EXHIBIT 10.18
Final Draft: 12-20-95
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COMMERCIALIZATION AGREEMENT
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This Commercialization Agreement (this "Commercialization Agreement") is
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entered into as of the date of the last signature below (the "Effective Date"),
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by and among SCIENTIFIC MEASUREMENT SYSTEMS, INC., a Texas corporation ("SMS"),
GENERAL ELECTRIC COMPANY, a New York corporation ("GE"), and EG&G, INC., a
Massachusetts corporation ("EG&G"), each of which is hereafter referred to as a
"Party," and all of which are collectively referred to as the "Parties".
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RECITALS:
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A. The Parties are some of the parties to a separate Volumetric Computed
Tomography Consortium Collaboration Agreement ("Collaboration Agreement") under
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which the Parties and General Motors Corporation ("GM") have undertaken a
collaboration (the "Consortium") to participate in the Advanced Technology
Program administered by the National Institute of Standards and Technology
("NIST") to conduct certain specified research regarding a volumetric computed
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tomography system for characterizing critical objects three dimensionally in
automotive applications as more fully described in the Statement of Work
attached to the Collaboration Agreement (the "Project").
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B. The Parties and GM intend to enter into a Cooperative Agreement with
NIST (the "Cooperative Agreement") setting forth, among other things, the terms
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and conditions under which NIST will fund a portion of the work required in
connection with the Project in accordance with the rules of the Advanced
Technology Program.
C. The Parties wish to enter into this Commercialization Agreement to
define their respective roles and responsibilities with respect to fostering the
practical application of certain technologies expected to be developed in the
Project.
Therefore, the Parties agree as follows:
Article 1 - Definitions
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The following capitalized terms used in this Agreement shall have the
meanings defined in this Article:
1.1 "Background Technology," as used with respect to a particular Party,
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means inventions, processes, apparatus, compositions, techniques, and related
technical information, pertaining to Imaging Systems, or any component part
thereof, or any method for manufacturing or using the same, which are (a) owned
or controlled by said Party (in the sense of having the right to grant rights or
licenses hereunder without accounting to third parties) and (b) first developed
prior to the effective date or, if developed during the term of the
Collaboration Agreement, did not form part of that Party's work effort in
connection with the Project.
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1.2 "Background Works" as used with respect to a particular Party,
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means works of authorship (including but not limited to computer software)
pertaining to Imaging Systems, or any component part thereof, which are first
created prior to the Effective Date or, if created during the term of the
Collaboration Agreement, did not form part of that Party's work effort in
connection with the Project.
1.3 "Confidential Background Information" as used with respect to a
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designated Participant, means all information owned or controlled by said
Participant relating to Imaging Systems, or any component part thereof, or any
method for manufacturing or using the same, provided such information was
developed by said Participant prior to the effective date or, if developed
during the term of this Agreement, did not form part of that Participant's
assigned work effort in connection with the Project, which said Participant
discloses or otherwise makes available to another Participant ("recipient")
pursuant to the terms of this Agreement, except information which the recipient
can show:
(a) was in the public domain prior to the recipient's receipt of the same
hereunder, or which subsequently becomes part of the public domain (by
publication or otherwise) other than by the wrongful act of the
recipient; or
(b) was developed by the recipient and in the recipient's possession prior
to the recipient's receipt of the same from said Participant hereunder;
or
(c) was rightfully received by the recipient from a non-participant who
did not acquire the same directly or indirectly from said Participant,
and who did not require or no longer requires the recipient to hold the
same in confidence; or
(d) is independently developed by or for the recipient by someone who had
no access to the confidential information received from said
Participant hereunder;
it being understood that specific information received hereunder shall not be
deemed to be within any of the above exceptions merely because the same is
embraced by more general information within one of said exceptions, nor shall
any combination of features be considered within any of said exceptions merely
because the individual features, separately considered, are within said
exceptions.
