EXHIBIT 10.21
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.
OEM AGREEMENT
BETWEEN
NU-TECH, INC. AND
IMAGE GUIDED TECHNOLOGIES, INC.
OEM AGREEMENT, entered into as of June 7, 1997 (the "Effective Date"),
between IMAGE GUIDED TECHNOLOGIES, INC. ("IGT"), a Colorado corporation with
offices at 5710-B Flatiron Parkway, Boulder, CO 80301, and Nu-Tech, Inc. (dba
Brewco 360DEG. Collision Repair Systems), a Kentucky corporation with offices
at 601 Front Street, Central City, KY 42330 (mailing address PO Box 67, Central
City, KY) the original equipment manufacturer ("OEM").
1. DEFINITIONS
As used herein, the following words and phrases shall have the following
meanings:
1.1 "CONFIDENTIAL INFORMATION" means that information which relates to
IGT's or OEM's businesses, customers, products and plans which have been
created by or for IGT or OEM and that is not generally known to the public.
1.2 "CONFIDENTIAL TECHNOLOGY" means those portions of the processes,
know-how, technologies, and trade secrets embodied or included in the IGT or
OEM Software and/or IGT or OEM Hardware that have been developed by or for or
acquired by IGT or OEM and that are not generally known to competitors of IGT
or OEM.
1.3 "DISTRIBUTION" means OEM's shipment of OEM's Products to OEM's
customers or OEM's use of OEM's Products within OEM's organization.
1.4 "EFFECTIVE DATE" means the date set forth on the first page hereof
which establishes the date on which the parties become legally bound by the
terms of this Agreement.
1.5 "END USER" means a third party that is a customer, lessee, or
distributee of OEM to whom OEM sells OEM's Products or grants a sublicense to
use IGT Software as a part or portion of OEM's Products.
1.6 "OEM" means the OEM named on the first page of this Agreement.
1.7 "OEM'S PRODUCTS" means all systems developed by OEM which incorporate
the IGT Product.
1.8 "OBJECT CODE" means the binary computer language program prepared by an
assembler or a compiler after acting on programmer-written source code.
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1.9 "IGT ACCESSORIES" means all of the accessories identified as IGT
Accessories in Schedule A of this Agreement as of the Effective Date of this
Agreement, as such may be expanded from time to time with mutual agreement of
both parties.
1.10 "IGT PRODUCT" means the IGT Hardware and IGT Accessories offered for
sale hereunder and the IGT Software offered for license hereunder.
1.11 "IGT SOFTWARE" means all of the computer software identified or
described as IGT Software in Schedule A of this Agreement and all
documentation used to describe, maintain or use such software.
1.12 "IGT HARDWARE" means all of the equipment identified or described as
IGT Hardware in Schedule A of this Agreement as of the Effective Date of this
Agreement.
1.13 "TERM" means the time period defined by paragraph 10.1 of this
Agreement, during which time period the parties are legally bound by the terms
and provisions of this Agreement.
1.14 "TERRITORY" means worldwide.
1.15 "ESCROW AGREEMENT" means the escrow agreement referred to in paragraph
10.7 of this agreement.
2. OWNERSHIP AND GRANT OF LICENSE
2.1 OWNERSHIP OF PROPRIETARY RIGHTS. OEM acknowledges that IGT owns all
proprietary rights in the IGT Software, Confidential Technology and
Confidential Information, including, but not limited to, copyrights, trade
secrets, and know-how. OEM also acknowledges, understands, and agrees that
(i) this Agreement does not transfer or provide to OEM any title or rights of
ownership or use in the IGT Software, Confidential Technology, Confidential
Information or in any of IGT's trade secrets, know-how, copyrights, or other
proprietary rights, except for the license to use the IGT Software as provided
in this Agreement, and (ii) OEM may not sell, sublicense, transfer or make
available to others the IGT Software, Confidential Technology, Confidential
Information or IGT's trade secrets, know-how, copyrights or other proprietary
rights, except for the right to grant sublicenses of the IGT Software as
provided in this Agreement.
