DISTRIBUTOR AGREEMENT

to that effect however changes to a Product based upon requirements under applicable federal law or regulation shall not be subject to a sixty (60) day notice requirement.

4.6    Sales outside the Market Segment and Territory. Except as provided in Sections 2.5 and 2.6, in the event that either party becomes aware that Products are being sold or have been sold at any time within the previous six (6) month period by Medtronic or its distributors, licensees or agents in the Market Segment in the Territory, such party shall provide the other party with written notice of such sales activity. Medtronic shall cease such sales activity in the Market Segment and in the Territory within thirty (30) days of such notice. Within sixty (60) days of the foregoing written notice, Medtronic will compensate VNUS in an amount equal to **** of the sale price of all such products in the Market Segment in the Territory. Likewise, in the event that either party becomes aware that Products are being sold or have been sold at any time within the previous six (6) month period by VNUS outside the Market Segment and Territory, such party will provide written notice to the other party of any such VNUS sales activity outside of the Market Segment and Territory. VNUS shall cease such activity within thirty (30) days. Within sixty (60) days of the foregoing notice, VNUS will compensate Medtronic in an amount equal to **** of the sale price of all such products outside the Market Segment and Territory.

V. ORDERING; DELIVERY AND ACCEPTANCE

5.1    Initial Stocking Order. VNUS shall be entitled to purchase a one-time initial stocking order of Products at a **** discount off of the Product Transfer Price set forth in Schedule 6.1.

5.2    Purchase Orders. VNUS shall order Products from Medtronic by submitting written purchase orders identifying the number(s) and type(s) of Products ordered, the requested delivery date(s) and any additional information required to enable Medtronic to fill the order. All orders for Products will be pursuant to such standard terms as the parties may establish from time to time at the prices set forth in Section 6.1 below. All orders for Products will be subject to acceptance by Medtronic, provided Medtronic will not unreasonably reject any purchase order for Products that meet this Section 5.2 and is for a quantity of Products not in excess of **** of VNUS’ most recent forecast pursuant to Section 5.5. Medtronic will accept or reject each such order submitted by VNUS within ten (10) business days after receipt of the order. Accepted orders will be non-cancelable. For clarity, any documents submitted to Medtronic in addition to Medtronic’s standard terms are for informational purposes only and are not part of the terms of sale.

5.3    Delivery. Medtronic shall use commercially reasonable efforts to deliver accepted orders for Products on time pursuant to the purchase order. However, in no event shall Medtronic be responsible for any loss or damage which is claimed to have been caused by a delay in shipping an order, whether or not Medtronic may have been advised of the possibility of such loss or damages. Medtronic shall not be responsible for any loss or damage which is claimed to have been caused by a delay in shipping an order, whether or not Medtronic may have been advised of the possibility of such loss or damages, provided Medtronic performed its manufacture and delivery obligations with commercially reasonable care. Medtronic shall ship Product by a commercially reasonable carrier of VNUS’ choice. All Products shall be shipped to VNUS FOB (Incoterms 2000) Medtronic’s distribution facility. Title and risk of loss shall transfer to VNUS upon delivery of Product to the carrier for transport to VNUS.

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5.4    Inspection and Rejection.

