EXHIBIT 10.2
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") dated July 29, 2004, is by
and between FUJIFILM Medical Systems U.S.A., Inc., a New York corporation
("Fuji") and Integrated Surgical Systems, Inc. a Delaware corporation ("ISS").
RECITALS
WHEREAS, ISS has developed pre-surgical planning software, using its
proprietary technology, for use in surgeries involving the replacement of a knee
or hip joint with a manmade metal joint and markets such software under the name
OrthodocTM ("Orthodoc");
WHEREAS, under valid licenses issued to ISS, Orthodoc incorporates data
from multi-vendor prosthetic libraries for orthopedic implants (the "Third Party
Content"), which ISS has converted, in order to render 3D templates for such
orthopedic implants;
WHEREAS, Fuji has developed and markets a software product, Synapse(TM),
which, among other things, enables the input and conversion of x-ray images into
2D digital images;
WHEREAS, Fuji and ISS, entered into a Software Development Agreement dated
November 17, 2003 (the "Development Agreement"), whereby (a) ISS agreed to port
Orthodoc, its existing 3D planning software technology, and all Third Party
Content and core software libraries to function on a Windows(TM) platform (the
"ISS Software") and (b) Fuji and ISS agreed, among other things, to work
together, using the ISS Software, to develop user interfaces and features for an
integrated 2D x-ray and 3D orthopedic implant pre-surgical planning system (the
"Integrated Software"), to be owned and marketed by Fuji; and
WHEREAS, Fuji and ISS desire to enter into a license for the ISS Software,
subject to and in accordance with the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual promises
and covenants contained herein, the parties agree as follows:
AGREEMENT
1. DEFINITIONS
In addition to any terms defined in the preamble and herein, the following
is a list of defined terms used in this Agreement:
1.1 "Affiliate" means any entity that directly or indirectly, through one
or more intermediaries, controls, or is controlled by or is under common control
with Fuji or ISS (as the case may be).
1.2 "Documentation" means the ISS Software user guides, reference manuals,
job aides, installation materials and other written or computer-generated
materials.
1.3 "End User" means any entity, not an Affiliate of Fuji, that licenses
the Fuji Product for internal use and not for resale.
1.4 "Fuji Product" means Synapse(TM) integrated with the Integrated
Software and any other product developed by Fuji that contains, or is bundled or
combined with the Integrated Software.
1.5 "Integrated Software" has the meaning set forth in the preamble hereof.
1.6 "ISS Software" has the meaning set forth in the preamble hereof and
shall include all New Versions, Updates and Upgrades, in each case, all current
and future foreign language versions thereof.
1.7 "License Fees" means the fees due to ISS for the ISS Software, pursuant
to Section 4.1 hereof.
1.8 "Maintenance and Support Fee" means the fees due to ISS for the
Maintenance, Upgrades, Updates New Versions or Third Party Content Update,
pursuant to Section 4.2 hereof.
1.9 "Net Revenue" means that certain portion of the total license fee
received by Fuji from an End User for a Fuji Product which Fuji, in its sole
discretion, attributes to the license of the Integrated Software included
therein or sold or licensed therewith.
1.10 "New Version" means any new version of the ISS Software, Orthodoc or
the Third Party Content, for which the number to the left of the decimal point
is increased. For example, Orthodoc 5.0 would be a New Version to Orthodoc 4.0.
For purposes hereof, any release of ISS Software, Orthodoc or Third Party
Content in an additional language shall be considered a New Version whether or
not released under a new number.
1.11 "Source Code" means those statements in a computer language, which,
when processed by a compiler, assembler or interpreter, become executable by a
computer and includes Source Code for the ISS Software, the Third Party Content
and any and all software necessary for the integration and interface of the
Third Party Content with and into the ISS Software.
1.12 "Third Party Content" has the meaning set forth in the preamble hereof
and all other data regarding prosthetics and orthopedic implants that is now or
hereafter used in or with the ISS Software and/or Orthodoc.
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1.13 "Update" means a new release of the ISS Software, Orthodoc or the
Third Party Content, which, for reason of additional functionality, the number
to the right of the first decimal point is increased and includes Third Party
Content Updates. For example, Orthodoc 4.1 would be an Update to Orthodoc 4.0.
1.14 "Upgrade" means a bug fix, workaround, or patch to correct any
reproducible error in the ISS Software, Orthodoc or the Third Party Content.
