Exhibit 10.66
SALES AGREEMENT
(L 99.020)
This Agreement is being made on December 22, 1999, between Xxxxxxx Xxxx
GmbH, a German company with registered offices at Xxxxxxxxxxx Xxxxxxx 00,
00000 Xxxxxxxxxxx, Xxxxxxx, hereinafter called "Xxxxxxx Xxxx" for short, and
Vista Medical Technologies, Inc., a company registered in Delaware with its
offices at 5451 Avenida Xxxxxxx (Suite A), Xxxxxxxx, Xxxxxxxxxx, XX 00000,
Xxxxxx Xxxxxx of America, and hereinafter called "Vista".
PRE-AMBLE
Xxxxxxx Xxxx develops, produces, and sells medical endoscopic products and
possesses the necessary experience in the marketing and selling of such
instruments and equipment and in providing technical and repair services to
customers for such instruments and equipment.
Xxxxxxx Xxxx wishes to acquire exclusive marketing rights over the products
produced by Vista, and Vista is willing to grant them to Xxxxxxx Xxxx.
This having been said, and in light of the agreements contained in this
Agreement, the parties hereby agree on the following.
*** CONFIDENTIAL TREATMENT REQUESTED
CLAUSE 1: DEFINITIONS
1.1 "Marketing territory" shall mean and shall encompass all the countries
in the world with the sole exception of the United States of America
and its territories and possessions.
1.2 "Dollar" or "$" shall always relate to the currency of the United States
of America.
1.3 "Date of validity" shall mean the date on which the last signature is
added to this Agreement.
1.4 "Excluded Field" shall mean cardio-thoracic and cardiological
applications.
1.5 "Exclusive Field" shall be deemed to describe all specialist fields of
endoscopic applications with the exception of those fields of
application defined in subclauses 1.4 above and 1.7 below.
1.6 "FDA" shall mean the US Food and Drug Administration.
1.7 "Non-exclusive Field" shall mean applications in image-guided surgery
using X-ray, ultra-sound, MRI, and/or CT equipment, neurosurgery,
spinal surgery, orthopedic surgery, maxillofacial surgery and
fluoroscopics.
1.8 "Products" shall be defined as all those products listed in Annex A,
including all improvements to and modifications of the same.
CLAUSE 2: AGREEMENT
2.1 LICENSE
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a) Vista hereby grants Xxxxxxx Xxxx the right, within the Exclusive Field
and the Marketing Territory, to market the Products exclusively.
Vista hereby grants Xxxxxxx Xxxx non-exclusive marketing rights for the
Nonexclusive Field within the Marketing Territory.
Xxxxxxx Xxxx hereby accepts the aforesaid rights.
The parties have already reached agreement to the effect the Xxxxxxx
Xxxx shall have no rights to market Vista's products in the Excluded
Field.
b) The marketing by Vista of the "Single Relay Stereo-Endoscope" (a Zeiss
design) within the Marketing Territory in the Exclusive Field shall not
be covered by the exclusivity defined in sub-clause 2.1.a) above.
2.2 PRODUCT SPECIFICATION
The Products affected by this Agreement shall be those listed in Annex
A.
Vista and Xxxxxxx Xxxx can at any time amend the specifications of the
products by mutual agreement. No modifications made by mutual agreement
shall take on any validity, nor shall they be released for use, until
they have been recorded in writing and confirmed with the signatures of
the authorized representatives of both parties.
2.3 PRICES
a) Vista shall bear the design engineering costs for any changes to existing
product designs made in order to meet the requirements listed in Annex A.
Should Xxxxxxx Xxxx, following discussion and agreement with Vista,
require changes to product specifications, Xxxxxxx Xxxx shall reimburse
Vista for all costs thus incurred and resulting from the changes
requested by Xxxxxxx Xxxx and made with Vista's consent. This work shall
be charged at the hourly rate agreed at the time this Agreement is being
made of $ *** . Any increases in this hourly rate that may be necessary
during the lifetime of this contract shall be announced well in advance.
