The brackets ("[ ]") which appear in various places in the following exhibit
indicate areas where confidential information has been redacted by the Company.
Such redacted information is the subject of a request for confidential treatment
and is therefore being filed separately with the Commission.
1
OEM Purchase Agreement
This Agreement is made this 6th day of AUG , 1996, by and between
Image Guided Technologies, Inc., with an address at 5710-B Flatiron Parkway,
Boulder, CO 80301 (hereafter called "IGT") and Radionics Software Applications,
Inc., with an address of 22 Terry Avenue, Burlington, MA USA 01830, (hereafter
called "RSA").
The parties make the following agreements:
1. The Products to be purchased and/or licensed by RSA from IGT and covered by
this Agreement are listed on Exhibit A. The per item price for such Products in
US dollars is also listed in Exhibit A, provided however, that prices may change
with ninety (90) days prior written notice by IGT to RSA. Prices are net of
shipping, insurance and all value-added taxes, customs fees, sales and/or use
taxes; freight by an RSA approved carrier shall be prepaid and added to the
invoice. RSA shall receive such discounts for quantity purchases as indicated
in Exhibit A. The discount on any individual purchase order will be based on
the accrued year-to-date quantity and will be taken as earned on each new order.
The discount schedule may change at the yearly anniversary with ninety (90) days
prior written notice by IGT to RSA. There are no bill-backs for discounts
given.
2. RSA may purchase IGT software licenses for its own use, and subject to the
terms and conditions of this Agreement, IGT hereby grants to RSA, with the right
to sublicense to RSA affiliates, a world-wide, non-exclusive license to use the
IGT software in object code only, for RSA s (or the Affiliate s) own use on the
specified IGT hardware; RSA s own use includes copying portions of the IGT
software in the creation of communication protocols, interfaces or other devices
or programs necessary or desirable to integrate the IGT hardware and IGT
software into the RSA system; RSA shall include all IGT proprietary legends on
such portions copied. In addition, RSA may rent or lease the IGT software in
object code only to third parties who are renting or leasing RSA systems
incorporating IGT hardware and IGT software. In addition, RSA may purchase IGT
software licenses and sublicense the IGT software to RSA s or its Affiliates
distributors in the sales channel or to end-users, only in object code form, for
use on specified IGT hardware incorporated in an RSA system.
3. RSA shall submit purchase orders to IGT for Products from time to time; all
purchase orders are governed by the terms and conditions of this Agreement,
except for quantity ordered. IGT shall accept all such purchase orders, and
shall deliver all Products within the mutually agreed time frame established at
the time the order is received by IGT and IGT agrees to ship at least [ ]
systems per month if required by RSA. Risk of loss and title to hardware shall
pass at IGT's dock. Although RSA must indicate an intent to purchase at least
[ ] systems during each year of this agreement to obtain the base OEM discount
of [ ], RSA makes no commitment to purchase any minimum number of Product, nor
does RSA guarantee any profit, revenue or other income to IGT.
1
4. RSA shall pay IGT for Products shipped within thirty days of receipt of goods
and conforming invoice. RSA shall pay in US Dollars.
5. RSA may cancel any purchase order with thirty days prior written notice; RSA
shall take delivery of Product completed during the thirty day wind-down period,
but shall have no other obligation to IGT.
6. IGT warrants the IGT Hardware and Software as set forth in Exhibit B, "The
IGT Product Warranty". IGT warrants that all Products delivered according to
this Agreement shall, at the time of delivery, conform to the UL and IEC
standards included in the IGT Product specification shown on Exhibit C, Product
Specification, and by June 30, 1997 the Products shall bear the CE mark and
conform to ISO 9000 requirements in effect as of that date. IGT further
warrants that the software Products shall perform substantially in accordance
with their specifications for a period of one year from date of shipment. IGT
further warrants that each Product shall be factory tested and qualified, and
that it shall perform in accordance with its written specifications as of the
date of shipment.
In the event such Product is not returned by IGT within fifteen (15)
business days, or does not perform as warrantied after return except in the case
where such delay is caused by condition(s) beyond IGT s reasonable control,
then, as RSA s exclusive remedy and IGT s sole liability, RSA shall return the
Product and IGT shall issue RSA a refund for the full amount paid.
7. IGT agrees that it shall make no changes to the Product without notifying RSA
in writing ninety (90) days in advance. IGT may make changes in the design or
manufacture of any Product, provided that the changes do not effect the form,
fit or function of the Product and provided further that IGT shall not make any
changes which may effect any regulatory status or require any additional
regulatory filing, including the FDA, the CE Mark, or other domestic or foreign
registrations. No additional changes will be made without the prior written
permission of RSA.