      (a) Returned Goods. If any Product does not conform to the order or is defective at the time it was shipped to VNUS then VNUS may return the defective Product to Medtronic within thirty (30) days of receipt by VNUS; provided that VNUS (i) notifies Medtronic or such agent as Medtronic may designate, (ii) describes the defect or non-conformity, (iii) obtains approval for return in accordance with Schedule 5.4, and (iv) complies with such other return instructions as Medtronic may reasonably require. Upon receiving return authorization VNUS may ship the defective or non-conforming Product to the Medtronic location authorized by Medtronic, properly labeled, freight prepaid, and fully insured at face value. Subject to Medtronic’s right to verify that the Product was defective or non-conforming at the time of shipment to VNUS, Medtronic shall, at VNUS’ option, either replace the Product and reimburse VNUS for its out of pocket shipping and insurance expenses or refund the purchase price paid for by VNUS for the Product involved. In the event that VNUS elects replacement, Medtronic shall supply such replacement Product at no additional cost within fifteen (15) days of Medtronic’s receipt of such Product. In no event shall Medtronic be responsible to replace or refund for any Product (a) that has been damaged by abuse or misuse, (b) for which any unauthorized service or repair was performed or attempted, (c) that was repossessed, (d) has been used as a demonstration unit, or (e) was damaged by or during transport to VNUS. The repair and replacement provided for in this section shall be VNUS’ sole and exclusive remedy for any claim relating to any alleged defect or nonconformity in the Products. In the case of Product having latent defect(s) that are not reasonably detectable at the time of acceptance, VNUS may reject such Product by giving written notice to Medtronic of VNUS’ rejection of such Product within ten (10) days after discovery of such defects, but such notice may in no event be later than one (1) year after receipt of such shipment.

      (b)  Notwithstanding anything to the contrary in Section 5.4(a), Medtronic shall not be responsible for replacing or refunding any Product (i) that has been damaged in transit by VNUS’ carrier or by abuse or misuse by VNUS or its agent or customer, (ii) for which any unauthorized service or repair was performed or attempted, (iii) that was re-processed, (iv) has been used as a demonstration unit, or (e) was damaged by or during transport to VNUS. The repair and replacement provided for in this Section 5.4 shall be VNUS’ sole and exclusive remedy for any claim relating to any alleged defect or nonconformity in the Products, but subject to Article 10.

5.5    Forecasts. VNUS will provide Medtronic with a **** month rolling non-binding forecast of Product purchases on a **** basis by ****.

5.6    Failure to Supply. If Medtronic fails to supply on a timely basis any material amounts of Product(s) ordered by VNUS, the parties shall confer in good faith to solve the supply problem and Medtronic shall use its best efforts to cure such problem and to keep VNUS informed on a regular basis until such cure is implemented. If Medtronic is forced to allocate production and distribution of the Products among its various distributors and customers, Products will be allocated to VNUS in a share proportional to that percentage of Medtronic’s total sales of the Product, which VNUS’ sales comprised in the preceding twelve (12) month period, with the exception of the initial twelve month period of this Agreement, which proportion shall be determined on the basis of projected twelve (12) month sales. If, as a result of such allocation, VNUS is unable to purchase on a timely basis the Minimum Annual Quota or Minimum Quarterly Quota (as applicable), the applicable Quota will be reduced by the amount of bona fide orders from VNUS that Medtronic is unable to fill.

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VI. PRICE AND RESALE TERMS

6.1    Product Transfer Pricing. For all orders of Product other than the initial stocking order pursuant to Section 5.1 above, Medtronic will charge VNUS the current list price for the Products, less the discount set forth on Schedule 6.1 (the result, the “Product Transfer Price”). The current list price for the Products is attached hereto in Schedule 6.1. All Product pricing information, including list price, distributor discount, and Product Transfer Prices, shall be deemed Confidential Information under this Agreement. The Product Transfer Prices set forth on Schedule 6.1 shall be applicable for **** following the Effective Date. After ****, the Parties agree that the Product Transfer Price may increase once every **** months for the remaining term of the Agreement, at a maximum rate of **** .

      (a)  Increased Product Transfer Prices will not apply to purchase orders accepted by Medtronic before the effective date of the price increase unless such orders provide for delivery more than thirty (30) days after the date of acceptance of the order. ****.

      (b)  All listed Product Transfer Prices are exclusive of delivery charges, freight, insurance, state and local use, sales and similar taxes. When such charges apply they may appear as separate items on Medtronic invoices.