2. LICENSE GRANT AND RIGHT OF USE
2.1 (a) License Grant. Subject to the terms and conditions of this
Agreement, ISS grants to Fuji a perpetual, nontransferable (other than as set
forth in Section 13.6 hereof) sublicensable license to use, reproduce, and/or
modify the ISS Software to develop, create, manufacture, test, distribute, sell,
maintain and support Fuji Products. Such license shall be exclusive to Fuji
until May 16, 2005, and thereafter shall be nonexclusive. The license includes,
but is not limited to, a license under any and all patents and any and all
applications therefore, that have been filed or may be filed in the future with
respect to the ISS Software and/or Orthodoc. ISS shall seek, obtain, and during
the term hereof, maintain and enforce in its own name and at its own expense,
appropriate patent, trademark and/or copyright protection for the ISS Software.
2.2 End User Licensing. Fuji agrees that each copy of a Fuji Product
distributed by Fuji hereunder shall be accompanied by a copy of Fuji's standard
end user software license; provided, however, that the terms of such license
shall be drafted so as to apply to the ISS Software and shall be at least as
protective of the ISS Software as the terms and conditions for the Fuji Product
and the terms and conditions governing this Agreement.
2.3 Proprietary Notices. Fuji shall reproduce all copyright or other
proprietary notices contained in the ISS Software code, as provided by ISS and
ISS hereby conveys to Fuji a perpetual, nonexclusive, nontransferable license to
use and reproduce such copyrights or other proprietary notices for the purposes
of this Section 2.3. These notices may appear in conjunction with Fuji's
notices.
2.4 Cooperation. Fuji may submit applications and information to the U.S.
Food and Drug Administration and/or other governmental authorities for approvals
or clearance of a Fuji Product containing, or combined or bundled with the ISS
Software. At the request of Fuji, ISS shall cooperate with Fuji in submitting
such applications and information, including providing such documentation as
shall be necessary to obtain approval for the sale of such Fuji Product.
3. TERM
The term of this Agreement shall be five (5) years from the date hereof,
unless terminated earlier as provided in this Agreement.
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4. PAYMENT
4.1 License Fee. In consideration of the licenses granted in Section 2.1
hereof, Fuji shall pay ISS a License Fee equal to ten (10%) percent of the Net
Revenue received by Fuji during the term of this Agreement. Notwithstanding the
foregoing, ISS hereby grants to Fuji the right to distribute or sell fifteen
(15) concurrent use licenses for the ISS Software without paying a License Fee.
4.2 Maintenance and Support Fee. In consideration of the Maintenance,
Updates, Upgrades or New Versions to be provided to Fuji in accordance with
Sections 5.1 and 5.2 hereof, Fuji shall pay ISS, in respect of each license of a
Fuji Product, an annual Maintenance and Support Fee equal to fifteen (15%)
percent of the License Fee payable hereunder for each year, other than the first
year, during the term of such license.
4.3 Payment Terms. All fees due hereunder shall be paid quarterly on the
last business day of each calendar quarter. Each such payment shall be
accompanied by a written report from Fuji setting forth the nature and amount of
each such payment.
5. MAINTENANCE, UPDATES, UPGRADES AND NEW VERSIONS
5.1 Maintenance. During the term of this Agreement, ISS shall correct or
replace the ISS Software or provide an Upgrade necessary to remedy any
programming error which is attributed to ISS. Such correction, replacement or
services shall be promptly provided after Fuji has identified and notified ISS
of any such error. All such corrections and replacements to be provided in
accordance with this Section 5.1 shall function on a Windows(TM) platform. ISS
shall assist Fuji in integrating all corrections and replacements into the
Integrated Software.
5.2 Updates, Upgrades and New Versions. ISS shall promptly deliver to Fuji
all Updates, Upgrades and New Versions, whichever is applicable. In no event
will ISS deliver to Fuji an Update, Upgrade or New Version more than thirty (30)
days following ISS's beta release and/or production release of the same. All
Updates, Upgrades and New Versions shall function on a Windows(TM) platform. ISS
shall assist Fuji in integrating all Updates, Upgrades and New Versions into the
Integrated Software.
