved Assign shall defend, indemnify and hold
harmless 3DV and its directors, officers, agents, employees
and shareholders from and against all Claims relating to or
resulting from (i) breach of any of the representations and
warranties made by VSI in Article 4, or (ii) the manufacture,
use or sale of Products manufactured and sold by VSI or
Approved Assign, as the case may be, except to the extent such
Claims are covered by Section 5.1.
5.3. In connection with any Claim covered by Section 5.1 or 5.2,
(i) the indemnifying party shall assume, at its cost and
expense, control of the defense or settlement of such Claim
through counsel selected by the indemnifying party; (ii) the
indemnified party shall have the right to participate in the
defense or settlement of the Claim at its expense; and (iii)
the parties shall cooperate to the extent necessary in the
defense of the Claim.
6. Third Party Infringement
------------------------
6.1. VSI shall have the right, but not the obligation, to enforce
the 3DV Proprietary Rights against infringement by a third
party in the Exclusive VSI Field. If VSI elects so to enforce
the 3DV Proprietary Rights, VSI's enforcement action shall be
at VSI's expense, and VSI shall have the right to retain any
settlement amounts or judgments recovered through such
enforcement. VSI shall have the right to join 3DV as a party
plaintiff if necessary or desirable in such enforcement. 3DV
shall fully cooperate with and supply all assistance
reasonably requested by VSI in such enforcement, including by
making its employees available to testify when requested and
to make available relevant records, papers, information,
samples, specimens and the like, all at VSI's or the Approved
Assigns cost.
9
7. Insurance
---------
7.1. 3DV shall, at its sole expense, maintain policies of
comprehensive general liability insurance issued by insurers
acceptable to VSI in such amounts as the parties shall from
time to time agree. Such insurance shall provide (i) product
liability coverage and (ii) broad form contractual liability
coverage for the indemnity in Article 5. Such insurance shall
name VSI and Approved Assigns as additional insureds. Such
insurance shall be primary coverage without right of
contribution from any VSI insurance. Insurance obtained by VSI
is for the exclusive benefit of VSI.
7.2. 3DV shall provide VSI with written evidence of such insurance
upon request of VSI.
8. Confidentiality
---------------
8.1. For the purpose of this Article 8, the term "Confidential
Information" means any information used in or relating to the
business of one party (the "Disclosing Party"), including but
not limited to information concerning the Disclosing Party's
research, development efforts, trade secrets, product or
marketing plans, vendor or customer relationships, finances,
business operations or affairs and any information of third
parties that the Disclosing Party maintains in confidence,
and all tangible embodiments of such information, that is
received by the other party (the "Receiving Party"), in any
form.
8.2. A Receiving Party shall not use the Disclosing Party's
Confidential Information for any purpose other than in
accordance with this Agreement and shall not disclose
Confidential Information to any person other than its
employees and its independent contractors subject to a
nondisclosure obligation comparable in scope to this Article
8, which employees and independent contractors have a need to
know such Confidential Information; provided that VSI may (i)
disclose 3DV Confidential Information to an Approved Assign
subject to a nondisclosure obligation comparable in scope to
this Article 8, and (ii) to the extent reasonably necessary,
disclose to its customers and suppliers technical information
concerning the performance characteristics of 3DV Components,
which information is of a type reasonably and customarily
disclosed to customers and suppliers on a non-confidential
basis, in connection with the manufacture, use or sale of
Products.
8.3. Notwithstanding Section 8.2, a Receiving Party may use for any
purpose or disclose any information that the Receiving Party
can show (i) is or becomes publicly known through no fault of
the Receiving Party; (ii) is developed independently by the
Receiving Party; (iii) is known by the Receiving Party when
disclosed by the Disclosing Party, if the Receiving Party does
not then
10
have a duty to maintain its confidentiality; or (iv) is
rightfully obtained by the Receiving Party from a third party
not obligated to preserve its confidentiality. A Receiving
Party also may disclose Confidential Information to the extent
required by a court or other governmental authority, provided
that (a) the Receiving Party gives the Disclosing Party
reasonable notice of the disclosure, (b) the Receiving Party
uses reasonable efforts to resist disclosing the Confidential
Information, and (c) the Receiving Party cooperates with the
Disclosing Party on request to obtain a protective order or
otherwise limit the disclosure.
8.4. The parties acknowledge that either party's breach of Section
8.2 would cause the other party irreparable injury for which
it would not have an adequate remedy at law. In the event of a
breach, the non-breaching party shall be entitled to
injunctive relief in addition to any other remedies it may
have at law or in equity.
9. LIMITATION OF LIABILITY
-----------------------
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES AS A RESULT OF ANY CLAIM ARISING
UNDER THIS AGREEMENT, REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
10. Term and Termination
--------------------
10.1. This Agreement shall remain in effect unless terminated in
accordance with the provisions of this Article 10.
10.2. Each party shall have the right to terminate this Agreement if
the other party materially breaches its obligations under this
Agreement and fails to remedy the breach within ninety (90)
days after receiving notice of the breach from the
nonbreaching party.
10.3. 3DV shall have the right to terminate this Agreement with
respect to VSI upon 30 days written notice to VSI if (i) the
purchase and sale right of VSI and RDC pursuant to Section 3.1
of the Investment Agreement shall expire without being
exercised by VSI, (ii) VSI fails to satisfy its obligations in
respect of the 1999 Advanced Funds and 2000 Advanced Funds, as
defined in the Investment Agreement, or (iii) VSI becomes the
subject of voluntary bankruptcy, insolvency or similar
proceedings, or involuntary proceedings not dismissed within
90 days; provided that in the event of any such termination
with respect to VSI, (a) 3DV shall accept an assignment of any
sublicense to an Approved Assign, and such sublicense shall
then continue in effect as a license directly
11
from 3DV to 3DV's sublicensee, (b) if VSI has assigned all or
any part of its rights under Section 2.1 to an Approved
Assign, this Agreement shall continue in effect with respect
to such Approved Assign unless terminated in accordance with
Section 10.2 or 10.3, and (c) such continuation shall be
subject to the provisions of Articles 3 and 10.
