Joint Development Program - Align Technology Inc. and 3D Systems Inc.
September 7, 1999
Mr. Zia Chishti
Align Technology, Inc.
442 Potrero Avenue
Sunnyvale, CA 94086
Re: Joint Development Program
Dear Mr. Chishti::
Reference is made to earlier discussions and joint work between personnel of 3D
Systems, Inc. ("3D") with personnel of Align Technology, Inc. ("ALIGN") and the
December 14, 1998 and January 9, 1999 Confidentiality and Non-Disclosure
Agreements between these two organizations in which both corporations pledged to
safeguard and not disclose the Confidential Information of the other.
In those earlier discussions, the ALIGN personnel outlined ALIGN's extensive
experience with build styles to make dental alignment tools. The 3D personnel
outlined 3D's research experience and marketing efforts regarding its SLA 7000
imaging system technology, including but not limited to its special
stereolithographic build styles.
It is now anticipated that joint laboratory testing and analysis of the testing
results will be conducted at both 3D's and ALIGN's facilities dining the next
twelve (12) months studying the efficacy of 3D's SLA 7000 imaging system with
respect to ALIGN's total build style and speed in making dental alignment tools.
Therefore, 3D and ALIGN wish to enter into a joint development program. The
primary objective of this program will be to jointly develop special build
styles for use on the SLA 7000 imaging system that will produce dental alignment
tools. Other objectives will be to share system technological information on
how to reduce "dead" time in the SLA 7000 imaging system, and to otherwise make
the building of such tools more efficient.
In consideration of the premises set forth above, 3D and ALIGN agree to the
following conditions for this joint development program.
1. Term of Agreement
-----------------
This agreement shall be in effect for a period of one (1) year from the date of
full execution of this Letter Agreement, after which period the results of the
program will be reviewed and a joint
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Align Technology, Inc.
Page 2 of 6
determination of additional work, if any, or further Agreements, if any, will be
made. 3D and ALIGN may before or at that time extend or renew this Agreement by
a written document on mutually acceptable terms.
2. Work Agenda
-----------
The agreed to planned project and milestone chart for this development work is
attached hereto as Appendix A. Immediately upon full execution of this
Agreement, representatives from both 3D and ALIGN will periodically meet to
discuss a detailed work agenda in line with the planned project and milestone
chart. Work will then proceed according to that mutually agreed upon agenda.
3. Furnished Resources and Place of Work
-------------------------------------
ALIGN and 3D agree to provide the necessary equipment at their respective
facilities in Sunnyvale, California and Valencia, California for the development
work. ALIGN and 3D agree that they will independently supply sufficient
quantities of resin material for this development work. It is agreed that the
work will be carried on at both ALIGN and 3D's facilities, as needed.
4. Compensation
------------
Each party shall bear its own cost. 3D shall pay the substantial Non-Recurring
Engineering costs necessary to reduce dead time and optimize build styles. In
consideration of this, and to assure consistent quality and performance, ALIGN
agrees to use only 3D supplied materials in its SLA imaging systems.
5. Confidentiality of Information
------------------------------
(a) Information exchanged between ALIGN and 3D under this Agreement may
include business or technical information which is confidential to the
respective parties (hereinafter referred to as Confidential
Information). The parties agree to treat such Confidential
Information received hereunder as follows:
(1) The party receiving Confidential Information will exercise the
same degree of care to prevent disclosure of the Confidential
Information for the period specified below as it takes to
preserve and safeguard its own Confidential Information but, in
any event, no less than a reasonable degree of care.
(2) The obligations of the receiving party, contained in Paragraph
(1) above, shall not apply to any Confidential Information
which:
a) is already known to the receiving party or is
independently developed by it;
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Align Technology, Inc.
Page 3 of 6
b) is publicly available or becomes publicly available
without a breach of agreement by the receiving party,
c) is rightfully received by the receiving party from a
third party;
d) is furnished by the disclosing party to a third party
without a similar restriction of the third party's rights;
e) is not either (i) first disclosed in writing and
identified thereon as confidential or proprietary, or (ii)
if first disclosed orally, identified as confidential or
proprietary at the time of oral disclosure, reduced to
writing and identified thereon as confidential or
proprietary by the disclosing party and the writing
delivered to the receiving party within thirty (30) days
after oral disclosure; or
f) is the subject of a subpoena or a demand for production of
documents in connection with any suit or arbitration
proceeding, any administrative procedure or before a
governmental or administrative agency.