Without prejudice to the aforesaid, Xxxxxxx Xxxx shall pay the single
sum of $ *** for design changes requested by Xxxxxxx Xxxx and for
changes necessitated by the installation of the interface for Xxxxxxx
Xxxx stereo-endoscopes, always provided that these changes meet Xxxxxxx
Xxxx'x specifications completely and that the changes are made in full.
*** Portions of this page have been omitted pursuant to request for
Confidential Treatment and filed separately with the Commission.
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b) The initial order quantity, the delivery plan, and the prices to be
charged to Xxxxxxx Xxxx for the Products shall be those shown in Annex
B, stated in Dollars, F.O.B., Westborough, MA, U.S.A..
The parties shall negotiate annually on the purchase prices to be paid
by Xxxxxxx Xxxx in conjunction with a forecast of minimum sales
quantities and a minimum off-take agreement for the coming year. The
new Product prices shall be based on the Product prices for the
preceding year, shall be fair and just, and shall take the following
into account:
(i) any changes in construction or design requested by Xxxxxxx Xxxx
(ii) increases or decreases in production costs
(iii) increases or decreases in guaranteed off-take quantities, and
(iv) any changes in market conditions that the parties agree have
occurred.
2.4 PAYMENT
a) *** months before the planned delivery date of each and every
consignment, Vista shall issue an invoice for *** percent of the value
of the planned consignment, and Xxxxxxx Xxxx shall pay the invoice
amount upon receipt.
b) Once the goods have been delivered, Xxxxxxx Xxxx shall pay the invoice
within *** days from receipt, less *** percent discount. Vista shall
not send Xxxxxxx Xxxx the invoice until the goods have actually been
delivered, and settlement shall take into account the advanced payment
made by Xxxxxxx Xxxx under sub-clause 2.4.a) above.
c) Xxxxxxx Xxxx shall pay for the once-off design expenses upon receipt of
an invoice, but Vista shall not be permitted to submit any such invoice
to Xxxxxxx Xxxx until the first Product consignment has been delivered
to which the once-off design expenses relate.
d) All payments made between Xxxxxxx Xxxx and Vista shall be denominated
in US Dollars.
2.5 ORDERS AND DELIVERIES
a) In consideration for the marketing rights granted under sub-clause
2.1.a) above, and always provided the terms of this Agreement are
adhered to, Xxxxxxx Xxxx shall place a call-off order for the Products
listed in Annex B. All deliveries by Vista to Xxxxxxx Xxxx shall be
made within a 90-day (ninety) period counting from the date on which
Vista receives the order from Xxxxxxx Xxxx. If it has previously
been agreed with Xxxxxxx Xxxx that the goods are to be delivered in part-
*** Portions of this page have been omitted pursuant to request for
Confidential Treatment and filed separately with the Commission.
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consignments, Vista shall make the complete delivery no later than
April 30, 2001 and Xxxxxxx Xxxx shall accept it no later than on that
date. If it is not possible for Xxxxxxx Xxxx to inspect and accept
the goods ordered from Vista until after the aforesaid later date,
Xxxxxxx Xxxx and Vista shall discuss and agree a new date for
inspection and acceptance.
b) All orders placed by Xxxxxxx Xxxx with Vista shall contain all the
information that Vista can reasonably request. Deliveries to Xxxxxxx
Xxxx shall not be worse than deliveries to Vista customers.
c) All orders placed by Xxxxxxx Xxxx shall be subject to acceptance by
Vista in accordance with the provisions of this present Agreement.
