COPYRIGHTABLE WORKS CREATED BY BTC (IN WHOLE OR
IN PART, EITHER ALONE OR JOINTLY WITH OTHERS) RESULTING FROM OR ARISING OUT OF
BTC'S SERVICES HEREUNDER ARE "WORKS MADE FOR HIRE" FOR NUVASIVE AS THAT TERM IS
DEFINED AND USED IN THE UNITED STATES COPYRIGHT ACT, TITLE 17 OF THE UNITED
STATES CODE.
IN THE EVENT THAT SUCH "WORK MADE FOR HIRE" DESIGNATION IS
CHALLENGED, BTC HEREBY ASSIGNS ANY AND ALL OF HIS RIGHTS TO SUCH COPYRIGHTABLE
WORKS TO NUVASIVE, WHICH ASSIGNMENT SHALL BE EFFECTIVE FOR ANY SUCH
COPYRIGHTABLE WORK AS OF THE DATE OF ITS CREATION.
BTC FURTHER AGREES THAT IF
NUVASIVE IS UNABLE BECAUSE OF BTC'S DISSOLUTION, OR FOR ANY OTHER REASON, TO
SECURE BTC'S SIGNATURE TO APPLY FOR OR TO PURSUE ANY APPLICATION FOR ANY UNITED
STATES OR FOREIGN PATENTS OR MASK WORK OR COPYRIGHT REGISTRATIONS COVERING THE
INVENTIONS ASSIGNED TO NUVASIVE ABOVE, THEN BTC HEREBY IRREVOCABLY DESIGNATES
AND APPOINTS NUVASIVE AND ITS DULY AUTHORIZED OFFICERS AND AGENTS AS ITS AGENT
AND ATTORNEY IN FACT, TO ACT FOR AND IN ITS BEHALF AND STEAD TO EXECUTE AND FILE
ANY SUCH APPLICATIONS AND TO DO ALL OTHER LAWFULLY PERMITTED ACTS TO
11
FURTHER THE PROSECUTION AND ISSUANCE OF PATENTS, COPYRIGHT AND MASK WORK
REGISTRATIONS THEREON WITH THE SAME LEGAL FORCE AND EFFECT AS IF EXECUTED BY
BTC, AS THE CASE MAY BE.
10.
TERM AND TERMINATION.
(A)
TERM.
THE TERM OF THIS AGREEMENT SHALL COMMENCE ON THE EFFECTIVE
DATE AND CONTINUE FOR A PERIOD OF THREE (3) YEARS FOLLOWING THE EFFECTIVE DATE
AND, UNLESS EARLIER TERMINATED AS PROVIDED HEREIN, SHALL AUTOMATICALLY RENEW FOR
AN ADDITIONAL ONE-YEAR TERM ON EACH ANNIVERSARY OF THE EFFECTIVE DATE UNLESS
EITHER PARTY GIVES WRITTEN NOTICE TO TERMINATE 60 DAYS PRIOR TO COMPLETION OF
THE FIRST THREE YEAR TERM OR ADDITIONAL ONE -YEAR ANNIVERSARY DATE.
(B)
EARLY TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AS OTHERWISE
PROVIDED IN THIS AGREEMENT, AND AS FOLLOWS:
(I)
BY EITHER PARTY IF THE OTHER PARTY FAILS TO PERFORM OR OTHERWISE
BREACHES ANY OF ITS OBLIGATIONS HEREUNDER, BY GIVING NOTICE OF ITS INTENT TO
TERMINATE AND STATING THE GROUNDS THEREFORE.
THE PARTY RECEIVING SUCH NOTICE
SHALL HAVE THIRTY (30) DAYS FROM THE RECEIPT THEREOF TO CURE THE FAILURE OR
BREACH, AT WHICH TIME THIS AGREEMENT SHALL TERMINATE IF SUCH FAILURE OR BREACH
HAS NOT BEEN CURED.
IN NO EVENT, HOWEVER, SHALL SUCH NOTICE OF INTENTION TO
TERMINATE BE DEEMED TO WAIVE ANY RIGHTS TO DAMAGES OR ANY OTHER REMEDY WHICH THE
PARTY GIVING NOTICE OF BREACH MAY HAVE AS A CONSEQUENCE OF SUCH FAILURE OR
BREACH.
(II)
BY NUVASIVE, IF BTC SELLS ALL OR SUBSTANTIALLY ALL OF ITS ASSETS
OR SECURITIES TO ANOTHER PERSON OR ENTITY OR MERGES INTO ANOTHER PERSON OR
ENTITY, WHICH TERMINATION SHALL NOT BE UNREASONABLY EXERCISED BY NUVASIVE.
(C)
EFFECT OF TERMINATION.
IF THIS AGREEMENT IS TERMINATED, THE
PARTIES SHALL BE RELEASED FROM ALL OBLIGATIONS, DUTIES IMPOSED OR ASSUMED
HEREUNDER, EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT.
TERMINATION OF THIS
AGREEMENT, FOR WHATEVER REASON, SHALL NOT