1.4 "Confidential Project Information" as used with respect to a particular
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Participant, means all information relating to an Imaging System, or any
component part thereof, or any method for manufacturing or using the same, which
information is first developed by or for said Participant during the term of
this Agreement and in the performance of work in connection with the Project,
which the developing Participant discloses or otherwise makes available to
another Participant ("recipient") pursuant to the terms of this Agreement,
except information which the recipient can show:
(a) was in the public domain prior to the recipient's receipt of the same
hereunder, or which subsequently becomes part of the public domain (by
publication or otherwise) other than by the wrongful act of the
recipient; or
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(b) was developed by the recipient and in the recipient's possession prior
to the recipient's receipt of the same from said Participant
hereunder; or
(c) was rightfully received by the recipient from a non-participant who did
not acquire the same directly or indirectly from said Participant, and
who did not require or no longer requires the recipient to hold the
same in confidence; or
(d) is independently developed by or for the recipient by someone who had
no access to the confidential information received from said
Participant hereunder;
it being understood that specific information received hereunder shall not be
deemed to be within any of the above exceptions merely because the same is
embraced by more general information within one of said exceptions, nor shall
any combination of features be considered within any of said exceptions merely
because the individual features, separately considered, are within said
exceptions.
1.5 "Intellectual Property Rights" as used with respect to a particular
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Participant, means all patent rights, trade secret rights and/or copyrights (but
specifically excluding trademarks) owned or controlled by said Participant (in
the sense of having the right to grant rights or licenses hereunder without
accounting to third parties) pertaining to Imaging Systems, or any component
part thereof, or any method for manufacturing or using the same. Intellectual
Property Rights includes, but is not limited to, patents and patent applications
in all countries covering Subject Inventions, as well as copyrights in all
countries covering Project Works.
1.6 The term "Apollo Technology" means technology licensed from GE to EG&G
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pursuant to their Research and Development Agreement, dated August 3, 1994,
generally including both (a) GE and/or EG&G technology, existing on August 3,
1994, in amorphous silicon panels (which panels comprise an amorphous silicon
photosensor array deposited on a glass substrate, a scintillator layer and a
sealed protective cover) and photosensors included therein, and improvements to
such panels and/or photosensors made by GE and/or EG&G during the term of said
Research and Development Agreement, and (b) GE and/or EG&G technology, existing
on August 3, 1994, for interconnecting, switching, interfacing and packaging
such panels and/or photosensors, and improvements to the same made by GE and/or
EG&G during the term of said Research and Development Agreement. In the event of
any conflict between this definition and the corresponding definitions contained
in said Research and Development Agreement, the latter definitions shall
control.
1.7 The terms "Imaging System," "Intellectual Property Rights," "Project
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Works" and "Subject Invention" shall have the same meanings as defined in the
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Collaboration Agreement.
1.8 The term "SMS Exclusive Fields" means the following fields for using
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Imaging Systems which incorporate the Apollo Technology: casting applications,
automotive applications, aircraft engine applications, aerospace applications,
hazardous waste drum inspection applications, and other environmental
applications.
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1.9 The term "GEMS Exclusive Fields" means the following fields for using
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Imaging Systems: explosive detection applications.
1.10 The term "Non-Exclusive Fields" means all fields for using Imaging
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Systems, except SMS Exclusive Fields and GEMS Exclusive Fields.
Article 2 - Licenses for Imaging Systems
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2.1 Licenses to GE. SMS agrees that it shall grant, and hereby grants, to
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GE a paid-up, perpetual, worldwide, irrevocable license under SMS' Intellectual
Property Rights:
(a) to use Background Technology, Subject Inventions, Confidential
Background Information, Confidential Project Information, Background
Works and Project Works to manufacture, have manufactured, offer for
sale, sell, import and/or use Imaging Systems, as well as any component
part thereof, which license shall include the right to grant (directly
or indirectly) the necessary sublicenses to purchasers of said Imaging
Systems for such purchasers to use said Imaging Systems for their
intended purpose(s), without accounting to SMS; and
(b) to perform, display, reproduce, distribute, copy, and use any and all
Background Works and Project Works which constitute part of said
Imaging Systems, including the right to grant (directly or indirectly)
to purchasers of said Imaging Systems the sublicenses necessary for
such purchasers to use said Imaging Systems for their intended
purpose(s), without accounting to SMS.