Vista shall be deemed to have accepted any orders from Xxxxxxx Xxxx
that have not been rejected by Vista within 10 (ten) working days of
receipt by Vista. Every order accepted by Vista shall represent a
contract between Vista and Xxxxxxx Xxxx for the sale of the Vista
Products ordered, and shall be subject to the terms and conditions for
orders under this present Agreement. The terms and conditions for orders
under this present Agreement shall determine the conditions stated in
Xxxxxxx Xxxx'x order and shall take precedence over other, additional,
or supplementary terms and conditions unless the same have been properly
approved by the Management Boards of both parties and clearly express
the fact that the specific additional or contradictory terms or
conditions have been agreed.
d) On or before September 30th of each and every year, Xxxxxxx Xxxx
shall place a call-off order with Vista stating the number of Vista
Products Xxxxxxx Xxxx expects to take from Vista in each month of the
coming calendar year. The call-off order shall be up-dated quarterly,
no later than the first day of each and every calendar Quarter. Xxxxxxx
Xxxx can change the call-off order after giving suitable advance
warning provided, however, that the first four (4) months of each
forecast shall constitute a firm purchase commitment by Xxxxxxx Xxxx for
delivery of products specified therein. Vista shall be under no
obligation to deliver quantities of Vista products that exceed Xxxxxxx
Xxxx'x forecast requirements by more than 25 (twenty-five) percent
unless Vista has been informed at least 4 (four) months in advance of
the additional quantities required and regardless of the fact that Vista
shall use its best endeavors to deliver the additional quantities
even without any such advance warning.
2.6 DELIVERY, EXPORT, AND IMPORT LICENSES
a) Title to the goods, and the risk of its loss or of damage to them,
shall be transferred from Vista to Xxxxxxx Xxxx at the moment they are
put at the disposal of Xxxxxxx Xxxx'x carrier at Vista's facility in
Westborough, MA, U.S.A.. Xxxxxxx Xxxx shall bear the costs of all
insurance, taxes and other charges such as Value Added Tax, withholding
tax, consumption tax, and customs charges.
b) Vista shall be responsible for obtaining any export licenses and
approvals that may be necessary for exporting the products from their
country of production.
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c) Xxxxxxx Xxxx shall be responsible for obtaining any import licenses and
approvals that may be necessary for importing the products in
compliance with the laws and regulations in force at the material point
in time. Vista shall co-operate with Xxxxxxx Xxxx in every respect with
the aim of obtaining all necessary approvals.
2.7 QUALITY, SAFETY, APPROVALS FROM SUPERVISORY AUTHORITIES
a) Vista shall provide Xxxxxxx Xxxx with all quality and safety reports
relevant to the Products. If Xxxxxxx Xxxx informs Vista of any obvious
quality or safety problem, once Vista has completed its examinations of
the defect Vista shall provide Xxxxxxx Xxxx with a report showing all
the steps that have been taken. Vista shall keep Xxxxxxx Xxxx informed
about the process of arriving at a solution. If a quality or safety
problem is confirmed to exist, Vista shall supply the necessary parts in
sufficient quantity and free of charge for any product changes that have
to be made outside the Vista facilities, and also parts and labor for
any product changes that have to be made within the Vista facilities,
including material and documentation, in order to rectify and safety
and/or quality problems the parties may have identified.
b) Vista shall be under an obligation to maintain a separate file on all
Products marketed by Vista or on Vista's behalf covering the product
history, and shall provide Xxxxxxx Xxxx with a copy thereof on request.
c) If product modifications have to be made on account of safety problems
that the parties have agreed exist, Vista shall be under an obligation
to retro-fit the entire existing installed base of the Products
installed by Xxxxxxx Xxxx. If Vista has to make product modifications
on account of quality problems, Vista and Xxxxxxx Xxxx shall decide
jointly on the execution of such modifications if any recommendations
from Xxxxxxx Xxxx have been taken into account.
d) Vista shall archive the relevant records of all Product sales and
technical and repair services to customers for at least 8 (eight) years
after this contract has been terminated or has expired or for any such
longer period of time that applicable law or regulations may require,
so that Xxxxxxx Xxxx can meet its statutory requirements with regard
to product recalls, safety precautions, and related quality and safety
obligations, and Vista shall give its full co-operation in any decision
by Xxxxxxx Xxxx on taking back or replacing Products or parts.