10.4. Except as provided in Section 10.3, in the event of any
termination of this Agreement, all of 3DV's Proprietary Rights
shall revert to 3DV, including any of 3DV's Proprietary Rights
with respect to improvements, modifications and enhancements
to, and applications of, 3DV technology created, conceived or
reduced to practice under this Agreement.
11. Notices
-------
11.1. All notices sent under this Agreement shall be in writing and
(i) hand delivered; (ii) transmitted by legible telecopy,
with a copy sent concurrently by certified mail, return
receipt requested; or (iii) delivered by prepaid overnight
courier. Such notices shall be deemed effective when received.
11.2. Notices shall be sent to the parties at the following
addresses or such other addresses as the parties subsequently
may provide:
If to VSI: Vision-Sciences, Inc.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇
Attn: Katsumi Oneda
Tel: ▇-▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇-▇▇▇-▇▇▇-▇▇▇▇
If to 3DV: 3DV Systems Ltd.
▇▇▇▇. ▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇
Attn: Ori ▇. ▇▇▇▇▇, President
Tel: ▇▇▇-▇▇▇-▇-▇▇▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇-▇▇▇▇▇▇▇
12. Miscellaneous
-------------
12
12.1. All communications between the parties shall be in the English
language.
12.2. Except as may be required by applicable law, neither party
may, without prior written consent of the other party, use the
name or any trademark of the other party in any advertising or
publicity material, or make any form of representation or
statement which would constitute an express or implied
endorsement by the other party of any product.
12.3. Nothing in this Agreement shall be construed as creating a
partnership, joint venture or agency relationship between the
parties, or as authorizing either party to act as agent for
the other.
12.4. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York of the
United States of America, with the same force and effect as if
executed and to be fully performed therein. For the
adjudication of any disputes arising in connection with this
Agreement, the parties hereby consent to the personal
jurisdiction of and venue in any federal or state court of
competent subject matter jurisdiction located in the State of
New York, and the parties agree that such jurisdiction and
venue shall be exclusive. The parties further consent to
service of any process relating to this Agreement by
registered or certified mail or by personal service. The
parties hereby exclude from application to this Agreement the
United Nations Convention on Contracts for the International
Sale of Goods.
12.5. The provisions of this Agreement are severable, and the
unenforceability of any provision of this Agreement shall not
affect the enforceability of the remainder of this Agreement.
The parties acknowledge that it is their intention that if any
provision of this Agreement is determined by a court to be
unenforceable as drafted, that provision should be construed
in a manner designed to effectuate the purposes of that
provision to the greatest extent possible under applicable
law.
12.6. The rights and remedies provided in this Agreement and all
other rights and remedies available to either party at law or
in equity are, to the extent permitted by law, cumulative and
not exclusive of any other right or remedy now or hereafter
available at law or in equity. Neither asserting a right nor
employing a remedy shall preclude the concurrent assertion of
any other right or employment of any other remedy, nor shall
the failure to assert any right or remedy constitute a waiver
of that right or remedy.
12.7. Except as otherwise specifically provided in this Agreement
and except with respect to any Approved Assign, neither party
shall assign any of its rights or obligations nor subcontract
or otherwise delegate any of its duties under this Agreement
to any third party without the prior written consent of the
other
13
party, which shall not be withheld unreasonably. Any
assignment or delegation in violation of this Section 12.7
shall be void.
12.8. This Agreement shall be binding upon and inure to the benefit
of the parties, their successors, permitted assigns and legal
representatives.
12.9. All headings in this Agreement are included solely for
convenient references and shall not affect the meaning or
interpretation of this Agreement.
12.10. This Agreement may be executed in counterparts, each of which
shall be deemed to be original but all of which together shall
constitute a single instrument.
12.11. The provisions of and of Articles, 5 (for a period of twelve
(12) months following the date of the termination of this
Agreement), 8, 9, 11, and 12 shall survive the expiration or
termination of this Agreement; provided however that in
accordance with the terms of this Agreement no termination of
this Agreement with respect to VSI shall terminate or
derogate from any rights of any Approved Assign under this
Agreement.
12.12. This Agreement sets forth the entire agreement of the parties
concerning the subject matter hereof and supersedes all prior
agreements between the parties concerning the subject matter
hereof. Amendments to this Agreement must be in writing signed
by duly authorized officers of the parties. No claimed oral
agreement in respect thereto shall be considered as any part
hereof.
12.13. No waiver of or change in any of the terms hereof subsequent
to the execution hereof claimed to have been made by any
representative of either party shall have any force or effect
unless in writing, signed by duly authorized representatives
of the parties.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective duly authorized officers:
VISION-SCIENCES, INC. 3DV SYSTEMS LTD.
By: /s/Katsumi Oneda By: /s/▇▇▇ ▇▇▇▇▇
------------------------------ ----------------
Name: Katsumi Oneda Name: ▇▇▇ ▇▇▇▇▇
------------------------------ ----------------
Title: President Title: President
------------------------------ ----------------
Date: August 6, 1998 Date: August 6, 1998
------------------------------ ----------------
14