Subject to the rights of the United States under the Collaboration
Agreement and/or the Cooperative Agreement: (1) The licenses granted in this
Paragraph shall be exclusive in the GEMS Exclusive Fields. (2) The licenses
granted in this Paragraph shall be nonexclusive in the Non-Exclusive Fields.
(3) The licenses granted in this Paragraph shall not apply to any of the SMS
Exclusive Fields during the period of SMS' exclusive therein pursuant to
Paragraph 2.2, but shall thereafter shall be nonexclusive in those SMS
Exclusive Fields.
2.2 Licenses to SMS. GE agrees that it shall grant, and hereby grants, to
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SMS a paid-up, perpetual, worldwide, irrevocable license under GE's Intellectual
Property Rights:
(a) to use Background Technology, Subject Inventions, Confidential
Background Information, Confidential Project Information, Background
Works and Project Works as reasonably necessary to manufacture, have
manufactured, offer for sale, sell, import and/or use Imaging Systems,
as well as any component part thereof (other than detector array
panels and the associated read out electronics), which license shall
include the right to grant (directly or indirectly) the necessary
sublicenses to purchasers of said Imaging Systems for such purchasers
to use said Imaging Systems for their intended purpose(s), without
accounting to GE or EG&G; and
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(b) to perform, display, reproduce, distribute, copy, and use any and all
Background Works and Project Works which constitute part of said
Imaging Systems, which license shall include the right to grant
(directly or indirectly) to the purchasers of said Imaging Systems the
sublicenses necessary for such purchasers to use said Imaging Systems
for their intended purpose(s), without accounting to GE or EG&G.
Subject to the rights of GE in Paragraph 2.3, and the rights of the United
States under the Collaboration Agreement and/or the Cooperative Agreement:
(1) The licenses granted in this Paragraph shall be exclusive in the SMS
Exclusive Fields until five [5] years after the end of the Collaboration
Agreement and shall thereafter be nonexclusive in such SMS Exclusive Fields.
(2) The licenses granted in this Paragraph shall be nonexclusive in the
Non-Exclusive Fields. (3) The licenses granted in this Paragraph shall not
apply to any of the GEMS Exclusive Fields.
Nothing in this Paragraph shall be construed as granting a license to SMS
to manufacture detector array panels and/or associated read out electronics
incorporating the Apollo Technology, which rights of manufacture reside with
GE and/or with EG&G, pursuant to the Research and Development Agreement between
GE and EG&G, dated August 3, 1994.
2.3 Supply for GE's Use and Certain GE Vendors. Notwithstanding any
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exclusivity of SMS' license under Paragraph 2.2, the Parties agree that GE
shall have the right to manufacture, or have manufactured, and repair or have
repaired, Imaging Systems for GE's own internal use for the manufacture and
repair of components of gas turbine or other products sold directly by GE. The
Parties also agree that GE shall have the right to manufacture, or have
manufactured, repair or have repaired, and sell Imaging Systems to GE's vendors
of components and services, to the extent (and only the extent) necessary for
such vendors' internal use in manufacturing and repairing, to GE's order, such
components of gas turbines or other products sold directly by GE. SMS agrees to
provide reasonable consultation to GE, under terms and conditions (including
consulting fees) to be negotiated, to assist GE in exercising its rights under
this Paragraph 2.3.
2.4 Development of Markets. During the exclusive period set forth in
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Paragraph 2.2, if GE decides that it wishes to enter into any market for selling
Imaging Systems within an SMS Exclusive Field, GE may do so only if the parties
agree to have SMS be the supplier of said Imaging Systems. If SMS is unwilling
to be such supplier on mutually acceptable reasonable terms, then GE may enter
such market without SMS. Conversely, if during said exclusivity period, SMS
determines that a given market within the SMS Exclusive Fields will not be
adequately satisfied by SMS using its own resources, SMS shall offer to GE an
opportunity to cooperate with SMS in jointly meeting that market. If GE is
unwilling to provide such cooperation on mutually acceptable, reasonable terms,
then SMS may seek the cooperation of one or more third parties to meet that
market, provided that such third parties do not compete with GE in the area of
CT and/or x-ray medical diagnostic imaging.