e) Vista shall be responsible, at its own expense and on its own behalf,
for those components that Vista is deemed the manufacturer, for
upholding the necessary FDA approval for the marketing of the Products,
and for the CE Label of Quality in accordance with the relevant Directive
on medical products. Within Europe, Xxxxxxx Xxxx shall be responsible for
all contacts with the relevant authorities, and shall apply for the
product registrations, on condition that Vista bears the ultimate legal
responsibility for the contents of all its own labeling. Xxxxxxx Xxxx
shall be designated to be the authorized representative within the
meaning of the Directive. Xxxxxxx Xxxx can also market systems in those
countries in which
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approval by the FDA or for a CE Label does not correspond in the usual
form to approval for commercial sale. Under these circumstances, Vista
shall provide Xxxxxxx Xxxx with all such information as is necessary,
and give its full co-operation, in order to obtain such approval for
specific countries. Xxxxxxx Xxxx shall be responsible for obtaining
any such specific approval.
2.8 WARRANTIES
a) Vista shall guarantee, for a period of *** months from the date on
which the goods are handed over to Xxxxxxx Xxxx, that all Products and
parts thereof and therein that are supplied under the terms of this
present Agreement meet the relevant product specifications and are free
of defects with regard to the suitability of the materials and to the
workmanship.
b) The legal redress that Xxxxxxx Xxxx has with regard to products that
Xxxxxxx Xxxx has acquired and that fail to comply with the warranty
defined in sub-clause 2.8.a) above shall be limited to repair or
replacement free of charge to Xxxxxxx Xxxx under the terms and
conditions set out below. Products that fail within the warranty
period shall be sent back to Vista at Xxxxxxx Xxxx'x expense, and the
repaired or replacement product shall be delivered to Xxxxxxx Xxxx at
Vista's expense. All repaired or replacement products shall be covered
by warranty for a period of *** days counting from the date on which
Xxxxxxx Xxxx takes receipt of them, or alternatively for the remaining
duration of the original product warranty, whichever is the longer.
c) All spare parts shall be covered by a simple parts warranty for a
period of *** days counting from the date on which they are installed.
d) The warranty conditions set out above shall apply to the exclusion of
any other warranties explicitly or implicitly given by Vista, which
Vista hereby rules out.
e) Vista's warranties shall not apply to any Products or parts thereof or
therein that have been modified or altered, that have not been
maintained in accordance with the maintenance instructions handed over
to Xxxxxxx Xxxx, that have been operated in any other way than that
stated in this documentation, or that have been misused through
negligence or in any other way. The foregoing shall include use outside
the recommended operating environment or in any way contrary to the
recommended operating conditions.
2. REPAIRS AND REPLACEMENT PARTS
Vista hereby declares its willingness to create the right conditions
for the maintenance of Products and/or for the supply of exchange
parts, replacement parts, and documentation necessary to enable all the
Products supplied under
*** Portions of this page have been omitted pursuant to request for
Confidential Treatment and filed separately with the Commission.
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the terms of this present Agreement to be maintained for at least 8
(eight) years after this Agreement has been terminated or has expired
to continue to be supplied at Vista's normal prices then in force.
Vista shall also supply training for technical and repair staff in
order to enable Xxxxxxx Xxxx to carry out its own fault-identification
and repairs.
