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Execution Original
VITAL IMAGES, INC.
AND
TOSHIBA AMERICA MEDICAL SYSTEMS, INC.
RESELLER AGREEMENT
THIS AGREEMENT is made as of September 11, 2000, effective July 1, 2000 by and
between Vital Images, Inc., a Minnesota corporation having its principal place
of business at 3300 Fernbrook Lane N., Suite 200, Plymouth, Minnesota 55447
("Vital Images") and Toshiba America Medical Systems, Inc. having its principal
place of business at 2441 Michelle Drive, Tustin, California 92781 ("Reseller").
Recitals
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A. Vital Images develops and licenses proprietary medical
visualization products (defined below as the "Products") and
desires to increase the marketing and distribution of the
Products.
B. Reseller possesses the necessary expertise and marketing
organization to promote, market, distribute and support the
Products.
C. Vital Images desires to appoint Reseller, and Reseller desires
appointment, as a nonexclusive reseller of the Products.
NOW, THEREFORE, in consideration of the mutual premises and covenants
hereinafter set forth, the parties agree as follows:
ARTICLE 1: DEFINITIONS
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For purposes of this Agreement, the following words, terms and phrases shall
have the following meanings unless the context otherwise requires:
1.1 Confidential Information. "Confidential Information" shall mean all
information designated by a party as confidential and which is
disclosed by Vital Images to Reseller, is disclosed by Reseller to
Vital Images, or is embodied in the Products, regardless of the form in
which it is disclosed, relating to markets, customers, products,
patents, inventions, procedures, methods, designs, strategies, plans,
assets, liabilities, prices, costs, revenues, profits, organization,
employees, agents, resellers or business in general, or, in the case of
Vital Images, the algorithms, programs, user interfaces and
organization of the Products.
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1.2 End User Agreement. "End User Agreement" shall mean the end user
Software License Agreement for the Products, in the form attached
hereto as Exhibit C, or such other form as Vital Images may from time
to time provide to Reseller.
1.3 First Level Maintenance. "First Level Maintenance" shall mean
electronic, telephone or in-person response by Reseller to customers in
the Territory who have installed Products that are under Vital Images'
standard warranty, standard software maintenance or standard hardware
maintenance program. Such response shall attempt (i) to identify the
nature and extent of the customer's problem, (ii) if appropriate, to
obtain a copy of magnetic media, hard copy printout or electronic file
forwarded over the Internet containing the problem or software bug to
be forwarded promptly to Vital Images electronically or by facsimile,
and (iii) to advise the customer in the application of any recommended
solution or workaround to such problem or bug. Reseller will provide
First Level Maintenance only during the period of the initial standard
warranty or the period that the customer has an effective standard
service maintenance agreement with Reseller. Furthermore, Vital Images
agrees to provide Reseller with the pricing on its service contracts as
set forth in Exhibit E.
1.4 Government Approval. "Government Approval" shall mean any approvals,
licenses, registrations or authorizations of any federal, state or
local regulatory agency, department, bureau or other government entity,
foreign or domestic, necessary for use, marketing, sale or distribution
of the Products in a regulatory jurisdiction, including without
limitation the U.S. Food and Drug Administration ("FDA").
1.5 Products. "Products" shall mean only those computer products described
in Exhibit A and any related user documentation as released from time
to time by Vital Images, including any later authorized releases or
versions of the Software (as defined below) or documentation during the
term of this Agreement.
1.6 Second Level Maintenance. "Second Level Maintenance" shall mean
electronic, telephone or in-person response by Vital Images to Reseller
to deal with any problem, hardware breakdown or software bug that
cannot be handled by Reseller alone under First Level Maintenance for
customers in the Territory who have installed Products that are under
Vital Images' standard warranty or standard software or hardware
maintenance agreement.
1.7 Software. Software shall mean only those computer software products in
object code form described in Exhibit A as released from time to time
by Vital Images.
1.8 Territory. "Territory" shall mean the area described in Exhibit B.
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ARTICLE 2: APPOINTMENT
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2.1 Scope. Vital Images hereby appoints Reseller, and Reseller hereby
accepts such appointment, as Vital Images' nonexclusive reseller of the
Products during the term of this Agreement in the Territory, subject to
all the terms and conditions of this Agreement.
2.2 Dealer Associates. Upon Vital Images' prior written approval, Reseller
may appoint one or more agents to market and distribute the Products
within the Territory (collectively "Dealer Associates"), provided,
however, Reseller shall remain fully liable for the performance of any
Dealer Associate and Reseller hereby indemnifies and holds Vital Images
harmless from all damages, losses, costs or expenses arising in any
manner from any act or omission on the part of any Dealer Associate.
Such indemnification will not apply if the Dealer Associates purchase
the Products directly from Vital Images. Reseller shall furnish Vital
Images with a copy of any such appointment agreement with any Dealer
Associate.
2.3 Use of Terms. The terms "sale", "purchase", "distribution", "resale",
"Reseller" and "Dealer" are used herein for convenience only and refer
to the sale of the Products provided, that, with respect to the
Software component of the Products, this shall only refer to the sale
of software licenses pursuant to the terms of the End User Agreement.
Reseller hereby acknowledges Vital Images retains all right, title and
interest in and to the copyrights and other intellectual property
rights in the Software. Reseller agrees to provide its customers with a
copy of the End User Agreement.
ARTICLE 3: GENERAL OBLIGATIONS OF RESELLER
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3.1 Marketing. Reseller shall have the following obligations with respect
to the distribution of the Products:
(a) To use its best efforts to further the promotion, marketing
and distribution of the Products in the Territory;
(b) To promptly respond to all inquiries or complaints from
customers, to provide all necessary and appropriate First
Level Maintenance of the Products and to cooperate with Vital
Images in the provision of Second Level Maintenance;
(c) To provide Vital Images with appropriate details of all
complaints and bugs found in the Products, whether such
complaints or bugs were discovered by Reseller or customers of
Reseller;
(d) To conduct its business in a professional manner, which will
reflect positively upon Vital Images and its Products;
(e) To provide Vital Images with customer registration information
as is reasonably requested by Vital Images;
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(f) To abide by all applicable laws and regulations in the
Territory or the United States of America, including, if
applicable, the U.S. Export Administration Regulations and the
U.S. Foreign Corrupt Practices Act;
(g) To diligently investigate all leads with respect to potential
customers in the Territory who are referred to Reseller by
Vital Images;
(h) To maintain throughout the Territory an adequately trained and
staffed sales and technical support group for the marketing,
distribution, installation and support (as applicable) of the
Products;
(i) To provide appropriate sales and technical support staff for
training by Vital Images at any mutually agreeable location;
and
(j) To participate actively in sales or promotional programs
prepared by Vital Images; to participate in fairs and
exhibitions in the Territory in which Reseller's CT business
participates where such participation will promote the
Products; and to cooperate with Vital Images in the
presentation of the Products at tradeshows (including, without
limitation, having the Products displayed in Reseller's booth
at the RSNA tradeshow) and to develop and implement its own
internal programs for the promotion of the Products.
3.2 Reseller Demonstration License. Reseller acknowledges that Vital Images
has provided to Reseller, at no expense to Reseller, one (1) software
license for the Software solely for its own customer demonstration and
promotional uses, subject to the provisions of the Demonstration
License Agreement attached hereto as Exhibit D. In the event this
Agreement is terminated, Reseller shall immediately return such
software license to Vital Images. Vital Images agrees to provide
Reseller, throughout the term of this Agreement, with the latest
release of the Software.
3.3 Promotional Materials. Vital Images shall furnish Reseller with a
reasonable quantity of Vital Images data sheets, brochures and other
marketing materials for the Products in the English language for use by
Reseller.
(a) If Reseller requires any extraordinary quantity of such
promotional materials, Reseller may purchase them from Vital
Images.
(b) In lieu of providing such promotional materials directly,
Vital Images, at its discretion, may provide Reseller with an
electronic media copy of same with a nonexclusive,
nontransferable right and license to use same, without
modification of any kind, for the local reproduction of such
materials solely for purposes of Reseller's performance under
this Agreement.
In no event shall Reseller distribute any promotional materials for or related
to the Products that have not been previously approved in writing by Vital
Images.
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3.4 Reverse Engineering. Reseller shall not reverse engineer, decompile or
disassemble the Software and shall not knowingly allow any other person
to do so.
3.5 Competing Products. During the first year of the term of this
Agreement, Reseller shall not market, distribute, promote or solicit
the sale of any products in the United States which are directly or
indirectly competitive with the Products without the prior written
consent of Vital Images. Notwithstanding the foregoing, Reseller may
sell no more than two (2) Product units annually which would be
considered competitive with the Products without violating the terms of
this Agreement.
3.6 Reseller Expenses. Reseller assumes full responsibility for all its own
costs and expenses incurred in carrying out its obligations under this
Agreement, including but not limited to all rents, salaries,
commissions, advertising, demonstrations, travel and accommodations;
provided, however, that Vital Images will provide to Reseller, at no
charge, training for up to forty (40) of Reseller's sales and technical
support staff, at Vital Images' facilities or at any other
mutually-agreeable location, in the function, application,
installation, and First Level Maintenance of the Products and in the
provision of assistance to Vital Images in Second Level Maintenance,
provided, however, that Reseller shall pay the salaries and all
transportation and living expenses of its staff.
ARTICLE 4: ORDERS FOR PRODUCTS
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4.1 Purchase Orders. Reseller shall use its best efforts to submit purchase
orders for the Products to Vital Images in writing (preferably by
facsimile) at least thirty (30) days prior to the requested delivery
date, which orders shall include the following information:
(a) Customer identification information, including, but not
limited to name, address, telephone and facsimile numbers;
(b) An identification of the Products ordered (with release
number);
(c) Quantity of Products;
(d) Hardware platform and relevant hardware specifications,
including the model number, serial number and operating system
and version thereof (as applicable);
(e) Requested delivery dates;
(f) Shipping instructions and shipping address; and
(g) If applicable, any relevant export control information or
documentation to enable Reseller and Vital Images to comply
with applicable U.S. export control laws.
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4.2 Acceptance of Orders. All purchase orders from Reseller are subject to
acceptance in writing by Vital Images, which acceptance shall be
delivered by reply facsimile.
4.3 Delivery Terms. All deliveries of the Products shall be from Vital
Images' facilities unless otherwise agreed in writing between the
parties. Reseller shall pay for shipping as part of the purchase price
for the Products. All risk of damage to or loss or delay of the
Products shall pass to Reseller upon their delivery to (i) a common
carrier, or (ii) an agent or any other person specified by Reseller
acting on behalf of Reseller.