5.3 License of Updates, Upgrades and New Versions. Upon delivery of the
foregoing items to Fuji, the licenses granted to Fuji pursuant to Section 2.1
hereof shall be deemed to include such items. Fuji acknowledges that during the
term of this Agreement, in addition to delivering to Fuji the Updates, Upgrades
and New Versions, ISS expects to release additional components and separate
modules not described in Section 5.2 hereof for the ISS Software for which ISS
may elect to require that licensees pay separate consideration and enter into
separate agreements or amendments in order to have any rights to such modules or
components.
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6. OWNERSHIP
6.1 By ISS. Subject to the licenses granted herein, ISS retains all right,
title and interest in and to the ISS Software. Fuji acknowledges that the
licenses granted herein do not provide Fuji with title to or ownership of the
ISS Software, but only the rights expressly set forth herein. No rights are
granted other than the rights expressly set forth herein.
6.2 By Fuji. Fuji retains all right, title and interest in and to the Fuji
Products. To the extent the Fuji Products contains any ISS Software, ISS retains
all right, title and interest to such ISS Software as set forth in Section 6.1
hereof.
6.3 Source Code. ISS agrees to maintain the Source Code in both human and
machine-readable form in escrow for the benefit of Fuji, at Fuji's sole expense,
pursuant to a third-party escrow agreement in substantially the form annexed
hereto as Exhibit A. To the extent that Fuji receives access to source code as
set forth herein, ISS grants Fuji a non-exclusive license with the right to
install and use, execute, display and modify the source code for the purposes of
maintaining, operating, upgrading and enhancing the Fuji Products for use by
Fuji pursuant to the license granted in Section 2.1 hereof.
7. WARRANTIES
7.1. ISS Warranties.
(a) Ownership. ISS represents and warrants to Fuji that: (i) it has
the full power to enter into this Agreement, to carry out its obligations herein
contained, and to grant the rights herein granted to Fuji and (ii) it is the
owner of the ISS Software or otherwise has the right to grant to Fuji the
license to use the same (including, without limitation all Third Party Content)
as set forth in this Agreement without violating any rights of any third party,
and there is currently no actual or threatened suit by any such third party
based on an alleged violation of such right by ISS.
(b) Function. Subject to the limitations set forth in this Agreement,
ISS warrants to Fuji that the ISS Software does not contain any virus, time bomb
mechanism or other software or code that can disable or adversely affect any and
all of the Integrated Software or destroy any data or other software and shall
perform in conformance with the functional requirements set forth in the
Documentation, in all material respects.
7.2 Fuji Warranty. Fuji represents and warrants to ISS that it has the full
power to enter into this Agreement and to carry out its obligations herein
contained.
8. WARRANTY DISCLAIMER
EXCEPT AS STATED IN SECTION 7 ABOVE, ISS PROVIDES NO WARRANTY, EXPRESS,
IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ANY WARRANTY
OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH
RESPECT TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION WITH RESPECT TO THE
ISS SOFTWARE, WHICH IS PROVIDED "AS IS".
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9. LIMITATION OF LIABILITY
EXCEPT FOR LIABILITY UNDER SECTIONS 10 AND 12 HEREOF, IN NO EVENT SHALL
ISS'S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE AMOUNTS RECEIVED
BY ISS FROM FUJI HEREUNDER. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR
LOST PROFITS OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT
DAMAGES, HOWEVER CAUSED OR INCURRED BY EITHER PARTY OR ANY THIRD PARTY AND
ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT. EACH PARTY
ACKNOWLEDGES AND AGREES THAT THE PRICE SET FORTH HEREIN IS BASED IN PART
UPON THESE LIMITATIONS, AND FURTHER AGREES THAT THESE LIMITATIONS SHALL
APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
REMEDY.
10. INDEMNIFICATIONS
10.1 ISS will indemnify, defend and hold harmless Fuji for any and all
losses, claims, suits, proceedings, liabilities, causes of action, damages
costs, expenses (including reasonable attorneys' fees and expenses) arising out
of any claim, suit or proceeding brought against Fuji resulting, directly or
indirectly, from a claim that the ISS Software supplied by ISS and when used as
provided for by this Agreement, infringes any copyright, trade secret, trademark
or patent of any third party. ISS will pay any award against Fuji, or settlement
entered into on Fuji's behalf, based on such infringement only if Fuji notified
ISS promptly in writing of the claim and provided reasonable assistance in
connection with the defense and/or settlement thereof and permitted ISS to
control the defense and/or settlement thereof; provided, however, that ISS shall
not (a) have the right to control the defense if (i) Fuji shall have been
advised by counsel that there are one or more legal or equitable defenses
available to it which are different from or in addition to those available to
ISS, and in the reasonable opinion of Fuji, ISS's counsel could not adequately
represent the interests of Fuji because such interests could be in conflict with
those of Fuji, (ii) such action or proceeding involves, or could have a material
effect on, any material matter beyond the scope of the indemnification
obligation of ISS, or (iii) ISS shall not have assumed the defense of any claim
in a timely fashion, and (b) settle any claim without the prior written consent
of Fuji, which consent shall not be unreasonably withheld or delayed. ISS shall
have no liability to the extent the alleged infringement is caused by any
unauthorized modifications or combination of the ISS Software with Fuji Products
or other non-ISS equipment, programs or data, where the ISS Software alone would
not have given rise to the claim.
