EXHIBIT 10.54
AMENDMENT TO MANUFACTURING SUPPLY AGREEMENT
This Amendment to the Manufacturing Supply Agreement (the "Amendment")
dated this ninth (9th) day of December, 1997, is made by and between Vista
Medical Technologies, Inc. ("Vista"), a Delaware Corporation, located at 0000
Xxxxxxx Xxxxxxx, Xxxxx X, Xxxxxxxx, XX 00000 and Xxxxxx Electro-Optics, Inc.,
("KEO"), a California Corporation located at 0000 Xxxxx Xxxxxx Xxxx, Xxxxxxxx,
XX 00000.
Reference is made to the Manufacturing Supply Agreement dated July 19, 1995
by and between Vista and KEO. Terms used herein and not otherwise defined shall
have the meaning as set forth in the Manufacturing Supply Agreement.
WHEREAS, Vista and KEO desire to amend the Manufacturing Supply Agreement
in the manner hereinafter provided;
NOW, THEREFORE, in consideration of the agreements set forth herein, Vista
and KEO hereby amend the Manufacturing Supply Agreement as of the date set forth
above (the "Effective Date") as follows:
1. Paragraph three under Recitals is revised to read "WHEREAS, Vista
desires to have KEO manufacture Product as such shall be hereinafter defined,
and"
2. A "DEFINITIONS" section shall be added between RECITALS and AGREEMENT
and shall read as follows:
DEFINITIONS
PRODUCT. "PRODUCT" means the optical modules including the MHMD
electronics for the current configuration of the MHMD and any reasonable
functional derivative thereof.
MEDICAL MARKETPLACE. "MEDICAL MARKETPLACE" means surgical, clinical,
including clinical research, medical diagnostic and interventional applications.
3. Item 2 is amended to delete the words "consisting of the head-mounted
display optical subassembly of the MHMD," from the first sentence.
4. Item 8 is revised to read: "KEO shall maintain product liability
insurance in effect to cover any manufacturing deficiencies in its Product
caused by non-conformance to the product specification. KEO will indemnify,
hold harmless, and defend Vista, including Vista's dealers and agents, from and
against any claim, demand, liability, loss, damage, suit or judgment in
connection with use of the Product caused by KEO's failure to deliver such
Product in accordance with the warranties set forth in this Agreement or KEO's
gross negligence or willful misconduct, provided, however, that the term of the
warranty specified in Item 10 does not apply to this Item 8. KEO will not be
liable for any failures of the MHMD caused by manufacturing or design defects in
anything other than its own manufacturing of Product."
5. Item 9 is revised to read: "KEO will indemnify, hold harmless and
defend Vista, including Vista's dealers and agents, from and against any claim,
demand, liability, loss, damage, suit, or judgment in connection with use of the
Product caused by KEO's failure to deliver such Product in accordance with the
warranties set forth in this Agreement or KEO's gross negligence or willful
misconduct, provided, however, that the term of the warranty specified in Item
10 does not apply to this Item 9. Vista will indemnify, hold harmless and
defend KEO, including KEO's affiliates, employees, and agents from and against
any claim, demand, liability, loss, damage, suit or judgment in connection with
use of the Product caused by reasons other than KEO's failure to deliver such
Product in accordance with the warranties set forth herein or KEO's gross
negligence or willful misconduct."
6. The first sentence in Item 11 is amended to read "The duration of this
agreement is five (5) years from the Effective Date of the Amendment provided it
is not terminated sooner pursuant to paragraph 12."
7. The first sentence in Item 12(a) is amended to read "If either party
has defaulted or failed to perform a material obligation arising...".
8. Item 12(d) shall be added and read as follows: "If KEO is out of
continuous production for a period of six (6) calendar months and is not in
receipt of a follow on production contract due to the lack of a VMTI Purchase
Order, the MSA can be terminated by KEO."
9. Item 13(c) is amended to insert the words "by KEO" after "for reasons
other than a breach."
10. Item 19 is amended to change the address of Vista Medical
Technologies, Inc. to read:
0000 Xxxxxxx Xxxxxxx, Xxxxx X
Xxxxxxxx, XX 00000
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by the respective duly authorized representatives as of the effective
date.
VISTA MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxx Xxxx
--------------------------------
Its: President
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XXXXXX ELECTRO-OPTICS, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Its: President
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