TERMS AND CONDITIONS OF SALE
BETWEEN IMAGE GUIDED TECHNOLOGIES, INC. AND CARL ZEISS
Carl Zeiss, D-73446, Oberkochen, Germany ("CZO"), and Image Guided
Technologies, Inc., 5710 B Flatiron Parkway, Boulder, CO 80301, USA ("IGT"),
agree to the following terms and conditions:
1. TERM.
The term of this agreement shall be from February 20, 1997 through February 19,
1999. This Agreement may be terminated at any time by either party by giving at
least 180 days prior written notice of termination to the other.
2. PRICES; DISCOUNT; TAXES; PAYMENT.
The prices CZO shall pay to IGT for systems and other products provided by IGT
are IGT's list prices (current list prices are listed on Schedule D) at the time
CZO places an order, less any applicable discount as set forth on the attached
Schedule C. Such discount structure is based upon IGT's receipt of a blanket
purchase order from CZO for IGT systems to be shipped over the twelve months
following the date of this agreement The discounts from list price for IGT
products other than systems shall reflect the discount indicated on Schedule C
for the number of systems ordered year to date. Services, such as maintenance
agreements, provided by IGT are not discounted.
If CZO requests delay in delivery or cancellation of any units (other than by
reason of the commencement of a patent infringement action as discussed below)
and IGT agrees to such request, the price of delivered units is subject to
recalculation in accordance with Schedule C. It is understood that CZO shall
have no obligation to accept delivery of any undelivered units, or to refund any
"unearned" discount, in the event of the commencement of any action claiming
infringement of any third-party patent as a result of the marketing or sale of
IGT's products, and/or their use, by CZO or any of its customers, whether such
action alleges infringement by reason of the sale or use of IGT's manufactured
products alone or in conjunction with other equipment manufactured by CZO. It
is further understood that, in the event of delivery arrears by IGT on any
purchase order accepted by IGT in excess of thirty (30) days, CZO shall have the
option to immediately cancel this Agreement. CZO and IGT may mutually amend the
terms of this paragraph 2. in writing at any time.
CZO shall pay all sales, use, value added and similar taxes or duties assessed
by any governmental entity upon IGT products shipped by IGT or with respect to
payments made hereunder.
Shipment shall be F.O.B. IGT's plant in Boulder, Colorado and title and risk of
loss or damage shall pass to CZO at such F.O.B. point.
CZO agrees to provide IGT with monthly non-binding 90 day rolling forecasts of
items expected to be purchased during that 90 day period.
3. SOFTWARE LICENSE. The software included with an IGT localizer system is
licensed to CZO on the terms and conditions set forth on Schedule A, to which
CZO hereby agrees.
4. WARRANTY. IGT's warranty is set forth on Schedule B. THIS WARRANTY IS
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
5. PATENT AND COPYRIGHT INDEMNIFICATION.
(a) IGT shall defend any suit or proceeding brought against CZO to the
extent it is based on a claim that the IGT manufactured product directly
infringes a patent or copyright issued by the United States; 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 CZO in such suit or proceeding or settlement,
if IGT has been given full control of the defense and the negotiations for
settlement, if any, of the suit or proceeding (any settlement shall require the
consent of CZO which shall not be unreasonably withheld). If any IGT
manufactured product is held in such suit or proceeding directly to infringe a
patent or copyright of the United States, or is, in IGT's opinion, likely to be
held directly to infringe such a patent or copyright, IGT may, at its option and
expense, in the following order (a) procure for CZO the right to continue using
said product, (b) replace the product with non-infringing product, (c) modify
the product so that it becomes a non-infringing product, or (d) require return
of the product and refund the purchase price for the product (less a deduction
for depreciation equal to one and two-thirds percent (1.67%) of the purchase
price for each full month since the date of shipment of the product). IGT shall
have no liability to CZO if the infringement or claim thereof is based upon (a)
the use of the product in combination with other products, devices or software
which are not furnished to CZO by IGT, (b) modification of the product by other
than IGT or (c) use of the product as part of any infringing process, apparatus
or product. THIS SECTION STATES THE ENTIRE LIABILITY OF IGT FOR PATENT OR
COPYRIGHT INFRINGEMENT.
(b) CZO shall indemnify IGT and defend any suit or proceeding brought
against IGT to the extent it is based on a claim that the making or selling of
CZO's product infringes a patent or copyright; provided that CZO is notified
promptly in writing and given authority, information and assistance (at CZO's
expense) for the defense of the suit or proceeding. CZO shall pay all damages
and costs awarded against IGT in such suit or proceeding or settlement, if CZO
has been given full control of the defense and of the negotiations for the
settlement, if any, of the suit or proceeding (any settlement shall require the
consent of IGT which shall not be unreasonably withheld).