6.2    Resale Price. VNUS retains the sole and exclusive right to establish the prices at which it distributes and resells the Products in the Market Segment in the Territory, in its sole discretion.

VII. WARRANTY; DISCLAIMER; LIMITATION OF LIABILITY

7.1    Mutual Representation and Warranties. Each of Medtronic and VNUS represents and warrants to the other that as of the Effective Date (a) it has the full corporate power to enter into and perform this Agreement; and (b) this Agreement constitutes a legal, valid and binding obligation.

7.2    Medtronic Representations and Warranties. Medtronic represents, warrants, and covenants that:

      (a)  at the time of shipment, Product supplied by Medtronic hereunder (i) shall meet the specifications provided by Medtronic for such Product, (ii) shall not be adulterated or misbranded within the meaning of the U.S. Federal Food, Drug and Cosmetic Act (the “ Act ”), and (iii) shall be manufactured in accordance with QSR and cGMP (as applicable) and as defined by the Act;

      (b)  as of the Effective Date, (i) Medtronic has not granted any rights to any third party to promote or sell Products in the Market Segment in the Territory, and (ii) all Products listed on Schedule 1.2 have been approved by the FDA for sale and distribution in the Territory; and

      (c)  during the Term, (i) neither Medtronic nor its affiliates shall, nor shall they cause, license, or permit others to, promote, license, sell or cause to be sold Products within the Market Segment in the Territory, except to the extent permitted under Section 2.6 hereto, and (ii) Medtronic shall obtain and

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maintain all necessary approvals and clearances for all Products that are promoted and/or sold by VNUS in the Market Segment in the Territory.

7.2    VNUS Representations and Warranties. VNUS represents, warrants, and covenants that it will direct its sales and marketing personnel to promote and/or sell Products for use solely in the Market Segment in the Territory.

7.3    User Warranty. The User Warranty, attached hereto as Schedule 7.3, is the only warranty granted by Medtronic to a Customer of a Product covering such Product. Medtronic will provide a copy of the User Warranty with each Product sold hereunder to which it applies. In addition, Medtronic may supply VNUS with point-of-sale copies of the User Warranty for pre-sale disclosure to prospective users. VNUS shall comply with all applicable federal or state laws relating to disclosure of product warranties and limitations, including but not limited to those of the Federal Trade Commission. NO WARRANTY OTHER THAN THE USER WARRANTY IS EXPRESSED OR IMPLIED BY MEDTRONIC. MEDTRONIC SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The User Warranty shall be deemed to commence on the earlier of (1) the date VNUS delivered the Product to the Customer as reported to Medtronic in the monthly Product Tracking Report or (2) six (6) months from the date on which the Product was received by VNUS from Medtronic.

VIII. INTELLECTUAL PROPERTY

8.1    Rights to Intellectual Property. Except as expressly set forth in Section 8.2 below, VNUS shall have no right or license under this Agreement to utilize any information, know-how, proprietary data, trademarks, or patent rights which VNUS may have or may secure in the future relating to any of the Products, except as may be incidental only to the marketing, promotion, distribution and/or sale of the Products and the right to use such Products by VNUS’ Customers. VNUS may not reproduce any copyrighted material of Medtronic without the prior written consent of Medtronic.

8.2    Trademark Use. Subject to the terms and conditions of this Agreement, including with limitations of this Section 8.2 below, Medtronic hereby grants to VNUS a non-exclusive license under the Medtronic logos, trademarks, and service marks that appear on the Products or in any Medtronic-furnished marketing collateral specific to the Products (“ Medtronic Marks ”) in the Territory solely to market and promote the Products to the Market Segment in the Territory for the Term. VNUS shall not use Medtronic’s name, or any other similar name or any other trademark of Medtronic except in advertising, pamphlets, or other materials promoting the Products. VNUS may label the Products with the statement “Manufactured by Medtronic for Distribution by VNUS.” All such materials referencing Medtronic or Products must be approved in writing by Medtronic prior to their use or dissemination, such approval not to be unreasonably withheld. VNUS may not use Medtronic’s name or any of Medtronic’s trademarks in its corporate or business name, or in any other manner which Medtronic deems adverse to its interests. Use of any Medtronic trademark or trade name associated with the Products may be done only in accordance with usage guidelines as established by Medtronic from time to time. Upon the termination of VNUS’ appointment it shall immediately discontinue any further use or display of Medtronic trademarks, trade names or any mark or name (except as to sales of remaining inventory of Products as permitted in Section 9.3). VNUS shall notify Medtronic if it becomes aware of any unauthorized use of Medtronic trademarks or trade names or of the use of any mark or name which might