4.4 Modification of Orders. No accepted purchase order may be modified or
canceled later than 30 days before the scheduled delivery date, except
upon the written agreement of both parties, provided Vital Images may,
at no additional cost to Reseller, ship its latest authorized version
or release of a Product in response to any accepted purchase order.
Reseller's purchase orders or mutually-agreed change orders shall be
subject to all provisions of this Agreement, whether or not the
purchase order or change order so states, and any terms or conditions
of such purchase order or change order which conflict with the terms or
conditions of this Agreement shall be deemed excluded and of no legal
effect as between the parties.
4.5 Purchase Commitment. Vital Images shall ship to Reseller during the
Term of this Agreement such Products as are identified in the purchase
orders submitted by Reseller. Notwithstanding the foregoing, in the
event Vital Images has not received purchase orders containing such
minimum amount of Vitrea2(R) Systems units (or multi-application or
multi-modality software similar to Vitrea(R)) as is specified in
Exhibit F attached hereto and incorporated herein (the "Commitment")
within fifteen (15) days prior to the end of the applicable calendar
quarter, Vital Images shall ship to Reseller within three (3) days
prior to the end of such calendar quarter an amount of units of the
Vitrea2(R) System, as such System is described in Exhibit E, necessary
for Reseller to meet the requirements of the Commitment and Reseller
shall pay for such Products pursuant to the payment terms specified in
Article 6. The Commitment may be adjusted for the period beginning
after July 1, 2001 as mutually agreed to by Vital Images and Reseller.
If the parties do not agree to any such adjustment, the Commitment and
this Agreement shall continue unmodified through the end of the Term,
unless sooner terminated pursuant to the provisions of Article 14
hereof.
Quarterly Product purchases above the minimums set forth in the
Commitment may be applied only to satisfy the next quarterly purchase
commitment; provided, however, that aggregate purchases for Year 1,
Year 2 and Year 3 as specified and defined in Exhibit F shall not be
applied against the following year's purchase commitment, and purchases
during the fourth (4th) quarter of one year may not be applied against
the first (1st) quarter of the following year's commitment.
In the event Vital Images sells a Product directly to a customer and
not through Reseller, Reseller shall receive credit for such sale in
the event Reseller introduced the Product to
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such customer during the marketing of Reseller's products to such
customer. Reseller shall receive credit for introducing the Product to
a customer upon proof that:
(a) Vital Images and Reseller made a joint visit to the customer
to demonstrate the Product;
(b) A quote was provided to the customer including components of
the Product and Reseller's products; and
(c) Such customer has not been previously called upon by Vital
Images within 60 days prior to Reseller's quote.
4.6 Product Changes. Vital Images may do any of the following upon
reasonable notice to Reseller:
(a) Alter the specifications for any Product or any new release
thereof;
(b) Discontinue the production of any Product;
(c) Discontinue the development of any new release of a Product,
whether or not such new release has been announced publicly;
or
(d) Commence the development and distribution of new software
products having features, which may make any Product wholly or
partially obsolete, whether or not Reseller is granted any
distribution rights in respect of such new products.
Reseller's minimum purchase commitments will end in the event Vital
Images discontinues the production of Vitrea(R).
4.7 Installation of Products and Customer Training. Unless otherwise
specified in a particular purchase order, all deliveries of the
Products shall be made directly to the customer, and Vital Images shall
then have the sole responsibility for the installation and integration
of such Products into a customer's computer system in the Territory in
accordance with the standards and specifications established by Vital
Images from time to time. Reseller shall have the option after March
31, 2001 to provide installation services, in which case the parties
shall work toward a mutual agreement as to the transition of
installation services to Reseller. Vital Images shall additionally
provide two (2) two-day applications training sessions for each Product
sold, as further described on Exhibit E attached hereto.
ARTICLE 5: MAINTENANCE SERVICES
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5.1 Maintenance Program. Each Product includes one (1) year of software and
hardware maintenance services, as applicable.
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5.2 First Level Maintenance Service. To the best of its technical ability,
and based upon its prior experience and its training by Vital Images,
Reseller shall use its best efforts to provide First Level Maintenance
to customers in the Territory.
5.3 Second Level Maintenance Service. To the best of its technical ability
and based upon its prior experience and its training by Vital Images,
Reseller shall use its best efforts to assist Vital Images in providing
Second Level Maintenance to customers in the Territory.
5.4 Customer Contact. Reseller shall have the primary responsibility for
direct contact with customers in the Territory in regard to the
function, application, installation or maintenance of the Products
under First Level Maintenance and Second Level Maintenance.
ARTICLE 6: PRICES AND PAYMENTS
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6.1 Prices. Reseller shall pay Vital Images in accordance with the prices
for the Products and maintenance services as specified in the Product
Price List, Exhibit E hereto, except as provided in Section 6.2 below.
Any special packing or handling shall be at the sole expense of
Reseller.
6.2 Price Increases or Decreases. The prices for the Products set forth on
Exhibit E shall be effective through the Term. Vital Images and
Reseller may mutually agree to modify the prices for the Products in
the event Reseller's purchase commitment is modified pursuant to
Section 4.5 hereof.
6.3 Payment Terms. For each order of the Products or maintenance support
services, Reseller shall pay in accordance with the Product Price List
attached as Exhibit E in U.S. Dollars within thirty (30) days of
shipment of same.
6.4 Overdue Payments. If and for so long as any payment from Reseller to
Vital Images under this Agreement shall be overdue:
(a) Interest at twelve percent (12%) per annum or the highest rate
permitted under applicable law, whichever is lower, shall
automatically become due on all balances outstanding; and
(b) Vital Images reserves the right to withhold or suspend
shipment of Products to Reseller and/or its customers if there
is an unsettled outstanding balance owed by Reseller to Vital
Images.
ARTICLE 7: APPROVALS; ADVERSE REACTIONS; PRODUCT RECALLS
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7.1 Government Approval. Vital Images shall diligently prepare and file all
applications required to obtain all necessary Government Approval for
each country included in the Territory as Vital Images deems necessary.
Vital Images shall keep Reseller apprised of
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its progress with respect to any such applications. Reseller shall
furnish Vital Images with such assistance and cooperation as may be
reasonably requested in connection with the securing of such Government
Approval.
7.2 Compliance. Vital Images shall comply with all applicable regulatory
requirements, and Reseller shall provide to Vital Images all
information within Reseller's possession necessary for Vital Images to
comply with its medical device reporting requirements to the FDA or any
other comparable regulatory body elsewhere in the world. Vital Images
shall comply with all health registration laws, regulations and orders
of any government entity within the Territory and Vital Images and
Reseller shall each comply, with respect to their activities, with all
other governmental requirements relating to the promotion, marketing
and sale of the Products in each country in the Territory. Reseller
shall submit all advertising claims to Vital Images for written
approval prior to their first use by any party, such consent not to be
unreasonably withheld.
7.3 Corrective Action.
(a) Notice of Corrective Action. If Vital Images believes that a
corrective action with respect to the Products in distribution
is desirable or required by law, or if any governmental agency
having jurisdiction (including, without limitation, the FDA)
shall request or order any corrective action with respect to
the Products in distribution, including any recall or customer
notification, Vital Images shall promptly notify Reseller.
Modified Products, if necessitated by recall or customer
notification, will be provided by Vital Images at no expense
to Reseller and/or dealer associates for customer
installation. Reseller shall maintain complete and accurate
records, for such periods as may be required by applicable
law, of all Products sold by it and any of its Dealer
Associates. The parties shall cooperate fully with each other
in effecting any corrective action with respect to the
Products pursuant to this Article 7.3, including communication
with any customers and Reseller and its Dealer Associates
shall comply with all reasonable directions of Vital Images'
regarding such corrective action. This Article 7.3 shall not
limit the obligations of either party under law regarding any
corrective action with respect to Products required by law or
properly mandated by governmental authority.
(b) Refund. If any Products are required to be returned to Vital
Images pursuant to this Article 7.3 and no replacement is
provided therefor by Vital Images, Vital Images shall refund
to Reseller's customers any unearned license fees paid to
Reseller (the amount of the license fee each such customer
paid for the products, less a reasonable value for use
determined by prorating the license fee paid on a thirty-six
(36) month straight line amortization method), and the cost of
any applicable computer hardware. Vital Images shall indemnify
Reseller from any actions made by Reseller's customers
claiming reimbursement of license fees, whether or not in
excess of the amount specified in this paragraph.
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ARTICLE 8: WARRANTIES AND REPRESENTATIONS; INDEMNIFICATION
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8.1 Product Warranties to Customers. Vital Images hereby authorizes
Reseller to pass through to its customers Vital Images' standard
software warranties as set forth in the End User Agreement. In
addition, Vital Images hereby authorizes Reseller to pass through to
its customers the standard hardware warranties provided by each of the
manufacturers of the hardware. As part of its First Level Maintenance
obligations, Reseller shall promptly inform Vital Images of any claims
made by customers in the Territory under such software and hardware
warranties. All such warranty claims shall be made promptly and shall
state the nature and details of the claim, the date the cause of the
claim was first observed and the serial number of the Products
concerned, if any. Further, all such warranty claims must be received
by Vital Images no later than fifteen (15) days after the expiration of
the warranty period for such customer as provided in the applicable End
User Agreement with respect to the Software and in the applicable
manufacturer warranty with respect to the hardware.
8.2 Excluded Claims. Vital Images shall have no obligation to Reseller or
Reseller's customers under Article 8.1 above if:
(a) The Products have not been properly installed (if Reseller
installed the Product), used or maintained in accordance with
Vital Images' then-applicable operating manuals or maintenance
program, whether by Reseller, its customers or any other third
party;
(b) The Products have been modified in any manner or are used or
combined with other computer software programs, hardware or
data not supplied by Vital Images and without the prior
written consent of Vital Images; or
(c) The Products have been distributed to a customer with any
warranties or representations, oral or written, made by
Reseller or any third party beyond those expressly set forth
in the End User Agreement or applicable manufacturer's
warranty. This limitation of Vital Images' warranty
obligations extends only to the additional warranties.
8.3 Warranty to Reseller. Vital Images hereby represents and warrants to
Reseller:
(a) Vital Images owns or has the lawful right from others to grant
the rights to market and distribute the Products as set forth
in this Agreement;
(b) Vital Images has no knowledge of any infringement by the
Products of any third party intellectual property rights, such
as patents, copyrights, trade secrets or trademarks; and
(c) Vital Images has taken all appropriate corporate action to
authorize execution and performance of this Agreement.
