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EXHIBIT 10.7
ANNUAL MASTER LICENSE AGREEMENT
This License Agreement is made and entered into this 15th day of October, 1995
("Effective Date"), by and between:
MERGE TECHNOLOGIES INC., a corporation organized and existing under the
laws of the State of Wisconsin with its principal place of business
located at 0000 Xxxxx 00xx Xx., Xxxxx X000X, Xxxxxxxxx,
Xxxxxxxxx 00000-0000 ("MERGE"), and
SIEMENS AKTIENGESELLSCHAFT, Medical Engineering Group, a corporation
organized and existing under the laws of Federal Republic of Germany
and having as its principal place of business XxxxxxxxxXx 000,
X-00000 Xxxxxxxx ("SIEMENS").
WHEREAS, MERGE is owner or licensee for Use of the proprietary rights
(including the intellectual property rights) to certain software; and,
WHEREAS, SIEMENS desires to obtain from MERGE a license for Use of such
software for development of and in SIEMENS Systems;
NOW THEREFORE, in consideration of the premises, covenants and promises herein
set forth, SIEMENS and MERGE agree as follows:
1. DEFINITIONS
1.1 "Affiliate" of a party shall mean any business entity directly or
indirectly controlling or controlled by such party. For purposes of
the foregoing, "control" shall mean the right, directly or indirectly,
to direct the management or remove the board of directors (or their
equivalent) of an entity by virtue of ownership of more than forty
percent (40%) of the voting stock or voting rights of the entity.
1.2 "Agreement" shall mean this License Agreement, including any attached
Exhibits, and any other addenda and supplemental Exhibits, signed by
both parties, as may be appended from time to time.
1.3 [**] shall mean the applications program interface identified in
Schedule 1.3 for creating Systems which [**]
1.4 [**] shall mean the software modules identified in Schedule 1.4
1.5 "Documentation" shall mean the standard written documentation provided
with the [**] including the "Users Manual" and "Reference Manual".
1.6 "End-User" shall mean a customer of SIEMENS who acquires possession of
one or more of SIEMENS Systems for its own use.
1.7 "OEM" shall mean a customer of SIEMENS who resells directly or
incorporates in the OEM's product one or more of SIEMENS Systems.
1.8 "Licensed Software" shall mean [**] and [**] singly and collectively
provided by MERGE pursuant to this Agreement,
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and Modifications or Upgrades thereof, or portions thereof, if any,
which are distributed to SIEMENS.
1.9 "Modifications" shall mean changes, exclusive of Upgrades, added to or
integrated with the Licensed Software by MERGE to correct any
deficiencies or errors therein or to improve performance, usability or
functionality, but which do not add to or alter its basic function(s).
1.10 "Sublicense" shall mean an agreement to be entered into between SIEMENS
or Affiliates and the End-User or OEM which grants the End-User
or OEM only the right to [**] in a single specified SIEMENS System and
which obligates the End-User or OEM to take reasonable measures to
maintain the secrecy of the [**] and not to decompile, translate
or otherwise reverse engineer the [**]
1.11 "System" shall mean the products of SIEMENS, hardware combined with
software or software only, as reported at half-year intervals in the
format described in Schedule 1.11.
1.12 "Upgrades" shall mean modifications which add to or alter the
function(s) or otherwise implement substantial additional capability
within the Licensed Software.
1.13 "Maintenance Services" shall mean the services set forth in Schedule
1.13.
1.14 "Warranty Period" shall mean the time period identified in Schedule
1.14.
1.15 "Use", "Uses", or "Using" shall mean to install, load, execute, employ,
utilize, store and display the Licensed Software in a System and to read
and utilize the Documentation.
1.16 "Development Site(s)" shall mean the facility or facilities identified
in Schedule 1.16, as amended from time to time by agreement of the
parties.
2. LICENSE AND DISTRIBUTION RIGHTS
2.1 Subject to the terms and conditions of this Agreement, MERGE hereby
grants SIEMENS a non-exclusive, non-transferable (except to Affiliates),
worldwide right and license, to:
a. [**] at the Development Site(s) to create Systems which Use
Function Library Modules;
b. distribute, under Sublicense, [**] which are Used in SIEMENS
Systems; and
x. xxxxx Sublicenses to OEM's and End-Users to [**] in those
SIEMENS Systems.
2.2 SIEMENS shall not distribute the [**] other than under a Sublicense
and shall not distribute the [**] other than as part of a SIEMENS
System.