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Article 3 - Supply of Imaging Systems and Components
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3.1 Supply of Detector Array Panels and Read Out Electronics. If requested
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by SMS, GE and EG&G will use reasonable efforts to supply suitable detector
array panels and associated read out electronics for SMS' use in manufacturing
and selling Imaging Systems in the SMS Exclusive Fields and the Non-Exclusive
Fields.
3.1.1 Detector Array Panels. Until such time as EG&G has established
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sustained commercial production of detector array panels, GE agrees that
GE's Corporate Research & Development Department (GE-CRD) will use its best
efforts to conduct a reasonable number of runs (with a reasonable number of
panels per run) in its facility to manufacture suitable detector array
panels for SMS, under GE-CRD's customary terms and conditions for such
runs, including the payment by SMS of GE-CRD's costs, plus a reasonable
fixed fee. Once EG&G has established sustained commercial production of
detector array panels, EG&G (as manufacturing licensee of GE's detector
array technology) agrees that it shall supply, or cause to be supplied, to
SMS a reasonable number of any detector array panels which SMS may order
from EG&G or EG&G's manufacturer of such detector array panels, for SMS'
use in manufacturing and selling Imaging Systems in the SMS Exclusive
Fields and the Non-Exclusive Fields. Such order may be for any size up to
the largest size and for any sampling geometries (e.g., pixel sizes) then
being manufactured commercially by or for EG&G. The price and other terms
for such supply shall be no less favorable to SMS than those under which
EG&G supplies the same or substantially similar panels in similar
quantities to its most favored purchasers at the time in question.
3.1.2 Read Out Electronics. GE agrees that it shall supply, or cause to be
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supplied, to SMS a reasonable number of read out electronics which SMS may
order from GE or GE's manufacturer of such read out electronics, for SMS'
use in manufacturing and selling Imaging Systems in the SMS Exclusive
Fields and the Non-Exclusive Fields. The specifications for such
electronics shall be as mutually agreed. The price and other terms for such
supply shall be no less favorable to SMS than those under which GE or its
manufacturer supplies the same or substantially similar electronics in
similar quantities to its most favored purchasers at the time in question.
3.2 Preferred Customer For Imaging Systems. Upon successful completion of
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the Project, SMS agrees to manufacture and offer for sale the Imaging System(s)
developed under the Project. SMS agrees that GE shall be a preferred customer
for Imaging Systems manufactured by SMS following completion of the Project,
with the consequence that GE shall be entitled, upon written notice to SMS
received not later than the Project completion or termination, to purchase from
SMS up to one-quarter [1/4] of the first twelve [12] Imaging Systems
manufactured by SMS at a price which is the lowest of (a) SMS' direct cost and
reasonable overhead (accordingly to generally accepted accounting practices,
consistently applied) plus a ten percent [10%] fee, or (b) the most favorable
price on which SMS offers a substantially similar Imaging System to any person
(other than GM) for non-aircraft engine applications, or (c) three percent [3%]
less than the most favorable price on which SMS offers a substantially similar
Imaging System for sale to any person (other than GM) for aircraft engine
applications.
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Article 4 - Proprietary Information
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4.1 Confidentiality. Except as reasonably required for the performance of
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tasks under the Collaboration Agreement or the Cooperative Agreement, or for the
exercise of a Party's rights and licenses expressly granted under this
Commercialization Agreement or the Collaboration Agreement, each Party agrees
that (a) said Party shall maintain in confidence and prevent the disclosure to
others of all of the other Party's proprietary information which is initially
disclosed in writing marked "[DISCLOSER'S NAME] PROPRIETARY" or which, if
initially orally disclosed and identified as proprietary, is confirmed to
Recipient in such a writing within ten [10] business days after its initial
disclosure hereunder (including but not limited to both the Confidential Project
Information and all of the other Parties' Confidential Background Information
received by said Party hereunder), and (b) said Party shall not use the same for
any other purpose. Each Party's obligations under this Paragraph with respect to
a particular increment of the other Party's proprietary information shall
continue for a period which is either (1) ten [10] years after said Party's
initial receipt of said increment hereunder, or (2) ten [10] years after the
completion or other termination of the Project, whichever of (1) or (2) is
longer.