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8.4 Limited Warranty. THE WARRANTIES SET FORTH IN ARTICLE 8.3 ABOVE AND IN
THE END USER AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY VITAL IMAGES,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE.
8.5 Indemnification of Reseller. Vital Images hereby agrees to indemnify,
defend and hold Reseller harmless from any third party suit, claim or
other legal action ("Legal Action") that alleges the Software infringes
any United States patent, copyright, or trade secret, including any
reasonable costs or legal fees thereby incurred by Reseller. Reseller
shall be given written notice of any Legal Action within thirty (30)
days of Reseller's first knowledge thereof; provided, that, the failure
of Reseller to notify Vital Images of any such matter within the thirty
(30) day period shall not release Vital Images, in whole or in part,
from its obligations under this Section 8.5, except to the extent
Reseller's failure to so notify Vital Images materially prejudices
Vital Images' ability to defend against such suit, claim or other legal
action. Vital Images shall have sole and exclusive control of the
defense of any Legal Action, including the choice and direction of any
legal counsel. Reseller may not settle or compromise any Legal Action
without the written consent of Vital Images. If the Software is found
to infringe any such third party intellectual property right in such a
Legal Action, at Vital Images' sole discretion and expense, Vital
Images shall (i) obtain a license from such third party for the benefit
of Reseller and its customers; (ii) replace or modify the Software so
that it is no longer infringing; or (iii) if neither of the foregoing
is commercially feasible, terminate this Agreement and refund to
Reseller all amounts previously paid by Reseller for the Software and
the Products, if applicable law requires such refund.
8.6 Indemnification of Vital Images. Reseller hereby agrees to indemnify,
defend and hold Vital Images harmless from any and all claims, demands,
losses and liabilities, including any reasonable costs or legal fees
thereby incurred by Vital Images, resulting from Reseller's acts or
omissions, including, without limitation, misrepresentations regarding
the Products, any violation of applicable laws or regulations relating
to the marketing and distribution of the Products, any breach of any
covenant or term in this Agreement, and any failure by Reseller to
provide the required support to end users or to properly install the
Products, as applicable.
ARTICLE 9: LIMITATION OF REMEDIES
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9.1 Sole Remedies. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND
ALL WARRANTIES SHALL BE LIMITED TO THE REMEDIES PROVIDED IN THE END
USER AGREEMENT.
9.2 Consequential Damages. VITAL IMAGES AND RESELLER SHALL HAVE NO
LIABILITY OF ANY KIND FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR
CONSEQUENTIAL LOSS OR DAMAGE, EVEN IF VITAL IMAGES OR RESELLER
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OR ANY OTHER PARTY SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE BY RESELLER OR ANY THIRD PARTY. IN NO EVENT
SHALL VITAL IMAGES BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AGGREGATE
AMOUNTS ACTUALLY PAID BY RESELLER TO VITAL IMAGES UNDER THIS AGREEMENT,
EXCEPT FOR ACTIONS FOR INTELLECTUAL PROPERTY INFRINGEMENT, PERSONAL
INJURY, PROPERTY DAMAGE, ACTIONS ARISING UNDER FDA REGULATIONS, OR AS
OTHERWISE PROVIDED UNDER THIS AGREEMENT OR BY LAW.
ARTICLE 10: CONFIDENTIALITY
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10.1 Confidential Information; Term. All Confidential Information shall be
deemed confidential and proprietary to the party disclosing such
information hereunder. Each party may use the Confidential Information
of the other party during the term of this Agreement only as permitted
or required for the receiving party's performance hereunder. The
receiving party shall not disclose or provide any Confidential
Information to any third party and shall take reasonable measures to
prevent any unauthorized disclosure by its employees, agents,
contractors or consultants during the term hereof including appropriate
individual nondisclosure agreements. The foregoing duty shall apply to
any Confidential Information for a period of five (5) years from the
date of its disclosure.
10.2 Exclusions. The following shall not be considered Confidential
Information for purposes of this Article 10:
(a) Information which is or becomes in the public domain through
no fault or act of the receiving party;
(b) Information which was independently developed by the receiving
party without the use of or reliance on the disclosing party's
Confidential Information;
(c) Information which was provided to the receiving party by a
third party under no duty of confidentiality to the disclosing
party; or
(d) Information which is required to be disclosed by law,
provided, however, prompt prior notice thereof shall be given
to the party whose Confidential Information is involved.
ARTICLE 11: TRADEMARKS
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11.1 Use of Trademarks. Vital Images hereby grants to Reseller, and Reseller
hereby accepts from Vital Images, a nonexclusive, nontransferable and
royalty-free license to use the Vital Images trademarks specified in
the List of Trademarks, Exhibit G hereto, as such list may be modified
from time to time, solely in connection with the distribution,
promotion, advertising and maintenance of the Products. Reseller shall
not use any other
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marks or trade names in connection with the marketing and distribution
of the Products. All such Vital Images trademarks shall be used by
Reseller in accordance with Vital Images' standards, specifications and
instructions, but in no event beyond the term of this Agreement. Vital
Images may inspect and monitor the activities of Reseller to ensure
that such use of the Vital Images trademarks is in accordance with such
standards, specifications and instructions. Reseller is not granted any
right, title or interest in such trademarks other than the foregoing
limited license, and Reseller shall not use any Vital Image trademarks
as part of Reseller's corporate or trade name or permit any third party
to do so.
11.2 Registration. Vital Images shall use its best efforts to register the
Vital Images trademarks specified in the List of Trademarks, Exhibit G
hereto, as such list may be modified during the term of this Agreement,
within the Territory when and if Vital Images determines, in its sole
discretion, that registration is necessary or useful to the successful
distribution of the Products. Vital Images shall be the sole party to
initiate any such registration and shall bear all the expenses thereof.
11.3 Markings. Resellers shall not remove or alter any Vital Images trade
names, trademarks, copyright notices, serial numbers, labels, tags or
other identifying marks, symbols or legends affixed to any Products,
documentation, containers or packages.
11.4 Infringement. Reseller shall promptly notify Vital Images in writing of
any unauthorized use of Vital Images' trademarks or similar marks which
may constitute an infringement or passing off of Vital Images'
trademarks. Vital Images reserves the right in its sole discretion to
institute any proceedings against such third party infringers, and
Reseller shall refrain from doing so. Reseller shall cooperate fully
with Vital Images in any legal action taken by Vital Images against
such third parties, provided that Vital Images shall pay all expenses
of such action. All damages, which may be awarded or agreed upon in
settlement of any legal action, shall accrue to Vital Images.
11.5 Termination of Use. Reseller shall not adopt, use or register any
words, phrases or symbols which are identical to or confusingly similar
to any of Vital Images' trademarks. Upon termination of this Agreement,
Reseller shall immediately cease any use of the Vital Images trademarks
in any manner. In addition, Reseller hereby empowers Vital Images and
shall assist Vital Images, if requested, to cancel, revoke or withdraw
any governmental registration or authorization permitting Reseller to
use Vital Images trademarks in the Territory.
ARTICLE 12: TAXES AND DUTIES
----------------------------
12.1 Taxes in the Territory. Reseller shall be solely responsible for and
shall pay all taxes, duties, import deposits, assessments and other
governmental charges, however designated, which are now or hereafter
imposed by any governmental authority or agency that are based on (a)
the payment of any amount by Reseller to Vital Images pursuant to
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<PAGE>
this Agreement for the Products or the use thereof, or (b) the import
of the Products into the Territory if such transaction is international
in nature.
12.2 Net Payments. All payments to be made by Reseller to Vital Images
pursuant to this Agreement represent net amounts Vital Images is
entitled to receive and shall not be subject to any deductions for any
reason whatsoever except as allowed in this Agreement or by law. In the
event any of said charges become subject to taxes, duties, import
deposits, assessments or other governmental charges, however
designated, said payments from Reseller shall be increased to such an
extent as to allow Vital Images to receive the net amounts due under
this Agreement.
ARTICLE 13: IMPORT AND EXPORT OF PRODUCTS
-----------------------------------------
13.1 Import Documentation. If applicable, Reseller shall be responsible for
obtaining all licenses and permits required to import the Products into
the Territory in accordance with applicable laws or regulations in the
Territory.
13.2 Export Regulations. If applicable, Reseller shall supply Vital Images
on a timely basis with all necessary information and documentation
requested by Vital Images for export of the Products in accordance with
U.S. export control laws or regulations. If applicable, Reseller hereby
assures Vital Images that:
(a) Reseller shall not re-export, directly or indirectly, the
Products or the direct product of any Products to any
destination forbidden under the then-applicable U.S. Export
Administration Regulations;
(b) Reseller's commitment in paragraph (a) above shall apply in
all cases unless the U.S. Export Administration Regulations
expressly permit such re-export or the U.S. Commerce
Department's Office of Export Licensing has granted such
authorization in writing; and
(c) Reseller's commitment in paragraph (a) above shall survive
termination of this Agreement.
ARTICLE 14: TERM AND TERMINATION
--------------------------------
14.1 Term. This Agreement shall take effect as of the date on page 1 above
and shall have an initial term through March 31, 2002 (the "Term"). At
the end of the Term, this Agreement shall automatically terminate
unless prior to the date of termination, this Agreement is renewed or
the term extended pursuant to the mutual written agreement of Reseller
and Vital Images.
14.2 Termination by Either Party. Notwithstanding the provisions of Article
14.1 above, this Agreement may be terminated earlier by either party
upon written notice to the other party:
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(a) If the other party files a petition of any type as to its
bankruptcy, is declared bankrupt, becomes insolvent, makes an
assignment for the benefit of creditors, goes into liquidation
or receivership or otherwise loses legal control of its
business voluntarily;
(b) If the other party is in material breach of this Agreement and
has failed to cure such breach within thirty (30) days of
receipt of written notice thereof from the first party;
(c) If an event of Force Majeure continues for more than six (6)
months; or
(d) If Vital Images so elects due to a Legal Action, as specified
in Article 8.5 above.
14.3 Termination by Vital Images. Notwithstanding the provisions of Article
14.1 above, this Agreement may be terminated earlier by Vital Images or
Reseller upon written notice to the other party if a competitor of
Vital Images or Reseller, as the case may be, acquires control of
Reseller or Vital Images, or substantially all of Reseller's or Vital
Images' assets.