IGT acknowledges that OEM owns all proprietary rights in the OEM Software,
Confidential Technology and Confidential Information, including, but not limited
to, copyrights, trade secrets, and know-how. IGT also acknowledges,
understands, and agrees that (i) this Agreement does not transfer or provide to
IGT any title or rights of ownership or use in the OEM Software, Confidential
Technology, Confidential Information or in any of OEM's trade secrets, know-how,
copyrights, or other proprietary rights, except for the license to use the OEM
Software as provided in this Agreement, and (ii) IGT may not sell, sublicense,
transfer or make available to
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others the OEM Software, Confidential Technology, Confidential Information or
OEM's trade secrets, know-how, copyrights or other proprietary rights.
2.2 LICENSE GRANT. Subject to the terms and conditions of this Agreement,
IGT hereby grants to OEM, and OEM hereby accepts, a worldwide, exclusive,
revocable (at termination of this agreement only), personal, and nontransferable
license to use the IGT Software, in Object Code only, for OEM's own use on that
IGT Hardware on which the IGT Software runs for use in automotive collision
repair and wheel alignment applications and a worldwide, nonexclusive,
revocable, personal, and nontransferable license to use the IGT Software, in
Object Code only, for OEM's own use on that IGT Hardware on which the IGT
Software runs for all other applications.
3. LICENSE AND OTHER LIMITATIONS
3.1 LIMITATIONS.
3.1.1 The IGT Software may only be used on the IGT Hardware on which the
IGT Software runs.
3.1.2 OEM may only sell, lease and distribute the IGT Hardware in
conjunction with and as part of OEM's Products.
3.2 SUBLICENSE. OEM may grant sublicenses of the IGT Software to End Users
for use on that IGT Hardware on which it runs, provided such sublicenses comply
with paragraph 5.2 of this Agreement. No other sublicense by OEM and no further
sublicense by an End User shall be permitted.
3.3 FORM OF SOFTWARE DELIVERY. The IGT Software will be delivered and made
available to OEM in Object Code form only as incorporated in the IGT Product
only, along with any documentation necessary to enable OEM to use the IGT
Software for the purposes of this Agreement. OEM is not entitled to receive or
have access to any of the Source Code of the IGT Software.
3.4 USE OF IGT SOFTWARE. OEM shall use the IGT Software received from IGT
solely for the purpose of incorporating the IGT Software and IGT Product into
OEM's Products. Once the IGT Software becomes a part or portion of OEM's
Products, it may be installed and operated as a part of OEM's Products according
to the terms and conditions of this Agreement.
3.5 CONTROL OF COPIES. OEM may make copies of the Object Code only of the
IGT Software and only for archival purposes and for the purposes of this license
as provided elsewhere in this Agreement. OEM shall not make any copies of the
documentation to the IGT Software other than for purposes of this license and
all copies of the IGT Software and the documentation are the sole property of
IGT. OEM shall inform End User of the restrictions against copying the IGT
Software, as per paragraph 5.2.
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3.6 NO REVERSE ENGINEERING. OEM understands and acknowledges that the IGT
Software and the Confidential Technology, trade secrets, know-how, and other
proprietary information embodied therein and in the IGT Product are proprietary
to IGT. Therefore, OEM shall not reverse engineer, reverse compile or reverse
assemble or do any other operation or analysis with or of (i) the IGT Software
that would reveal any of the Confidential Technology, Source Code, trade
secrets, or other proprietary rights in the IGT Software, or (ii) the IGT
Product that would reveal any of the Confidential Technology, trade secrets or
other proprietary rights in the IGT Product. In addition, OEM shall not remove
or modify any confidentiality, trade secret or copyright notices or trademarks
encoded in the IGT Software or IGT Product or displayed on any documentation.
OEM shall also not allow any of its employees to do any of the things that are
prohibited under this paragraph.