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confuse the public.

IX. TERMINATION

9.1    Termination . This Agreement may be terminated prior to the expiration of its Term pursuant to any of the following provisions:

      (a) Failure to Satisfy Minimum Annual Quota or Minimum Quarterly Quota.

           (i) Subject to Section 3.15, and only after giving effect to any payment by VNUS to Medtronic pursuant to such Section 3.15, if VNUS does not satisfy the applicable Minimum Annual Quota or the Minimum Quarterly Quota for two consecutive quarters (but provided such inability was not caused by Medtronic failing to timely supply Products ordered by VNUS), Medtronic shall have the right to terminate the Agreement.

      (b) Breach of Agreement . If either party materially fails to perform an obligation or condition of this Agreement (other than VNUS’ failure to satisfy the Minimum Annual Quota and/or the Minimum Quarterly Quota) and fails to cure such default within sixty (60) days of receipt of written notice of such default from the other party specifying the nature of such default, then the party giving the notice may terminate this Agreement by sending a separate written notice of termination to the defaulting party. Any material violation of any material law or regulation applicable to this Agreement or any violation of the Medtronic Code of Conduct or U. S. Business Conduct Standards shall be deemed an incurable breach. In the event of a breach that cannot reasonably be cured within sixty (60) days of receipt of written notice of a breach, then the alleged breaching party shall have such additional time as necessary not to exceed an additional thirty (30) days (for a total of ninety [90] days) to cure the breach if the alleged breaching party (i) during such sixty (60) day period has submitted a plan, that if successfully carried out, would be effective in curing such breach, and has commenced execution of such plan, and (ii) diligently pursues such plan thereafter.

      (c) Bankruptcy . Either party may terminate this Agreement effective immediately upon delivery of written notice to the other party, if the other party (i) ceases to actively conduct its business, (ii) files a voluntary petition for bankruptcy or has filed against it an involuntary petition for bankruptcy, (iii) makes a general assignment for the benefit of its creditors, or (iv) applies for the appointment of a receiver or trustee for substantially all of its property or assets or permits the appointment of any such receiver or trustee who is not discharged within thirty (30) days of such appointment.

9.2    Effect of Termination. Upon the effective date of termination or expiration of VNUS’ appointment for any reason, VNUS shall immediately cease to be an authorized Medtronic distributor (except as to sales of remaining inventory of Products as permitted in Section 9.3 below) and there shall be nothing payable by either party except as may be due as a result of prior sales and these shall be paid as they become due. Either party may, at its option, cancel any outstanding orders for purchase which have not been shipped by the effective date of the termination. All obligations with respect to Confidentiality, return of intellectual property and other obligations which by their nature are continuing shall survive the termination of this Agreement. Neither party shall be liable to the other for damages of any kind resulting from or caused by said termination, including, but not limited to, damages related to losses through commitments on obligation or leases, loss of investment, or present or prospective profits,

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inability to meet obligations, or any other causes or reasons whatsoever.