14.4 Rights and Obligations on Termination. In the event of termination of
this Agreement for any reason, the parties shall have the following
rights and obligations:
(a) Neither party shall be released from the obligation to make
payment of all amounts then or thereafter due and payable;
(b) The rights of any customer of Reseller who holds a valid and
binding End User Agreement for the Products prior to the
effective date of such termination shall not be affected;
(c) Reseller's indemnification obligation under Article 2.2, and
the parties' obligations under Articles 7, 8, 9, 10, 12, 13,
16 and 17 shall survive any termination of this Agreement; and
(d) Unless the parties otherwise agree in writing, Reseller shall
return all copies of the Products and any other items of
Confidential Information to Vital Images and, if applicable,
shall erase all copies of the Products from its computer
systems and shall certify in writing to Vital Images that it
has done so.
14.5 No Compensation. In the event of any termination of this Agreement
under Articles 14.1, 14.2 or 14.3, subject to Article 14.4(a), neither
party shall owe any compensation to the other party for lost profits,
lost opportunities, goodwill or any other loss or damage as a result of
or arising from such termination.
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ARTICLE 15: FORCE MAJEURE
-------------------------
15.1 Definition. "Force Majeure" shall mean any event or condition beyond
the reasonable control of either party which prevents, in whole or in
material part, the performance by one of the parties of its obligations
hereunder or which renders the performance of such obligations so
difficult or costly as to make such performance commercially
unreasonable. Without limiting the foregoing, the following shall
constitute events or conditions of Force Majeure: acts of State or
governmental action, riots, disturbance, war, strikes, lockouts,
prolonged shortage of energy or other supplies, epidemics, fire, flood,
hurricane, typhoon, earthquake, lightning and explosion, or any refusal
or failure of any governmental authority to grant any export license
legally required.
15.2 Notice. Upon written notice to the other party, a party affected by an
event of Force Majeure shall be suspended without any liability on its
part from the performance of its obligations under this Agreement,
except for the obligation to pay any amounts due and owing hereunder.
Such notice shall include a description of the nature of the event of
Force Majeure, and its cause and possible consequences. The party
claiming Force Majeure shall also promptly notify the other party of
the termination of such event.
15.3 Suspension of Performance. During the period that the performance by
one of the parties of its obligations under this Agreement has been
suspended by reason of an event of Force Majeure, the other party may
likewise suspend the performance of all or part of its obligations
hereunder to the extent that such suspension is commercially
reasonable.
ARTICLE 16: ARBITRATION
-----------------------
16.1 Dispute Resolution. Except as provided in Article 16.2 below, Vital
Images and Reseller shall each use its best efforts to resolve any
dispute between them promptly and amicably and without resort to any
legal process if feasible within thirty (30) days of receipt of a
written notice by one party to the other party of the existence of such
dispute. Except as provided in Article 16.2 below, no further action
may be taken under this Article 16 unless and until executive officers
of Vital Images and Reseller have met in good faith to discuss and
settle such dispute. The foregoing requirement in this Article 16.1
shall be without prejudice to either party's right, if applicable, to
terminate this Agreement under Article 14.2 above.
16.2 Litigation Rights Reserved. If any dispute arises with regard to the
unauthorized use or infringement of Confidential Information by
Reseller, Vital Images may seek any available remedy at law or in
equity from a court of competent jurisdiction.
16.3 Procedure for Arbitration. Except as provided in Article 16.2 above,
any dispute, claim or controversy arising out of or in connection with
this Agreement which has not been settled through negotiation within a
period of thirty (30) days after the date on which either party shall
first have notified the other party in writing of the existence of a
dispute shall be settled by final and binding arbitration under the
then-applicable Commercial
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<PAGE>
Arbitration Rules or, if Reseller's principal place of business is
outside the United States, the International Arbitration Rules of the
American Arbitration Association ("AAA"). Any such arbitration shall be
conducted by three (3) arbitrators appointed by mutual agreement of the
parties or, failing such agreement, in accordance with said Rules. At
least one (1) arbitrator shall be an experienced computer software
professional, and at least one (1) arbitrator shall be an experienced
business attorney with a background in the licensing and distribution
of computer software. Any such arbitration initiated by Vital Images
shall be conducted in Orange County, California, U.S.A., and any such
arbitration initiated by Reseller shall be conducted in Minneapolis,
Minnesota, U.S.A., any such arbitration to be conducted in the English
language. An arbitral award may be enforced in any court of competent
jurisdiction. Notwithstanding any contrary provision in the AAA Rules,
the following additional procedures and rules shall apply to any such
arbitration:
(a) Each party shall have the right to request from the
arbitrators, and the arbitrators shall order upon good cause
shown, reasonable and limited pre-hearing discovery, including
(i) exchange of witness lists, (ii) depositions under oath of
named witnesses at a mutually convenient location, (iii)
written interrogatories and (iv) document requests.
(b) Upon conclusion of the pre-hearing discovery, the arbitrators
shall promptly hold a hearing upon the evidence to be adduced
by the parties and shall promptly render a written opinion and
award.
(c) The arbitrators may not award or assess punitive damages
against either party.
(d) Each party shall bear its own costs and expenses of the
arbitration and one-half (1/2) of the fees and costs of the
arbitrators, subject to the power of the arbitrators, in their
sole discretion, to award all such reasonable costs, expenses
and fees to the prevailing party.
ARTICLE 17: MISCELLANEOUS
-------------------------
17.1 Relationship. This Agreement does make either party the employee, agent
or legal representative of the other for any purposes whatsoever.
Neither party is granted any right or authority to assume or to create
any obligation or responsibility, express or implied, on behalf of or
in the name of the other party. Each party is acting as an independent
contractor. The parties agree that this Agreement shall not constitute
a franchise under Minnesota law or any other applicable federal or
state laws. If the parties relationship is deemed to be a franchise by
a court of law or other judicial body, the parties hereto expressly
agree to waive all rights and remedies which either of them may have
due to any status as a franchisor or franchisee or pursuant to the
application of any franchise laws, rules or regulations.
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<PAGE>
17.2 Assignment. Reseller shall not assign or otherwise transfer its rights
and obligations under this Agreement except with the prior written
consent of Vital Images, which consent will not be unreasonably
withheld. This Agreement shall be binding upon, inure to the benefit of
and be assignable by Vital Images to the successors and assigns of the
business interest of Vital Images including, without limitation, any
successor to or assignees of the assets or stock of Vital Images as a
result of any sale, merger or any other corporate reorganization or
transaction. Notwithstanding the foregoing, Vital Images shall not
assign this Agreement to any of Reseller's direct CT competitors,
including Marconi Medical Systems, GE Medical Systems and Siemens
Medical Systems, except with the prior written consent of Reseller. Any
prohibited assignment shall be null and void.
17.3 Notices. Notices permitted or required to be given hereunder shall be
deemed sufficient if given by registered or certified mail, postage
prepaid, return receipt requested, by private courier service, or by
facsimile addressed to the respective addresses of the parties as first
written above or at such other addresses as the respective parties may
designate by like notice from time to time. Notices so given shall be
effective upon (i) receipt by the party to which notice is given, or
(ii) on the fifth (5th) day following domestic mailing or the tenth
(10th) day following international mailing, as may be the case,
whichever occurs first.
17.4 Entire Agreement. This Agreement, including the Exhibits hereto which
are incorporated herein, constitutes the entire agreement of the
parties with respect to the subject matter hereof and supersedes all
proposals, oral or written, and all negotiations, conversations,
discussions, and previous distribution or value added reseller
agreements heretofore between the parties. Reseller and Vital Images
hereby acknowledge that they have not been induced to enter into this
Agreement by any representations or statements, oral or written, not
expressly contained herein.
17.5 Amendment. This Agreement may not be modified, amended, rescinded,
canceled or waived, in whole or in part, except by written amendment
signed by both parties hereto.
17.6 Publicity. This Agreement is confidential, and no party shall issue
press releases or engage in other types of publicity of any nature
dealing with the commercial or legal details of this Agreement without
the other party's prior written approval, which approval shall not be
unreasonably withheld. However, approval of such disclosure shall be
deemed to be given to the extent such disclosure is required to comply
with governmental rules, regulations or other governmental
requirements. In such event, the publishing party shall furnish a copy
of such disclosure to the other party.
17.7 Governing Law. This Agreement shall be governed by and interpreted
under the laws of the state within which the action is filed as
specified in Section 16.3 above, excluding its choice of law rules.
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17.8 Severability. If any provision of this Agreement is found unenforceable
under any of the laws or regulations applicable thereto, such provision
terms shall be deemed stricken from this Agreement, but such invalidity
or unenforceability shall not invalidate any of the other provisions of
this Agreement.
17.9 Counterparts. This Agreement may be executed in two or more
counterparts in the English language and each such counterpart shall be
deemed an original hereof. In case of any conflict between the English
version and any translated version of this Agreement, the English
version shall govern.
17.10 Waiver. No failure by either party to take any action or assert any
right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving
rise to such right.
17.11 Delays in Delivery. The delivery date for each order placed by Reseller
will be indicated on Reseller's purchase order. If Vital Images fails
to deliver the Products within sixty (60) days of the deadline(s)
indicated in such purchase orders, Reseller shall have the right to
cancel such order and, notwithstanding the provisions of Section 3.5 of
this Agreement, purchase equivalent products from an alternative
source. Vital Images shall pay Reseller for the difference between the
price of the alternative product and the price for the Products under
the cancelled purchase order(s), not later than twenty (20) days
following receipt of Reseller's invoice.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives below.
VITAL IMAGES, INC. TOSHIBA AMERICA MEDICAL
SYSTEMS, INC.
By /s/ Jay D. Miller By /s/ John Zimmer
--------------------------------- ------------------------------------
Name Jay D. Miller Name John Zimmer
------------------------------- ----------------------------------
Title Gen Mgr and VP-Business Dev Title VP of Marketing
------------------------------ ---------------------------------
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<PAGE>
LIST OF EXHIBITS
----------------
A Vital Images Products and Software
B Reseller Territory
C End User Agreement
D Demonstration License Agreement
E Product Price List
F Product Commitments
G List of Vital Images Trademarks
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VITAL IMAGES, INC.
RESELLER SOFTWARE AGREEMENT
---------------------------
EXHIBIT A
VITAL IMAGES PRODUCTS
Vitrea2(R) System, including
o User Training and System Administration Manuals
o 1 year system maintenance
o 2 two-day applications training sessions
o Installation
o Shipping
VScore(TM)
Computer Hardware, as specified from time to time
VITAL IMAGES SOFTWARE
Vitrea(R)
VScore(TM)
<PAGE>
VITAL IMAGES, INC.