2.3 All Sublicenses granted to End-Users shall:
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a. authorize Use of the [**] only in conjunction with a single
specified SIEMENS System and prohibit all other uses;
b. obligate the End-User to take reasonable measures to maintain
the secrecy of the [**]
c. prohibit End-User from reverse compiling, reverse assembling,
or reverse engineering the [**]
d. prohibit the End-User from copying the [**] except for backup
and archival purposes;
e. prohibit the End-User from any further sales, assignment, or
sublicensing of the [**] except that an End-User shall be
permitted to transfer its Sublicense to the [**] as part of a
resale or other transfer of its own SIEMENS System(s), so long
as (i) all copies of the [**] are transferred at the same time
with the SIEMENS Systems(s) or are destroyed by the time of
transfer; and (ii) the transferee agrees to be bound by the
terms of the Sublicense.
2.4 All Sublicenses granted to OEM's shall:
a. authorize Use of the [**] only in conjunction with a single
specified SIEMENS System and prohibit all other uses;
b. obligate the OEM to take reasonable measures to maintain the
secrecy of the [**]
c. prohibit the OEM from reverse compiling, reverse assembling, or
reverse engineering the [**]
d. prohibit the OEM from copying the [**] except as required
under OEM's agreement with SIEMENS for distribution of SIEMENS
Systems;
e. prohibit the OEM from distributing the [**] other than under
an End-User Sublicense in accordance with paragraph 2.3 hereof;
f. prohibit the OEM from distributing the [**] other than as part
of a SIEMENS System incorporated in or constituting a product
of the OEM.
2.5 SIEMENS shall not distribute or sublicense the [**]
2.6 SIEMENS shall take all reasonable steps to ensure against unauthorized
Use of the Licensed Software.
2.7 Subject to prior approval by MERGE, SIEMENS shall be entitled to
incorporate non-proprietary sections of the Documentation, in whole or
in part or any derivative thereof, into SIEMENS user's manuals and
marketing and sales literature for Systems, provided MERGE's proprietary
rights notices are appropriately displayed therein. SIEMENS shall be
allowed, however, to alter any configurable files to eliminate
associated screen display references to MERGE trademarks during boot-up
and operation of the System. Prior to printing user's manuals or
marketing/sales
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literature, SIEMENS shall provide MERGE a copy, in English, of that
material which in any way incorporates the Documentation for the purpose
of review and comment on the incorporation of portions of the
Documentation and adequacy and accuracy of MERGE's proprietary rights
notices. If SIEMENS does not receive a response from MERGE within thirty
(30) days from the date of receipt, then SIEMENS may publish the
material as is.
2.8 To the extent SIEMENS Uses the Licensed Software in demonstrations in
connection with marketing or sales of its systems, SIEMENS shall
protect all copies of the Licensed Software to prevent unauthorized Use
or copying by third parties.
2.9 SIEMENS shall not: (i) decompile, disassemble or otherwise attempt or
assist others to reverse engineer the Licensed Software; or (ii)
represent the Licensed Software has performance, application or
reliability characteristics that do not appear in the Documentation.
2.10 The license herein granted shall be effective on the Effective Date of
this Agreement, indicated above.
2.11 Neither title to nor ownership of the Licensed Software is transferred
hereunder to SIEMENS. Additionally, the license granted hereunder does
not include any right, either express or implied, to use, reproduce,
print or display the Licensed Software for any purpose not specified in
this Agreement.
3. MODIFICATIONS
3.1 MERGE will provide SIEMENS, not less frequently than every six (6)
months, with non-confidential information as is available covering the
upcoming twelve (12) months period regarding future enhancements and
Upgrades to be made to the Licensed Software.
3.2 SIEMENS, at any time, may request performance changes to the
specifications relating to Licensed Software. Such requests and the
related development charges must be mutually agreed upon in writing by
both parties prior to implementation and, having received such
agreement, shall be implemented within a commercially reasonable time
period relative to the scope of the request.
4. MAINTENANCE
4.1 During the Warranty Period, Merge shall provide Maintenance Services to
SIEMENS.
4.2 After the Warranty Period, [**] renewal notices will be delivered to
SIEMENS as specified in Section 11.6 below and will be deemed accepted
by SIEMENS if SIEMENS does not give MERGE notice of rejection within
forty-five (45) calendar days of notification. In no case will Merge be
obligated to provide [**] other than with respect to the most current
version of the Licensed Software.