9.3    Repurchase/Sale of Inventory. Upon any termination of this Agreement, Medtronic shall have the right, exercisable in its sole discretion, to buy back from VNUS all or any of the Products owned by VNUS on the date of termination. The price Medtronic shall pay for the Products will be ****. Products repurchased from VNUS by Medtronic pursuant to this Section 9.3 shall be shipped promptly by VNUS as instructed by Medtronic, at Medtronic’s commercially reasonable expense, to a location specified by Medtronic. For a period not to exceed six (6) months from the date of termination, VNUS may in its sole discretion, sell or otherwise properly dispose of any Products which are not purchased by Medtronic, provided such sales and disposal are performed in accordance with the terms set forth in this Agreement.

9.4    Return of Materials. Upon termination of its appointment, VNUS shall immediately return to Medtronic all promotional and other Product related materials previously provided by Medtronic to VNUS (except for a reasonable quantity as needed by VNUS to sell the remaining inventory of Products, as permitted in Section 9.3). If VNUS has paid Medtronic for any of the materials returned, Medtronic shall reimburse VNUS the purchased price of such returned materials to the extent, and only to the extent that such materials are currently useable by Medtronic.

9.5    Non-solicitation . For a period of twelve (12) months after expiration or termination of this Agreement for whatever reason, VNUS will not solicit for employment, directly or through a third party agent, or hire any person who was a Medtronic Cardiac Surgery employee during the twelve months preceding the termination date of this Agreement. For a period of twelve (12) months after expiration or termination of this Agreement for whatever reason, Medtronic’s Cardiac Surgery business unit will not solicit for employment, directly or through a third party agent, or hire any person who was an employee of VNUS during the twelve (12) months preceding the termination date of this Agreement. Nothing contained in this Agreement will prevent either party from hiring any employee of the other party if the employee’s application for employment was in response to an advertisement of general circulation and such employee was not solicited by the hiring party directly or through a third party agent.

X. INDEMNITIES

10.1    Medtronic’s Indemnification. Medtronic shall indemnify, defend and hold harmless VNUS and each of its subsidiaries, officers, directors, employees, shareholders and distributors from and against and in respect of any and all assessments, losses, damages, liabilities, interest and penalties, costs and expenses (including, without limitation, reasonable legal fees and disbursements incurred in connection therewith and in seeking indemnification therefore, and any amounts or expenses required to be paid or incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment or judgment) finally awarded (“ Indemnifiable Losses ”), resulting from, arising out of, or imposed upon or incurred by any person to be indemnified hereunder by reason of any third party demands, claims, suits, actions or causes of action against such person based upon: (i) any breach of representation, warranty, covenant or agreement by Medtronic under this Agreement, (ii) Product Liability Damages with respect to the Products, or (iii) other negligence or intentional misconduct of Medtronic, provided that in no event shall Medtronic be liable for matters for which VNUS is responsible under Section 10.2 below or for punitive or exemplary damages. Medtronic shall maintain product liability insurance or self-insurance in such amounts as ordinary good business practice for its type of business would make advisable and shall upon

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request provide VNUS with evidence of this coverage. “Product Liability Damages” means any liability, claim or expense, including but not limited to reasonable attorneys’ fees and medical expenses, arising in whole or in part out of claims of third parties for personal injury or loss of or damage to property relating to or arising out of the Products, whether based on strict liability in tort, negligent manufacture of product, or any other allegation of liability arising directly from the design, testing, manufacture, packaging, labeling (including instructions for use), or sale of the Products.