(3) All information which is deemed to be Confidential Information
hereunder and which is disclosed by either party hereunder
during the term hereof, shall be safeguarded as required by
Paragraph (1) above by the receiving party for a period of five
(5) yews from the date of disclosure, unless earlier
specifically released by the disclosing party in a duly executed
writing or made available from examination of a product made
publicly available by the disclosing party.
(4) Unless explicitly stated otherwise, in this Agreement, the
parties agree that no party is under any obligation to disclose
Confidential Information by virtue of this Agreement. The
parties recognize that from time to time during the term of this
Agreement one party may wish to disclose information of
character which is considered by such party to be so highly
proprietary that additional restrictions on use or disclosure
must be agreed to by the receiving party prior to disclosure. In
such event, the parties agree that such information shall not be
subject to this Agreement, but that the parties shall attempt to
negotiate a separate Agreement governing the disclosure of
such information prior to its disclosure.
(5) In the event of a breach of any of the obligations stated in
this Confidentiality Clause, the injured party may proceed
against the other party in law or in equity for such damages or
other relief as a court may deem appropriate, consequential and
indirect damages excepted.
<PAGE>
Align Technology, Inc.
Page 4 of 6
6. Ownership of Developed Know-How
-------------------------------
All know-how resulting from this joint development effort will be jointly owned,
provided that jointly developed know-how related specifically to dental
alignment shall only be used by 3D and ALIGN themselves and not by or through
third parties. ALIGN shall we such inventions directly internally or indirectly
by having 3D provide the required dental alignment tools for ALIGN. 3D owns all
know-how, inventions, and patents issuing thereon for 3D's work carried out
prior to the starting date of this joint effort. ALIGN owns all know-how,
inventions, and patents issuing thereon for ALIGN'S work carried out prior to
the starting date of this joint effort.
7. Patentable Inventions
---------------------
Any patentable invention, made under this agreement shall be owned by the party
making it, if a sole inventor or jointly with the other party if jointly made.
However, joint inventions related specifically to dental alignment shall only be
used by 3D and ALIGN themselves and not by or through third parties. ALIGN
shall use such inventions directly internally or indirectly by having 3D provide
the required dental alignment tools for ALIGN. The parties agree to cooperate
in executing any necessary patent documents for filing for patent protection on
such inventions. Each party agrees to cooperate, at the other party's
reasonable request, in the preparation of patent applications and in executing
patent documents for obtaining patent protection on such inventions. The cost
of preparing, filing, and prosecuting patent applications will be borne by the
party owning the patent rights.
8. 3D's Right to Market Jointly Developed Know-How and Patents
-----------------------------------------------------------
With respect to any ALIGN sole invention or any ALIGN interest in any Joint
Invention made in connection with or which is a result of any exchange of
Confidential Information between ALIGN and 3D, ALIGN hereby grants to 3D a
permanent and royalty-free non-exclusive license to use the same in its own
operations and a permanent and royalty bearing right to grant sublicenses to
third parties to use the same at a reasonable royalty to be agreed upon by and
between ALIGN and 3D.
With respect to any 3D sole inventions or any 3D interest in any Joint Invention
made in connection with or as a result of any exchange of Confidential
Information between ALIGN and 3D, 3D hereby grants to ALIGN a non-exclusive,
royalty-free and permanent license to use the same in its own operations, with
no right to grant sublicenses to third parties.
9. Independent Contractors
-----------------------
Each party will perform its obligation as an independent contractor and will be
solely responsible for its own financial obligations. This Agreement will not
create a joint venture, partnership, or
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Align Technology, Inc.
Page 5 of 6
principal and agent relationship between the parties. Neither party will have
the authority or will represent that it has the authority to assume or create
any obligation, express or implied, on behalf of the other, except as expressly
provided in this Agreement.
10. Liability for Injury
--------------------
Each party will indemnify and hold the other party harmless from all loss and
liability on account of claims of personal injury, death, and/or property damage
resulting from any negligent act or omission by the party, including that
party's agents, employees, or subcontractors in the course of performing this
Agreement.
11. Rights or Obligations
---------------------
No rights or obligations other than those expressly recited herein are to be
implied from this Agreement. Nothing herein shall in any way affect the present
or prospective rights of the parties under the patent and copyright laws of any
country, or be construed as granting any license under any present or future
patent or application therefor of any party, or preclude the marketing of any
product of a party, except as provided by patents and copyrights.