SOFTWARE RESELLER AGREEMENT
---------------------------
EXHIBIT B
RESELLER TERRITORY
UNITED STATES
<PAGE>
VITAL IMAGES, INC.
RESELLER SOFTWARE AGREEMENT
---------------------------
EXHIBIT C
END USER AGREEMENT
<PAGE>
VITAL IMAGES, INC.
SOFTWARE LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("License Agreement") is made as of
_________________, 200__, by and between Vital Images, Inc., 3300 Fernbrook Lane
N., Suite 200, Plymouth, Minnesota 55447 U.S.A. ("Vital Images") and
__________________________________________, having its principal place of
business at ___________________________________________________ ("Licensee").
Recitals
--------
A. Vital Images develops and licenses proprietary medical visualization
software products (defined below as the "Products").
B. Licensee desires to license and use the Products, and Vital Images so
agrees, subject to the terms and conditions of this License Agreement.
ARTICLE 1: DEFINITIONS
----------------------
For purposes of this License Agreement, the following words, terms and phrases
shall have the following meanings unless the context otherwise requires:
1.1 Confidential Information. "Confidential Information" shall mean all
information disclosed by Vital Images to Licensee or embodied in the
Products, regardless of the form in which it is disclosed, which
relates to markets, customers, products, patents, inventions,
procedures, methods, designs, strategies, plans, assets, liabilities,
prices, costs, revenues, profits, organization, employees, agents,
resellers or business in general of Vital Images, or the algorithms,
programs, user interfaces and organization of the Products.
1.2 Products. "Products" shall mean only those computer software products
in object code form as described in Exhibit A and any related user
documentation as released from time to time by Vital Images, including
any later authorized releases or versions of such software or
documentation during the term of this License Agreement.
ARTICLE 2: LICENSE GRANT AND USE
--------------------------------
2.1 License Grant. In consideration for Licensee's payment of the
applicable license fee, and subject to the terms of this License
Agreement, Vital Images hereby grants to Licensee a nonexclusive,
non-transferable license ("License") to use the Products only on one
(1) computer of the type described in Exhibit B attached hereto
("Designated Equipment"), and only at the site described in Exhibit B
("Designated Site"). Licensee must purchase a
<PAGE>
License for each computer at a Designated Site on which it desires to
install and use the Products. Licensee's use of the Products shall be
limited to Licensee's internal business activities.
2.2 Restrictions on Use. Licensee agrees not to engage in, cause or permit
the reverse engineering, disassembly, recompilation, modification or
any similar manipulation of the Products, nor may Licensee loan, lease,
distribute, assign or otherwise transfer the Products or copies
thereof, in whole or in part, to any third party. Licensee may not
install, use or access the Products at or from any location other than
a Designated Site, or on any type of computer other than the Designated
Equipment, without the prior written approval of Vital Images.
2.3 Copying. Licensee shall not copy the Products, except that Licensee may
make and maintain one (1) copy of the Products for back-up and archival
purposes, provided such copy includes all Vital Images copyright,
proprietary rights and other notices included on or in the Products.
2.4 Ownership. All right, title and interest in the Products shall at all
times remain the property of Vital Images and its licensors, subject to
the Licenses granted to Licensee under this License Agreement. Licensee
understands and agrees that it takes title only to the media on which
the Products are provided to it, but that the Products shall remain the
property of, and proprietary to, Vital Images.
ARTICLE 3: TERMINATION
----------------------
3.1 Termination.
(a) Either party may terminate this License Agreement at any time
if the other party fails to cure its material breach hereof
within thirty (30) days after its receipt of notice specifying
such breach from the other party.
(b) Vital Images may terminate this License Agreement at any time
immediately upon Licensee (i) becoming insolvent, (ii)
commencing, or having commenced against it (without dismissal
within sixty (60) days), any bankruptcy, insolvency,
liquidation, reorganization or similar proceeding under any
U.S. or foreign law, (iii) making an assignment for the
benefit of its creditors, (iv) admitting in writing its
inability to satisfy its debts in the ordinary course of
business or that its business or financial condition indicates
that it is presently unable to continue as a going concern, or
(v) taking an action resulting in or directed to ceasing, on a
permanent basis, its business or relevant operations; or
(c) Licensee may terminate this License Agreement or any License
granted hereunder at any time by giving written notice to
Vital Images.
2
<PAGE>
3.2 Effect of Termination of a License. Upon any termination of a License,
Licensee shall (a) immediately cease all use of the Products licensed
pursuant to such License, and (b) certify in writing to Vital Images
within thirty (30) days after such termination that Licensee has either
destroyed, permanently erased or returned to Vital Images the Products
and all copies thereof licensed pursuant to such License.
3.3 Effect of Termination of License Agreement. Upon termination of this
License Agreement for any reason, all Licenses to the Products granted
hereunder shall immediately terminate, and Licensee shall return to
Vital Images all Confidential Information. Articles 2.4, 5, 6, 7, 8 and
9 shall survive any termination of this License Agreement.
ARTICLE 4: ADVERSE REACTIONS; PRODUCT RECALLS
---------------------------------------------
4.1 Adverse Event Reporting. Licensee shall advise Vital Images, by
telephone or facsimile, within twenty-four (24) hours after it becomes
aware of any adverse event from the use of any Product or malfunction
of any Product. Unless otherwise required by applicable local laws,
Licensee shall advise Vital Images of any such adverse event prior to
any report or filing being made with the U.S. Food and Drug
Administration ("FDA") or any other comparable regulatory body
elsewhere in the world.
4.2 Product Recall; Corrective Action.
(a) Corrective Action. If Vital Images believes that a corrective
action with respect to the Products is desirable or required
by law, or if any governmental agency having jurisdiction
(including without limitation, the FDA) shall request or order
any corrective action with respect to the Products, including
any recall, customer notice, restriction, change, corrective
action or market action or any Product change, Vital Images or
its reseller shall promptly notify Licensee. Licensee shall
comply with all reasonable directions regarding such
corrective action, including the return of the Products to
Vital Images or a reseller at Vital Images' expense.
(b) Refund. If any Products are required to be returned to Vital
Images or its resellers pursuant to this Article 4.2 and no
replacement is provided therefor by Vital Images, Vital Images
shall refund to Licensee any unearned license fees paid (the
amount of the license fee Licensee paid for the Products, less
a reasonable value for use determined by prorating the license
fee paid on a thirty-six (36) month straight line amortization
method).
ARTICLE 5: WARRANTIES; INDEMNIFICATION
--------------------------------------
5.1 Limited Warranty. Vital Images warrants to Licensee for one (1) year
from the delivery date (the "Warranty Period"), that the Products, when
properly installed and operated,
3
<PAGE>
will substantially perform the functions described in the functional
specifications for the Products, as contained in the applicable written
documentation for the Products. Vital Images shall have no obligation
to Licensee or any third party under this Article 5.1 if (a) the
Products have not been properly installed, used or maintained, whether
by Licensee or any third party, in accordance with the Licenses granted
hereunder or Vital Images' then-applicable operating manuals; or (b)
the Products have been modified in any manner or are used or combined
with other computer software programs, hardware or data not supplied by
Vital Images and without the prior written consent of Vital Images.
5.2 Exclusive Remedy. Vital Images' entire liability, and Licensee's
exclusive remedy, for any warranty claim made by Licensee under Article
5.1 above during the Warranty Period shall be for Vital Images, at its
option, to either (a) replace any defective media which prevents the
Products from satisfying the limited warranty described in Article 5.1;
(b) attempt to correct any material and reproducible errors reported by
Licensee; or (c) terminate this License Agreement and refund the
license fee paid for the Products. Vital Images does not warrant that
the operation of the Products will be uninterrupted or error-free, that
all errors in the Products will be corrected, that the Products will
satisfy Licensee's requirements or that the Products will operate in
the combinations which Licensee may select for use.
5.3 Limited Warranty. Vital Images warrants to Licensee that the Products,
when properly installed and operated, will produce no material errors
when processing dates prior to, during and after the calendar year
2000. Vital Images shall have no obligation to Licensee or any third
party under this Article 5.3 if (a) the Products have not been properly
installed, used or maintained, whether by Licensee or any third party,
in accordance with the Licenses granted hereunder or Vital Images'
then-applicable operating manuals; (b) the Products have been modified
in any manner or are used or combined with other computer software
programs, hardware or data; or (c) the material error reported by
Licensee is not reproducible by Vital Images.
5.4 Exclusive Remedy. Vital Images' entire liability, and Licensee's
exclusive remedy, for any breach of the warranty in Article 5.3 above
shall be for Vital Images, at its option, to either (a) attempt to
correct such material and reproductive errors, or (b) terminate the
License to such Products and refund any unearned license fees paid (the
amount of the license fee Licensee paid for the Products, less a
reasonable value for use determined by prorating the license fee paid
on a thirty-six (36) month straight-line depreciation method) with no
further liability to Licensee. This Article 5.4 states Licensee's
exclusive remedy, and Vital Images and its licensors' entire liability
for any breach of the warranty set forth in Article 5.3.
5.5 Warranty Disclaimer. THE WARRANTIES SET FORTH IN ARTICLES 5.1 AND 5.3
ABOVE ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY VITAL IMAGES,
INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, NON-
4
<PAGE>
INFRINGEMENT OR USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF
VITAL IMAGES FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE,
MAINTENANCE OR PERFORMANCE OF THE LICENSED SOFTWARE. Repair or
replacement of all or any part of the Products does not extend the
Warranty Period, which shall begin on the delivery date. Vital Images
and its third party licensors expressly disclaim any commitment to
provide maintenance or support of the Products beyond the Warranty
Period, in the absence of a Licensee entering into a separate agreement
with Vital Images or its reseller. Furthermore, the Products are
derived from and include software from third party licensors, who make
no warranty, express or implied, regarding the Products, who disclaim
any and all liability for the Products and who will not undertake to
provide any information or support regarding the Products.
5.4 Infringement Indemnity. Vital Images hereby agrees to indemnify, defend
and hold Licensee harmless from any third from any third party suit,
claim or other legal action ("Legal Action") that alleges the Licensed
Software infringes any United States patent, copyright, or trade
secret, including any award of damages and costs made against Licensee
by a final judgment of a court of last resort based upon a Legal
Action, provided that: (a) Licensee gives written notice of any Legal
Action to Vital Images within fifteen (15) days of Licensee's first
knowledge thereof; (b) Vital Images has sole and exclusive control of
the defense of any Legal Action, including the choice and direction of
any legal counsel, and all related settlement negotiations; and (c)
Licensee provides Vital Images (at Vital Images' expense for reasonable
out-of-pocket expenses) with assistance, information and authority to
perform the above.