10.2    VNUS’ Indemnification. VNUS shall indemnify, defend and hold harmless Medtronic and each of its subsidiaries, officers, directors, employees, shareholders and suppliers from and against and in respect of any and all Indemnifiable Losses resulting from, arising out of, or imposed upon or incurred by any person to be indemnified hereunder by reason of any third party demands, claims, suits, actions or causes of action against such person based upon: (i) any breach of representation, warranty, covenant or agreement by VNUS under this Agreement, (ii) product claims whether written or oral, made or alleged to be made, by VNUS in its advertising, publicity, promotion, or sale of any Products where such product claims were not provided by or approved by Medtronic, (iii) negligent handling by VNUS of the Products or changes, additions or modifications to the Products by VNUS, (iv) Product Liability Damages with respect to the Products to the extent they are caused by the negligent or intentionally wrongful acts of VNUS, (v) Product Liability Damages caused by non-Medtronic products sold by VNUS, or (vi) other negligence or intentional misconduct of VNUS; provided that in no event shall VNUS be liable for matters for which Medtronic is responsible under Section 10.1 above or for punitive or exemplary damages. VNUS shall maintain liability insurance or self-insurance in such amounts as ordinary good business practice for its type of business would make advisable and shall provide Medtronic with evidence of this coverage.

10.3    Procedure. If a claim by a third party is made and a party (the “ Indemnitee ”) intends to claim indemnification under this Article 10, the Indemnitee shall promptly notify the other party (the “Indemnitor”) in writing of any claim in respect of which the Indemnitee or any of its subsidiaries, directors, officers, employees, shareholders, suppliers or distributors intends to claim such indemnification and the Indemnitor shall have sole control of the defense and/or settlement thereof, provided that the Indemnitee may participate in any such proceeding with counsel of its choice at its own expense. The indemnity agreement in this Article 10 shall not apply to amounts paid in settlement of any Indemnifiable Losses if such settlement is effected without the consent of the Indemnitor, which consent shall not be withheld unreasonably. The failure to deliver written notice to the Indemnitor within a reasonable time after the commencement of any such action, if adversely prejudicial to its ability to defend such action, shall relieve such Indemnitor of any liability to the Indemnitee under this Article 10, but the omission to so deliver written notice to the Indemnitor shall not relieve the Indemnitor of any liability that it may otherwise have to any Indemnitee other than under this Article 10. If the Indemnitor fails to provide defense of the claim, and diligently defend or settle the same, the Indemnitee may defend or settle the claim without prejudice to its rights to indemnification hereunder. The Indemnitee under this Article 10, its employees and agents, shall cooperate fully with the Indemnitor and its legal representatives and provide full information in the investigation of any Indemnifiable Losses covered by this indemnification.

10.4    Patent. Medtronic shall indemnify, defend and hold harmless VNUS from any cost, expense, liability or damage to the extent that it is based upon a claim that any Product purchased or sold by VNUS infringes a patent of the United States (or the manufacture or use of such Product infringes such a patent); provided that VNUS shall promptly notify Medtronic of such claim, permit Medtronic to assume control

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of the defense of such claim, and fully cooperate in the defense of such claim. If the use or sale of a Product is enjoined by order or settlement, then Medtronic shall have the option to (1) procure for VNUS the right to continue using or selling the Product, (2) replace the Product with a non-infringing Product or to modify the Product, (3) modify the Product so it becomes non-infringing, or (4) accept return of the infringing Product and grant VNUS a credit for VNUS’ purchase price of such Product. The foregoing shall be the entire liability of Medtronic for patent infringement by Products furnished hereunder.

THIS SECTION 10.4 STATES MEDTRONIC’S TOTAL RESPONSIBILITY AND LIABILITY, AND THE VNUS’ SOLE REMEDY, FOR ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY PATENT, TRADEMARK OR COPYRIGHT BY ANY PRODUCT DELIVERED HEREUNDER OR ANY PART THEREOF. THIS ARTICLE IS IN LIEU OF AND REPLACES ANY OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTY AGAINST INFRINGEMENT. IN NO EVENT SHALL MEDTRONIC BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY SUCH INFRINGEMENT.

10.5     LIMITATION OF LIABILITY

      IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY ANYONE. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTWITHSTANDING THE FOREGOING PROVISIONS OF THIS SECTION, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO (i) CLAIMS ARISING UNDER ARTICLE 8 (INTELLECTUAL PROPERTY) OR (ii) THIRD PARTY CLAIMS FOR PERSONAL INJURY, DEATH OR PHYSICAL DAMAGE TO PROPERTY WHICH ARE SUBJECT TO THE INDEMNIFICATION PROVISIONS OF ARTICLE 10.1 OR 10.2.