2.10 REIMBURSEMENT, COMPENSATION, AND DAMAGES RELATING TO THE OWNERSHIP OF
PATENTS AND INTELLECTUAL PROPERTY RIGHTS
a) Vista shall reimburse Xxxxxxx Xxxx and shall absolve and indemnify
Xxxxxxx Xxxx for all costs, expenditure, damages, payments, and any
other forms of loss, including attorneys' fees connected in any way,
shape, or form with any claims raised by third parties alleging that
Vista products have violated or infringed any patent, copyright, trade
secrets, or any other intellectual property rights, provided any such
violation or infringement is attributable to Vista products sold by
Vista to Xxxxxxx Xxxx under the terms of this present Agreement, and
that such claims relate to on Vista products sold by Vista to Xxxxxxx
Xxxx under the terms of this present Agreement. Vista shall bear no
legal liability with regard to claims alleging violation or infringement
resulting from the use or combination of Vista products with products
or materials not originating from Vista if such violation or infringement
has been principally caused by any such use or combination. If any claims
of the aforesaid kind arise, Vista shall always have the right to take
control of proceedings on its own and to conduct its defense and/or
settle the claims. In any case, if Vista decides not to defend itself
actively against or to settle any such claim, Xxxxxxx Xxxx shall be free
to do so at its own expense.
b) If any Product or part thereof is regarded in any such litigation as a
violation or infringement of this nature, and a court of law forbids
its being used for its usual purposes, Vista shall, at its own expense
and its own free discretion, either obtain for Xxxxxxx Xxxx and/or the
customer the right to continue using the Product or part thereof or to
replace or modify it in such a manner that the claimed rights are not
and are no longer violated or infringed, or to remove the Product or
part thereof and to reimburse Xxxxxxx Xxxx for it at the price that
Xxxxxxx Xxxx paid Vista for it minus amortization calculated over 7
(seven) years on a linear basis to a residual value of 0 (zero).
c) This Clause shall retain its validity and remain in effect even after
this Agreement has expired or has been terminated prematurely.
2.11 PRODUCT LIABILITY AND INSURANCE
a) Vista shall bear liability for all injury to persons, including but
not restricted to death, and for all loss of or damage to property,
suffered either by Xxxxxxx Xxxx or other customers or third parties,
or any employees of the same, that are attributable to manufacturing
defects in the Products or any parts thereof or therein, but always
subject to the condition that such a manufacturing defects has
directly or indirectly caused the injury, loss, or damage concerned.
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Vista shall reimburse Xxxxxxx Xxxx and shall absolve and indemnify
Xxxxxxx Xxxx and its customers with regard to all costs, expenditure,
losses, claims for damages, compensation, penalties, and any other
monetary amounts it is under an obligation to pay on account of or in
connection with any such cases of injury, loss, or damage.
b) Xxxxxxx Xxxx shall bear legal liability for injury to persons and for
all loss of or damage to property, if Xxxxxxx Xxxx has made any
modifications to or representations of Vista products contrary to
written instructional materials provided by Vista, or has arranged for
any to be made, without Vista's consent, but only if it can be proved
that such modifications or representations have caused the injury,
loss, or damage concerned.
c) Worldwide, in accordance with the appropriate laws, Vista shall be
liable to indemnify and hold Xxxxxxx Xxxx harmless from any and all
claims arising from manufacturing defects in the products specified in
the contract or any part thereof.
Vista shall, at all times, maintain comprehensive general liability
insurance, covering personal injury and property damage on an
occurrence basis in the amount of U.S. *** per occurrence, and U.S.
$ *** annual aggregate of all claims.
Vista shall provide Xxxxxxx Xxxx with a certificate of insurance
evidencing the above insurance coverage. Any and all changes in the
insurance policy of Vista shall be immediately reported to Xxxxxxx
Xxxx.
2.12 ACTS OF GOD AND FORCE MAJEURE
a) Neither party shall be liable towards the other for the insufficient
fulfillment, the non-fulfillment, or the delayed fulfillment of any
obligations under this present Agreement, nor for any injury, loss,
damage, or expense suffered by the other party as a result thereof,
if any such insufficient fulfillment, non-fulfillment, or delayed
fulfillment has been caused by an Act of God or force majeure,
including for instance a storm, earthquake, flood, fire, disease,
or any other natural disaster, by war (whether declared or not),
hostile action, sabotage, invasion, quarantine restrictions, national
or local actions of the government or the state, or any other causes
beyond the reasonable control of the parties, provided the party
suffering the effects of any such Act of God or force majeure reports
them the other party without delay and in writing as soon as they occurs.
b) Acts of God or force majeure shall not be regarded as such if they are
not reported in the manner described above.