Notwithstanding the foregoing, Vital Images and its licensors shall
have no liability for any Legal Action based on or arising out of: (a)
the failure by Licensee to use a non-infringing version or release of
the Products if made available by Vital Images, (b) the combination,
operation or use of the Products with software, hardware or data not
furnished by Vital Images, if such Legal Action would have been avoided
by use of the Products without such software, hardware or data, or (c)
the use of any Products in a manner for which it was neither designed
nor contemplated.
In the event that the Products are held or are believed by Vital Images
to infringe, Vital Images shall, at its option and expense, (a) modify
the infringing Products, (b) obtain for Licensee a license to continue
using such Products, (c) substitute the Products with other software
reasonably suitable to Licensee, or (d) if none of the foregoing are
commercially feasible, terminate the License to such Products and
refund any unearned license fees paid (the amount of the license fee
paid for the Products, less a reasonable value for use determined by
prorating the license fee paid on a thirty-six (36) month straight-line
amortization method) with no further liability to Licensee.
This Article 5.4 states Licensee's exclusive remedy, and Vital Images'
and its licensors' entire liability, for any infringement claim related
to the Products or their use.
5
<PAGE>
ARTICLE 6: LIMITATION OF REMEDIES
---------------------------------
6.1 Delay. VITAL IMAGES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED
BY DELAY IN FURNISHING PRODUCTS OR SERVICES OR ANY OTHER PERFORMANCE
UNDER THIS LICENSE AGREEMENT.
6.2 Sole Remedies. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND
ALL WARRANTIES AND THE SOLE REMEDIES FOR VITAL IMAGES' LIABILITY OF ANY
KIND (INCLUDING LIABILITY FOR NEGLIGENCE OR PRODUCT LIABILITY) WITH
RESPECT TO THE PRODUCTS AND SERVICES COVERED BY THIS LICENSE AGREEMENT
AND ALL OTHER PERFORMANCE BY VITAL IMAGES UNDER THIS LICENSE AGREEMENT
SHALL BE LIMITED TO THE REMEDIES PROVIDED IN ARTICLE 5 OF THIS LICENSE
AGREEMENT.
6.3 Damages Limitation. VITAL IMAGES SHALL HAVE NO LIABILITY OF ANY KIND
FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE,
EVEN IF VITAL IMAGES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH
POTENTIAL LOSS OR DAMAGE, INCLUDING ANY LIABILITY FOR DAMAGES ARISING
OUT OF OR RESULTING FROM THE USE, MAINTENANCE OR PERFORMANCE OF THE
PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE LOSS OR CORRUPTION OF
LICENSEE'S OR ANY THIRD PARTY DATA. IN NO EVENT SHALL VITAL IMAGES BE
LIABLE FOR ANY DAMAGES IN EXCESS OF THE AGGREGATE AMOUNTS ACTUALLY PAID
BY LICENSEE TO VITAL IMAGES UNDER THIS LICENSE AGREEMENT.
ARTICLE 7: CONFIDENTIALITY
--------------------------
7.1 Confidential Information. All Confidential Information shall be deemed
confidential and proprietary to Vital Images, and are the sole and
exclusive property of Vital Images. Licensee may use the Confidential
Information during the term of this License Agreement only as permitted
hereunder or as necessary in order to use the Products in accordance
with the License(s) granted hereunder. Licensee shall not disclose or
provide any Confidential Information to any third party and shall take
reasonable measures to prevent any unauthorized disclosure by
Licensee's employees, agents, contractors or consultants during the
term hereof including appropriate individual nondisclosure agreements.
7.2 Exclusions. The following information shall not be considered
Confidential Information under this Article 7:
(a) Information which is or becomes in the public domain through
no fault or act of Licensee;
6
<PAGE>
(b) Information which was independently developed by Licensee
without the use or reliance on Vital Images' Confidential
Information;
(c) Information which was provided to Licensee by a third party
under no duty of confidentiality to Vital Images; or
(d) Information which is required to be disclosed by Licensee
under law, provided, however, Licensee gives prompt notice
thereof to Vital Images prior to such disclosure.
7.3 Cooperation. At Vital Images' request, Licensee shall cooperate fully
with Vital Images in any and all legal actions taken by Vital Images to
protect its rights in the Products and in the Confidential Information.
Vital Images shall bear all costs and expenses reasonably incurred by
Licensee in the course of cooperating with Vital Images in such legal
action.
ARTICLE 8: ARBITRATION
----------------------
8.1 Dispute Resolution. Except as provided in Article 8.2 below, Vital
Images and Licensee shall each use its best efforts to resolve any
dispute between them promptly and without resort to any legal process
if feasible within thirty (30) days of receipt of a written notice by
one party to the other party of the existence of such dispute. The
foregoing requirement in this Article 8.1 shall be without prejudice to
either party's right, if applicable, to terminate this License
Agreement under Article 3.1 above.
8.2 Litigation Rights Reserved. If any dispute arises with regard to
Licensee's unauthorized use of the Products or unauthorized use or
infringement of Confidential Information, Vital Images may seek any
available remedy at law or in equity from a court of competent
jurisdiction.
8.3 Procedure for Arbitration. Except as provided in Article 8.2 above, any
dispute, claim or controversy arising out of or in connection with this
License Agreement which has not been settled through negotiation within
a period of thirty (30) days after the date on which either party shall
first have notified the other party in writing of the existence of a
dispute shall be settled by final and binding arbitration under the
then-applicable Commercial Arbitration Rules or, if Licensee's
principal place of business is outside the United States, the
International Arbitration Rules of the American Arbitration Association
("AAA"). Any such arbitration shall be conducted by three (3)
arbitrators appointed by mutual agreement of the parties or, failing
such agreement, in accordance with said Rules. At least one (1)
arbitrator shall be an experienced computer software professional, and
at least one (1) arbitrator shall be an experienced business attorney
with a background in the licensing and distribution of computer
software. Any such arbitration shall be conducted in Minneapolis,
Minnesota, U.S.A. in the English language. An arbitral award may be
enforced in any court of competent jurisdiction. Notwithstanding any
contrary provision
7
<PAGE>
in the AAA Rules, the following additional procedures and rules shall
apply to any such arbitration:
(a) Each party shall have the right to request from the
arbitrators, and the arbitrators shall order upon good cause
shown, reasonable and limited pre-hearing discovery, including
(i) exchange of witness lists, (ii) depositions under oath of
named witnesses at a mutually convenient location, (iii)
written interrogatories and (iv) document requests.
(b) Upon conclusion of the pre-hearing discovery, the arbitrators
shall promptly hold a hearing upon the evidence to be adduced
by the parties and shall promptly render a written opinion and
award.
(c) The arbitrators may not award or assess punitive damages
against either party.
(d) Each party shall bear its own costs and expenses of the
arbitration and one-half (1/2) of the fees and costs of the
arbitrators, subject to the power of the arbitrators, in their
sole discretion, to award all such reasonable costs, expenses
and fees to the prevailing party.
ARTICLE 9: MISCELLANEOUS
------------------------
9.1 Assignment. Licensee shall not have the right to assign or otherwise
transfer its rights or obligations under this License Agreement except
with the prior written consent of Vital Images, which consent shall not
be unreasonably withheld. This License Agreement shall be binding on
the parties hereto and their respective successors and permitted
assigns. Any prohibited assignment shall be null and void.
9.2 Notices. Notices permitted or required to be given hereunder shall be
deemed sufficient if given by registered or certified mail, postage
prepaid, return receipt requested, by private courier service, or by
facsimile addressed to the respective addresses of the parties as first
above written or at such other addresses as the respective parties may
designate by like notice from time to time. Notices so given shall be
effective upon (a) receipt by the party to which the notice is given,
or (b) on the fifth (5th) day following domestic mailing or the tenth
(10th) day following international mailing, as may be the case,
whichever occurs first.
9.3 Exports and U.S. Government Rights. Licensee hereby acknowledges that
it will not export or reexport any of the Products or technical data
(which includes, among other things, any technical information relating
to the Products, written or otherwise), or any product incorporating
any Products or technical data. The Products are provided with
Restricted Rights. Use, duplication or disclosure by the U.S.
government is subject to restrictions as set forth in (a) this License
Agreement pursuant to DFARs 227.7202-3(a);
8
<PAGE>
(b) subparagraph (c)(1)(i) of the Rights in Technical Data and Computer
Software clause at DFARs 252.227-7013; or (c) the Commercial Computer
Software Restricted Rights clause at FAR 52.227-19 subdivision (c)(1)
and (2), as applicable. Contractor/manufacturer is Vital Images, Inc.,
3100 West Lake Street, Suite 100, Minneapolis, Minnesota 55416 U.S.A.
9.4 Entire Agreement. This License Agreement, including the Exhibits
attached hereto which are incorporated herein, constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements by and between Licensee and Vital
Images as well as all proposals, oral or written, and all prior
negotiations, conversations and discussions between the parties related
hereto.
9.5 Amendment. This License Agreement may not be modified, amended,
rescinded, canceled or waived, in whole or in part, except by written
amendment signed by both parties hereto.
9.6 Governing Law. This License Agreement shall be governed by and
interpreted under the laws of the State of Minnesota, U.S.A., excluding
(a) its choice of law rules, and (b) the United Nations Convention on
the International Sale of Goods.
9.7 Severability. If any provision of this License Agreement is found
unenforceable under any of the laws or regulations applicable thereto,
such provision terms shall be deemed stricken from this License
Agreement, but such invalidity or unenforceability shall not invalidate
any of the other provisions of this Agreement.
9.8 Waiver. No failure by either party to take any action or assert any
right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving
rise to such right.
IN WITNESS WHEREOF, the parties have executed this License Agreement by
their duly authorized representatives.
VITAL IMAGES, INC. LICENSEE
By By
-------------------------------------- -------------------------------
Name Name
------------------------------------ -----------------------------
Title Title
----------------------------------- ----------------------------
9
<PAGE>
VITAL IMAGES, INC.
END USER AGREEMENT
EXHIBIT A
PRODUCTS
<PAGE>
VITAL IMAGES, INC.
END USER AGREEMENT
EXHIBIT B
DESIGNATED EQUIPMENT AND SITE
Designated Equipment:
Designated Site:
11
<PAGE>
VITAL IMAGES, INC.