3.7 OEM COMPLIANCE. OEM warrants that it will obey all laws and
regulations of the country in which it distributes the OEM Products. OEM
shall indemnify IGT for any losses, costs, and damages incurred by IGT as a
result of a failure by OEM to comply with the necessary government formalities
in any country.
3.8 OEM EXPORTS. OEM understands that IGT is subject to regulation by
agencies of the United States Government, including the United States Department
of Commerce, and OEM warrants that it shall not sell IGT Product contained
within the OEM's Products or OEM's Products to any country not approved under
applicable United States laws and regulations. OEM shall hold harmless and
indemnify IGT from and against any damages from breach hereof.
4. IGT PRODUCT
4.1 Prices - Discount - Taxes - Payment.
4.1.1 PRICES. Prices to be paid by OEM for the IGT Product will be as
specified on Schedule A to this Agreement. Prices shown on Schedule A will
remain in effect for 12 months from the effective date of this agreement.
Prices may be adjusted thereafter except that no price can be increased more
than [ ] in any single 12 month period without agreement by OEM. Any new
pricing schedule will remain in effect for a minimum of 12 months after it is
issued. IGT shall give OEM sixty (60) days notice of any price increase.
4.1.2 TAXES. OEM shall pay any and all sales, use, value-added and other
taxes of any nature assessed upon or with respect to payments hereunder by any
federal, state or local governmental entity and any nation or any political
subdivisions of any nation, exclusive, however, of taxes based on IGT's net
income. In the event IGT is required to pay any such taxes, OEM shall
promptly reimburse IGT for the same.
4.1.2 PAYMENT. Shipment of IGT Product shall be F.O.B. IGT's plant in
Boulder (Colorado, USA) and title and risk of loss or damage to IGT Product
shall pass to OEM at such F.O.B. point. Terms of payment shall be net 30
days. Interest shall be assessed on past due
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amounts and shall accrue at the lesser of the rate of 1.5% per month or the
maximum rate permitted by applicable law. In addition to the interest
assessed, IGT may, at its option, suspend all services and shipments to OEM
(including stoppage in transit) until all delinquent amounts are paid to IGT.
In the event IGT is required to commence any legal action to collect any
amount due from OEM hereunder, IGT shall be entitled to recover its cost of
suit, including reasonable attorneys' fees, in addition to any damages.
4.2 QUARTERLY FORECASTS. Beginning with the Effective Date, OEM shall
issue a rolling quarterly forecast of its anticipated approximate order volume
for IGT Product for the subsequent six (6) months. Such quarterly forecast
shall not be binding upon OEM, but shall be prepared with diligence and care.
4.3 AVAILABILITY OF IGT PRODUCT. Subject to the terms and conditions of
this Agreement, IGT agrees to make the IGT Product on Schedule A of this
Agreement available for sale during the term of this Agreement, or, with OEM's
prior consent, to make available a replacement product or products with similar
functional specifications and similar regulatory approvals.
4.4 SPARE PARTS AND SERVICE. IGT agrees to provide, at its published
parts and service list price (less OEM discount), spare parts and service for
the IGT Product for a minimum of twenty four (24) months after the
discontinuance of the sale of the IGT Product.
4.5 FORCE MAJEURE. IGT shall be relieved of its obligation under any
purchase order accepted by it pursuant to this Agreement, to the extent
necessary, for failure to provide the ordered IGT Product due to causes beyond
IGT's reasonable control, including without limitation, acts of God, war,
hostilities, civil unrest, sabotage, fires, floods, strikes or other labor
troubles, supply shortages, or embargoes.
4.6 ORDERS; ACKNOWLEDGMENTS. IGT shall acknowledge receipt of purchase
orders for IGT Products by written fax notification within one (1) week after
IGT's receipt of the purchase order and, with such acknowledgment, shall
identify any limitations, corrections or conditions related to acceptance of the
order. OEM shall have one (1) week to withdraw any such purchase orders if it
does not accept such limitations, corrections or conditions. Preprinted terms
and conditions on OEM's purchase orders are superseded by this agreement and are
of no force or effect.