XI. CONFIDENTIAL INFORMATION

11.1    Definition. A party’s “ Confidential Information ” is defined as any information of one party (the “ Disclosing Party ”) that is disclosed to the other party (the “ Receiving Party ”), including without limitation, technical product data, business plans, product pricing, sales goals, marketing information and other information not generally available to the public. Notwithstanding anything to the contrary in this Agreement, Confidential Information does not include information that (a) is already known by the Receiving Party at the time of disclosure by evidence of such Receiving Party’s written records; (b) becomes, through no act or fault of the Receiving Party, publicly known; (c) is received by the Receiving Party without restriction on the Receiving Party’s disclosure or use, from a third party which itself had no obligation to keep such information confidential; or (d) is independently developed by the Receiving Party without access or reference to the Confidential Information of the Disclosing Party.

11.2    Restrictions. Each party shall maintain in confidence any Confidential Information received

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from the other party or, in the case of Medtronic, of any of its suppliers or purchasers during the Term and shall not publish, disseminate, or disclose such Confidential Information except to the extent necessary to carry out its duties hereunder without the express written permission of the Disclosing Party. Each Receiving Party shall use at least the same degree of care to protect the Confidential Information of the Disclosing Party as it does to protect its own Confidential Information and in all cases shall use commercially reasonable efforts to protect such information. This obligation of confidentiality shall expire five (5) years after the termination or expiration of this Agreement.

11.3    Exceptions. A party may disclose Confidential Information of the other party to the extent required to be disclosed by a court or governmental agency pursuant to a statute, regulation, or valid order; provided, however, that the Receiving Party first notifies the Disclosing Party and gives the Disclosing Party the opportunity to seek a protective order, or to contest such required disclosure.

11.3    Return of Confidential Information. All Confidential Information shall be returned to the Disclosing Party at the request of the Disclosing Party upon the termination or expiration of this Agreement.

XII. GENERAL PROVISIONS

12.1    Independent Contractor Relationship. VNUS is and shall remain an independent contractor and is not and shall not be deemed to be an employee, joint venturer, partner, or franchisee of Medtronic for any purpose. Accordingly, VNUS shall be exclusively responsible for the manner in which it performs its duties under this Agreement and for the profitability or lack thereof of its activities under this Agreement. All financial obligations associated with VNUS’ business are the sole responsibility of VNUS. VNUS does not have, and shall not represent itself as having, any right or authority to obligate or bind Medtronic in any manner whatsoever.

12.2    Waivers. Failure of either party at any time to require strict performance of the other party of the provisions of this Agreement shall not act as a waiver of such provisions, nor shall the waiver of a breach of the Agreement by either party constitute a waiver of such provision for any subsequent breach.

12.3    Entire Agreement and Modifications. This Agreement, together with its schedules, exhibits and addendums, if any, contains the entire and only agreement between the parties with respect to the sale and purchase of Medtronic products. Any representations or terms and conditions not incorporated in this Agreement shall not be binding upon either party. No attempted modification of this Agreement shall be binding upon either party unless in writing and signed in the same manner as the original Agreement. If any provision of this Agreement is held to be invalid, it shall not affect the enforceability of the remaining provisions.

12.4    Assignment. VNUS may not transfer, assign, nor delegate the rights or the duties of this Agreement without the prior written consent of Medtronic. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement with the prior written consent of the non-assigning party, such consent not to be unreasonably withheld or delayed, to any person or entity with which such party is merged or by which it is acquired or which purchases all or substantially all of its assets or stock; provided, if the non-assigning party does not give its consent, this Agreement is automatically terminated at the time of the merger, acquisition, or sale, as applicable.

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