12. Assignment and Binding Effect
-----------------------------
This Agreement may not be assigned by either party without the prior written
consent of the other party, except to a successor of the total business of the
assigning party, which consent shall not be unreasonably withheld. This
Agreement shall be binding upon the parties hereto, their successors, legal
representatives, and permitted assigns, and all parties that control, are
controlled by, or are under common control of a party hereto.
13. Governing Law
-------------
This Agreement will be interpreted in accordance with the laws of the State of
California.
14. Termination
-----------
Either party shall have the independent right to terminate this Agreement at any
time, prior to its normal expiration date, by giving the other party a thirty
(30) day written notice to that effect. Paragraphs 5, 6, 7, 8, 10, 11, and 12
shall survive the termination or expiration of this Agreement.
15. Entire Agreement
----------------
This is the entire Agreement between the parties relating to the subject matter
hereof, and supersedes and replaces any prior agreements or understandings,
written or oral, relating thereto.
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Align Technology, Inc.
Page 6 of 6
This Agreement shall not be amended or modified except in a writing duly
executed by officers or authorized representatives of the parties.
If ALIGN agrees to the foregoing, please sign and date both duplicate copies of
this Letter Agreement and then return one copy to 3D. Upon 3D's receipt of the
completely signed copy, this Agreement shall become a binding Agreement between
3D and ALIGN.
Yours truly,
3D SYSTEMS, INC.
By:____________________________
Title:_________________________
Date:__________________________
ACCEPTED AND AGREED TO:
ALIGN TECHNOLOGY, INC.
By:_____________________________
Title___________________________
Date:___________________________
RD.jg
Attachment - Appendix A
<PAGE>
APPENDIX A
Planned Project and Milestone Chart for
Align Technology and 3D Systems
Joint Development of Optimized Build Style
8/30/99 Initial team meeting with Align Technology and 3D Systems in Valencia,
California, to develop a solution approach (project plan) for
optimizing the SLA 7000 system for Align's specific application
requirements. The proposed plan places an SLA 7000 system (rental
program) at Align's Sunnyvale facility. Align will have access to
parameter freedom and specially developed build styles.
8/31/99 3D determines availability of personnel and equipment.
9/3/99 SL 5410 placed in SLA 500 system (3D, Valencia) to warm up in
preparation for single hatch build run of 72 arcs. 72 arcs built on
SLA 7000 system with 0.006" layer thickness and standard hatch style.
Actual build time: 7:08.
9/7/99 Built 72 arcs with single hatch build style on SLA 500 system with SL
5410 to gain experience with the single hatch style. Built 72 arcs
with custom developed (first iteration) of a single hatch style on the
SLA 7000 system.9/8/99 3D eliminates some fill vectors and builds 72
arcs with single hatch style.
9/9/99 3D attempts to reduce "dead" time with software changes. Align makes
payment of $26,000 for the first month rental fee for an SLA 7000
system rental under the 3D SLA Rental Program.
9/10/99 Proposed ship date for SLA 7000 rental system.
9/17/99 Proposed delivery and installation of SLA 7000 rental system at Align.
9/22/99 Technology installation of SLA 7000 system at Align complete.
9/23/99- Align continues work to optimize parameters on operating SLA 7000
10/25/99 system with at least weekly feedback to Scot Thompson at 3D during
initial reporting period in preparation for a potential larger scale
implementation.
<PAGE>
SOFTWARE LICENSE
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3D SYSTEMS INC.
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CUSTOMER ADDRESS INSTALLATION SITE ADDRESS
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ALIGN TECHNOLOGY, INC. ALIGN TECHNOLOGY, INC.
442 Potrero Avenue 442 Potrero Avenue
Sunnyvale, CA 94086 Sunnyvale, CA 94086
Attn: Len Hedge
Phone: (408) 738-1500
Facsimile: (408) 738-7150
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SOFTWARE INFORMATION
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ITEM PRODUCT NO. PRODUCT DESCRIPTION
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1 SLA 7000 Buildstation Software
2 3D Lightyear Windows NT Part Preparation Software
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OFFER AND ACCEPTANCE
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PLEASE READ:
This document, when signed by Customer, is an acceptance by Customer to 3D's offer to license from 3D the Software listed above on
the terms and conditions attached hereto. Please read all of the terms and conditions carefully. If accepted by 3D, an authorized
officer will sign the Agreement in the space below and it will become a License Agreement.
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DATE PROPOSED PROPOSAL VALID UNTIL
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OFFERED BY: ACCEPTED BY: 3D SYSTEMS, INC.