4.7 OEM will make every reasonable effort to meet any purchase orders
placed; however, OEM shall incur no liability for failure to meet such purchase
orders placed.
4.8 DELIVERY DATES. Shipments are subject to IGT's availability
schedule. IGT will make every reasonable effort to meet any delivery dates
acknowledged; however, IGT shall incur no liability for failure to meet such
delivery dates. In any case, delivery dates shall not be later than 30 (thirty)
days after any delivery date provided on the acknowledgment of the order by IGT.
With a 30 day notice from OEM to IGT, OEM may increase the planned (forecasted)
quantity to be delivered in any monthly period by an amount up to 25% of the
planned monthly quantity and IGT agrees to deliver such increased quantity
within the affected monthly period.
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5. OEM'S DUTIES
5.1 GENERAL DUTIES. OEM shall use its best efforts to create, develop,
and market OEM's Products and to keep IGT informed of the progress of its
development and marketing efforts. All marketing, advertising, promotional,
distribution, training and support activities of OEM shall be at the sole
judgment and expense of OEM unless otherwise agreed in writing by IGT.
5.2 SUBLICENSING.
5.2.1 Before Distribution of any OEM Products with the IGT Software,
OEM shall take adequate steps to ensure that the End User only receives a
customary sublicense, satisfactory to IGT, for the IGT Software. A provision
substantially in the form of Schedule C attached hereto included in OEM's
Software license shall satisfy this requirement. OEM shall provide a copy of
its software license agreement to IGT upon request.
5.2.2 OEM shall promptly report any unlicensed use of the IGT
Software or other activities which infringe or may infringe the Confidential
Technology or the copyrights, trade secrets, know-how, trademarks, patents, or
other proprietary rights of IGT of which it has knowledge.
5.2.3 If OEM becomes aware of a breach by the End User of the above
sublicense, OEM shall promptly demand that the End User take prompt corrective
action to remedy the breach and shall, in addition, notify IGT of the breach and
the corrective action taken. OEM shall assign to IGT, at IGT's sole option, any
rights OEM has against its sublicensees for breach of this sublicense. OEM
agrees to cooperate with IGT, as IGT may reasonably request, in any proceeding
against any third party alleging breach of this sublicense. OEM shall not be
liable to IGT for any breach of the terms of this sublicense by a third party
unless OEM has willfully contributed to or cooperated in the breach.
5.3 NOTICES AND LEGENDS. The IGT Software, the IGT Product and any IGT
documentation delivered to OEM will contain IGT's copyright notice, trademarks
and other proprietary legends. Any copies or modifications permitted to be made
under this Agreement shall contain such copyright notice, trademarks, and other
proprietary legends. OEM shall not remove or obscure any such notices or marks
attached or affixed to IGT Product. OEM may place their product identification
labels on the product as they see fit.
5.4 OEM'S PRECAUTIONS WITH EMPLOYEES. OEM agrees to take precautions
and implement whatever procedures it deems necessary to ensure that the License
and other limitations set forth in Article 3 of this Agreement are not exceeded
by OEM or by any of its employees.
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5.5 CUSTOMER SERVICE AND SUPPORT. OEM shall be solely responsible for
all installation, use, support, and support questions of the End Users of OEM's
Products. During the warranty period, IGT shall cooperate with OEM as needed to
respond to End User questions and complaints regarding the IGT part of OEM's
Products.
5.6 CUSTOMER INFORMATION. OEM shall promptly bring to IGT's attention
any complaints, causes of dissatisfaction, or requests for corrections,
revisions, or enhancements relating to the IGT Software or IGT Product.