4.2 Permitted Disclosures. Notwithstanding anything to the contrary in this
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Article, any Party may disclose the other Party's Confidential Background
Information and/or Confidential Project Information (a) as may be required by
law so long as said Party secures whatever confidentiality protections are
available under said law, and (b) to third parties (such as contractors and
project consultants) as may reasonably be required to perform its tasks or
exercise its rights and licenses expressly granted under this Agreement or any
separate agreement pertaining to the practical application of Subject
Inventions and/or Project Works, and/or (c) to other third parties (such as
management consultants and parent companies) as may reasonably be required for
the oversight of the disclosing Party's business activities, provided that, in
cases (b) and (c), such third parties undertake with said Party written
obligations of confidentiality which are at least equivalent to those
undertaken by said Party hereunder, and obligations of limited use which are
reasonably appropriate for the situation. A Party may also disclose in any
patent application filed on said Party's Subject Invention another Party's
Confidential Background Information and/or Confidential Project Information
to the extent (and only the extent) as is reasonably necessary for said patent
application to comply with the patent laws of the country or countries in which
such patent application is to be filed. Any disclosures made as required by law
or in connection with a patent application under this Paragraph shall be
preceded by reasonable notice to the other Party, in order to allow that other
Party an opportunity to either contest the disclosure or determine if
alternative means are available to meet the requirement without disclosing the
information in question.
Article 5 - Liability, Insurance
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5.1 Disclaimer of Joint and Several Liability. Joint and several liability
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shall not attach to the Parties; no Party is responsible for the actions of any
other Party, but is only responsible for its own commercialization activities
under this Agreement. Each Party shall be responsible for any loss, cost,
damage, claim or other charge that arises out of or is caused by the actions of
that Party or its employees or agents or contractors. No Party shall be liable
for any loss, cost, damage, claim or other charge that arises out of or is
caused by the actions of any other Party or its employees or agents or
contractors.
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5.2 Party's Own Personnel and Property. Each Party shall assume the risk of
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any damage to or loss of its own property, as well as the risk of personal
injury or death of its employees, agents and contractors arising out of the
activities contemplated by this Agreement, and each Party agrees to release,
defend and indemnify the other Parties from and against any and all losses
and/or liabilities (including but not limited to attorneys' fees and other
litigation costs) arising out of any such property damage or loss, or personal
injury or death for which the indemnifying Party has assumed the risk hereunder,
notwithstanding the negligence, strict liability, or breach of warranty of said
other Party or of said other Party's employees, agents or contractors.
5.3 Use of Project Results. Each Party ("Party User") shall assume the risk
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of its use of anything (including but not limited to technical information,
Subject Inventions, Project Works and/or equipment, as well as any consultation
provided pursuant to Paragraph 3.2) developed by or provided to said Party User
in connection with the Project ("Project Results"), and each Party User agrees
to defend and indemnify each other Party from and against any and all losses
and/or liabilities (including but not limited to attorneys' fees and other
litigation costs) for any damage to or loss of third party property, and/or the
personal injury or death of any third party, arising out of such Party User's
use of Project Results, except to the extent (and only the extent) to which such
losses or liabilities have been determined by final, nonappealable judgment to
have been caused by the gross negligence or wilful misconduct of said other
Party.
5.4 Notice and Defense. Each Party obligates itself to notify the other
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Parties promptly and in writing of any lawsuit threatened or filed against said
Party which might give rise to the indemnities of this Article. Each indemnified
Party shall provide such reasonable assistance and cooperation as may be
requested by the indemnifying Party in connection with the defense or
prosecution of any such lawsuit.