*** Portions of this page have been omitted pursuant to request for
Confidential Treatment and filed separately with the Commission.
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c) Should any such circumstances have their effect for longer than 6 (six)
months, either party shall be entitled, at its free discretion, to
terminate the Agreement in its entirety or in any part or parts after
giving the other party written notice of its intention.
d) For the purposes of this Clause, any instance of an Act of God or force
majeure that affects only one or more than one order shall not be
regarded as having its effect on the entire Agreement, and no such case
shall be deemed to release the parties from their obligations with
regard to this present Agreement or other orders that are not subject
to the effects of the Act of God or force majeure.
2.13 CONFIDENTIALITY
a) Without prejudice to the agreements entered into by Vista or Xxxxxxx
Xxxx on confidentiality and secrecy that retain their full validity and
effect so long as they are not terminated and do not expire as
specially provided for in this present Agreement, the parties hereby
agree on the following:
1. For the purposes of this Agreement, the term "internal company
or statutorily protection information" shall be deemed to
apply to all information and data designated and identified by
the party disclosing it as being internal or statutorily
protected or confidential, and disclosed by one party under
the terms of this Agreement to the other party in writing,
orally, or visually in accordance with the provisions set out
below, and including but not restricted to written documents,
samples, models, or other means of disclosure of such internal
company or statutorily protected information that Vista and
Xxxxxxx Xxxx consider using if either of the two parties
discloses its own statutorily protected information to the other,
and informs the other party within 30 (thirty) days after the
disclosure in writing about the disclosure, stating at the same
time the place and date of the disclosure and the name(s) of the
employee(s) of the other party to whom the disclosure was made
and describing the information thus disclosed.
2. Internal company or statutorily protected information as described
in sub-clause 2.13.a)1 above disclosed to the recipient party
shall not be used, duplicated, or revealed during the lifetime of
this Agreement, nor for a period of 2 (two) years thereafter,
except by or to those persons within the organization of the
recipient party who need it solely and exclusively for the purposes
described in detail in this present Agreement, and shall be
protected and treated as confidential by the recipient party, who
shall apply the same degree of diligence and the same security
precautions and shall treat it in the same way as it protects its
own information of the same importance.
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3. Both parties hereby declare that they will place all employees,
subsidiary, affiliated, and associated companies, and suppliers
who have signed a confidentiality agreement with either of the
parties under the same obligation to treat as confidential all
company internal or statutorily protected information disclosed
by the other party and that they will meet all the requirements
of Clause 2 of this Agreement.
4. The recipient party shall not be subject to any obligations or
restrictions with regard to any internal company or statutorily
protected information that:
(i) was accessible to the general public before it was
disclosed, or became accessible after it was
disclosed, and is no longer protected, provided that
this situation was not caused by any violation on the
part of the recipient party;
(ii) was received legally and lawfully by a third party
without restrictions and without any breach of this
agreement;
(iii) has been released for dissemination or use by the written
consent of the disclosing party;
(iv) must be disclosed by reason of a court order to this
effect.
5. The parties hereby expressly agree that the disclosure and
provision of internal company or statutorily protected information
by either party to the other under the terms of this present
Agreement shall not be construed as implying that the recipient
party is thereby granted, explicitly or implicitly, any license or
rights of any kind whatsoever relating to the objects, inventions,
or discoveries to which the statutorily protected information
belongs, nor any copyright, trade xxxx, or rights to a trade secret
to which the same may relate.