10.2 ISS Options. In the event of an infringement action against Fuji with
respect to the ISS Software, or in the event ISS believes such a claim is
likely, ISS shall be entitled, at its option but without obligation to:
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(a) appropriately modify the ISS Software, or substitute other ISS
software product which, in ISS's good faith opinion, does not infringe any third
party intellectual property rights;
(b) obtain a licensee with respect to the applicable third party
intellectual property rights; or
(c) if neither (a) nor (b) is commercially practicable, terminate this
Agreement and Fuji's licenses hereunder. In such case, the ISS shall refund to
Fuji the entire amounts paid to ISS over the last year. This refund shall be in
addition to the indemnification provided to Fuji in Section 10.1 above.
10.3 Entire Liability. Notwithstanding anything to the contrary, this
Article 12 states ISS's entire liability for actual or alleged infringement of
intellectual property rights.
10.4 Indemnification of ISS. Except for intellectual property infringement
claims with respect to the ISS Software, Fuji agrees to indemnify and hold ISS
harmless against any liability, or any litigation cost or expense (including
reasonable attorneys fees), arising out of third party claims against ISS as a
result of Fuji's use or distribution of the ISS Software. Fuji will pay any
award against ISS, or settlement entered into on ISS's behalf, based on such
infringement only if ISS notified Fuji promptly in writing of the claim and
provided reasonable assistance in connection with the defense and/or settlement
thereof and permitted Fuji to control the defense and/or settlement thereof;
provided, however, that Fuji shall not (a) have the right to control the defense
if (i) ISS shall have been advised by counsel that there are one or more legal
or equitable defenses available to it which are different from or in addition to
those available to Fuji, and in the reasonable opinion of ISS, Fuji's counsel
could not adequately represent the interests of ISS because such interests could
be in conflict with those of ISS, (ii) such action or proceeding involves, or
could have a material effect on, any material matter beyond the scope of the
indemnification obligation of Fuji, or (iii) Fuji shall not have assumed the
defense of any claim in a timely fashion, and (b) settle any claim without the
prior written consent of ISS, which consent shall not be unreasonably withheld
or delayed. Fuji shall have no liability to the extent the alleged infringement
is caused by any unauthorized modifications or combination of the ISS Software
with the Fuji Product or other non-Fuji equipment, programs or data, where the
Fuji Product alone would not have given rise to the claim.
10.5 Survival of Indemnification. The rights to indemnification provided in
this Article 12 shall survive the termination of this Agreement.
11. TERMINATION
11.1 Termination for Cause. Either party may terminate this Agreement for
the breach by the other party. The terminating party will first give the other
party written notice of the breach and the alleged breaching party shall have
fifteen (15) days in which to cure the alleged breach. If a cure is not achieved
during the cure period, then the non-breaching party may terminate the Agreement
upon written notice. Notwithstanding the foregoing, if, as a result of any event
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regarding ISS, Fuji is unable to continue distributing, licensing or selling the
ISS Software, Fuji may terminate this Agreement and ISS shall have no right to
cure such breach.
11.2 Insolvency, Assignment, Bankruptcy or Nonavailability. Either party
may terminate this Agreement upon written notice to the other party if the other
party:
(a) becomes unable to pay debts in the ordinary course of business or
as they become due, or is insolvent within the meaning of the federal bankruptcy
laws;
(b) files or has filed against it a petition (or other document) under
any bankruptcy law or similar law, which is unresolved within sixty days of the
filing of such petition (or document);
(c) proposes any dissolution, liquidation, composition, financial
reorganization of recapitalization with creditors;
(d) makes a general assignment or trust mortgage for the benefit of
creditors;
(e) if a receiver, trustee, custodian or similar agent is appointed or
takes possession of any of Fuji's or ISS's property or business; or
(f) is unable to perform its obligations hereunder.
