EXHIBIT 10.10
Extended COLLABORATION AGREEMENT
by and between
STEREOTAXIS, INC. A CORPORATION DULY ORGANIZED AND EXISTING UNDER THE LAWS OF
DELAWARE AND HAVING ITS HEADQUARTERS AT ST. LOUIS, USA
(hereinafter referred as "Stereotaxis")
and
SIEMENS AKTIENGESELLSCHAFT, MEDICAL SOLUTIONS, A CORPORATION DULY ORGANIZED AND
EXISTING UNDER THE LAWS OF GERMANY AND HAVING OFFICES AT FORCHHEIM, GERMANY
(hereinafter referred to as "Siemens")
on
the integration of the Stereotaxis magnetic guiding component (NIOBE) with
Siemens Imaging Technology
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PREAMBLE
Pursuant the COLLABORATION AGREEMENT of June 8, 2001 ("COLLABORATION
AGREEMENT"), Siemens and Stereotaxis have integrated the NIOBE SYSTEM and the
XXXXX dFC FLUOROSCOPY SYSTEM to provide an integrated interventional suite
("INTEGRATED CATH LAB") in the field of cardiology, providing unique clinical
capabilities by integration of digital instrument control and X-ray imaging via
the COMMON USER INTERFACE (defined below). Under the COLLABORATION AGREEMENT,
Siemens and Stereotaxis have also coordinated their marketing, promotions and
sales activities in respect of the INTEGRATED CATH LAB to facilitate placements
at leading interventional institutions.
Siemens and Stereotaxis' mutual goal is to extend their collaboration:
(i) To co-develop and commercialize an advanced cardiology cath
lab ("ADVANCED CARDIOLOGY CATH LAB") providing unique three
dimensional navigation solutions to clinicians in endocardial
electrophysiology (and where mutually agreed by the parties in
writing, pediatric cardiology and interventional cardiology)
by adding to the INTEGRATED CATH LAB (and where applicable,
the NEXT GENERATION INTEGRATED CATH LAB defined below) the
capability of navigating by utilization of proprietary
Siemens' endocardial ultrasound integration technology or by
utilization of proprietary Siemens' advanced registration of
PRE-operative CT or MRI Imaging, that is registered to the
XXXXX dFC FLUOROSCOPY SYSTEM (collectively, "PROPRIETARY
SIEMENS REGISTERED IMAGING", as defined in more detail below);
(ii) To address the co-development and commercialization of an
advanced interventional radiology cath lab ("ADVANCED IR LAB")
providing such unique clinical solutions to clinicians in
interventional radiology by way of adding specialized features
to the INTEGRATED CATH LAB (and where applicable, the NEXT
GENERATION INTEGRATED CATH LAB defined below), whether by way
of utilization of PROPRIETARY SIEMENS REGISTERED IMAGING or
otherwise, as are mutually agreed in writing by the parties in
accordance with the terms of this Agreement;
(iii) To address the co development by Siemens and Stereotaxis of a
version of the NEXT GENERATION NIOBE SYSTEM (defined below)
utilizing [***] ("[***] NIOBE SYSTEM") to be incorporated into
a next generation of the INTEGRATED CATH LAB ("NEXT GENERATION
INTEGRATED CATH LAB");
(iv) To increase coordination of marketing, promotions and sales
LABs by establishing co-sponsored Exhibition Sites and Centers
of Excellence at selected leading electrophysiology and
interventional cardiology sites, by increasing
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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coordination of sales force incentives, sales force and
customer training and conference presentations and
publications;
(v) To provide for global first level service by Siemens of LABs;
and
(vi) to provide for collaboration of the parties in respect of new
technologies applicable to LABs by mutual agreement from time
to time:
in the manner set out below.
1. DEFINITIONS
1.1 The terms "NIOBE SYSTEM", XXXXX dFC FLUOROSCOPY SYSTEM", and "COMMON
USER INTERFACE" mean:
1.1.1 The "NIOBE SYSTEM" means Stereotaxis' digital instrument control system
and subsequent generations of that system whether sold under NIOBE or
other trademarks, which allows navigation and control of guidewires,
catheters and other instruments in the body by external magnetic
forces. Unless the context requires otherwise, this will be taken to
include major accessories designed to be used with such system.