26081 Avenue Hall
Valencia, California 91355
CUSTOMER NAME__________________________________ (805) 285-5600 FAX (805) 257-3205
BY:_________________________DATE_______________ BY__________________ DATE_______________________________
TITLE__________________________________________ TITLE___________________________________________________
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<PAGE>
Number WR-083099JS-001
SOFTWARE LICENSE AGREEMENT
TERMS & CONDITIONS
PAGE 2 OF 2
1. GENERAL PROVISION - 3D has developed proprietary computer programs and
related information (Software) intended to increase the utilization and
effectiveness of equipment manufactured by 3D. If either party believes
that other matters beyond those covered in this Agreement, that party will
(a) write them on the front of this Agreement or (b) staple a copy or
description of them to this Agreement and initial them before signing;
otherwise, they are not included as part of this Agreement for the license
for the use of the Software. Provided Customer has signed this Agreement
(or any Amendment to it), even if Customer's signature was after the
proposal expiration date, this Agreement will become a binding contract
when and if it is executed by an appropriate official of 3D in Valencia,
California. If part of this contract is prohibited, the remainder of it
will still be valid.
2. WARRANTY - 3D warrants that at the time of installation, the Software will
perform in accordance with the specification as described in 3D's reference
manuals when used on equipment manufactured by 3D. 3D agrees to promptly
correct any faults, inaccuracies, inconsistencies or omissions in the
Software, notified to 3D during the warranty period. The warranty period
is one (1) year and shall start sixty (60) days after delivery to the
carrier (F.O.B. 3D's Plant) or upon installation, whichever is sooner.
THIS WARRANTY IS INSTEAD OF ANY OTHER WARRANTIES, SUCH AS MERCHANTABILITY
OR FITNESS FOR INTENDED OR PARTICULAR PURPOSES.
3. INSTALLATION - 3D agrees to install the Software on 3D's manufactured
equipment at the Customer location designated. 3D will be responsible for
insuring that all 3D sample programs are functioning properly. It is the
Customer's responsibility to acquire or create the required Software
libraries for inclusion with the 3D Software, all CAD interfaces and for
the total systems operation. Installation and maintenance will be
performed by 3D between 8:00 am and 5:00 pm, Local Time, on normal working
days. 3D and Customer will cooperate to satisfy any Customer security
requirements and still allow full and free access to the Equipment.
4. PAYMENT - Payment and the amount of the one-time license and installation
fees are included in that certain Proposal and Agreement for the purchase
of 3D equipment referred to on the first page of this Agreement.
5. PATENTS - If anyone claims the Software infringes their U.S. Patent,
copyright, trade secret or other proprietary right, 3D will indemnify and
hold Customer harmless from any damages, judgments or settlements
(including costs and reasonable attorneys' fees) resulting from the claim
if Customer promptly notifies 3D in writing of the claim and permits 3D to
elect to take over the defense of the action. If 3D takes over the
defense, it may select the counsel and have the sole right to defend or
settle the matter. 3D may substitute comparable non-infringing Software,
or modify the Software (which still must meet the specification) to make it
non-infringing, or obtain a right for the Customer to continue using the
Software (all at 3D's expense). If the software is not as warranted, 3D's
liability for damages resulting from this Agreement or any breach thereof,
including liability for patent or copyright infringements or warrant of
title, regardless of the form of action, shall not exceed the charges paid
to 3D by Customer under this Agreement. Notwithstanding the foregoing, 3D
shall not be obligated to defend or be liable for costs and damages for
patent or copyright infringement if the infringement arises out of a claim
based upon any portion of the UNIX Software, provided, however, that this
exclusion does not apply to any additions or enhancements to the UNIX
Software made by 3D.
In the event the Software is used on equipment other than equipment
manufactured by 3D, this Agreement shall forthwith terminate, the warranty
shall be void, 3D shall have no liability to the Customer as a result
<PAGE>
of the Customer's use or non-use of the Software, and 3D shall have no
obligation to install or repair the Software.
6. TITLE - Title to all Software, algorithms, derivations, modifications, and
any and all reproductions thereof, remains in 3D and the Customer agrees to
return all such material to 3D within thirty (30) days after the
termination or expiration of this Agreement. None of the Software,
algorithms, derivations, modifications or reproductions may be sublet,
sublicensed, assigned, or any other interest transferred by the Customer
without prior written consent of an officer of 3D. A nominal Re-Licensing
fee may be charged upon approved authorization of transfer. Any attempt by
Customer to sublet, sublicense, assign or transfer any of the rights,
duties or obligations under this Agreement shall terminate this Agreement.