11.3 Effect of Termination of Obligations. Termination of this Agreement
will not affect any pre-termination obligation of either party under this
Agreement, and any termination is without prejudice to the enforcement of any
undischarged obligations existing at the time of termination. Regardless of any
other provisions of this Agreement, neither party will by reason of the
termination of this Agreement be liable for compensation, reimbursement, or
damages on account of the loss of prospective profits on anticipated sales, or
on account of expenditures, investments, leases or commitments in connection
with either party's business or goodwill, or otherwise.
11.4 Effect of Termination of Licenses. Upon the termination or expiration
of this Agreement, all of Fuji's rights and licenses with respect to the ISS
Software shall survive. Notwithstanding the foregoing, unless this Agreement is
terminated by ISS for Fuji's actual default by reason of non-payment of the
License Fees and/or the Maintenance and Support Fees, Fuji shall be entitled to
continue to distribute the ISS Software in accordance with Section 2.1 hereof,
so long as Fuji continues to pay the applicable License Fees. Each End User
license agreement in existence as of the effective date of termination shall
survive in accordance with its terms.
12. CONFIDENTIALITY
12.1. Confidential Information. As used in this Agreement, the term
"Confidential Information" shall mean any information disclosed by one party to
the other pursuant to this Agreement which is in written, graphic, machine
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readable or other tangible form and is contains current and future product
information, research, development, trade secrets, financial and other business
and/or proprietary information. Confidential Information may also include oral
information disclosed by one party to the other.
12.2. Duty of Confidentiality. Each party shall treat as confidential all
Confidential Information of the other party, shall not use such Confidential
Information except as set forth herein, and shall use reasonable efforts not to
disclose such Confidential Information to any third party. Without limiting the
foregoing, each of the parties shall use at least the same degree of care that
it uses to prevent the disclosure of its own Confidential Information of like
importance to prevent the disclosure of Confidential Information disclosed to it
by the other party under this Agreement. Each party shall promptly notify the
other party of any actual or suspected misuse or unauthorized disclosure of the
other party's Confidential Information.
12.3 Exceptions. Notwithstanding the above, neither party shall have
liability to the other with regard to any Confidential Information of the other
which the receiving party can prove:
(a) was in the public domain at the time it was disclosed or has
become in the public domain through no fault of the receiving party;
(b) was known to the receiving party without restriction at the time
of disclosure, as demonstrated by files in existence at the time of disclosure;
(c) is disclosed with the prior written approval of the disclosing
party;
(d) was independently developed by the receiving party without any use
of the Confidential Information;
(e) becomes known to the receiving party, without restriction, from a
source other than the disclosing party without breach of this Agreement by the
receiving party and otherwise not in violation of the disclosing party's rights;
(f) is disclosed generally to third parties by the disclosing party
without restrictions similar to those contained in this Agreement; or
(g) such disclosure is required by order or requirement of a court,
administrative agency, or other governmental body.
12.4 Confidentiality of Agreement. Each party shall be entitled to disclose
the existence of this Agreement, but agrees that the terms and conditions of
this Agreement shall be treated as Confidential Information and shall not be
disclosed to any third party; provided, however, that each party may disclose
the terms and conditions of this Agreement:
(a) as required by any court or other governmental body;
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(b) as otherwise required by law;
(c) to legal counsel of the parties;
(d) in confidence, to accountants, banks, and financing sources and
their advisors;
(e) in connection with the enforcement of this Agreement or rights
under this Agreement; or
(f) in confidence, in connection with an actual or proposed merger,
acquisition, or similar transaction.
12.5 Survival. Article 14 of this Agreement shall survive for one (1) year
after the termination date of this Agreement.
13. GENERAL PROVISIONS
13.1 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York, applicable to agreements
entered into and to be performed wholly within such jurisdiction. All disputes
arising out of this Agreement shall be subject to the exclusive jurisdiction of
the courts of the State of New York and the parties agree and submit to the
personal and exclusive jurisdiction and venue of these courts.