RESELLER SOFTWARE AGREEMENT
---------------------------
EXHIBIT D
DEMONSTRATION LICENSE AGREEMENT
<PAGE>
VITAL IMAGES, INC.
DEMONSTRATION LICENSE AGREEMENT
THIS SOFTWARE LICENSE AGREEMENT ("License Agreement") is made as of
_________________, 200__, by and between Vital Images, Inc., 3300 Fernbrook Lane
N., Suite 200, Plymouth, Minnesota 55447 U.S.A. ("Vital Images") and
__________________________________________, having its principal place of
business at ___________________________________________________ ("Licensee").
Recitals
--------
A. Vital Images develops and licenses proprietary medical
visualization software products (defined below as the
"Products").
B. Licensee desires to license and use the Products for a
specific period of time for the purposes of demonstration,
evaluation, testing or other short-term uses, and Vital Images
so agrees, subject to the terms and conditions of this License
Agreement.
ARTICLE 1: DEFINITIONS
----------------------
For purposes of this License Agreement, the following words, terms and phrases
shall have the following meanings unless the context otherwise requires:
1.1 Confidential Information. "Confidential Information" shall mean all
information disclosed by Vital Images to Licensee or embodied in the
Products, regardless of the form in which it is disclosed, which
relates to markets, customers, products, patents, inventions,
procedures, methods, designs, strategies, plans, assets, liabilities,
prices, costs, revenues, profits, organization, employees, agents,
resellers or business in general of Vital Images, or the algorithms,
programs, user interfaces and organization of the Products.
1.2 Products. "Products" shall mean only those computer software products
in object code form as described in Exhibit A and any related user
documentation as released from time to time by Vital Images, including
any later authorized releases or versions of such software or
documentation during the term of this License Agreement.
ARTICLE 2: LICENSE GRANT AND USE
--------------------------------
2.1 License Grant. Subject to the terms of this License Agreement, Vital
Images hereby grants to Licensee a nonexclusive, non-transferable
license ("License") to use the Products only on one (1) computer of the
type described in Exhibit B attached hereto ("Designated Equipment"),
and only at the site described in Exhibit B ("Designated Site").
Licensee must purchase a License for any other computer at a Designated
Site on
<PAGE>
which it desires to install and use the Products. Licensee's use of the
Products shall be limited solely to demonstration, evaluation, testing
or otherwise as described on Exhibit B. Licensee hereby agrees that the
Products under this License shall not be used for any business
activities of the Licensee without the prior written consent of Vital
Images, such consent to be at the sole discretion of Vital Images.
2.2 Restrictions on Use. Licensee agrees not to engage in, cause or permit
the reverse engineering, disassembly, recompilation, modification or
any similar manipulation of the Products, nor may Licensee loan, lease,
distribute, assign or otherwise transfer the Products or copies
thereof, in whole or in part, to any third party. Licensee may not
install, use or access the Products at or from any location other than
a Designated Site, or on any type of computer other than the Designated
Equipment, without the prior written approval of Vital Images.
2.3 Copying. Licensee shall not copy the Products, except that Licensee may
make and maintain one (1) copy of the Products for back-up and archival
purposes, provided such copy includes all Vital Images copyright,
proprietary rights and other notices included on or in the Products.
2.4 Ownership. All right, title and interest in the Products shall at all
times remain the property of Vital Images and its licensors, subject to
the Licenses granted to Licensee under this License Agreement. Licensee
understands and agrees that it takes title only to the media on which
the Products are provided to it, but that the Products shall remain the
property of, and proprietary to, Vital Images.
ARTICLE 3: TERM AND TERMINATION
-------------------------------
3.1 Term. The term of this License Agreement shall be as described on
Exhibit B, such term not to exceed twelve (12) months.
3.2 Termination. Either party may terminate this License Agreement at any
time by giving written notice to the other party.
3.3 Effect of Termination of a License. Upon any termination of a License,
Licensee shall (a) immediately cease all use of the Products licensed
pursuant to such License, and (b) certify in writing to Vital Images
within thirty (30) days after such termination that Licensee has either
destroyed, permanently erased or returned to Vital Images the Products
and all copies thereof licensed pursuant to such License.
3.4 Effect of Termination of License Agreement. Upon termination of this
License Agreement, all Licenses to the Products granted hereunder shall
immediately terminate, and Licensee shall return to Vital Images all
Confidential Information. Articles 2.4, 5, 6, 7, 8 and 9 shall survive
any termination of this License Agreement.
2
<PAGE>
ARTICLE 4: ADVERSE REACTIONS; PRODUCT RECALLS
---------------------------------------------
4.1 Adverse Event Reporting. In the event that Vital Images has granted
Licensee the right to use the Products under this License Agreement in
its business activities, Licensee shall advise Vital Images, by
telephone or facsimile, within twenty-four (24) hours after it becomes
aware of any adverse event from the use of any Product or malfunction
of any Product. Unless otherwise required by applicable local laws,
Licensee shall advise Vital Images of any such adverse event prior to
any report or filing being made with the U.S. Food and Drug
Administration ("FDA") or any other comparable regulatory body
elsewhere in the world.
4.2 Product Recall; Corrective Action. If Vital Images believes that a
corrective action with respect to the Products is desirable or required
by law, or if any governmental agency having jurisdiction (including
without limitation, the FDA) shall request or order any corrective
action with respect to the Products, including any recall, customer
notice, restriction, change, corrective action or market action or any
Product change, Vital Images or its reseller shall promptly notify
Licensee. Licensee shall comply with all reasonable directions
regarding such corrective action, including the return of the Products
to Vital Images or a reseller at Vital Images' expense.
ARTICLE 5: WARRANTIES; INDEMNIFICATION
--------------------------------------
5.1 No Warranty. Vital Images makes no warranty to Licensee that the
Products, when properly installed and operated, will substantially
perform the functions described in the functional specifications for
the Products, as contained in the applicable written documentation for
the Products. All Products are provided to Licensee "AS IS."
5.2 Exclusive Remedy. Vital Images' entire liability, and Licensee's
exclusive remedy, for any claim made by Licensee under Article 5.1
above shall be for Vital Images to terminate this License Agreement.
Vital Images does not warrant that the operation of the Products will
be uninterrupted or error-free, that all errors in the Products will be
corrected, that the Products will satisfy Licensee's requirements or
that the Products will operate in the combinations which Licensee may
select for use.
5.3 Warranty Disclaimer. THE WARRANTY SET FORTH IN ARTICLE 5.1 ABOVE IS
EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY VITAL IMAGES, INCLUDING
WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT OR USE, AND ALL OBLIGATIONS OR
LIABILITIES ON THE PART OF VITAL IMAGES FOR DAMAGES ARISING OUT OF OR
IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE OF THE LICENSED
SOFTWARE. Furthermore, the Products are derived from and include
software from third party licensors, who make no warranty, express or
implied, regarding
3
<PAGE>
the Products, who disclaim any and all liability for the Products and
who will not undertake to provide any information or support regarding
the Products.
5.4 Infringement Indemnity. Vital Images hereby agrees to indemnify, defend
and hold Licensee harmless from any third from any third party suit,
claim or other legal action ("Legal Action") that alleges the Licensed
Software infringes any United States patent, copyright, or trade
secret, including any award of damages and costs made against Licensee
by a final judgment of a court of last resort based upon a Legal
Action, provided that: (a) Licensee gives written notice of any Legal
Action to Vital Images within fifteen (15) days of Licensee's first
knowledge thereof; (b) Vital Images has sole and exclusive control of
the defense of any Legal Action, including the choice and direction of
any legal counsel, and all related settlement negotiations; and (c)
Licensee provides Vital Images (at Vital Images' expense for reasonable
out-of-pocket expenses) with assistance, information and authority to
perform the above.
Notwithstanding the foregoing, Vital Images and its licensors shall
have no liability for any Legal Action based on or arising out of: (a)
the failure by Licensee to use a non-infringing version or release of
the Products if made available by Vital Images, (b) the combination,
operation or use of the Products with software, hardware or data not
furnished by Vital Images, if such Legal Action would have been avoided
by use of the Products without such software, hardware or data, or (c)
the use of any Products in a manner for which it was neither designed
nor contemplated.
In the event that the Products are held or are believed by Vital Images
to infringe, Vital Images shall, at its option and expense, terminate
the License to such Products.
This Article 5.4 states Licensee's exclusive remedy, and Vital Images'
and its licensors' entire liability, for any infringement claim related
to the Products or their use.
ARTICLE 6: LIMITATION OF REMEDIES
---------------------------------
6.1 Delay. VITAL IMAGES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED
BY DELAY IN FURNISHING PRODUCTS OR SERVICES OR ANY OTHER PERFORMANCE
UNDER THIS LICENSE AGREEMENT.
6.2 Sole Remedies. THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND
ALL WARRANTIES AND THE SOLE REMEDIES FOR VITAL IMAGES' LIABILITY OF ANY
KIND (INCLUDING LIABILITY FOR NEGLIGENCE OR PRODUCT LIABILITY) WITH
RESPECT TO THE PRODUCTS AND SERVICES COVERED BY THIS LICENSE AGREEMENT
AND ALL OTHER PERFORMANCE BY VITAL IMAGES UNDER THIS LICENSE AGREEMENT
SHALL BE LIMITED TO THE REMEDIES PROVIDED IN ARTICLE 5 OF THIS LICENSE
AGREEMENT.
6.3 Damages Limitation. VITAL IMAGES SHALL HAVE NO LIABILITY OF ANY KIND
FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR
4
<PAGE>
DAMAGE, EVEN IF VITAL IMAGES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH POTENTIAL LOSS OR DAMAGE, INCLUDING ANY LIABILITY FOR DAMAGES
ARISING OUT OF OR RESULTING FROM THE USE, MAINTENANCE OR PERFORMANCE OF
THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE LOSS OR CORRUPTION OF
LICENSEE'S OR ANY THIRD PARTY DATA. IN NO EVENT SHALL VITAL IMAGES BE
LIABLE FOR ANY DAMAGES IN EXCESS OF THE AGGREGATE AMOUNTS ACTUALLY PAID
BY LICENSEE TO VITAL IMAGES UNDER THIS LICENSE AGREEMENT.
ARTICLE 7: CONFIDENTIALITY
--------------------------
7.1 Confidential Information. All Confidential Information shall be deemed
confidential and proprietary to Vital Images, and are the sole and
exclusive property of Vital Images. Licensee may use the Confidential
Information during the term of this License Agreement only as permitted
hereunder or as necessary in order to use the Products in accordance
with the License(s) granted hereunder. Licensee shall not disclose or
provide any Confidential Information to any third party and shall take
reasonable measures to prevent any unauthorized disclosure by
Licensee's employees, agents, contractors or consultants during the
term hereof including appropriate individual nondisclosure agreements.