7. MODIFICATIONS - 3D may change the Software specifications at any time
without notice as long as the modification(s) will not materially affect
the performance of the Software.
8. USE - Customer agrees to limit the use of the Software and its derivations
to use with the 3D equipment on which the Software is initially installed.
Customer agrees that it shall not reverse compile or disassemble any
portion of the Software. Customer will refrain from disclosing or
permitting the transfer of this Software to any third parties without 3D's
prior written consent. Customer agrees that all of these restrictions on
the use of the Software are reasonable.
9. TERM - The term of the Software License shall begin on the date that this
Agreement is executed by both parties and shall continue until canceled as
provided herein.
This Agreement and any licenses granted hereunder are subject to
cancellation for cause by either party or for failure to comply with any
terms and conditions herein; provided however, that the party in breach
shall have sixty (60) days to cure such breach following written
notification. This Agreement and any licenses granted hereunder are
further subject to cancellation if the other party files or has filed
against it any bankruptcy proceedings or makes an assignment for the
benefit of creditors, or by Customer at any time upon sixty (60) days
written notice to 3D.
10. OTHER
A. This Agreement will be interpreted under California law and both 3D
and Customer will be subject to jurisdiction of state and federal
courts in Los Angeles County, California.
B. Both 3D and Customer will comply with all laws applicable to this
Agreement.
C. All notices given under this Agreement will be effective when received
in writing. Notices to the Customer and 3D will be sent to the
address on the front page of this Agreement. Either party can give
notice of an address change.
11. COMPLETE AGREEMENT - Customer acknowledges that it has read this Agreement,
understands it, and agrees to be bound by its terms and conditions.
Further, Customer agrees that it is the complete and exclusive statement of
this Agreement between the parties, which supersedes all proposals, printed
provisions on subordinate Customer documents including purchase orders,
oral or written Agreements, and all other communications between the
parties relating to the subject matter of this Agreement.
<PAGE>
RENTAL AGREEMENT
PAGE 1 OF 4
3D CAPITAL CORPORATION
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CUSTOMER ADDRESS INSTALLATION SITE ADDRESS
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ALIGN TECHNOLOGY, INC.
442 Potrero Avenue ALIGN TECHNOLOGY, INC.
Sunnyvale, CA 94086 475 Potrero Avenue
Attn: Len Hedge Sunnyvale, CA 94086
Phone: (408) 738-1500
Facsimile: (408) 738-7150
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CONTACT NAME/TITLE TELEPHONE CONTACT NAME/TITLE TELEPHONE
( )
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EQUIPMENT
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ITEM MODEL DESCRIPTION LASER USAGE BASE RENT
FEE
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1 SLA 7000 Rental Program Consisting of: UNLIMITED $26,000
SLA-7000 Stereolithography Apparatus
Buildstation software
3D Lightyear Windows NT part preparation software (including automatic
support generation and QuickCast investment casting functionality)
two platforms
Training Credit (One Student)
PCA-500 Post Cutting Apparatus
SL-7510 Polymer Cilbatool SL 7510 (Initial VAT Fill) Use of Cibatool resins
sold by 3D Systems is a requirement of this rental agreement.
(Service and Laser Refurbs included during term of Lease)
Freight, Freight Insurance, Installation, Packaging and Handling
included.
CUSTOMER SHALL HAVE THE OPTION TO PURCHASE ADDITIONAL SL 7510 RESIN
WITH A TWELVE PERCENT (12%) DISCOUNT PROVIDED CUSTOMER ISSUES A
BLANKET PURCHASE ORDER TO 3D SYSTEMS COMMITTING TO $125,000 IN
RESIN SALES OVER A TWELVE CONSECUTIVE MONTH PERIOD.
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TOTAL AMOUNT
EXCLUSIVE OF TAXES
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NON-REFUNDABLE PREPAYMENT DUE: TAXABLE TAX EXEMPT NO. PREPARED BY: NAME AND PHONE
DEPOSIT [_] YES Roger Peterson (861) 285-5800
Waived $28,000 [_] NO Extension 2382
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OFFER AND ACCEPTANCE
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PLEASE READ: THIS RENTAL AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS ATTACHED HERETO. NO OTHER TERMS AND CONDITIONS WILL APPLY.