1.1.2 The "XXXXX dFC FLUOROSCOPY SYSTEM" means Siemens' XXXXX dFC digital
cardiology X-ray imaging system and subsequent generations of Siemens
digital cardiology X-ray system whether sold under XXXXX or other
trademarks. Unless the context requires otherwise, this will be taken
to include major accessories designed to be used with such system.
1.1.3 The "COMMON USER INTERFACE" means the common interface developed by the
parties pursuant to the COLLABORATION AGREEMENT for the integration of
the NIOBE SYSTEM and the XXXXX dFC FLUOROSCOPY SYSTEM to comprise the
INTEGRATED CATH LAB.
1.2 The term "INFORMATION" means written and/or oral technical information
with regard to the components mentioned in Section 1.1 herein above,
such information being available to one party at any time during the
term of this Agreement and not resulting from performing DEVELOPMENT
WORK.
1.3 The term "ADVANCED CARDIOLOGY CATH LAB DEVELOPMENT WORK" means any and
all development work to be performed by the parties to develop the
ADVANCED CARDIOLOGY CATH LAB by adding to the INTEGRATED CATH LAB the
capability of navigating using PROPRIETARY SIEMENS REGISTERED IMAGING,
in accordance with Section 2 below.
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1.4 The term "ADVANCED IR LAB DEVELOPMENT WORK" means any and all development
work to be performed by the parties to develop the ADVANCED IR LAB, which
will include (without being limited to) enhanced three dimensional imaging
capabilities for applications that may include solutions for liver
embolization and uterus myoma treatment and may additionally include
applications for interventional neuroradiology including arteriovenous
malformations and aneurysm.
1.5 The term "NEXT GENERATION NIOBE SYSTEM" means Stereotaxis' next commercial
release of the NIOBE SYSTEM that has been integrated with a digital
fluoroscopy system and designed to contain: (i) more compact magnet
systems; and (ii) a primary set of rotational and other axes of motion for
the magnets; both of which are contained in enclosed pods that can be
affixed to secondary, external positioners. [***]
1.6 The term "[***] NIOBE SYSTEM DEVELOPMENT WORK" means any and all
development work to be performed by the parties (pursuant to agreement
under Section 2.2(i)) to modify Stereotaxis' NEXT GENERATION NIOBE SYSTEM
to create an [***] NIOBE SYSTEM that is integrated with the XXXXX dFC
FLUOROSCOPY SYSTEM.
1.7 The term "DEVELOPMENT WORK" means either of ADVANCED CARDIOLOGY CATH LAB
DEVELOPMENT WORK, ADVANCED IR LAB DEVELOPMENT WORK or [***] NIOBE SYSTEM
DEVELOPMENT WORK.
1.8 The term "DEVELOPMENT RESULTS" means any and all results, whether
patentable or not, in written or oral form, achieved by performing
DEVELOPMENT WORK.
1.9 The term "NEXT GENERATION INTEGRATED CATH LAB" means the [***] NIOBE SYSTEM
integrated with the XXXXX dFC FLUOROSCOPY SYSTEM via a common user
interface and will also include, where applicable, an ADVANCED CARDIOLOGY
CATH LAB or an ADVANCED IR LAB in which the [***] NIOBE SYSTEM is a
component.
1.10 The term "LAB" represents an INTEGRATED CATH LAB, an ADVANCED CARDIOLOGY
CATH LAB, an ADVANCED IR LAB and/or a NEXT GENERATION INTEGRATED CATH LAB.
1.11 The term "PROPRIETARY SIEMENS REGISTERED IMAGING" has the meaning set
forth in the paragraph (i) of the preamble to this Agreement and
(notwithstanding anything contained elsewhere in this agreement): (i) will
not be taken to include registration of output of rotational angiography
conducted in a cath lab with a cath lab x-ray/fluoroscopy system; (ii)
will be taken to include registration of such additional imaging
modalities as is mutually agreed in writing by the parties; (iii) may
include such advanced registration or integration technology as far as
owned by Siemens alone or together with partners; and
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separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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(iv) will not be taken to include imaging solutions that have
become common practice or commonly available in the cath
lab industry.
1.122. Carrying out of the DEVELOPMENT WORK
2.1 Details of the DEVELOPMENT WORK are set forth in Annex 1
hereto, which may be amended from time to time in writing by
the parties.