5. LICENSE FEES, PRICING AND PAYMENT
5.1 Fees for the licenses, Sublicenses, and [**] provided by MERGE to
SIEMENS under this Agreement, are set forth in Schedule 5.1 of
this
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Agreement, as may be amended from time to time by MERGE pursuant to
Paragraph 5.5.
5.2 For the license(s) granted herein regarding [**] MERGE shall invoice
SIEMENS upon software shipment, and SIEMENS shall pay MERGE within
thirty (30) days after date of invoice.
5.3 For Maintenance Services hereunder, SIEMENS shall pay MERGE within
thirty (30) days of invoice, which invoice shall follow a renewal notice
by forty-five (45) days.
5.4 For Sublicenses granted by SIEMENS to End-Users and OEM's,
5.4.1 a non-refundable Annual Master Licensing fee in the amount set
in Schedule 5.1 shall be payable in [**] the first of such
payments to be made within [**] of the Effective Date and
subsequent such payments to be made within [***] of the
beginning of [**] plus
5.4.2 for each Sublicense granted in excess of the Included Unit
Number specified in Schedule 5.1, a Unit Licensing fee in the
amount set forth in Schedule 5.1, such payment(s) to be made
[**] of the end of each calendar quarter.
5.5 Fees as per Schedule 5.1 shall[**]
5.6 All Payments shall be made in U.S. Dollars, to the order of MERGE
TECHNOLOGIES INC. and delivered to MERGE TECHNOLOGIES INC., 0000 Xxxxx
00xx Xxxxxx, Xxxxx X000X, Xxxxxxxxx, Xxxxxxxxx 00000-0000, Attn:
Treasurer.
5.7 Siemens shall have [**] deems neccessary for Modifications or Upgrades.
5.8 The obligations of SIEMENS to pay MERGE are not dependent upon the
obligations or payments of an End-User or OEM to SIEMENS. SIEMENS agrees
to assume the credit risks of the End-Users and OEM's with which it
deals.
5.9 In addition to the fees and charges to be paid under this Agreement,
[**]
5.10 SIEMENS shall maintain at its place of business, referenced in this
Agreement, books and records so as to establish the payments due to
MERGE under this
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Agreement. Such books and records shall be maintained for at least two
(2) years following the expiration or termination of this Agreement.
Upon five (5) days written notice, MERGE may conduct, at MERGE's sole
cost and expense, such audits as reasonably necessary to determine
SIEMENS compliance with this Agreement and payment obligations under
this Agreement. SIEMENS agrees to cooperate with MERGE in performing
such audits, which shall be held during normal business at the
convenience of both parties. Any audit which is conducted shall be
subject to such reasonable security procedures and limitations as
SIEMENS may impose, and MERGE, its employees, agents and contractors
shall make no use of any information obtained in the course of such
audits other than for the purposes noted in this Section 5.10.
6. APPROVALS
6.1 SIEMENS shall bear all costs related to government or other agency
pre-market approvals. SIEMENS hereby warrants that it shall obtain all
such applicable and required approvals and certifications prior to
selling, distributing or marketing Licensed Software. MERGE shall
assist SIEMENS in obtaining any information over which MERGE has
control which is reasonably required by SIEMENS to obtain such
approvals and certifications.
7. TERM AND TERMINATION
7.1 The license herein granted to SIEMENS shall commence upon the
Effective Date and shall continue until terminated in accordance with
the provisions of this Section 7.
7.2 Either party may terminate this Agreement upon thirty (30) days
written notice in the event the other party materially breaches a
provision or obligation of this Agreement and remains in default after
the thirty (30) days written notice thereof has been given to the
breaching or defaulting party
7.3 Except where prohibited by law, this Agreement may, at the
option of one party, be terminated immediately by written notice as a
result of the commission or occurrence of any one or more of the
following events by the other party: (i) an appointment of a trustee or
receiver or administrative receiver for its assets or business; (ii) an
assignment of its assets to the benefit of its creditors; (iii) any
realization or levy of execution on its assets by any of its secured
creditors; (iv) declaration of insolvency by a court of competent
jurisdiction; (v) the filing of a petition of bankruptcy; or (vi)
indefinite suspension of the normal operation or conduct of its
business.
7.4 Upon termination of this Agreement for any reason, SIEMENS shall
have the right to fill all currently booked orders. SIEMENS agrees to
thereafter immediately discontinue any and all further manufacture,
marketing, sublicensing, sale and distribution of Licensed Software.