5.7 PROTECTION OF TRADE SECRETS, CONFIDENTIAL TECHNOLOGY AND
CONFIDENTIAL INFORMATION. OEM acknowledges that the IGT Software and IGT
Product contain Confidential Information and Confidential Technology, being
trade secrets, know-how and other proprietary information and that those and
other trade secrets, know-how and proprietary information belonging to IGT may
be communicated or otherwise made available to OEM in connection with this
Agreement. OEM agrees to keep all such Confidential Technology and Confidential
Information confidential, not to publish or disclose such Confidential
Technology and Confidential information to others, and to handle, maintain and
protect all such Confidential Technology and Confidential Information with at
least the same degree of care used by OEM to safeguard and protect and maintain
OEM's own trade secrets and confidential or proprietary information. Such
safeguards shall include at least the precautions of restricting access to only
those persons in OEM's employ who have a need to know, instructing those
employees of their obligations to maintain the confidentiality and secret nature
of the information and having executed agreements in place with such employees
pursuant to which they agree to those obligations, providing reasonable security
precautions for areas and computers where the IGT Software and other trade
secrets or proprietary information is used and stored, and completely erasing or
deleting all IGT Software from any disk, tape or other media being discarded,
disposed or converted to different uses.
6. IGT's DUTIES.
6.1 AUDITS OF FACILITIES AND QUALITY SYSTEM. IGT agrees to allow OEM to
inspect IGT's facilities and quality system for the sole purpose of verifying
IGT's compliance with quality and regulatory standards as is necessary for OEM
to sell IGT's Products. When possible, OEM agrees to give IGT at least thirty
(30) days advance notice of such inspections. All such inspections are at the
sole expense of OEM unless otherwise agreed in writing.
6.2 PROTECTION OF OEM'S TRADE SECRETS AND CONFIDENTIAL INFORMATION. IGT
acknowledges that confidential information, being trade secrets, know-how and
proprietary information belonging to OEM, may be communicated or otherwise made
available to IGT in connection with this Agreement. IGT agrees to keep all such
confidential information confidential, not to publish or disclose such
confidential information to others, and to handle, maintain and protect all such
confidential information with at least the same degree of care used by IGT to
safeguard and protect and maintain IGT's own trade secrets and confidential or
proprietary information. Such safeguards shall include at least the precautions
of restricting
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access to only those persons in IGT's employ who have a need to know,
instructing those employees of their obligations to maintain the
confidentiality and secret nature of the information and having executed
agreements in place with such employees pursuant to which they agree to those
obligations, providing reasonable security precautions for areas and computers
where the OEM trade secrets and proprietary information is used and stored.
7. STATUS OF PARTIES
7.1 INDEPENDENT CONTRACTOR. OEM and IGT shall each perform their duties
under this Agreement as an independent contractor and not as an agent one for
the other. The relationship between the parties shall remain that of
independent contractors and nothing herein shall imply any joint venture.
7.2 NO CONTRARY REPRESENTATIONS. OEM shall not in any way by oral or
written statements or other conduct represent itself as being other than an
independent contractor without any power to bind IGT.
8. RIGHTS RESERVED BY IGT
Anything in this Agreement to the contrary notwithstanding, IGT
reserves all rights not expressly granted to OEM herein.
8.1 Hardware Changes and Software Updates.
8.1.1 HARDWARE CHANGES. Notwithstanding any other term of this
Agreement, IGT shall not make any change to the mechanical, electronic or other
interfaces (or any design element including external colors) of the IGT Hardware
being sold hereunder without the prior written consent of OEM, except in such
case where changes are required to meet regulatory requirements.
8.1.2 SOFTWARE UPGRADES. IGT shall provide upgrades and enhancements
to the Software to OEM at no cost during the warranty period; upgrades and
enhancements to the Software after the warranty period shall be provided to OEM
at IGT's standard discounted license fee. Nevertheless, it is understood that
IGT shall provide updates correcting Software errors to OEM at no cost during
the lifetime of the Agreement. The term "Software" as used in this license
includes all upgrades, updates and enhancements provided hereunder.