PLEASE READ ALL TERMS AND CONDITIONS CAREFULLY. BY SIGNING BELOW CUSTOMER REPRESENTS THAT CUSTOMER HAS READ THE TERMS AND
CONDITIONS ATTACHED HERETO AND HAS ENTERED INTO THE RENTAL AGREEMENT PURSUANT TO SUCH TERMS AND CONDITIONS
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ACCEPTED BY: OFFERED/ACCEPTED BY:
__________________________________ 3D Capital Corporation
(TYPE OR PRINT CUSTOMER NAME) 26081 Avenue Hall
Valencia, California 91355
By:______________________DATE_____ (881) 285-5600 FAX (881) 257-3205
Roger Peterson, Director Credit and Leasing
__________________________________ -------------------------------------------
(TYPE OR PRINT NAME AND TITLE)
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<PAGE>
RENTAL AGREEMENT
TERMS AND CONDITIONS
On the terms and subject to the conditions of this Agreement, 3D Capital
Corporation, it's successors, or assigns (collectively "3D"), hereby rents to
Customer, and Customer hereby hires from 3D equipment specifically identified on
the first page of this Agreement (the "Equipment").
1. TERM OF THE AGREEMENT
This Agreement shall be valid and binding from the date on which it has
been accepted by 3D (the "Effective Date"), and shall remain in effect until all
obligations of either party hereto have been fully performed or satisfied. The
("Acceptance Date") is the date that Customer accepts the Equipment as stated in
the "Installation Acceptance" certificate. The "Rental Term" shall commence on
the first day of the month following the month in which the Acceptance Date
occurs (the "Commencement Date") and shall continue on a month-to-month basis
thereafter.
Either party may terminate the Rental Term at any time upon providing
written notice to the other, specifying the date of such termination, however,
in no event shall said notice be less than 30 days prior to the date of
termination.
2. DELIVERY AND INSTALLATION
3D shall deliver and install the Equipment at the Installation Site set
forth on the first page of this Agreement not later than ninety (90) days after
the Effective Date. Customer shall prepare the Installation Site, at its own
expense, in accordance with 3D's site specifications no later than thirty (30)
days prior to the scheduled delivery date. Customer shall assume responsibility
for compliance with all laws and shall obtain, at its own expense, any permits
required for installation and use.
Upon expiration or termination of the Rental Term, Customer shall
relinquish possession of the Equipment to 3D personnel for preparation and
subsequent shipment to 3D. Any damage or excessive wear found by 3D personnel
shall be paid by Customer at 3D's then current replacement and or repair costs,
including labor. All packing and freight charges shall be at 3D's expense.
3. MONTHLY CHARGES
Upon the Effective Date Customer agrees to pay to 3D the "Deposit" and the
first month's "Base Rent" as specified on the face of this Agreement. Late
charges of five percent (5%) per month shall be applied to any invoice not paid
within ten (10) days.
"Interim Rent" shall be due and payable on the Commencement Date in an
amount equal to 1/30th of the Base Rent times the number of days elapsed from
and including the Acceptance Date to and excluding the Commencement Date.
After the first month, and during the Rental Term, Customer agrees to pay
to 3D the Base Rent as set forth on the face of this Agreement. The Base Rent
will be invoiced at the beginning of each monthly period of the Rental Term, and
payment is due upon receipt of the invoice.
Monthly laser usage which exceeds the "Laser Hours" specified on the face
of the Agreement will be subject to additional fees. Such additional fees, if
any, will be calculated by multiplying the number of laser hours in excess of
the Laser Hours specified on the face of the Agreement times the "Laser Usage
Fee" specified on the face of the Agreement, and will be added to the succeeding
months invoice. Said additional fees, if any, are dependent upon accurate laser
meter readings. Customer must take and forward to 3D an accurate and timely
meter reading on the last day of each monthly period.
Any deductions of laser hours for down time must be approved by 3D Field
Support Personnel and supported by Field Service Reports. Upon prior notice, 3D
shall have reasonable access to the Equipment to monitor the meter readings.
Customer shall pay for the usage and replenishment of Polymers at their
then stated market prices.
4. TAXES
Customer shall pay all applicable federal, state and local sales, use,
property or other taxes arising on charges hereunder or from the use of the
<PAGE>
Equipment. 3D shall be responsible for taxes based on its income generated from
this Agreement.
5. OWNERSHIP
The Equipment is and shall remain 3D's property and may be removed from
Customer's premises by 3D or its duly authorized agents at any time after
termination or expiration of the Rental Term. This Agreement constitutes a
Rental o bailment of the Equipment and shall not in any way be deemed a sale or
the creation of a security interest. Customer shall not have or at any time
acquire, any right, title or interest in or to the Equipment, except the right
to possession and use as provided for in this Agreement. All installations,
replacements, or substitutions of parts or accessories with respect to the
Equipment shall constitute accession and shall become part of the Equipment and
shall be similarly owned by 3D. If deemed necessary by 3D, 3D may execute a
UCC-1 Financing Statement (to be filed by 3D in the office of the appropriate
Secretary of State) as an acknowledgement that the Equipment in the custody of
Customer is owned by 3D. Customer shall not move the Equipment from the
installation site without the expressed written permission of 3D.