SIEMENS shall, however, subject to the terms and conditions herein
including Paragraph 2.9, retain its license granted hereunder to the
extent reasonably necessary to enable SIEMENS to provide support and
maintenance services to its valid sublicensed End-Users of the Licensed
Software. The provisions of this Paragraph 7.4 notwithstanding, upon
termination, all proprietary and confidential information received by
either party from the other shall be returned within thirty (30) days to
its rightful owner.
7.5 Termination of this Agreement shall not exempt SIEMENS from its
obligation to pay any and all accrued license fees due hereunder.
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7.6 All Sublicenses shall survive expiration or termination of this
Agreement for any reason.
8. WARRANTY AND INDEMNIFICATION
8.1 MERGE warrants that it has full power and authority to authorize and
license SIEMENS to Use the Licensed Software in accordance with the
terms hereof.
8.2 MERGE warrants only that, during the Warranty Period, the operation of
the Licensed Software delivered hereunder shall substantially conform to
the then current Documentation.
8.3 To the best knowledge of MERGE, the Licensed Software does not infringe
any existing patents or copyrights owned by third parties. MERGE shall
defend SIEMENS against any claim that the Use of the Licensed Software
by SIEMENS permitted under this Agreement constitutes a patent or
copyright infringement, but only to the extent that the action relates
solely to the Licensed Software, not materially altered or modified by
or on behalf of SIEMENS, and is not based on Use of the Licensed
Software on other than the System, or for which the Licensed Software
was not designed and recommended in the Documentation and provided that:
(a) SIEMENS gives MERGE written notice within five (5) days of notice of
any such claim; (b) MERGE controls the defense of any such action and
has the right to settle; and (c) SIEMENS fully cooperates with MERGE in
the defense of such claim. In the event that the Use of the Licensed
Software is enjoined by a court of competent jurisdiction, because of a
holding of patent or copyright infringement, MERGE, at its sole option,
shall: (a) procure for SIEMENS the right to continue Using the Licensed
Software; or (b) modify the Licensed Software to make it non-infringing,
while still performing substantially the same functions set forth in the
Documentation.
8.4 MERGE warrants that the process for development, production, and
servicing of the Licensed Software complies with the quality standards
specified by the US Food and Drug Administration's Good Manufacturing
Practice ("GMP") to the extent applicable. Upon SIEMENS' request, MERGE
will provide to SIEMENS results of U.S. Food and Drug Administration
GMP audits conducted during, and within a period of one year prior to,
the term of this Agreement.
8.5 THE FOREGOING ARE THE ONLY WARRANTIES MADE BY MERGE WITH RESPECT TO THE
LICENSED SOFTWARE PROVIDED HEREUNDER AND ARE MADE EXPRESSLY IN LIEU OF
ALL OTHER WARRANTIES, CONDITIONS, TERMS OR UNDERTAKINGS, AND
REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND SATISFACTORY
QUALITY.
8.6 ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT NOTWITHSTANDING,
EXCEPTING DAMAGES RESULTING FROM BREACHES OF SECTIONS 2 AND 9 OF THIS
AGREEMENT NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY END-USER FOR
LOST PROFITS OR FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR
CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND WHATSOEVER SUFFERED BY THE
OTHER EVEN IF THE PARTICULAR PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH CLAIMS AND DEMANDS.
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8.7 SIEMENS agrees to indemnify and hold harmless MERGE from any and all
liabilities, damages, losses, expenses, demands, claims, suits or
judgments, including all attorney's fees, costs, and expenses relating
to claims by third parties arising out of the negligent or intentional
acts or omissions of SIEMENS.
8.8 SIEMENS acknowledges that the terms of this Agreement were bargained
for, and the fees and charges, reflect, and are based upon SIEMENS'
acceptance of, all of the terms of this Agreement, including, but not
limited to Sections 8 and 9, hereof. MERGE is willing to undertake
greater potential liabilities in exchange for increased fees and
prices reflecting that exposure. SIEMENS has opted to accept
limitations on MERGE's liabilities as set forth herein rather than
paying those increased fees and charges.
9. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
9.1 SIEMENS acknowledges that the Licensed Software represents valuable
trade secrets and confidential information proprietary to MERGE. All
specifications, applications, routines, subroutines, techniques,
Documentation, manuals, lists, source and object codes, application
codes, programs, systems, ideas, technical information, databases and
formulae contained in or embodied by Licensed Software or any part
thereof originating from MERGE and provided to SIEMENS for development
of the Systems and users manuals for Systems shall at all times and
for all purposes be deemed to be trade secrets and the sole and
exclusive property of MERGE.
9.2 SIEMENS agrees to hold all material and all information regarding the
Licensed Software in strictest confidence, not to make use thereof
other than as expressly permitted by this Agreement. SIEMENS shall
not release or disclose such information to any other party without
prior written consent of MERGE. SIEMENS shall take all reasonable
measures to maintain the secrecy of the Licensed Software and shall
exercise at least the same degree of care with respect to Licensed
Software that it exercises to protect its own proprietary information
to prevent same from entering into the public domain or falling into
the hands of others not bound by the provisions of this Agreement.
Notwithstanding the foregoing provisions of this Section 9, SIEMENS
shall have no obligation to maintain confidentiality of any
information which: is or becomes available within the public domain
through no act of SIEMENS in breach of this Agreement, or its
sublicensees in breach of a Sublicense; was demonstratively known by
SIEMENS prior to its transfer hereunder; is lawfully received
unrestricted from a third party that obtained the information
lawfully; or is subsequently independently developed by SIEMENS as
proven clearly or convincingly by its written records.
9.3 Both party's obligations under this Section 9 shall survive any
expiration or termination of this Agreement.
10. ESCROW/EMERGENCY MANUFACTURING RIGHTS
10.1 MERGE, at SIEMENS request, shall place in escrow a master copy of the
Licensed Software source code, and one complete set of all MERGE's
Documentation and other material which could be effectively used by
SIEMENS or its assigns to reproduce and service the Licensed Software,
Modifications or Upgrades thereof ("Escrow"). SIEMENS shall have full
and unrestricted use of this material only in the event that:
(i) MERGE's business is discontinued, (ii) in contravention of this
Agreement MERGE fails, refuses, is unable to deliver Licensed Software
to SIEMENS, or, (iii) [**]
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MERGE shall promptly deliver any new Modifications or Upgrades to the
Licensed Software source code, as may be released from time to time,
and associated documentation to Escrow.
10.2 SIEMENS and MERGE shall designate the Escrow holder hereunder and
execute an appropriate Escrow Agreement upon SIEMENS request of MERGE
for Escrow.
10.3 All costs of establishing and maintaining the escrow arrangement shall
be borne by SIEMENS, and SIEMENS shall reimburse MERGE for all costs
reasonably incurred by MERGE in reproduction, packaging and shipment
of materials deposited.
10.4 At such time as SIEMENS determines the Escrow is no longer needed, or
ten (10) years after last shipment of Licensed Software for Systems,
whichever is sooner, SIEMENS shall have all materials in Licensed
Software Escrow destroyed or returned to MERGE, at MERGE's option.
11. GOVERNING LAW AND DISPUTE RESOLUTION
11.1 This agreement is made under and shall be governed by and construed in
accordance with English law, without reference to conflict of law
principles. The rights and obligations of the parties shall not be
governed by the 1980 United Nations Convention on Contracts for the
Sale of Goods. Both parties expressly consent to: (a) exclusive
jurisdiction of the English courts; and (b) service of process being
effected upon it by confirmed telecopier message or registered mail
sent to the address for notices set forth in this Agreement.
11.2 It is the parties' desire that any disputes that might arise between
them be amicably settled, without resort to litigation. Subject to
paragraph 11.4, all disputes or disagreements arising between the
parties concerning the validity, construction or effect of this
Agreement or the rights and obligations created hereunder (other than
SIEMENS' payment obligations), that cannot be resolved by the involved
employees of the parties shall be brought before a conciliation
committee, consisting of one management executive representing each
party. Either party may initiate the proceeding by written notice,
stating, with particularity, the issues to be resolved. The executives
shall be of at least vice presidential level, and with the authority to
bind the parties. The conciliation committee shall, within two (2) weeks
after being informed of a dispute, meet in person at New York, New York,
U.S.A., or such other location agreed to by the parties, and attempt to
work out a settlement.