5.5 Settlements and Compromises. No Party shall settle or compromise any
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claims or lawsuit relating to the liabilities and/or losses addressed in this
Article without the written consent of the other involved Parties if the
settlement or compromise obliges such other Party(s) to make any payment, or to
part with any property, or to assume any obligation, or to grant any licenses
or other rights, or to be subject to any injunction by reason of such settlement
or compromise.
5.6 Indemnity Effectiveness. The indemnities provided pursuant to this
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Article shall be effective to the maximum extent, scope and amount permitted by
the applicable law.
5.7 Consequential Damages. Excluding intentional and knowing breach of the
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obligations of Article 4 (Proprietary Information), no Party shall be liable to
any other Party for indirect, incidental and/or consequential damages (such as
loss of profits, etc., but excluding personal injury or property damage covered
by the indemnities of this Article) arising out of the execution or performance
of this Agreement, regardless of the cause and notwithstanding the negligence,
strict liability, or breach of warranty of said Party.
5.8 Insurance. Each Party shall obtain and maintain appropriate public
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liability and casualty insurance, or adequate levels of self insurance, to
insure against any liability caused by that Party's activities under this
Agreement and/or the Cooperative Agreement. Within ninety [90] days after this
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Agreement has been signed by all the Parties, each Party who is not entirely
self insured for matters relating to this Agreement shall obtain from its
relevant insurers, and deliver to the other Parties, a written waiver of
subrogation for the benefit of the other Parties under each and every purchased
insurance policy which said Party has which is relevant to said Party's
activities under this Agreement. Such a written waiver will also be obtained
and promptly delivered for each relevant new or renewal policy obtained by
either Party during the term of this Agreement. In lieu of obtaining such a
waiver for a particular policy of its purchased insurance, a Party may instead
arrange to have the other Parties named as additional insureds on said policy.
Each Party shall be responsible for its own self insurance retentions and for
all deductible amounts under its purchased insurance.
5.9 Disclaimers of Warranty. Except as otherwise expressly set forth
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herein, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES (EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE), INCLUDING BUT NOT LIMITED TO WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO (A)
SAID PARTY'S PERFORMANCE, AND (B) ANY PRODUCT OR ASSOCIATED DATA PROVIDED BY
SAID PARTY HEREUNDER.
Article 6 - Disputes
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6.1 Disputes Under this Agreement. Any disagreement, claim or dispute
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between or among Parties arising from or in connection with the Project or this
Agreement shall be submitted as soon as practicable after such dispute arises to
senior executives from each Party for discussion and possible resolution. If
within ninety days after their discussion, such executives are unable to resolve
the matter, any involved Party may resort to any available legal remedy.
Article 7 - Notices
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Any notice or request with reference to this Agreement shall be made by
first class mail postage prepaid, telex, or facsimile to the addresses shown
below:
Scientific Measurement Systems, Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Scientific Measurement Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
General Electric Company
General Electric Aircraft Engines
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
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EG&G Inc.
▇▇▇▇▇▇ ▇▇▇▇▇
EG&G, Inc.
EG&G Optoelectronics Group
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
Article 8 - General Provisions
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8.1 Remedies. Unless otherwise expressly provided herein, the rights and
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remedies of the Parties hereunder are in addition to, and not in limitation of,
other rights and remedies under this Agreement, at law or in equity, and the
exercise of one right or remedy shall not be deemed a waiver of any other right
or remedy.
8.2 Execution and Counterparts. The Parties agree that this Agreement may
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be executed in counterparts, and that it is the intent of the Parties that any
copy signed by a party shall be fully enforceable against such party.
8.3 Entire Agreement. This Agreement, including the exhibits attached
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hereto, together with the Cooperative Agreement and the Collaborative Agreement,
constitutes the entire agreement among the Parties regarding the subject matter
herein, and supersedes any previous understanding, commitments or agreements,
oral or written.