8. IGT shall defend in any suit or proceeding brought against RSA to the extent
it is based on a claim that the IGT Product sold or licensed to RSA under this
Agreement directly infringes a patent or copyright; provided IGT is notified
promptly in writing and given authority, information and assistance (at IGT s
expense) for the defense of the suit or proceeding. IGT shall pay all damages
and costs awarded against RSA in such suit or proceeding or settlement, if and
as long as IGT has been given full control of the defense and the negotiations
for settlement, if any, of the suit or proceeding; IGT agrees to keep RSA fully
informed of the proceedings. If any IGT Product is held in such suit or
proceeding directly to infringe a patent or copyright or is, in IGT s opinion,
likely to be held directly to infringe a patent or copyright, IGT may, at its
option and expense, either (a) procure for RSA the right to continue using the
IGT Product, (b) replace the IGT Product with non-infringing product, (c) modify
the IGT Product so that it becomes non-infringing , or (d) require the return of
the IGT Product and
2
refund the purchase price for the IGT Product, such purchase price to be reduced
by 1.67% for each month since the product was first installed by RSA. IGT shall
have no liability to RSA if the infringement or claim thereof is based upon (a)
the use of the IGT Product in combination with other products, devices or
software which are not furnished to RSA by IGT, (b) modification of the IGT
Product by other than IGT, or (c) use of the IGT Product as part of any
infringing process, apparatus or product; provided however, that IGT will
cooperate with RSA at RSA s request and expense, so long as IGT does not
directly contest the St. Louis University patent (Bucholz). THIS SECTION STATES
THE ENTIRE LIABILITY OF IGT FOR PATENT OR COPYRIGHT INFRINGEMENT.
9. The term "Confidential Information" means information relating to either
party s business, customers, product, plans or technology, including any trade
secrets, design or technical information, whether written, oral or electronic,
which (i) a party has acquired or developed, and (ii) which a party wishes to
protect and (iii) which is not generally known to competitors; however, the
term "Confidential Information" does not include any information: (a) which a
party independently develops without use of the other s Confidential
Information, or (b) which is or becomes generally known or part of the public
domain without fault of the receiving party, or (c) which is subsequently freely
disclosed by the originating party without restriction, or (d) which is freely
available from third parties; and further, all Confidential Information must be
identified as such prior to its disclosure and must be in tangible form or
memorialized in tangible form at disclosure. Neither party shall disclose any
Confidential Information to the other except as provided under a separate,
written agreement, which is to be executed by both parties and which shall
identify the Confidential Information and provide for the protection of such
information. In the event one party wishes to disclose Confidential
Information, it shall first notify the other of its intention to make such a
confidential disclosure under a separate written agreement, and indicate, to the
extent able without actually disclosing the Confidential Information, the nature
and extent of the information to be disclosed and the purpose for the
disclosure. The other party shall state in writing whether or not it wishes to
receive the Confidential Information. If the parties wish to proceed, they
agree to negotiate a suitable agreement in food faith. If no agreement on
confidentiality is executed, the Confidential Information shall not be
disclosed. Neither party shall use the Confidential Information of the other
without the prior written consent of the disclosing party, however, any
information which is disclosed by one party to the other without such written
agreement is not Confidential Information, and can be used freely by the
receiving party.
10. This Agreement shall be governed and construed in accordance with the laws
of the State of Colorado.
11. This Agreement shall commence on the date stated above and terminate three
years later, unless otherwise extended by the parties.
12. Neither party has any restrictions or obligations, whether express or
implied, which would prevent it from entering into and performing this
Agreement, or would induce a third party to
3
make any claim of liability. Both parties are free to conduct their own
businesses, without any restriction not expressly stated in this Agreement.
13. The parties to this agreement are independent contractors, and neither shall
be or be deemed to be the agent, employee, or legal representative of the other.
Nothing in this Agreement shall constitute a partnership or joint venture
between the parties. No party shall have the right to enter into contracts or
pledge the credit of or incur expenses or liabilities on behalf of the other
party.
14. The waiver or failure of either party to exercise in any respect any right
or remedy under any theory of law or equity shall not be deemed to be a waiver
of any further or future right or remedy.
15. If any provision of this Agreement is found by a Court of competent
jurisdiction to be illegal, invalid or unenforceable in any particular case, the
legality, validity or enforceability of the remaining provisions contained
herein shall not be in any way affected or impaired thereby.
IN WITNESS WHEREOF, the parties have hereto set their hands and seals on
the dates indicated. The parties hereto represent to the other that each has
full power and authority to enter into this Agreement and by doing so it is not
in conflict with other agreements or statutes.
Image Guided Technologies, Inc. Radionics Software Applications, Inc.