11.3 Subject to paragraph 11.4, any controversy or claim arising out of or
relating to this Agreement which cannot be amicably settled by the
conciliation committee within twenty-one (21) days of notice of the
dispute shall be fully and finally settled by binding arbitration, under
the auspices, and in accordance with the Arbitration Rules of the London
Court of International Arbitration (LCIA) then in effect, modified as
follows:
11.3.1 The dispute shall be submitted to, and a decision
rendered by a single Arbitrator who is (a) agreeable
to both parties, or (b) if agreement cannot be reached
within twenty-one (21) days of initiation of the
proceedings, chosen by the British Computer Society
pursuant to LCIA rules. The language to be used in the
arbitration proceeding shall be English.
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11.3.2 Within ninety (90) days of initiation of the proceedings or
such other time period as agreed to by the parties and
Arbitrator, the Arbitrator shall hold a hearing as set forth in
paragraphs 11.3.8 and 11.3.9. The hearing shall be held in
London, England, U.K., or such other location agreed to by the
parties and the Arbitrator.
11.3.3 Within thirty (30) days of initiation of the proceedings or
such other time period as agreed to by the parties, each party
shall provide to the other and to the Arbitrator, personally or
by overnight courier, an initial disclosure, including:
a. A preliminary statement of the issues in controversy to
be resolved by the proceedings;
b. The name and, if known, the address and telephone
number, of each individual likely to have personal
knowledge of facts relating to the subject of the issues
in controversy; and
c. Subject to paragraph 11.3.16, a copy of all documents
and thing in the possession, custody or control of the
party that are relevant to the subject of the issues in
controversy.
11.3.4 Within ten (10) days of receipt of the initial disclosure each
party shall provide to the other and to the Arbitrator,
personally or by overnight courier, a supplemental disclosure,
including:
a. A preliminary statement of any additional issues in the
controversy to be resolved by the proceedings raised by
the other party's initial disclosure;
b. The name and, if known, the address and telephone
number, of each individual likely to have personal
knowledge of facts relating to the subject of the issues
in controversy raised in the other party's initial
disclosure or the additional issues; and
c. A copy of all documents in the possession, custody or
control of the party that are relevant to the subject of
the issues in controversy raised in the other party's
initial disclosure or the additional issues.
11.3.5 At least thirty (30) days prior to hearing, the parties shall
jointly submit to the Arbitrator a statement of the issues and a
statement of non-disputed facts.
11.3.6 At least twenty (20) days prior to hearing, each party shall
provide to the other and to the Arbitrator, personally or by
overnight courier, a pre-hearing brief, stating its version of
the facts, the applicable law, and an argument in support of its
position. The statement of facts shall be supported by sworn
affidavits based upon personal knowledge and authenticated
documents and things, copies of which shall be provided with the
brief. The statement of applicable law shall include citations
to all relevant cases and statutes. Copies of all cited cases
and statutes shall be provided with the brief.
11.3.7 Within five (5) working days of the submission of the
pre-hearing briefs, each party shall submit, and serve
personally, or by overnight courier, upon
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the other party, a reply brief responding to the pre-hearing
brief of the other party.
11.3.8 At the hearing, each party shall have the opportunity to be
heard and to cross-examine the individuals providing statements
of fact in support of, or otherwise having personal knowledge of
facts relevant to, the other party's position. Either party
and/or the Arbitrator can by written notice at least five (5)
working days in advance of the hearing require the attendance at
the hearing of any individual having personal knowledge of facts
pertinent to the dispute.
11.3.9 The hearing shall be conducted as follows:
a. The party initiating the proceeding shall present its
case, with specific reference to the supporting
affidavits, transcripts, and exhibits.
b. The responding party may then cross-examine any of
the individuals submitting statements in support of the
initiating party's brief. Upon conclusion of the
cross-examination of each witness by the responding
party, the initiating party may examine the witness on
issues raised by the cross-examination.
c. Upon conclusion of the presentation of the initiating
party's case, the responding party shall present its
case, making specific reference to the supporting
statements and exhibits.
d. The initiating party may then cross-examine any of the
individuals submitting statements in support of the
responding party's brief. Upon conclusion of the
cross-examination of each witness by the initiating
party, the responding party may examine the witness on
issues raised by the examination.
e. Upon conclusion of the presentation of the responding
party's case, the initiating party shall have the
opportunity to make a closing statement. The responding
party shall then have the opportunity to make a closing
statement.
11.3.10 All statements and testimony must be based upon
personal knowledge. All documents and things must be
authenticated by statements based on personal knowledge. Any
statement or testimony not based upon personal knowledge, or
any document or thing which is not authenticated, shall not be
considered by the Arbitrator, except upon agreement of the
parties or upon a showing of exceptional circumstances.