6. MAINTENANCE
3D shall service the Equipment as required. Customer shall have access to
3D's toll free customer support line, from 6:00 a.m. to 6:00 p.m. (Mountain
Time), in order to report any problems Customer may encounter in the operation
of the Equipment. Customer agrees to give 3D access to the Equipment when
necessary for maintenance. Maintenance occasioned by the negligence of
Customer, or by the use of attachments not provided and installed by 3D, or by
any abnormal use, or by movement of the Equipment to another location is not
covered by the Maintenance Agreement and Customer agrees to pay for such
services at 3D's then current rates.
7. ALTERATIONS AND ATTACHMENTS
No alterations or attachments to the Equipment shall be made without 3D's
prior written consent. If Customer makes any alterations or additions to the
Equipment, Customer shall remove, at its own expense, such alterations or
attachments and restore the Equipment to its previous condition, upon receipt of
notice from 3D.
8. RISK OF LOSS AND INSURANCE
Customer agrees that upon the delivery of the Equipment to the Installation
Site and continuing until the Equipment is returned to 3D, Customer is
responsible for any and all loss or damage thereto, regardless of the cause
thereof. If any item of the Equipment is damaged, destroyed or lost, Customer
shall be liable for the cost of repairing that item by 3D, or if 3D determines,
in its sole discretion, that repair cannot be made or is not practical, Customer
shall be liable for the replacement cost of the item of Equipment, less any
insurance proceeds received by 3D. 3D is not obligated to replace damaged,
destroyed or lost Equipment and upon such an occurrence, 3D has the right to
terminate the Rental Term.
Customer shall assume the risk of and hold 3D, its directors, officers,
employees, agents and assignees harmless from and against any and all loss,
liability, claim, cost, damage or expense of any kind or nature caused directly
or indirectly by the use, performance, deficiency, defect in or inadequacy of
(i) any item of the Equipment, or (ii) the products, parts and/or services
created by or arising from the use of the Equipment.
Customer shall maintain at its own expense comprehensive general liability
insurance and broad form contractual liability insurance, issued by companies
satisfactory to 3D. Such insurance shall be for primary coverage and shall have
limits of no less the $500,000 for each person, $1,000,000 for each occurrence
and $500,000 for property damage per each occurrence. The property damage
coverage must cover the Equipment of 3D held in the custody, care and control of
the Customer and such policy must designate 3D as a named insured thereunder.
Customer shall submit to 3D, no later than 15 days prior to the date the
Equipment is to be delivered to Customer, an insurance certificate evidencing
compliance with the required coverage.
Customer shall notify 3D, within two days of the occurrence thereof, of any
accident, incident, damage, destruction, loss or other similar occurrence
concerning the Equipment.
9. INDEMNIFICATION
Customer agrees to indemnify, defend and hold harmless 3D, its directors,
officers, employees, agents and assignees from any loss, damage, claim,
liability and expense (including reasonable attorneys' fees and other expenses
of litigation) arising from or related to acts of commission or omission by
Customer under this Agreement. This indemnity
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provision shall survive the termination of the Rental Term of this Agreement.
3D agrees to defend Customer in any suit brought against Customer alleging
that the Equipment rented hereunder, uncombined with non-3D equipment, directly
infringes upon a United States patent owned by others, provided 3D is promptly
notified, given the assistance required and permitted to direct the defense.
Further, 3D shall pay any final judgment, based on such infringement, rendered
in such suit by a court of last resort, but shall not be responsible for
settlements or costs incurred without its consent. If Customer's use of such
Equipment is enjoined, or if 3D desires to minimize its liability hereunder, 3D
may at its option either: (i) substitute other equally suitable equipment; (ii)
modify the Equipment so that it no longer infringes; (iii) obtain for Customer
the right to continue use; or (iv) take back the equipment, releasing Customer
from the obligation of paying rentals not yet due. The foregoing states the
entire liability of 3D for patent infringement. No indemnity shall apply to
equipment made or modified to Customer's own specifications or design, nor for
any infringement caused solely by the combination of the Equipment with any
other apparatus by Customer.
