TO
SUCH LIABILITY.
THIS LIMITATION SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
XII.
GENERAL
12.1
INTEGRATION, AMENDMENTS.
THIS AGREEMENT AND
EXHIBITS A AND B ATTACHED HERETO, REPRESENT AND CONSTITUTE THE SOLE, FINAL AND
ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF,
MAY ONLY BE AMENDED IN WRITING SIGNED BY THE DULY AUTHORIZED OFFICERS OF BOTH
PARTIES, AND SUPERSEDES ALL PRIOR AGREEMENTS AND UNDERSTANDINGS WITH RESPECT TO
THE MATTERS COVERED BY THIS AGREEMENT.
12.2
NOTICES.
ANY NOTICE, WAIVERS OR CONSENTS
REQUIRED BY THIS AGREEMENT MUST BE GIVEN BY PREPAID, FIRST CLASS, CERTIFIED
MAIL, RETURN RECEIPT REQUESTED, AND ADDRESSED IN THE CASE OF LICENSOR TO:
Vista Medical Technologies, Inc.
2101 Faraday Avenue
Carlsbad, CA 92008
Facsimile: (760) 603-9170
Attention: John R. Lyon
or in the case of LICENSEE to:
Viking Systems, Inc.
7514 Girard Ave., Suite 1509
La Jolla, CA
92037
Facsimile No.:
(619) 839-3793
Attention:
Thomas B. Marsh
or other addresses as may be given from time to time under the terms of this
notice provision.
12.3
GOVERNING LAW.
THIS AGREEMENT IS ENTERED INTO IN
AND SHALL BE GOVERNED, CONSTRUED AND ENFORCED IN ALL RESPECTS SOLELY AND
EXCLUSIVELY UNDER THE LAWS OF THE STATE OF CALIFORNIA, USA WITHOUT GIVING EFFECT
TO ANY LAW WHICH WOULD RESULT IN THE APPLICATION OF A DIFFERENT BODY OF LAW.
ANY AND ALL SUITS HEREUNDER SHALL BE BROUGHT AND RESOLVED SOLELY AND EXCLUSIVELY
IN, AND THE PARTIES HEREBY IRREVOCABLY CONSENT TO THE EXCLUSIVE JURISDICTION AND
PROPER VENUE OF, THE STATE AND FEDERAL COURTS LOCATED IN THE COUNTY OF SAN
DIEGO, STATE OF CALIFORNIA, USA, AND WAIVE ANY OBJECTIONS THERETO BASED ON ANY
GROUND INCLUDING IMPROPER VENUE OR FORUM NON-CONVENIENS.
THE PARTIES AGREE THAT
ANY PROCESS DIRECTED TO ANY OF THEM IN ANY SUCH LITIGATION MAY BE SERVED OUTSIDE
THE STATE OF CALIFORNIA, USA, WITH THE SAME FORCE AND EFFECT AS IF THE SERVICE
HAD BEEN MADE WITHIN THE STATE OF CALIFORNIA, USA, AND THAT SERVICE OF PROCESS
MAY BE EFFECTED IN ACCORDANCE WITH SECTION 12.2 HEREOF.
ANY DECISION RENDERED
BY SUCH COURT SHALL BE BINDING, FINAL AND CONCLUSIVE UPON THE PARTIES, AND A
JUDGMENT THEREON MAY BE ENTERED IN, AND ENFORCED BY, ANY COURT HAVING
JURISDICTION OVER THE PARTY AGAINST WHICH AN AWARD IS ENTERED OR THE LOCATION OF
SUCH PARTY'S ASSETS.
12.4
INJUNCTIVE RELIEF.
NOTWITHSTANDING ANYTHING TO
THE CONTRARY HEREIN, EACH PARTY SHALL BE ENTITLED TO SEEK INJUNCTIVE OR OTHER
EQUITABLE RELIEF, WHEREVER SUCH PARTY DEEMS APPROPRIATE IN ANY JURISDICTION, IN
ORDER TO PRESERVE OR ENFORCE SUCH PARTY'S RIGHTS FOR ANY BREACH OR THREATENED
BREACH OF THE OTHER PARTY OF SECTIONS II, IV OR VII.
EACH PARTY AGREES THAT:
(I) SECTION II, IV AND VII ARE NECESSARY AND REASONABLE TO PROTECT THE OTHER
PARTY AND ITS BUSINESS, (II) ANY VIOLATION OF THESE PROVISIONS COULD CAUSE
IRREPARABLE INJURY TO THE OTHER PARTY FOR WHICH MONEY DAMAGES WOULD BE
INADEQUATE, AND (III) AS A RESULT, THE OTHER PARTY WILL BE ENTITLED TO SEEK AND
OBTAIN