6. MISCELLANEOUS. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, USA.
CARL ZEISS IMAGE GUIDED TECHNOLOGIES, INC.
By: /s/ By: /s/ Robert E. Silligman
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President/ COO
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EXHIBIT 10.20
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.
SCHEDULE A
SOFTWARE LICENSE
FROM
IMAGE GUIDED TECHNOLOGIES, INC.
TO
CARL ZEISS
The software ("Software") included with each localizer system ("IGT
System") being sold by Image Guided Technologies, Inc. ("IGT") to Carl Zeiss
("CZO") is licensed to CZO upon the following terms and conditions:
1. LICENSE. IGT hereby grants to CZO a non-exclusive, personal
and non-transferable license to use the Software solely for CZO's own use and
solely with the IGT System. CZO may not sell, sublicense, transfer or
otherwise make available to others all or any part of the Software, except
for the right to grant sublicenses to its customers as specifically provided
herein. CZO shall not reverse engineer, reverse compile or reverse assemble
the Software in whole or in part.
2. OWNERSHIP. IGT owns all rights, title and interest in and to
the Software, including, without limitation, patents, copyrights, trade
secrets, and know-how. Except for the purpose of incorporating the Software
into CZO's own product, CZO shall not modify or revise the Software in whole
or in part.
3. COPIES. CZO may make copies of the Software for archival
purposes only. All copies of the Software (including permissible
modifications and revisions hereunder) and IGT's documentation are the sole
property of IGT and shall contain IGT's copyright notices. CZO shall not
remove or modify any copyright notices encoded on the Software or displayed
on any documentation.
4. SUBLICENSE TO CUSTOMERS. Before delivery to any of its
customers of any product which includes the IGT System (or the software
included therein), CZO shall take adequate steps to ensure that the customer
only receives a customary sublicense which shall include provisions that
provide (i) the Software remains the property of IGT, (ii) the customer only
receives a personal, nonexclusive, nontransferable sublicense to use the
Software for customer's own use with the IGT System, (iii) the Software may
not be copied, modified, reverse engineered or dissembled in whole or in part
by customer, (iv) the customer may not sell, sublicense, transfer or
otherwise make available the Software to any third party, and (v) the
sublicense shall expire when the customer discontinues use of the Software or
the IGT System and upon expiration all Software media and materials shall be
returned to CZO by customer. Any such sublicense shall survive expiration of
the license granted to CZO hereby.
5. CUSTOMER SERVICE AND SUPPORT; UPGRADES. CZO shall be solely
responsible for all installation, use, support and support questions of its
customers. IGT shall provide upgrades and enhancements to the Software to CZO
at no cost during the warranty period; upgrades and enhancements to the Software
after the warranty period shall be provided to
CZO at IGT's standard discounted license fee. The term "Software" as used in
this license includes all upgrades and enhancements provided hereunder.
6. CONFIDENTIALITY. The Software contains trade secrets, know-how
and other proprietary information belonging to IGT. CZO shall keep all such
information confidential, shall not publish or disclose such information to
others, and shall handle, maintain, and protect all such information with at
least the same degree of care used by CZO to protect and safeguard its own
trade secrets, know-how and proprietary information.
7. COPYRIGHT. The Software and its related documentation are
copyrighted. IGT retains the sole and exclusive right, but not the
obligation, to utilize legal and judicial proceedings to protect and enforce
its copyright, trade secret and other proprietary rights. CZO shall
cooperate with IGT in any proceeding brought by IGT against any third party
in connection with the foregoing (including, without limitation, on IGT's
request assigning any rights under its sublicense with its customer).
8. EXPIRATION. The license herein granted shall expire in the
event that CZO fails to comply with any term or condition of this license or
in the event that CZO permanently discontinues the sale of the IGT System on
which the Software is licensed for use, whereupon CZO shall, promptly upon
IGT's request, return to IGT all Software and related documentation in its
possession (except for one archive copy), provided, however, that this
provision shall not affect the continuing validity of any sublicense granted
with respect to the Software by CZO to any of its customers pursuant to
paragraph 4 above.
9. CZO COMPLIANCE. This license is subject to all laws,
regulations, orders and other restrictions on the export from the United
States of computer software which may be imposed from time to time by the
government of the United States. CZO shall not export or transfer the
Software to any country for which the United States government or any agency
thereof requires an export license or other governmental approval without
first obtaining (i) the consent of IGT, and (ii) such license or approval.