9. REPRESENTATIONS, WARRANTIES, AND INDEMNIFICATIONS
9.1 POWER TO ENTER AGREEMENT. Each party represents and warrants to the
other that it has the power, right, and authority to enter into this Agreement,
and to grant the rights and
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undertake the obligations set forth in this Agreement. IGT represents and
warrants to OEM that it is the owner of the rights licensed to OEM hereunder.
9.2 WARRANTY. IGT warrants the IGT Hardware and IGT Software as set
forth on Schedule B, the IGT Product Warranty.
9.3 Indemnification.
9.3.1 IGT INDEMNIFICATION. IGT shall defend any suit or proceeding
brought against OEM to the extent it is based on a claim that the making,
selling or using of the IGT Product sold to OEM under this agreement 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 OEM 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 OEM which shall not be unreasonably withheld). If any IGT 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, either
(a) procure for OEM 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 a non-infringing product, or (d) require return of the IGT Product and
refund the purchase price for the IGT Product, such purchase price to be reduced
by [ ] for each month since the product was first installed by the OEM. IGT
shall have no liability to OEM 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 OEM 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. THIS SECTION STATES THE ENTIRE
LIABILITY OF IGT FOR PATENT OR COPYRIGHT INFRINGEMENT.
9.3.2 OEM'S INFRINGEMENT. Except as set forth in paragraph 9.3.1
above, OEM shall defend any suit or proceeding brought against IGT to the extent
it is based on a claim that the making, selling or using of OEM's product
infringes a patent or copyright; provided that OEM is notified promptly in
writing and given authority, information and assistance (at OEM's expense) for
the defense of the suit or proceeding. OEM shall pay all damages and costs
awarded against IGT in such suit or proceeding or settlement, if OEM 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).
10. DURATION AND TERMINATION OF AGREEMENT
10.1 TERM. This Agreement and the License shall have a term of three
(3) years from the Effective Date, except this Agreement may be extended for
additional one (1) year terms by mutual agreement between IGT and OEM prior to
the end of the initial term and each subsequent term.
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10.2 TERMINATION. Either party may terminate this Agreement (a) on
thirty (30) days notice in the event of a material default by the other party of
any of its obligations hereunder, provided (i) the defaulting party receives
notice of termination containing a reasonably complete description of the
default and (ii) the defaulting party fails to cure such default within thirty
(30) days of receiving such notice or (b) immediately and without notice in the
event the other party becomes bankrupt or insolvent, suffers a receiver to be
appointed or makes an assignment for the benefit of its creditors. Any
"dispute" arising from any such termination action would be resolved under the
terms of Section 11.4.
10.3 AFTER TERMINATION. Upon expiration or termination of this Agreement
pursuant to Section 10.2, OEM shall forthwith cease marketing of all OEM's
Products with the IGT Software or IGT Product and shall forthwith cease all
display, advertising and use of all such names, trademarks, logos and
designations of IGT and shall not thereafter use, advertise or display any name,
trademark, designation or logos which is, or any part of which is, similar or
confusingly similar to any such designation associated with IGT or with any
product of IGT. Notwithstanding anything provided in this Section 10.3, OEM
will be permitted to sell OEM's Products with IGT Product, and to do so, be
permitted to undertake marketing efforts, until the exhaustion of IGT Product in
OEM's inventory for which OEM has already paid IGT at the time of the expiration
or earlier termination.
10.4 RETURN OF MATERIALS BY OEM. Upon the expiration or termination of
this Agreement pursuant to Section 10.2, all materials (including Confidential
Information) in the possession or under the control of OEM which were received
at no charge from IGT shall be returned to IGT upon IGT's request, forwarding
charges prepaid, and OEM shall not retain any copies of such materials except
for the support of its existing customers. OEM shall not be required to return
IGT Product in OEM's inventory for which OEM has already paid IGT. All
sublicenses to End Users, properly granted by OEM pursuant to this Agreement,
shall survive expiration or any other termination of this Agreement except to
the extent any sublicensee has infringed or is infringing IGT's proprietary
rights or has made any unauthorized disclosure or use of any of IGT's trade
secrets or is otherwise in breach of its obligations under such sublicense.