11.3.11 Failure to comply with the disclosure requirements of
this arbitration, or to make individuals reasonable available
to the other party shall be sanctioned. If it is shown, or it
otherwise becomes apparent to the Arbitrator that a party
withheld information that was required to be disclosed under
this section, the Arbitrator shall award the aggrieved party
the costs of proving the facts supported by the withheld
information.
11.3.12 Unless agreed upon by the parties and the Arbitrator,
the Arbitrator shall immediately upon the end of the hearing
begin to consider the evidence and shall work full time and
solely upon the matter until a decision is rendered.
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However, the Arbitrator may reconvene the hearing for further
questioning of individuals if deemed necessary.
11.3.13 The Arbitrator shall award costs and fees to the prevailing
party, unless good cause is found for the contrary.
11.3.14 At the request of any party, a written arbitration order
and/or award shall be issued, enforcement of which may be
undertaken in any Court of competent jurisdiction.
11.3.15 Any time period may be shortened or extended by agreement of
the parties.
11.3.16 To the extent that any materials required to be disclosed in
the course of the arbitration of this section 11.3 are
confidential, all reasonable measures shall be taken to maintain
the confidentiality of such information consistent with this
Agreement. To this end, the Arbitrator shall enter into a
confidentiality agreement consistent with the terms of this
Agreement. To the extent that any materials required to be
disclosed in the course of the arbitration of section 11.3 are
confidential, and would not be available to the requesting party
under the Agreement, the providing party may designate such
materials as "attorneys eyes only". "Attorneys eyes only"
materials shall be disclosed to the attorneys and Arbitrator
only, and shall not be disclosed to employees of the requesting
party.
11.3.17 In the event that these modifications are in conflict with the
rules then in effect of the LCIA, these modifications shall take
precedence.
11.4 Notwithstanding anything herein to the contrary, judicial proceedings
may be brought without the need for prior arbitration: (a) by MERGE, for
nonpayment by SIEMENS of undisputed fees or (b) any party to obtain a
temporary restraining order, preliminary injunction or other interim or
provisional judicial relief if, in its judgment, such action is
necessary to avoid irreparable damage or to preserve the status quo. If
such action for interim or provisional judicial relief is taken, the
parties will start or continue, as the case may be, to participate in
good faith in the dispute resolution procedures specified in this
section 11. The provisions of this section shall be specifically
enforceable.
12. GENERAL PROVISIONS
12.1 Relationship of the Parties. Both parties to this Agreement are
independent legal entities and neither is the agent or employee of the
other for any purpose whatsoever. The parties do not intend to create a
partnership or joint venture between themselves. Unless expressly
provided otherwise in this Agreement, neither party will have the right
to bind the other to any agreement with a third party or to incur any
obligation or liability on behalf of the other party.
12.2 Modifications. The provisions of this Agreement may be waived, amended,
modified, supplemented, terminated or discharged only by an agreement in
writing signed by both parties.
12.3 Invalidity. If any provision of this Agreement is declared or found to
be illegal, unenforceable or void, then both parties shall be relieved
of all obligations arising under such provision. This Agreement shall be
deemed amended by modifying such provision to the extent necessary to
make it legal and enforceable. If the
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remainder of this Agreement is not affected by such declaration or
finding and is still capable of substantial performance, then the
remainder shall be enforced to the extent permitted by law.
12.4 Survivability. Termination or expiration of this Agreement for any
reason shall not release either party from any liabilities or
obligations set forth in this Agreement which (i) the parties have
expressly agreed shall survive any such termination or expiration, or
(ii) remain to be performed and by their nature would be intended to
be applicable following any such termination or expiration.
12.5 Entire Agreement. This Agreement is intended to constitute the final,
entire, complete and exclusive agreement between the parties
pertaining to the subject matter thereof. This Agreement expressly
supersedes all prior written and oral agreements and understandings
between the parties hereto with respect to the subject matter hereof.
12.6 Notices. All such notices and demands of any kind which either party
desires to give to the other party shall be in writing and shall be
delivered by hand, by courier or by facsimile (original being mailed
thereafter) or by mailing a copy thereof by certified or registered
mail, postage prepaid, with return receipt requested, to the party at
the address set forth below. Notice by hand shall be considered complete
on delivery; notice by courier shall be considered complete at the date
of delivery as demonstrated by the signed docket of delivery; notice by
facsimile shall be considered complete on confirmation of successful
transmission; and notice by mail shall be deemed complete at the date of
delivery as shown by the registry or certification receipt. The
addresses to which notices and demands shall be delivered, as follows,
may be changed from time to time by notice served as hereinabove
provided.