10. ASSIGNMENT
Customer shall not assign, transfer or pledge all or any part of this
Agreement nor sell, rent or lend all or any item of the Equipment or permit it
to be used by anyone other than Customer and any effort by Customer to do so
shall be void and without effect. Without notifying Customer, 3D may assign
this Agreement or any rights, title, interests or obligations thereunder at any
time. If 3D assigns this Agreement, 3D's assignee shall have all the rights,
powers, privileges and remedies of 3D set forth in this Agreement.
11. NON-DISCLOSURE
Customer shall not disclose any of 3D's confidential information to third
persons or use such information for Customer's own benefit or the benefit of
others or use such information in any way that is adverse to 3D's interest.
Confidential information shall include any of 3D's developments, inventions,
business knowledge, know-how, discoveries, production methods and any and all
other confidential or proprietary information which may be disclosed to Customer
in connection with the installation, maintenance and use of the Equipment.
12. SOFTWARE LICENSE
Concurrent with executing this Agreement, Customer shall enter into a
Software License Agreement with 3D in the form attached hereto.
13. DELAY
3D shall not be liable for delays in manufacture, delivery or maintenance
due to causes beyond its control, including without limitation, acts of God,
strikes and difficulties in obtaining materials or labor. In the event of such
delay, 3D's obligation to deliver the Equipment shall be extended for a
reasonable period or, if measurable, a period equal to the time lost by such
delay.
14. DEFAULT
A default under this Agreement shall be deemed to have occurred if Customer
has breached or failed to comply with a provision of this Agreement and such
breach or noncompliance continues in effect for 5 days. Customer shall also be
deemed in "default" under this Agreement: (i) upon the commencement by or
against Customer of any proceeding in Bankruptcy or similar law; (ii) upon the
appointment of a receiver for Customer; (iii) if Customer is adjusted insolvent;
or (iv) if any substantial part of Customer's property is or becomes subject to
seizure, levy, assignment or sale for or by any creditor or governmental agency
without being released or satisfied within 10 days thereafter. Upon default by
Customer, 3D may in addition to its other rights and remedies at law or equity,
terminate this Agreement, sue Customer for and recover all charges and other
payments under this Agreement then accrued and unpaid and/or take possession of
any or all the Equipment and Software provided under or in conjunction with this
Agreement, without demand or notice, wherever the same may be located, without
any court order or other process of law.
15. GENERAL PROVISIONS
The remedies of 3D set forth in this Agreement shall be cumulative and in
addition to remedies existing in equity or law. If any provision of this
Agreement is held to be invalid or unenforceable, the remainder of this
Agreement shall remain valid and in full force and effect. This Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument. Attorneys' fees incurred by either party in enforcing the terms and
provisions of
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this Agreement shall be borne by the losing party in such a proceeding. In no
event shall 3D be liable for any consequential or incidental damages, including,
but not limited to, loss of profits, arising under this Agreement. All notices
required to be given under this Agreement shall be made in writing and sent by
registered or certified mail or other means agreed upon by the parties, to the
addresses listed herein. Any amendments, changes or modifications of this
Agreement shall not be valid unless made in writing and signed by both parties.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF CALIFORNIA APPLICABLE TO CONTRACTS MADE IN, AND TO BE PERFORMED
WITHIN, SAID STATE. 3D AND CUSTOMER IRREVOCABLY WAIVE ANY OBJECTION TO ANY
ACTION PERTAINING TO THIS AGREEMENT BEING BROUGHT IN FEDERAL OR STATE COURTS IN
LOS ANGELES COUNTY, CALIFORNIA AND ANY CLAIM THAT SUCH ACTION WAS BROUGHT IN AN
INCONVENIENT FORUM.
16. WARRANTY
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, 3D MAKES NO WARRANTIES,
EITHER EXPRESS OR IMPLIED, AND SHALL NOT, BY VIRTUE OF HAVING RENTED THE
EQUIPMENT COVERED BY THIS AGREEMENT, BE DEEMED TO HAVE MADE ANY REPRESENTATION
OR WARRANTY AS TO THE MERCHANTABILITY, DESIGN, FITNESS FOR ANY PARTICULAR
PURPOSE, OR CONDITION OF THE EQUIPMENT, OR THE QUALITY OF THE MATERIAL OR
WORKMANSHIP THEREIN.
17. COMPLETE AGREEMENT
This Agreement constitutes the entire agreement and understanding between
the parties hereto and supersedes all prior agreements, understandings and
communications relating to the subject matter of this Agreement.