2.2 The parties will coordinate and mutually consider within a
period to be agreed (but in any event no later than [***] of
the Effective Date) the feasibility of their developing and
commercializing the [***] NIOBE SYSTEM in accordance with the
timetable contemplated in this Agreement. At the end of such
period, then either: (i) The parties will agree in writing to
proceed with development and commercialization of the [***]
NIOBE SYSTEM in accordance with the terms of this Agreement;
or (ii) The terms of this Agreement relating to the [***]
NIOBE SYSTEM will no longer be of any force or effect.
2.3 The parties will coordinate and mutually consider within a
period to be agreed upon (but in any event no later than [***]
of the Effective Date) the clinical solutions to be comprised
in and the feasibility of developing and commercializing the
ADVANCED IR LAB in accordance with the timetable contemplated
in this Agreement. At the end of such period, then either: (i)
The parties will agree in writing to proceed with the
development and commercialization of the ADVANCED IR LAB in
accordance with the terms of this Agreement; or (ii) The terms
of this Agreement relating to the ADVANCED IR LAB will no
longer be of any force or effect
2.4 The ADVANCED CARDIOLOGY CATH LAB DEVELOPMENT WORK will be
undertaken by the parties in an expeditious fashion and the
parties will use all reasonable commercial efforts to achieve
completion of such work so as to enable the commercial
introduction of the ADVANCED CARDIOLOGY CATH LAB during 2004.
The ADVANCED CARDIOLOGY CATH LAB DEVELOPMENT WORK shall be
regarded as being completed successfully if ADVANCED
CARDIOLOGY CATH LAB fulfills the specifications as agreed
upon in accordance with Section 1.1 and when final system
testing and readiness for shipment of the system to the
customer is achieved.
2.4.1 Stereotaxis agrees that from the date hereof until the
expiration of the period of 12 months following the placement
of the first ADVANCED CARDIOLOGY CATH LAB at a customer site
or until year end 2005, whichever is the earlier, it will not
place my NIOBE SYSTEMs or NEXT GENERATION NIOBE SYSTEMs that
are integrated with a third party x-ray imaging system in a
manner that incorporates registration to such x-ray imaging
system of three dimensional pre-operative imaging so as to
provide advanced electrophysiology solutions that are
substantially comparable to advanced electrophysiology
solutions provided by the ADVANCED CARDIOLOGY CATH LAB by
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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reason of integration of PROPRIETARY SIEMENS REGISTERED IMAGING
pursuant to this Agreement.
2.5 Subject to Section 2.2, the [***] NIOBE SYSTEM DEVELOPMENT WORK will be
undertaken by the parties in an expeditious fashion and the parties
will use all reasonable commercial efforts to achieve completion of
such work so as to enable the commercial introduction of the [***]
NIOBE SYSTEM during [***]. The [***] NIOBE SYSTEM DEVELOPMENT WORK
shall be regarded as being completed successfully if NEXT GENERATION
INTEGRATED CATH LAB fulfills the specifications as agreed upon in
accordance with Section 1.1 and when final system testing and readiness
for shipment of the system to the customer is achieved.
2.5.1 Stereotaxis agrees that during the period commencing on the date hereof
and ending [***] following the placement of the first [***] NIOBE
SYSTEM at a customer site or, until year end [***] whichever is the
earlier, it will not place any NEXT GENERATION NIOBE SYSTEMS that are
integrated with third party x-ray fluoroscopy systems and utilize [***]
so as to be configured in like manner to the [***] NIOBE SYSTEM.
2.6 Subject to Section 2.3, the ADVANCED IR LAB DEVELOPMENT WORK will be
undertaken by the parties in an expeditious fashion and the parties
will use all reasonable commercial efforts to achieve completion of
such work so as to enable the commercial introduction of the ADVANCED
IR LAB during 2004. The ADVANCED IR LAB DEVELOPMENT WORK shall be
regarded as being completed successfully if the ADVANCED IR LAB
fulfills the specifications as agreed upon in accordance with Section
1.1 and when final system testing and readiness for shipment of the
system to the customer is achieved.
2.7 Stereotaxis agrees that during the period commencing on the date hereof
and ending 12 months following the placement of the first ADVANCED IR
LAB at a customer site or until year end 2005, whichever is the
earlier, it will not place any NIOBE SYSTEMs or NEXT GENERATION NIOBE
SYSTEMs that are integrated with a third party x-ray imaging system
and provide proprietary solutions that are substantially comparable to
the proprietary advanced interventional radiology solutions provided
by the ADVANCED IR CATH LAB. Each party shall bear the costs incurred
by such party for its efforts under or in connection with the
DEVELOPMENT WORK.