/s/ ROBERT E. SILLIGMAN /s/ ERIC R. COSMAN
- ------------------------- ------------------
Robert E. Silligman Eric R. Cosman, Ph.D
President President
4
EXHIBIT A
1. Products:
(Attached)
2. Specifications for Products:
(Attached)
3. Pricing for Products:
(Attached)
4. Discount for Products:
(Attached)
5
EXHIBIT B
IGT warranty
(Attached)
6
EXHIBIT C
Product specification
(Attached)
7
Schedule A
PRODUCT PRICE LIST AND OEM DISCOUNT SCHEDULE
5/8/96
- --------------------------------------------------------------------------------
Part Number Product Description
- --------------------------------------------------------------------------------
IGT Hardware:
128199 FlashPoint-Registered Trademark- Model 5000 System (115 VAC)
124706 FlashPoint Model 5000 Control Unit (115 VAC)
115459 FlashPoint Model 5000 Sensor Array
116649 Instrument Breakout Box
123302 135 mm Probe
110238 Footswitch
- --------------------------------------------------------------------------------
IGT Software:
FlashPoint Software license supplied with IGT Hardware, includes all software
pre-loaded in the data storage devices of any IGT Hardware Product by IGT as
well as all of the files included on the following diskettes:
- --------------------------------------------------------------------------------
Part Number Product Description
- --------------------------------------------------------------------------------
IGT Software:
120275 FlashPoint Model 5000 Installation Disk
120283 FlashPoint Model 5000 Installation Disk
120299 FlashPoint Model 5000 Installation Disk
120308 FlashPoint Model 5000 Installation Disk
120370 FlashPoint Model 5000 Installation Disk
121575 Diskette, Calibration File for FlashPoint Sensor Assembly
- --------------------------------------------------------------------------------
Notice: This list is not all-inclusive. Any IGT Software, whether released or
prototypal, which is transferred or made available to Licensee during the term
of the Agreement shall be deemed licensed pursuant to the terms and conditions
of this Agreement.
OEM SYSTEM DISCOUNT SCHEDULE:
----------------------------
Quantity Percentage Discount
[ ] [ ]
[ ] [ ]
[ ]
[ ]
[ ] [ ]
more than [ ] [ ]
Notice: Discounts are based on system quantities ordered under a single OEM
purchase order and shipped by IGT and accepted by OEM within twelve (12) months
of the order date.
OEM DISCOUNT SCHEDULE FOR CATALOG ITEMS PURCHASED SEPARATELY:
-------------------------------------------------------------
Quantity Percentage Discount
[ ] [ ]
[ ]
[ ]
[ ]
[ ]
[ ]
[ ]
more than [ ] [ ]
Notice: Discounts are based on quantities ordered under a single OEM purchase
order.
-2-
SCHEDULE B
PRODUCT WARRANTY
1. IGT Product Warranty.
IGT warrants that the IGT Product will be free from defects in
materials, parts and workmanship for a period of the earlier of one
(1) year from delivery to the End User or eighteen (18) months to OEM,
and conforms to IGT's specifications applicable to such IGT Product
(at the time of OEM's purchase thereof), except that IGT does not
warrant total system performance if a device or accessory not supplied
by IGT causes the IGT product to fail or not meet specified
performance standards, for a period of the earlier of one (1) year
from delivery to End User or eighteen (18) months to OEM.
NOTWITHSTANDING THE FOREGOING, IGT MAKES NO WARRANTIES AS TO THE IGT
ACCESSORIES, SUCH IGT ACCESSORIES BEING SOLD "AS IS." THIS WARRANTY
IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING
THOSE OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2. Warranty Repair Misuse.
IGT's sole obligation under the foregoing warranty shall be to repair
or replace or, where applicable, recalibrate, at IGT's option, at
IGT's plant, without charge, all defective IGT Products returned for
inspection within the applicable warranty period and which have been
mutually determined by IGT and OEM to be defective. To complete such
repair, IGT may use, at its sole discretion, new, used or re-
manufactured parts and IGT will retain and own any such parts replaced.
All transportation charges for the defective IGT Product shall be paid by
IGT (provided the method of shipment is pre-approved by IGT). IGT shall
not be responsible for any modifications or changes to the IGT Product (and
OEM shall pay IGT for any services necessitated by any such modifications
or changes) nor shall IGT be liable for any defects arising out of misuse,
neglect, failure of electric power, cause other than ordinary use or other
causes beyond IGT's control.