2.14 MARKETING, SELLING, AND AFTER-SALES SERVICE
a) Xxxxxxx Xxxx shall support the introduction of Products in the
Marketing Territory in an appropriate manner and shall promote the
introduction of the Products with the necessary sales training
sessions, by issuing the appropriate product literature, and by
exhibiting the Products at suitable events.
b) Xxxxxxx Xxxx shall prepare all sales and marketing material at its own
expense and following discussion and agreement with Vista. Vista shall
supply Xxxxxxx Xxxx with information necessary for the production of
sales and marketing materials.
c) Vista shall also supply Xxxxxxx Xxxx with its own user's handbook
(under copyright) in English, which Xxxxxxx Xxxx shall translate
as and when required in order to be able to meet the requirements
of the local markets and in order to emphasize Xxxxxxx Xxxx'x status
as the distributor.
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2.15 DURATION OF VALIDITY, DURATION AND TERMINATION OF CONTRACT, NOTICE OF
TERMINATION
a) This Agreement shall be valid once official copies have been certified
by authorized representatives of Xxxxxxx Xxxx and of Vista, and shall
take effect from that date and remain in effect until December 31st,
2002, always provided that the parties achieve agreement every year on
the minimum off-take quantities for the following year as stipulated in
sub-clause 2.15.b) of this present Agreement.
b) Should Xxxxxxx Xxxx fail by a wide margin to reach the minimum off-take
quantity agreed in the September of each preceding year in compliance
with sub-clause 2.5 above, and should the two sides fail to reach
agreement in any acceptable way on the minimum off-take quantities for
the future, this situation shall represent adequate grounds for either
party to bring this present Agreement to an end.
c) Provided always that Xxxxxxx Xxxx and Vista are able to agree each
year on fixed minimum off-take quantities, this present Agreement shall
be extended automatically for periods of 1 (one) year at a time.
d) This present Agreement can be terminated before its validity / lifetime
has expired:
1. by mutal agreement between the two parties, or
2. by either party if the other party has failed to meet an
essential obligation under the terms of this present Agreement
and has failed to rectify this alleged default within 90
(ninety) days of receiving a written notification, describing
the default in detail, or
3. by either party serving 60 (sixty) days' notice of termination
on the other, but only if the other party:
(i) no longer has the right to manufacture, market,
maintain, or sell a product, or has changed as the
result of actions by the government, a court of law,
or any other authority, or
(ii) has become insolvent, has been declared bankrupt, or
transfers its business assets in favor of creditors,
or undertakes any similar transaction, or if any
litigation or other proceedings are initiated by or
against Vista leading towards a re-organization,
restructuring, merger, liquidation, winding-up, or any
similar termination of business.
CLAUSE 3: MISCELLANEOUS POINTS
3.1 All communications and other exchanges of information shall be sent in
written form to the relevant address shown above or to any other
address that either
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party may designate to the other from time to time.
3.2 DISPUTES
a) This present agreement shall be subject to the material and procedural
laws of the State of California, but the areas of validity and the
validity itself of all patents and applications for patents shall be
regulated by the laws of the country in which any such patent has been
applied for or granted.
b) If any disputes, differences of opinion, or of claims any kind whatsoever
should arise between the parties as a result of the provisions of this
present Agreement, or in connection with it, the parties shall first
endeavor to arrive at a settlement that is in line with the shared
intentions reflected in this contract.
No claims that result from the provisions of this present Agreement, or
in connection with it in any way, shape, or form can be raised by
either party later than one year after the grounds for the complaint
became known.
3.3. GENERAL PROVISIONS
a) This present Agreement shall not be amended, added to, or modified in
any other way except by means of a written supplementary agreement,
properly dated and signed by the respective representatives of the two
parties.
b) Should either party fail to insist on the strict fulfillment by the
other party of all the conditions, provisions, or other circumstances
defined in this present Agreement, this shall not be construed as a
waiver or relinquishment of any claims nor of that party's right to
insist on strict fulfillment in the future.
c) This present Agreement shall be binding on both parties and shall be
interpreted in favor of the participating parties and their successors
or legal acquirers or the authorized representatives of the
participating parties. The Agreement shall apply to the parties
personally and cannot be transferred or disposed of by either party
without the prior written consent of the other party, subject always
to the condition, however, that either party can transfer the Agreement
with all its rights and duties to any subsidiary, affiliated, or
associated company, or any associated person, that is the successor in
all essential assets and in all essential business activities of the
party to which the Agreement relates.