2.8 Each party, insofar as it lawfully may, shall make available to the
other within a reasonable period of time following the Effective Date
of this Agreement, and from time to time during the carrying out of
the DEVELOPMENT WORK its INFORMATION and DEVELOPMENT RESULTS insofar
as it considers such INFORMATION and DEVELOPMENT RESULTS necessary for
the other party for carrying out the
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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DEVELOPMENT WORK. Disclosure of INFORMATION and DEVELOPMENT RESULTS
will be effected without charges to the receiving party.
2.9 The DEVELOPMENT WORK will be carried out in close cooperation between
the parties and in a joint effort to keep cost and expenditures to a
minimum.
2.9.1 Each party undertakes to carry out the DEVELOPMENT WORK as stipulated
in this Agreement.
3. CERTAIN ITEMS REGARDING LAB PLACEMENTS AND SALES
3.1 The parties' goal is to achieve installation of [***] and the parties
will coordinate and use all reasonable commercial efforts to achieve
these goals. Siemens and Stereotaxis will each provide their components
of LABs to customers on commercially reasonable terms and on a
competitive basis and in timely fashion and together with the provision
of service for LABs as provided for herein. For purposes of this
Section 3.1, components will be offered on a competitive basis where
provided on terms that are: (i) where applicable, reasonably comparable
to the basis upon which such components or their equivalent are
provided to customers for placements that are not integrated in LABs;
or (ii) for components of a type that are unique to LABs, based on
margins that are reasonably comparable margins generally achieved on
other components of LABs.
3.2 Stereotaxis will not make available to third parties via integration of
the NIOBE SYSTEM or otherwise any proprietary Siemens PROPRIETARY
SIEMENS REGISTERED IMAGING. Section 6.4 shall apply accordingly.
3.3 Stereotaxis may integrate the NEXT GENERATION NIOBE SYSTEM with a third
party X-ray system in like manner to the [***] NIOBE SYSTEM, provided
that Stereotaxis will provide Siemens with reasonable compensation for
Siemens' licensing to third party vendors any Siemens' intellectual
property relating to electrical and mechanical integration know how (in
the version as available at and used by Siemens) upon its transfer to
such third party vendors that may be required to permit such third
party integration. Siemens agrees that it will so license Stereotaxis
and/or third parties on request to enable them to make, use and sell
such third party integrated NEXT GENERATION NIOBE SYSTEMs or components
thereof or modifications thereof based on such compensation. The value
of any such Siemens' intellectual property used with or by third party
vendors will be mutually agreed by Siemens and Stereotaxis based on
reasonable commercial terms. The parties will, no later than [***]
after the date of this Agreement confer in good faith and mutually
agree a final determination of the level of such compensation.
3.4 As appropriate, customer sales approach in respect of LABs can be
jointly or separately by each party. Each party shall inform the other
promptly of any potential customer and each party agrees to fully
cooperate with the other in respect of reasonable requests for
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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coordination of customer sales efforts, provided that the parties continue to
maintain distinct and separate business and sales operations and identities and
that the distinct separation between the customer's purchase of components from
Stereotaxis and from Siemens will be evident to the customer:
(i) In respect of INTEGRATED CATH LABs, as set forth in the
COLLABORATION AGREEMENT;
(ii) In respect of NEXT GENERATION INTEGRATED CATH LABs, until such
time as any NEXT GENERATION NIOBE SYSTEM that is integrated
with a third party X-ray system in like manner to the [***]
NIOBE SYSTEM is commercially released, or otherwise as
mutually agreed in writing;
(iii) In respect of ADVANCED CARDIOLOGY CATH LABs and ADVANCED IR
LABs, until such time as either party provides the other with
written notice to the contrary.
3.5 For placements of LABS, sales brochures, bid specification and
customer payment will be made in a way that a distinct separation between the
Stereotaxis components and Siemens components is evident to the customer.
(i) Notwithstanding the above, there is a joint document for
room planning and installation instructions.
(ii) Siemens will provide to the customer project management on
site addressing room preparation, shipment and installation.
(iii) Contracts with customers will be signed by each party for
their respective components to be delivered.