To SIEMENS: SIEMENS AKTIENGESELLSCHAFT
Bereich Medizinische Technik
XxxxxxxxxXx 000
X-00000 Xxxxxxxx, XXXXXXX
ATTN: Xx. Xxxxxx Xxxxxx, BN EP 12
Fax No.: (49)(9131) 84-8691
To MERGE: MERGE TECHNOLOGIES INC.
0000 Xxxxx 00xx Xxxxxx
Xxxxx X000X
Xxxxxxxxx, XX 00000-0000
ATTN: Vice-President, Sales and Service
FAX No.: (1) (000) 000-0000
12.7 Export. SIEMENS acknowledges the Licensed Software and Documentation
may be subject to the limitations on transfer imposed by the United
States Export Administration Act of 1979 as amended, and/or the Canadian
Import/Export Controls Act. SIEMENS will not, and will not assist or
permit others under its control and direction to, export the Software
or Documentation or any part thereof, in contravention of these statutes
or their related rules and regulations.
12.8 Severability. All provisions of this Agreement are divisible so that if
any one provision is declared invalid or unenforceable as written, then
such provision shall be stricken from the Agreement without affecting
the remainder of the Agreement unless the removal of said provision
shall constitute a material failure of
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consideration, in which event the Agreement shall be terminated at the
election of the party affected by such failure of consideration.
12.9 Waiver. Failure by either Party to enforce any of the provisions of
this Agreement or any rights with respect to hereto, or failure to
exercise any provisions or rights specified herein, shall in no way be
considered a waiver of such provisions or rights or in any way affect
the validity of this Agreement. The failure by either Party to enforce
any of the said provisions or rights shall not prejudice such Party from
later enforcing or exercising the same or any other provisions or rights
it may have under this Agreement.
12.10 Force Majeure. Neither party shall be in default if failure to perform
any obligation under this Agreement, other than to timely pay fees under
Section 5, is caused solely by supervening conditions beyond that
party's control, including acts of God, civil commotion, labor disputes
and governmental demands and requirements.
12.11 Assignment. Except as expressly permitted herein, neither party may
assign or transfer its rights hereunder without the prior written
consent of the other party hereto, which consent will not be
unreasonably withheld, except that MERGE may assign this agreement to a
purchaser of MERGE's entire business related to this agreement. This
Agreement shall inure to the benefit of any permitted assigns,
successors in business or subsidiaries and Affiliates of the assigning
party. Any purported assignment which is in violation of this paragraph
12.11 shall be null and void.
12.12 Conflicts of Interest. Both parties represent that neither has any
obligations or commitments inconsistent with this Agreement.
12.13 Further Assurances. Each of the parties hereby agrees to take or cause
to be taken such further actions and to execute, deliver, and file, such
further documents and instruments as may be necessary or as may
reasonably be requested in order to fully effectuate the purposes,
terms, and conditions of this Agreement.
THE PARTIES hereto have caused this Agreement (including attached Schedules
noted below) to be executed as of the Effective Date.
SIEMENS AKTIENGESELLSCHAFT MERGE TECHNOLOGIES INC.
Medical Engineering Group
/s/ Xxxxxx-Hazmann Signature: /s/ Xxxxxx Xxxxx Signature: /s/ Xxxxxxx X. Xxxxxxxx
----------------------- -------------------------- -----------------------------
Xxxxxx-Hazmann Printed Name: Xx. Xxxxxx Xxxxx Printed Name: Xxxxxxx X. Xxxxxxxx
----------------------- ----------------------- ---------------------------
Bus. Administrator Title: Senior Director Title: V.P. Sales & Service
----------------------- ------------------------------ ----------------------------------
23 March 1996 Date: 27 March 1996 Date: 3 February 1996
----------------------- ------------------------------- -----------------------------------
ATTACHMENTS:
SCHEDULE 1.3 [**]
SCHEDULE 1.4 [**]
SCHEDULE 1.11 System(s)
SCHEDULE 1.13 [**]
SCHEDULE 1.14 Warranty Period
SCHEDULE 1.16 Development Site(s)
SCHEDULE 5.1 License Fees & Minimums
________________________________________________________________________________
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