8.4 Termination. This Agreement shall cease and terminate upon the first to
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occur of the following events or dates, except that in the case of a termination
under event (a), the nonbreaching Parties may elect to terminate this Agreement
only as to the breaching Party, with the Agreement to remain in effect for the
other Parties unless otherwise agreed by said other Parties:
(a) at the option of and upon written notice by the nonbreaching Parties,
upon a Party's failure to cure any material breach within a reasonable
period (not less than thirty [30] days) after such Party's receipt of
written notice of the details of such breach; or
(b) December 31, 2005; or
(c) mutual agreement of all Parties.
8.5 Surviving Rights and Obligations. Termination of this Agreement shall
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not:
(a) release any Party from any claim of any other Party accrued hereunder
prior to the effective date of such termination; or
(b) affect any Party's rights or obligations under Articles 2, 4, 5 or 6,
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which rights and obligations shall survive termination of this Agreement.
8.6 Amendments. No amendment or modification of this Agreement shall be
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valid unless made in writing and signed by all Parties.
8.7 Assignment. This Agreement shall not be assigned by any Party without
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the express written consent of the other Parties, which consent shall not be
unreasonably withheld. This consent shall be granted routinely in connection
with a Party's change of its name or a sale of the Party's business or the
operating unit of such business responsible for the Project unless such event
materially affects any other Party.
8.8 Effective Date. This Agreement shall be effective as of the date on
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which the last of the Parties signs this Agreement or a counterpart hereof.
8.9 Force Majeure. No Party shall be liable, in respect to any delay in
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completion of work hereunder or of the non-performance of any term or condition
of this Agreement directly or indirectly resulting from delays by acts of God;
acts of the public enemy; strikes; lockouts; epidemic and riots; power failure;
water shortage or adverse weather conditions; or other causes beyond the control
of the Parties. In the event of any of the foregoing, the time for performance
shall be equitably and immediately adjusted. The Parties shall resume the
completion of work under this Agreement as soon as possible subsequent to any
delay due to force majeure.
8.10 Governing Law. This Agreement shall be governed by and interpreted in
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accordance with the laws of New York, not including any conflicts of law rules
which may direct the application of the laws of any other jurisdiction.
8.11 Headings. Article and section headings contained in this Agreement
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are included for convenience only and form no part of the agreement among the
Parties.
8.l2 Precedence. Should there be any conflict between the terms and
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conditions of (a) this Agreement and (b) the Collaboration Agreement and (c) the
Cooperative Agreement, the order of precedence shall be the Cooperative
Agreement over the other two, and this Agreement over the Collaboration
Agreenment, as to all matters expressly addressed in this Agreement.
8.13 Severability. If any provision of this Agreement is declared invalid
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by any court or government agency, all other provisions shall remain in full
force and effect.
8.14 Use of Names. No Party shall use in any advertising, promotional or
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sales literature the name of any other Party without prior written consent.
8.15 Waivers. Waiver by any Party of any breach or failure to comply with
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any provision of this Agreement by another Party shall not be construed as, or
constitute, a continuing waiver of such provision or a waiver of any other
breach of or failure to comply with any other provision of this Agreement.
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8.16 Acquisition of SMS. In the event that all or a portion of SMS is
------------------
acquired by a third party who competes with GE in the area of CT and/or x-ray
medical diagnostic imaging at any time during the first ten [10] years after the
termination of the Collaboration Agreement, the licenses granted by GE to SMS
under Paragraph 2.2 hereof shall be terminated unless SMS and said third party
can establish, to GE's reasonable satisfaction, that none of the Apollo
Technology wi11 be communicated to or used by said third party.
In Witness Whereof, the Parties have caused this Agreement to be executed
by their duly authorized officers or representatives on the dates shown below.
SCIENTIFIC MEASUREMENT SYSTEMS GENERAL ELECTRIC COMPANY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------- -------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------- -------------------------------
Title: President & CEO Title: Organization Leader
-------------------------- ------------------------------
Date: 12-22-95 Date: 12-22-95
--------------------------- -------------------------------
EG&G, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------
Title: Executive Vice President
and Chief Operating Officer
------------------------
Date: December 22, 1995
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12