13.2 Partial Invalidity. If any provision in this Agreement shall be found
or held to be invalid or unenforceable in any jurisdiction in which this
Agreement is being performed, then the meaning of said provision shall be
construed, to the extent feasible, so as to render the provision enforceable,
and if no feasible interpretation would save such provision, it shall be severed
from the remainder of this Agreement, which shall remain in full force and
effect. In such event, the parties shall negotiate, in good faith, a substitute,
valid and enforceable provision that most nearly effects the parties' intent in
entering into this Agreement.
13.3 Independent Contractors. The parties hereto are independent
contractors. Nothing contained herein or done in pursuance of this Agreement
shall constitute either party becoming an agent of the other, for any purpose or
in any sense whatsoever, or constitute the parties as partners or joint
venturers. Fuji shall make no representations or warranties on behalf of ISS
with respect to the ISS software products.
13.4 Modification. No alteration, amendment, waiver, cancellation or any
other change in any term or condition of this Agreement shall be valid or
binding on either party unless the same shall have been mutually assented to in
writing by both parties.
13.5 Waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement, shall in no way
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be construed to be a present or future waiver of such provisions, nor in any
affect the right of either party to enforce each and every such provision
thereafter. The express waiver by either party of any provision, condition or
requirement of this Agreement shall not constitute a waiver of any future
obligation to comply with such provision, condition or requirement.
13.6 Assignment. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided, however, that neither party shall assign any of its rights,
obligations, or privileges (by operation of law or otherwise) hereunder without
the prior written consent of the other party; provided, further, that no such
prior written consent shall be needed if Fuji assigns this Agreement to one of
its Affiliates. Notwithstanding the foregoing, either party may assign this
Agreement to a successor in interest (or its equivalent) of all or substantially
all of its relevant assets, whether by sale, merger, or otherwise. Any attempted
assignment in violation of this Section 13.6 shall be null and void.
13.7 Notices. Any notice required or permitted to be given by either party
under this Agreement shall be in writing and shall be personally delivered or
sent by commercial courier or by first class mail/air mail (certified or
registered if available), or by telecopy confirmed by first class mail/air mail
(registered or certified if available), to the other party at its address set
forth below or such new address as may from time to time be supplied hereunder
by the parties hereto.
If to Fuji:
FUJIFILM Medical Systems U.S.A., Inc.
000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
Vice President, Marketing and Network Development
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy to:
Fuji Photo Film U.S.A., Inc.
000 Xxxxxx Xxxx
Xxxxxxxx, XX 00000
Attn: Xxxxxxxx File
General Counsel
Tel: (000) 000-0000
Fax: (000) 000-0000
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If to ISS:
Integrated Surgical Systems, Inc.
0000 Xxxxxxxx Xxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxxx Xxxxxxx
Chief Executive Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
13.8 Force Majeure. Notwithstanding anything else in this Agreement, and
except for the obligation to pay money, no default, delay or failure to perform
on the part of either party shall be considered a breach of this Agreement if
such default, delay or failure to perform is shown to be due to causes beyond
the reasonable control of the party charged with a default, including, but not
limited to, strikes, lockouts or other labour disputes, riots, civil
disturbances, actions or in actions of governmental authorities or suppliers,
epidemics, war, embargoes, severe weather, fire, earthquakes, acts of God or the
public enemy, nuclear disasters, or default of a common carrier.
13.9 No Third Party Beneficiaries. Unless otherwise expressly provided, no
provisions of this Agreement shall be construed to confer upon or give to any
person or entity other than ISS and Fuji any rights, remedies or other benefits
under or by reason of this Agreement.
13.10 Entire Agreement. The terms and conditions herein contained,
including all exhibits hereto, constitute the entire agreement between the
parties and supersede all previous agreements and understandings, other than the
Software Development Agreement, whether oral or written, between the parties
hereto with respect to the subject-matter hereof. The terms and conditions of
the Agreement shall automatically apply to each transaction between the parties
contemplated by this Agreement notwithstanding any additional or different terms
and conditions of the Software Development Agreement or other document.
13.11 Headings. The headings provided in this Agreement are for the
convenience only and will not be used in interpreting or construing this
Agreement.
[Signature page to follow]
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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
signed by duly authorized officers of representatives.
FUJIFILM MEDICAL SYSTEMS U.S.A., INC.
By: /s/ Xxxxxxx Xxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President, Marketing and Network Development
INTERGRATED SURGICAL SYSTEMS, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Executive Officer
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Exhibit A
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ESCROW AGREEMENT
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