(iv) Each party will manufacture, warrant, sell and deliver its
components of such LABs in accordance with reasonable industry
practices and will not cease to so manufacture, warrant, sell
and deliver such components based on customer purchase orders
without 18 months prior notice to the other party.
3.6 Stereotaxis and Siemens may mutually agree upon cross-incentive
programs to enhance sales force focus on placement on LABs
3.7 For placements of ADVANCED CARDIOLOGY CATH LABs, Stereotaxis and
Siemens will cooperate to:
(i) Coordinate salesforce and customer training activities;
(ii) Confer and consider in good faith arrangements whereby Siemens
would distribute [***] NIOBE SYSTEMs on reasonable commercial
terms;
(iii) Coordinate and facilitate publications and conference
presentations as mutually agreed;
(iv) Coordinate and establish a minimum of two Exhibition Sites
at Xxxxxx in St. Louis and at such other site as mutually
agreed (likely at St. Georg in Hamburg) [***]
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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[***] The parties will ensure that at the time of
installation and thereafter that their components
provided to such LAB have the most up to date
software releases installed that are designed for use
with such components. Such demonstration site will
remain installed until such time as mutually agreed
by the parties. [***] and
(v) Coordinate and establish Center of Excellence
Clinical Sites targeting key interventional hospitals
such as [***] and such other sites as are mutually
agreed, the object being to promote the capabilities
of the integrated systems and to establish new
clinical solutions.
Further details on the sales cooperation will be agreed to by
a "collaborative sales working group" to be established after
the signing of this Agreement, the object being to promote
sales and promotions cooperation between the parties while
continuing to maintain distinct and separate business and
sales operations and identities.
4. LOGISTICS
For placements of LABs, Stereotaxis as well as Siemens will ship directly to
the customer site. Time schedule is coordinated by the Siemens and Stereotaxis
project managers. The first unit of any LAB will be tested in Siemens AX before
shipment to the customer to assure successful integration and system
performance. The number of units that have to pass the compatibility test after
the first units testing will be defined separately and mutually agreed. Further
details on logistics will be agreed to by the collaborative logistics working
group established pursuant to the Collaboration Agreement, which will also be
used to coordinate logistics issues arising under this Agreement.
5. INSTALLATION AND SERVICE
5.1 For installations of LABs, at least one Stereotaxis person will be on
site at the customer facility, at Stereotaxis cost and expense, at the
time of installation. Siemens will support the installation of
Stereotaxis components to Siemens' system.
5.2 Service of LABs on site will be done by Siemens in accordance with a
service contract between the Siemens and Stereotaxis, on commercially
reasonable terms to be mutually agreed or, where applicable, in
accordance with existing service contracts in respect of LABs that are
already in place.
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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Such service will include Stereotaxis' components of LABs. To enable
Siemens to perform service Stereotaxis shall provide Siemens at no cost
with INFORMATION necessary for Siemens to perform service on
Stereotaxis' components and shall train at no cost to Siemens a
reasonable number of Siemens' specialists in the service of
Stereotaxis' components. Furthermore, Stereotaxis and Siemens shall
cooperate to provide service call center support as well as spare
parts in respect of LABs.
Details regarding service of LABs including but not limited to response
time and spare part logistics, will be agreed to by the collaborative
service working group established pursuant to the Collaboration
Agreement, which will also be used to coordinate service issues arising
under this Agreement.
Regarding service for LABs, Siemens agrees to provide Stereotaxis with
no less than 24 months written notice of termination of such service.
Details regarding the installation will be separately agreed upon.
6. SECRECY
6.1 Either Party expressly undertakes to retain in confidence, to protect
with the same degree of care used in protecting its own INFORMATION and
not to use for other purposes than contemplated by this Agreement or to
disclose to any third party all INFORMATION in a written or other
tangible form supplied by the other Party in relation to this Agreement
and clearly marked as being "Confidential". Oral INFORMATION of a Party
that is confidential and is restricted in use shall be reproduced in
writing marked as being "Confidential" and sent to the other Party
within one (1) month after its communication to the other Party. The
receiving Party agrees to restrict access of such Confidential
information to employees and agents who have a need to know pursuant to
their scope of employment or agency arrangement and further agrees to
instruct its employees and agents having access to such Confidential
INFORMATION of receiving Party's confidentiality obligations.