In the event of Xxxxxxx Xxxx or Vista being taken over by another
company, the parties shall discuss and agree on the further fulfillment
of the terms of this contract by Xxxxxxx Xxxx and/or Vista or by the
acquiring company.
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d) This present Agreement can be signed as 2 (two) duplicates, in which
case one shall be regarded as the original and both together shall be
regarded as one and the same copy.
e) Should a competent court regard any provision of this present Agreement
to be invalid or unworkable, this invalidity or unworkability shall be
without impact on the remaining provisions of the Agreement, and all
provisions unaffected by the invalidity or unworkability shall retain
their full effect and validity. The invalidity or unworkability of a
provision in adjudication or jurisdiction shall have no effect on the
validity or implementability of the same provision in any other
adjudication or jurisdiction.
f) This present Agreement and its Annexes contain the totality of the
agreements between the parties on this subject and with this purpose,
and supersede all previous agreements between the parties and all
additions and supplements thereto on this subject; they shall
therefore take precedence before them with effect from the date of
issue. No alterations shall be legally binding unless they have been
made in writing and signed with legally binding effect by the
authorized representatives of both parties.
Vista Medical Technologies, Inc. Xxxxxxx Xxxx GmbH
Name: /s/ Xxxx Xxxx Name: /s/ X. Xxxxxxxx
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Date: December 22, 1999 Date: 12/22/1999
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ANNEX A
VISTA MEDICAL TECHNOLOGIES
PRODUCT SPECIFICATIONS
3D SYSTEM - VISTA
CONTROL UNIT 5535.101
TV system: PAL
3D SCOPE HEAD 5535.901
TV system: PAL
CONTROL UNIT 5535.701
TV system: NTSC
3D SCOPE HEAD 5535.961
TV system: NTSC
ORPC WITH INFORMATIX TM SOFTWARE VERSION 1.0 5540.101
with 3 x 3D-output for HMD (Head Mounted Display)
1 HEAD MOUNTED DISPLAY 5540.901
with microphone and 2 high resolution VGA,
Liquid-Crystal-Displays
Size: (36,2 x 23,5 cm oval, 15,9 cm high)
1 HEAD MOUNTED DISPLAY 5540.902
and 2 high resolution VGA,
Liquid-Crystal-Displays
Size: (36,2 x 23,5 cm oval, 15,9 cm high)
ENDOSITE STEREO SCAN CONVERTER 5541.101
with 2 stereo outputs for HMD
ENDOSITE MONO SCAN CONVERTER 5542.101
with 2 mono outputs for HMD
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ANNEX B
VISTA MEDICAL TECHNOLOGIES
PRODUCT PRICES AND QUANTITIES
QU'Y PRODUCT DESCRIPTION UNIT PRICE ($) TOTAL PRICE ($)
4 Demo versions of Vista Design *** ***
10 Basic endoscopy systems *** ***
19 3-D laparoscopy systems *** ***
1 HMD Head Set X. Xxxx/Vista *** ***
30 Advanced laparoscopy systems *** ***
Once-off redesign costs ***
TOTAL ***
DELIVERY PLAN
1. 4 (four) demo versions (already delivered in August/September 1999)
2. Further positions to be delivered in the period of January 2000 until
April 2001 - see purchase order nos. P:
680883, 680881, 680874, 680871, 680869,
680876, 680878, 680879, 680880
Status: November 15, 1999
*** Portions of this page have been omitted pursuant to request for
Confidential Treatment and filed separately with the Commission.
18