10. WARRANTY. IGT warrants the Software as set forth on the
warranty enclosed herewith. THIS WARRANTY IS IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
11. ESCROW. IGT agrees to enter into a customary escrow
arrangement for its source code and source code documentation. The escrow
agent shall be chosen by IGT and the escrow agent fee split between IGT and
CZO.
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12. MISCELLANEOUS. The validity and performance of this license
shall be governed by Colorado law, except as to copyright matters which are
governed by United States laws and international treaties. This license is
deemed entered into in Boulder, Colorado. CZO may not assign this license or
any of its rights or obligations hereunder. This license shall inure to the
benefit, and be binding upon, IGT and its successors and assigns.
Should you have any questions concerning this license, please contact in
writing: Image Guided Technologies, Inc., Customer Sales and Service, 5710-B
Flatiron Parkway, Boulder, CO 80301.
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SCHEDULE B
ZEISS WARRANTY
For purchases made under the terms of the Agreement between Carl Zeiss and
Image Guided Technologies, Inc. Dated February 20, 1997
1. IGT'S PRODUCT WARRANTY. Image Guided Technologies, Inc.
("IGT") warrants that the IGT product will be free from defects in materials,
parts and workmanship for a period of two (2) years from date of delivery to
Carl Zeiss ("CZO"), and conform to IGT's specifications applicable to such
IGT product (at the time of CZO's purchase thereof). IGT DOES NOT WARRANT
THE ACCURACY OF ANY SYSTEM UNLESS LIGHT EMMITING DIODES ("LEDS") INSPECTED
AND APPROVED BY IGT ARE USED IN ALL COMPONENTS REQUIRING LEDS IN THE SYSTEM.
NOTWITHSTANDING THE FOREGOING, IGT MAKES NO WARRANTIES AS TO ACCESSORIES
MANUFACTURED BY THIRD PARTIES OR DISPOSABLE OR STERILIZABLE ITEMS, SUCH ITEMS
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, at IGT's option, at IGT's
plant, without charge, defective IGT products returned for inspection within
the applicable warranty period, and which have been determined by IGT to be
defective. Transportation charges for shipment from IGT's plant after the
repair or replacement of the defective IGT product shall be paid for by CZO.
IGT shall not be responsible for any modifications or changes to the IGT
product (and CZO 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
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 any
warranties of the IGT product to end users. CZO may, in its discretion,
extend warranties to end users of CZO'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 CZO to end users.
5. SERVICE OF WARRANTIES TO END USERS. CZO has the sole
responsibility and obligation to provide service and support on CZO's product
to end users under warranties or otherwise.
SCHEDULE C
ATTACHMENT TO SALES AGREEMENT BETWEEN
CARL ZEISS AND IMAGE GUIDED TECHNOLOGIES
FEBRUARY 20 1997
DISCOUNT SCHEDULE BASED ON PURCHASE OF [ ] SYSTEMS PER TWELVE MONTH PERIOD:
# OF UNITS DISCOUNT DISCOUNT PRICE PER UNIT
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[ ] [ ] [ ]
DISCOUNT SCHEDULE ONLY FOR PURPOSES OF RECALCULATING PRICE FOR PURCHASE OF LESS
THAN [ ] UNITS OVER THE LIFETIME OF THIS AGREEMENT:
# OF UNITS DISCOUNT DISCOUNT PRICE PER UNIT
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[ ] [ ] [ ]
[ ] [ ] [ ]
[ ] [ ] [ ]
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SCHEDULE D
IMAGE GUIDED TECHNOLOGIES, INC.
COMPONENT AND ACCESSORY ITEMS
FOR CARL ZEISS
EFFECTIVE JANUARY 1, 1997
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ITEM PART LIST
DESCRIPTION NUMBER PRICE ($ U.S.)
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FLASHPOINT-Registered Trademark- 5000M SYSTEM (230V) 500021 [ ]
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CONTROL UNIT, 5000Z (230V) 121306 [ ]
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DYNAMIC REFERENCE FRAME, 120MM 115106 [ ]
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SENSOR ASSEMBLY, 500MM 130556 [ ]
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FOOTSWITCH 110238 [ ]
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INSTRUMENT BREAKOUT BOX, 4 CONN/8 PIN LEMO 116649 [ ]
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LED 10 PACK, ISOLATED, AUTOCLAVABLE, 5T, 2 LEAD 123930 [ ]
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LED WIRING KIT 127433 [ ]
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LED SOCKETS, TETRA-ETCHED (10 PACK) 116155 [ ]
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135MM PROBE, 2E 125714 [ ]
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SENSOR ASSEMBLY, 1 METER 125095 [ ]
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DRF UNIVERSAL MOUNTING KIT 115189 [ ]
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CABLE, 4 METER, LEMO/LEMO 110439 [ ]
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