6.2 The aforementioned obligation shall not apply to INFORMATION that is:
6.2.1 published or otherwise made available to the public other than by a
breach of this Agreement; or
6.2.2 rightfully received by a Party from a third party without confidential
obligation; or
6.2.3 shown through competent evidence to have been independently developed
by the other Party without reference to the INFORMATION; or to have
been known by the receiving Party prior to its first receipt of such
INFORMATION from the other Party; or
6.2.4 required to be disclosed pursuant to a legal, judicial, or
administrative proceeding, or by law; or
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6.2.5 approved for disclosure by prior written consent of an authorized
corporate representative of the disclosing Party.
6.3 The aforementioned obligations do apply accordingly with regard to
DEVELOPMENT RESULTS of the other Party.
6.4 The non-disclosure obligations set forth in this Section 6 shall
survive expiration or termination of this Agreement by three (3) years.
6.5 Press releases or other information on the conclusion/content of this
Agreement shall only be made available to third parties/press agencies
(other than disclosure by Stereotaxis in relation to raising private
equity funds or as legally required pursuant to an initial public
offering of equity) with the prior written consent of the other Party
hereto such consent not to be unreasonably withheld.
7. WARRANTIES AND LIMITATION OF LIABILITIES
7.1 Provided it complies with its development obligations pursuant to
Section 2, no party shall be liable towards the other party in the case
that the DEVELOPMENT WORK cannot be successfully completed.
7.2 The sole obligation of each party with respect to its INFORMATION and
DEVELOPMENT RESULTS shall be to forward same to the other party as
provided in this Agreement, and, to correct errors that might have
occurred in this INFORMATION and DEVELOPMENT RESULTS without undue
delay after such errors become known to the party which forwarded the
relevant INFORMATION or DEVELOPMENT RESULTS.
7.3 THE WARRANTIES SET FORTH IN THIS SECTION 7 APPLY TO ALL INFORMATION AND
DEVELOPMENT RESULTS LICENSED OR KNOWINGLY DISCLOSED HEREUNDER AND ARE
IN LIEU OF ALL WARRANTIES EXPRESS OR IMPLIED INCLUDING WITHOUT
LIMITATION THE WARRANTIES THAT INFORMATION AND DEVELOPMENT RESULTS CAN
BE USED WITHOUT INFRINGING STATUTORY AND OTHER RIGHTS OF THIRD PARTIES.
7.4 Warranties and liabilities regarding the delivery of the components of
each party shall be governed by the contracts between each such party
and the respective customer.
7.5 Should a customer forward a warranty or any liability claim - including
product liability claims - to either party then such party shall be
responsible for such claims only to the extent such claims relate to
the components such party has delivered to the customer. Each party
shall indemnify and hold the other party harmless from any claim,
costs,
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expenses, and damages resulting from such claims if the claims relate to
components delivered by the respective other party, provided however that
the one party
a) notifies the other party of such claim, dispute or proceeding without
undue delay,
b) does not admit liability on the claims,
c) provides the other party with the sole authority -- as far as legally
possible -- to defend and settle such claim, dispute, or proceeding with
counsel of its choice (the other party may participate at its costs with
counsel of its choice), and
d) cooperates as reasonably requested by the other party.
7.6 Each party shall secure and maintain, for the useful life of the components
delivered by it, a product liability insurance policy full coverage for
product liability exposure (including negligence and strict liability) to
third parties anywhere in the world for any defects whatsoever (such as
design-, manufacture-, instruction defects) resulting from defects in the
components supplied hereunder in the minimum of US [***]. At either party's
request the other party shall prove compliance with the obligation to
insure as herein stated.
7.7 NEITHER PARTY SHALL HAVE ANY LIABILITY TO THE OTHER FOR ANY CONSEQUENTIAL,
INCIDENTAL, PUNITIVE, INDIRECT OR SPECIAL DAMAGES BY REASON OF ANY ACT OR
OMISSIONS OR ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS
USE OR OPERATION, INCLUDING BUT WITHOUT LIMITATION ANY LOSS OF USE, LOSS
OF INFORMATION AND DATA, LOST REVENUES, LOST PROFITS, COSTS OF CAPITAL,
COSTS OF SUBSTITUTE PRODUCTS, FACILITIES, OR SERVICES, COSTS OF
REPLACEMENT POWER, COST ASSOCIATED WITH DOWN TIME, AND ANY SIMILAR AND
DISSIMILAR LOSSES, COSTS AND DAMAGES.