7.2 Exclusions. The following information shall not be considered
Confidential Information under this Article 7:
(a) Information which is or becomes in the public domain through
no fault or act of Licensee;
(b) Information which was independently developed by Licensee
without the use or reliance on Vital Images' Confidential
Information;
(c) Information which was provided to Licensee by a third party
under no duty of confidentiality to Vital Images; or
(d) Information which is required to be disclosed by Licensee
under law, provided, however, Licensee gives prompt notice
thereof to Vital Images prior to such disclosure.
7.3 Cooperation. At Vital Images' request, Licensee shall cooperate fully
with Vital Images in any and all legal actions taken by Vital Images to
protect its rights in the Products and in the Confidential Information.
Vital Images shall bear all costs and expenses reasonably incurred by
Licensee in the course of cooperating with Vital Images in such legal
action.
5
<PAGE>
ARTICLE 8: ARBITRATION
----------------------
8.1 Dispute Resolution. Except as provided in Article 8.2 below, Vital
Images and Licensee shall each use its best efforts to resolve any
dispute between them promptly and without resort to any legal process
if feasible within thirty (30) days of receipt of a written notice by
one party to the other party of the existence of such dispute. The
foregoing requirement in this Article 8.1 shall be without prejudice to
either party's right, if applicable, to terminate this License
Agreement under Article 3.1 above.
8.2 Litigation Rights Reserved. If any dispute arises with regard to
Licensee's unauthorized use of the Products or unauthorized use or
infringement of Confidential Information, Vital Images may seek any
available remedy at law or in equity from a court of competent
jurisdiction.
8.3 Procedure for Arbitration. Except as provided in Article 8.2 above, any
dispute, claim or controversy arising out of or in connection with this
License Agreement which has not been settled through negotiation within
a period of thirty (30) days after the date on which either party shall
first have notified the other party in writing of the existence of a
dispute shall be settled by final and binding arbitration under the
then-applicable Commercial Arbitration Rules or, if Licensee's
principal place of business is outside the United States, the
International Arbitration Rules of the American Arbitration Association
("AAA"). Any such arbitration shall be conducted by three (3)
arbitrators appointed by mutual agreement of the parties or, failing
such agreement, in accordance with said Rules. At least one (1)
arbitrator shall be an experienced computer software professional, and
at least one (1) arbitrator shall be an experienced business attorney
with a background in the licensing and distribution of computer
software. Any such arbitration shall be conducted in Minneapolis,
Minnesota, U.S.A. in the English language. An arbitral award may be
enforced in any court of competent jurisdiction. Notwithstanding any
contrary provision in the AAA Rules, the following additional
procedures and rules shall apply to any such arbitration:
(a) Each party shall have the right to request from the
arbitrators, and the arbitrators shall order upon
good cause shown, reasonable and limited pre-hearing
discovery, including (i) exchange of witness lists,
(ii) depositions under oath of named witnesses at a
mutually convenient location, (iii) written
interrogatories and (iv) document requests.
(b) Upon conclusion of the pre-hearing discovery, the
arbitrators shall promptly hold a hearing upon the
evidence to be adduced by the parties and shall
promptly render a written opinion and award.
(c) The arbitrators may not award or assess punitive
damages against either party.
6
<PAGE>
(d) Each party shall bear its own costs and expenses of
the arbitration and one-half (1/2) of the fees and
costs of the arbitrators, subject to the power of the
arbitrators, in their sole discretion, to award all
such reasonable costs, expenses and fees to the
prevailing party.
ARTICLE 9: MISCELLANEOUS
------------------------
9.1 Assignment. Licensee shall not have the right to assign or otherwise
transfer its rights or obligations under this License Agreement except
with the prior written consent of Vital Images, which consent shall be
at the sole discretion of Vital Images. This License Agreement shall be
binding on the parties hereto and their respective successors and
permitted assigns. Any prohibited assignment shall be null and void.
9.2 Notices. Notices permitted or required to be given hereunder shall be
deemed sufficient if given by registered or certified mail, postage
prepaid, return receipt requested, by private courier service, or by
facsimile addressed to the respective addresses of the parties as first
above written or at such other addresses as the respective parties may
designate by like notice from time to time. Notices so given shall be
effective upon (a) receipt by the party to which the notice is given,
or (b) on the fifth (5th) day following domestic mailing or the tenth
(10th) day following international mailing, as may be the case,
whichever occurs first.
9.3 Exports and U.S. Government Rights. Licensee hereby acknowledges that
it will not export or reexport any of the Products or technical data
(which includes, among other things, any technical information relating
to the Products, written or otherwise), or any product incorporating
any Products or technical data. The Products are provided with
Restricted Rights. Use, duplication or disclosure by the U.S.
government is subject to restrictions as set forth in (a) this License
Agreement pursuant to DFARs 227.7202-3(a); (b) subparagraph (c)(1)(i)
of the Rights in Technical Data and Computer Software clause at DFARs
252.227-7013; or (c) the Commercial Computer Software Restricted Rights
clause at FAR 52.227-19 subdivision (c)(1) and (2), as applicable.
Contractor/manufacturer is Vital Images, Inc., 3100 West Lake Street,
Suite 100, Minneapolis, Minnesota 55416 U.S.A.
9.4 Entire Agreement. This License Agreement, including the Exhibits
attached hereto which are incorporated herein, constitutes the entire
agreement of the parties with respect to the subject matter hereof and
supersedes all prior agreements by and between Licensee and Vital
Images as well as all proposals, oral or written, and all prior
negotiations, conversations and discussions between the parties related
hereto.
9.5 Amendment. This License Agreement may not be modified, amended,
rescinded, canceled or waived, in whole or in part, except by written
amendment signed by both parties hereto.
7
<PAGE>
9.6 Governing Law. This License Agreement shall be governed by and
interpreted under the laws of the State of Minnesota, U.S.A., excluding
(a) its choice of law rules, and (b) the United Nations Convention on
the International Sale of Goods.
9.7 Severability. If any provision of this License Agreement is found
unenforceable under any of the laws or regulations applicable thereto,
such provision terms shall be deemed stricken from this License
Agreement, but such invalidity or unenforceability shall not invalidate
any of the other provisions of this Agreement.
9.8 Waiver. No failure by either party to take any action or assert any
right hereunder shall be deemed to be a waiver of such right in the
event of the continuation or repetition of the circumstances giving
rise to such right.
IN WITNESS WHEREOF, the parties have executed this License Agreement by
their duly authorized representatives.
VITAL IMAGES, INC. LICENSEE
By By
------------------------------------- -------------------------------
Name Name
----------------------------------- -----------------------------
Title Title
---------------------------------- ----------------------------
8
<PAGE>
VITAL IMAGES, INC.
DEMONSTRATION LICENSE AGREEMENT
EXHIBIT A
PRODUCTS
<PAGE>
VITAL IMAGES, INC.
DEMONSTRATION LICENSE AGREEMENT
EXHIBIT B
DESIGNATED EQUIPMENT AND SITE
Designated Equipment:
Designated Site:
Prescribed Use for Products Under Demonstration License Agreement:
Prescribed Term for Use of Products Under Demonstration License Agreement (may
not exceed one year):
<PAGE>
VITAL IMAGES, INC.
SOFTWARE RESELLER AGREEMENT
---------------------------
EXHIBIT E
PRODUCT TRANSFER PRICING TO RESELLER
* CONFIDENTIAL TREATMENT REQUESTED *
<TABLE>
<CAPTION>
----------------- ----------- ------------ ------------------ -------------------------------------
List Price Discount Transfer Price Notes
----------------- ----------- ------------ ------------------ -------------------------------------
<S> <C> <C> <C> <C>
Vitrea2 System $ % $ Vitrea2 (for NT) Software includes:
o User Training and System
Administration Manuals and
Computer*
o Flat Panel Monitor
o Modem
o Mouse, mousepad and keyboard
o 1 year system maintenance
o 2 two-day applications training
sessions
o Installation
o Shipping
* Minimum specs for computer are:
o Dual Pentium III 600 MHz Processor
o Two 18 GB SCSI 10K RMP with
RAID 1 configuration
o 1 GB RAM
o 3D Graphics Board
----------------- ----------- ------------ ------------------ -------------------------------------
Vitrea2 $ % $
Installation
----------------- ----------- ------------ ------------------ -------------------------------------
1 Year
Maintenance $ % $
----------------- ----------- ------------ ------------------ -------------------------------------
Vscore $ % $
----------------- ----------- ------------ ------------------ -------------------------------------
</TABLE>
<PAGE>
VITAL IMAGES, INC.
SOFTWARE RESELLER AGREEMENT
---------------------------
EXHIBIT F
PRODUCT COMMITMENTS
* CONFIDENTIAL TREATMENT REQUESTED *
Reseller shall purchase from Vital Images during the twenty-one (21) month
period ended March 31, 2002 the following Vitrea Software License minimums:
YEAR 1
--------------------------------------------------------------------------------
Vitrea2 System Cumulative Total
Commitment
------------------------------- --------------------------- --------------------
QUARTER 3
July 1, 2000 - Sept. 30, 2000
------------------------------- --------------------------- --------------------
QUARTER 4
Oct. 1, 2000 - Dec. 31, 2000
--------------------------------------------------------------------------------
YEAR 2
--------------------------------------------------------------------------------
Vitrea2 System Cumulative Total
Commitment
------------------------------- --------------------------- --------------------
QUARTER 1
Jan. 1, 2001 - Mar. 31, 2001
------------------------------- --------------------------- --------------------
QUARTER 2
April 1, 2001 - June 30, 2001
------------------------------- --------------------------- --------------------
QUARTER 3
July 1, 2001 - Sept. 31, 2001
------------------------------- --------------------------- --------------------
QUARTER 4
Oct. 1, 2001 - Dec. 31, 2001
--------------------------------------------------------------------------------
YEAR 3
--------------------------------------------------------------------------------
Vitrea2 System Commitment Cumulative Total
------------------------------- --------------------------- --------------------
QUARTER 1
Jan. 1, 2002 - Mar. 31, 2002
--------------------------------------------------------------------------------
<PAGE>
VITAL IMAGES, INC.
SOFTWARE RESELLER AGREEMENT
---------------------------
EXHIBIT G
LIST OF VITAL IMAGES TRADEMARKS
Vitrea (R)
VScore(TM)