10.5 SURVIVAL OF CERTAIN OBLIGATIONS. OEM's obligations under this
Agreement, except for its obligations under paragraphs 4.2, 5.1 and 5.6, shall
survive any expiration or termination of this Agreement. IGT's obligations
under paragraphs 4.4, 6.2, and Article 9, and Schedule B shall survive any
expiration or termination of this Agreement.
WAIVER OF DAMAGES UPON TERMINATION. OEM understands and agrees that IGT has
not represented to OEM that OEM can or should expect to obtain any anticipated
amount of revenues or profits by virtue of this Agreement. Upon expiration or
termination of this Agreement, IGT shall not be liable to OEM for damages of any
kind including incidental, direct, indirect or consequential damages on account
of the expiration or termination of this Agreement whether such expiration or
termination was for any reason or for no reason except as otherwise specifically
provided in this Agreement.
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10.6 ESCROW. An escrow arrangement for IGT Products' source code, source
code documentation, design drawings of the entire hardware and calibration
procedures is being entered into simultaneously with this agreement. The escrow
agent has been chosen in agreement by the parties.
11. GENERAL PROVISIONS.
11.1 NOTICES. All notices and reports in connection with this Agreement
shall be sent to the addresses given below or to such other addresses as the
parties may hereafter specify in person, by first-class mail or by telecopier.
Such notices shall be deemed to be given (i) when delivered to a party, (ii) one
day after deposit with a nationally recognized courier service, or (iii) upon
receipt of facsimile transmission.
If to Image Guided Technologies, Inc.:
President
Image Guided Technologies, Inc.
5710-B Flatiron Parkway
Boulder, CO 80301
If to Nu-Tech, Inc.:
President and Chief Executive Officer
Nu-Tech, Inc. (d.b.a. BREWCO 360DEG. Collision Repair Systems)
PO Box 67
Central City, KY 42330
11.2 ASSIGNMENT. Either IGT or OEM may assign their rights and
obligations hereunder as long as the assignee agrees, in writing, with the other
party to this agreement prior to such assignment that they will fulfill all the
obligations and responsibilities hereunder which would have been fulfilled by
the assignor.
11.3 TRADEMARKS AND TRADE NAMES. OEM concedes and recognizes the right of
IGT to, and shall have no right or license in, the trademarks and trade names
used with or affixed on any IGT Product. OEM shall conduct its business solely
in OEM's name.
11.4 DISPUTES. Any controversy or claim arising out of or relating to
this Agreement, or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may
be entered in any court having jurisdiction thereof. The arbitration shall take
place in St. Louis, MO. The obligations of the parties provided in this
paragraph shall survive the termination of this Agreement. However, nothing in
this paragraph shall prohibit either party from seeking temporary and/or
permanent equitable remedies in court as appropriate to enjoin patent,
copyright, trademark, or trade secret infringement or to enjoin unauthorized use
or
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dissemination of its trade secrets, including, but not limited to, such
equitable relief pending the outcome of arbitration proceedings, but no such
application shall stay or otherwise impede the progress of the arbitration
proceeding. OEM and IGT agree and consent to personal jurisdiction and venue
in the federal and state courts in Colorado for purposes of the preceding
sentence.
11.5 SEVERABILITY. The provisions of this Agreement are severable and in
the event that one or more of such provisions shall be illegal, invalid or
unenforceable, the remaining provisions shall remain in full force and effect.
11.6 GOVERNING LAW AND JURISDICTION. This Agreement shall be governed
and construed in accordance with the laws of the State of Colorado.
11.7 ENTIRE AGREEMENT; AMENDMENTS. Each party acknowledges that it has
read this Agreement, understands it, and agrees to be bound by its terms, and
further agrees that this is the complete and exclusive statement of the
agreement between the parties, which supersedes and merges all prior proposals,
understandings and all other agreements, oral and written, between the parties
relating to this Agreement. This Agreement may not be modified or altered
except by a written instrument duly executed by both parties.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
IMAGE GUIDED TECHNOLOGIES, INC.