7.8 The provisions of this Section 7. shall survive any termination of this
Agreement.
8. DEVELOPMENT RESULTS, INFORMATION AND RIGHTS THEREUNDER
8.1 The DEVELOPMENT RESULTS shall, at the time they are made, become the sole
property of such party, the employees of which have generated the
respective DEVELOPMENT RESULTS. DEVELOPMENT RESULTS made jointly by
employees of both parties shall become the joint ownership of both
parties. In case DEVELOPMENT RESULTS consist of joint inventions, the
parties shall agree on whether, and if so, where and at whose cost and
expense statutory protection rights will be filed for. Joint DEVELOPMENT
RESULTS, including any and all statutory protection issuing thereon, if
any, may be used by each party in its field of activities.
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
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8.2 Under its INFORMATION and DEVELOPMENT RESULTS each party hereby grants
to the other party the non-exclusive, non-transferable, royalty free
right to use same during the term of this Agreement for the purpose of
carrying out the DEVELOPMENT WORK and thereafter to the extent
necessary for the exploitation of the DEVELOPMENT RESULTS of the other
party or of the joint DEVELOPMENT RESULTS.
8.3 Notwithstanding ownership under DEVELOPMENT RESULTS and the rights
granted hereunder, the exclusivity granted under Section 3.2 shall
prevail.
8.4 The stipulations of this Section 8. shall survive any termination of
this Agreement.
9. JAPANESE MARKET DEVELOPMENT
Pursuant to an Agreement between the parties of even or approximate
date herewith, the parties intend to collaborate in respect of Japanese
market development for LABs. Details will be agreed upon in a separate
agreement between Stereotaxis and the Siemens affiliated company in
Japan.
10. SIEMENS INVESTMENT IN STEREOTAXIS
This Agreement will be of no force or effect unless and until Siemens'
investment of $10 million in Stereotaxis Series E Preferred Stock is
closed.
11. TERM AND TERMINATION
11.1 This Agreement shall become effective on the date it is signed by both
parties (Effective Date) and is terminated or expires in accordance
with the terms hereof, in any event no later than 36 months after
becoming effective. No later than 12 months before the end of this 36
month period, both parties will commence in good faith negotiations on
extending the collaboration.
11.2 This Agreement may be terminated at any time by the one party by
giving of not less than four weeks' prior written notice to the other
party.
- if the other party hereto is declared bankrupt or otherwise cannot
fulfill its financial obligations; or
- if the other party hereto substantially defaults in the performance
of this Agreement and does not remedy the default within 4 weeks
after receipt of a relevant written request of the one party; or
- if the other party comes under direct or indirect control or
direction of any other entity competing with the one party.
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11.3 Sections 6, 7, 8, 11, 12 shall survive termination of this Agreement.
12. ARBITRATION
12.1 Any differences or disputes arising from this Agreement or from
agreements regarding its performance shall be settled by an amicable
effort on the part of both parties to the Agreement. An attempt to
arrive at a settlement shall be deemed to have failed as soon as one of
the parties to the Agreement so notifies the other party in writing.
12.2 If an attempt at settlement has failed, the disputes shall be finally
settled under the Rules of Conciliation and Arbitration of the
International Chamber of commerce in Paris (Rules) by three arbitrators
appointed in accordance with the Rules.
12.3 The place of arbitration shall be Berne, Switzerland. The procedural
law of this place shall apply where the Rules are silent.
12.4 The arbitral award shall be substantiated in writing. The arbitral
tribunal shall decide on the matter of costs of the arbitration.
13. SUBSTANTIVE LAW
All disputes shall be settled in accordance with the provisions of this
Agreement and all other agreements regarding its performance, otherwise
in accordance with the substantive law in force in the Canton of Berne,
Switzerland, without reference to other laws.
14. MISCELLANEOUS
14.1 This Agreement may not be released, discharged, abandoned, changed or
modified in any manner, except by an instrument in writing signed on
behalf of each of the parties hereto by their duly authorized
representatives.
14.2 The failure of any party hereto to enforce at any time any of the
provisions of this Agreement shall in no way be construed to be a
waiver of any such provision, nor in any way to affect the validity of
this Agreement or any part thereof or the right of any party thereafter
to enforce each and every such provision. No waiver of any breach of
this Agreement shall be held to be a waiver of any breach of this
Agreement shall be held to be a waiver of any other or subsequent
breach.