3. Limitation of IGT Liability.
IN NO EVENT SHALL IGT'S LIABILITY UNDER THIS AGREEMENT INCLUDE ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR CLAIMS FOR
LOSS OF BUSINESS OR PROFITS, EVEN IF IGT SHALL HAVE BEEN ADVISED OF
THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. NOTWITHSTANDING ANY
FAILURE OF THE CENTRAL PURPOSE
OF ANY LIMITED REMEDY, IGT'S LIABILITY FOR BREACH OF WARRANTY SHALL
NOT EXCEED THE PURCHASE PRICE FOR SUCH PRODUCT.
4. No Warranties by IGT to End Users.
IGT is not making, and this Agreement does not extend, any warranties
of the IGT Product to End Users, provided that the sale, lease or
other use of the IGT Products by the End Users shall not limit IGT's
liability hereunder. OEM may, in its discretion, extend warranties to
End Users of OEM's Product. However, it is understood and agreed that
IGT is not a party to and does not bear any responsibility or
liability for such warranties by OEM to End Users, provided that the
sale, lease or other use of the IGT Products by the End Users shall
not limit IGT's liability hereinabove.
5. Service of Warranties to End Users.
OEM has the sole responsibility and obligation to provide service and
support on OEM's Product to End Users under warranties or otherwise.
-2-
EXHIBIT C
IMAGE GUIDED TECHNOLOGIES, INC.
TECHNICAL SPECIFICATIONS, FLASHPOINT MODEL 5000 3D LOCALIZER
August 16, 1996
- ------------------------------------------------------------------------------------------------------------------------------------
CHARACTERISTIC SPECIFICATION COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
DIGITIZING VOLUME 1 meter cube Center of cube 1.5 m from center sensor
RANGE 2 m 3 m possible with compromised accuracy.
Extended range models available.
ACCURACY
Mean Volumetric Error 0.3 mm Mean Euclidean error over entire volume
Mean Error in x Dimension 0.1 mm Mean x dimension error over entire volume
Mean Error in y Dimension 0.1 mm Mean y dimension error over entire volume
Mean Error in z Dimension 0.2 mm Mean z dimension error over entire volume
Maximum Error in x Dimension 0.5 mm Maximum x dimension error over entire volume
Maximum Error in y Dimension 0.5 mm Maximum y dimension error over entire volume
Maximum Error in z Dimension 1.0 mm Maximum z dimension error over entire volume
Points within 1.0 mm of actual >99% Over entire target area.
REPEATIBILITY
Standard Deviation of stationary LED < 0.10 mm In x, y and z dimensions. No averaging.
Distance from Camera Array: 1.25 m
ACQUISITION RATE
Video Frame Rate 300 frames/sec Also LED Flash rate
Tip coordinates, one 2-LED Probe, no DRF 20 points/sec Baud rates >9600
Tip coordinates, one 2-LED Probe, DRF 15 points/sec All baud rates >9600
XYZ coordinates, 10 individual LEDS: 35 points/sec 9600 baud, GB0 or GB1 mode
70 points/sec 38,400 baud, GB1 mode
140 points/sec 38,400 baud, GB0 mode
Note: Throughput varies w/formatting at higher
baud rates. GB0 mode: one common background
measurement for all LEDs.
GB1 mode: one background measurement per each
LED.
LEDs
Maximum Number of LEDs 128 64 LEDs with standard Breakout Box
Emission Angle (Light Output) 170 degrees
Page 1
- ------------------------------------------------------------------------------------------------------------------------------------
CHARACTERISTIC SPECIFICATION COMMENTS
- ------------------------------------------------------------------------------------------------------------------------------------
POWER
Input Voltage 100-200/220-240
VAC
Input Frequency 47-63 Hz
Maximum Input Current 4.6/2.3 A
Maximum Power Consumption 204 W < 150 W typical
WEIGHT
Sensor Assembly 4 kg (8 lb) Approx. shipping weight 10 kg (22 lb)
Control Unit 13 kg (29 lb) Approx. shipping weight 15 kg (34 lb)
ENVIRONMENT
Operating Temperature 15 to 30 degrees C
(50 to 85 degrees F)
Storage Temperature 4 to 49 degrees C
(40 to 120 degrees F)
Humidity 5 to 95% Noncondensing
HOST COMPUTER INTERFACE
RS-232C Serial, 9,600 to 115,200 Baud.
Hardware or
Software
Handshaking
REGULATORY COMPLIANCE
Electrical Emissions FCC Part 15 Class A,
TUV EN 60601.1-2
Electrical Immunity TUV EN 60601.1-2
Electrical Safety TUV EN 60601.1-1 Approval pending
UL 2601
NOTES: Every FP5000 camera array is shipped with its own calibration and
verification certificate showing test criteria and accuracy values.
The accuracy verification is performed using a single LED light
source. Tolerances on probes would affect total system accuracy.
Specifications are subject to change without notice.
Page 2