Date: 6/7/97 By: /s/ Robert E. Silligman
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Title President/COO
NU-TECH, INC
Date: 6/15/97 By: /s/ Clarence Brewer Jr.
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Title President
12
Schedule A
PRODUCT PRICE LIST AND OEM DISCOUNT SCHEDULE
6/7/97
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PART NUMBER PRODUCT DESCRIPTION - IGT HARDWARE PRICE
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CUSTOM FLASHPOINT-TM- SYSTEM FOR BREWCO "WOLF" ELECTRONIC [](*)
MEASUREMENT SYSTEM, INCLUDING:
Sensor Assembly 800mm, Black, with control unit interconnect cable
Control Unit:
- Industrial rack mount computer cabinet, black, with AT style
power supply, 2 cooling fans, PC support bracket and lockable
front access door
- ATX Motherboard PCBA
- Pentium CPU, 150Mhz
- 16 Mbytes Ram Memory
- 1.2 Gbyte Hard Drive
- 3 1/2" 1.44 Mbyte Floppy Drive
- Video Card
- Industrial Toolboard PCBA (Brewco) with internal Tool Cable
- DSP Master PCBA with internal DSP Cable
- DSP Slave PCBA (2)
- MS DOS 6.22 software
- Windows "95" software
IGT Flashpoint System Operating Software
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(*) NOTE: ABOVE PRICING FOR CUSTOM FLASHPOINT-TM- SYSTEMS IS BASED ON OEM
ORDING A QUANTITY OF [ ] TO [ ] UNITS ON ONE PURCHASE ORDER WITH DELIVERIES
SCHEDULED OVER THE 12 MONTH PERIOD FOLLOWING THE DATE OF THE PURCHASE ORDER.
IF QUANTITIES EXCEED [ ] UNITS IN THE 12 MONTH PERIOD, AN ADDITIONAL [ ]
DISCOUNT WILL BE APPLIED TO EACH UNIT OVER [ ] DELIVERED IN THE 12 MONTH PERIOD.
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:
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PART NUMBER PRODUCT DESCRIPTION - IGT SOFTWARE
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2
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120370 Flashpoint Model 5000 Installation Disk
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121575 Diskette, Flashpoint Sensor Assembly Calibration File
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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.
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PART NUMBER PRODUCT DESCRIPTION - ACCESSORIES PRICE
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120538 100mm Industrial 2 Emitter Probe [ ]
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103859 300mm Industrial 2 Emitter Probe [ ]
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131791 LED OD-30 (1)
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OEM DISCOUNT SCHEDULE FOR IGT ACCESSORIES OR CATALOG ITEMS PURCHASED SEPARATELY:
QUANTITY PERCENTAGE DISCOUNT
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
[ ] [ ]
more than [ ] [ ]
(1) PRICE QUOTATION AT TIME OF PURCHASE
NOTICE: DISCOUNTS ARE BASED ON QUANTITIES ORDERED UNDER A SINGLE OEM PURCHASE
ORDER.
3
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.
4
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.
5
SCHEDULE C
PROVISION FOR THE LICENSE OF USE OF SOFTWARE
Computer software provided with the Product remains the property of
_____________ and _____________'s licensors. _____________ hereby grants
customer a personal non-transferable, non-exclusive license and a sublicense
duly authorized by its licensors to use such software solely for customer's
own use and only with the Product, or part thereof, with which such software
is provided. The software may not be copied, modified, reverse engineered or
disassembled in whole or in part by customer. Customer may not sublicense,
transfer or otherwise make available the software in whole or in part to any
third party. This license and sublicense shall terminate when customer
discontinues use of the software or the Product with which such software is
provided, and upon such termination all software media and materials shall be
returned to _____________ by customer without any delay.