15
14.3 All notices or other communications required or permitted hereunder with
regard to the interpretation, validity, etc. of the Agreement shall be in
writing and shall be given by certified mail addressed, if to Stereotaxis
Stereotaxis, Inc.
Attn. Chief Executive Officer
Atten Chief Financial Officer
0000 Xxxxxx Xxxx XXX.
Xx. Xxxxx, XX 00000
X.X.X.
and, if to Siemens:
Siemens Aktiengesellschaft
Legal Services Med
Xxxxxx von Xxxxxxx Xxx. 00
00000 Xxxxxxxx
Xxxxxxx
or to such other address that the parties might identify to each other for
this purpose and with reference to this Agreement.
14.4 Subject to Section. 6.5 above, no party hereto shall issue any press
release or public announcement or otherwise divulge the existence of this
Agreement or the transactions contemplated hereby without the prior
approval of the other party hereto.
14.5 This Agreement shall be binding upon and inure to the benefit of the
parties hereto and the successors or assigns of the parties hereto.
14.6 Titles and headings to Sections herein are inserted for the convenience or
reference only and are not intended to be a part of or to affect the
meaning or interpretation of this Agreement.
14.7 This Agreement may be executed in one or more counterparts, all of which
shall be considered one and the same agreement.
IN WITNESS WHEREOF, the parties have executed these presents on the dates
specified below.
16
Xx. Xxxxx, 00 Xxx 0000 Xxxxxxxxx, 27.05.2003
------------------ ------------------
Stereotaxis, Inc. Siemens Aktiengesellschaft
/s/ XXXXX X. XXXX illegible
---------------------------- ----------------------------
illegible
17
ANNEX 1
DEVELOPMENT WORK
ADVANCED CARDIOLOGY CATH LAB DEVELOPMENT WORK RELATING TO PROPRIETARY SIEMENS
REGISTERED IMAGING
Subject to the results of determining the feasibility of this project, image
registration and integration of PROPRIETARY SIEMENS REGISTERED IMAGING that
will include:
1. Allowing target based navigation from a CT or MRI
pre-operative image that is registered to the fluoroscopy
output. Included in this approach would be a fluoroscopy image
that is registered to a pre-operative image which in turn may
be registered to a Biosense CARTO map
Additional consideration will be given as to include navigational control using
endocardial ultrasound
Common Stereotaxis/Siemens image integration specifications will be defined in
the "Requirement Specification". This document will be jointly created and will
be reviewed and released by both parties. The image integration will be tested
in a "System test" applied to both the Stereotaxis and Siemens components of
the ADVANCED CARDIOLOGY CATH LAB. Results have to be documented and are the
base for a joint release for shipment to customers. Each of the two parties is
responsible for their own component. Details will be agreed by a "collaborative
3D engineering working group" to be established after signing of this Agreement.
[***] NIOBE SYSTEM DEVELOPMENT WORK
Subject to the results of determining the feasibility of this project, common
Stereotaxis/Siemens specifications for the [***] configuration of the NEXT
GENERATION INTEGRATED CATH LAB will be defined in the "Requirement
Specification". This document will be jointly created and will be reviewed and
released by both parties. The [***] NIOBE SYSTEM configuration and the NEXT
GENERATION INTEGRATED CATH LAB will be tested in a "System test" applied to both
the Stereotaxis and Siemens components. Results have to be documented and are
the base for a joint release for shipment to customers. Each of the two parties
is responsible for their own component. Details will be agreed by a
"collaborative [***] configuration working group" to be established after
signing of this Agreement.
ADVANCED IR LAB DEVELOPMENT WORK
Subject to the results of determining the feasibility of this project, common
Stereotaxis/Siemens specifications for unique clinical solutions in
interventional radiology comprised in the ADVANCED IR LAB will be defined in
the "Requirement Specification". This document will be
[*** Indicates portions of this exhibit that have been omitted and filed
separately with the Securities and Exchange Commission pursuant to a request for
confidential treatment.]
18
jointly created and will be reviewed and released by both parties. The ADVANCED
IR LAB configuration will be tested in a "System test" applied to both the
Stereotaxis and Siemens components. Results have to be documented and are the
base for a joint release for shipment to customers. Each of the two parties is
responsible for their own component. Details will be agreed by a "collaborative
ADVANCED IR LAB configuration working group" to be established after signing of
this Agreement.
