CONFIDENTIAL TREATMENT EXHIBIT 10.27
OEM DEVELOPMENT SOFTWARE AGREEMENT
This agreement is made as of the 9th day of November, 1995, between MITRA
IMAGING INCORPORATED, a corporation incorporated under the laws of the Province
of Ontario, Canada (hereinafter called "Mitra"), and ACCESS RADIOLOGY
CORPORATION, a corporation incorporated in the State of Delaware (hereinafter
called "ACCESS").
B A C K G R O U N D
1. ACCESS desires to develop application-specific software using software
products marketed by Mitra and to distribute Mitra Software to third party end
users (hereinafter called "Customers"); and
2. Mitra has agreed to license ACCESS to do so,
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth the parties hereto agree as follows:
1. Interpretation.
1.1 In this Agreement, each of the following terms has the meaning
set out below:
1.1.1 "DAP for Windows" means all or any portion of the
computer programs in object code format, described as
such in the user's manual entitled "Mitra Imaging
Incorporated DICOM Application Platform Revision 1.0"
dated April 29, 1995, and conforming to the
specifications set forth therein.
1.1.2 "DAP for UNIX" means all or any portion of the computer
programs in object code format, described as such in the
user's manual entitled "Mitra Imaging Incorporated DICOM
Application Platform Revision 1.0" dated April 29,
1995, and conforming to the specifications set forth
therein.
1.1.3 "FDA" means the United States Food and Drug
Administration.
1.1.4 "Food and Drug Art" means the United States Pure Food
and Drug Act, as amended from time to time.
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1.1.5 "Lumiscan" means all or any portion of the computer
programs in object code format, described in the User's
Manual for Lumisys DICOM 3.0 Tookit Version 0-4.2 dated
August 3, 1995, and conforming to the specifications set
forth therein.
1.1.6 "Mitra Software" means all or any portion of DAP for
Windows, DAP for UNIX, Lumiscan and the server software.
1.1.7 "Server Software" means all or any portion of the
computer programs in object code format, listed on
Schedule A and conforming to the specifications set
forth therein.
1.2 Entire Agreement. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter
hereof and supersedes all prior agreements, understandings,
negotiations and discussions, whether oral or written, of the
parties pertaining to such subject matter.
1.3 Currency. Unless otherwise indicated, all dollar amounts
referred to in this Agreement are in U.S. funds.
1.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of
Massachusetts.
2. Grant of Rights.
2.1 Effective upon execution of this Agreement, Mitra hereby
appoints ACCESS a non-exclusive reseller of Mitra Software
products and grants to ACCESS the following nonexclusive rights:
2.1.1 The right to use DAP for Windows and DAP for UNIX to
develop application-specific software and to sublicense
such software incorporated in such ACCESS-developed
software to ACCESS customers in the regular course of
business;
2.1.2 The right to include copies of the Lumiscan and Server
Software in software or devices made available by ACCESS
to its customers and to sublicense Lumiscan and Server
Software included in such software or devices to ACCESS
customers in the regular course of business; and
2.1.3 The right to use copies of the Mitra Software for
internal purposes of ACCESS, including software
development, demonstration,
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support of ACCESS customers and processing of data in
the regular course of ACCESS's business.
3. Customer License Agreements.
3.1 ACCESS shall develop standard form customer sublicensing
provisions acceptable to Mitra for use with Mitra Software. No
customer shall receive any Mitra Software unless such customer
shall have signed an agreement containing the standard form
customer sublicensing provisions.
3.2 Each customer agreement shall set out the name and address of
the customer and the identity and location of the devices on
which the customer is licensed to use a copy of Mitra Software,
and shall include standard form customer sublicensing provisions
which provide:
3.2.1 that only a personal, non-transferable and non-exclusive
right to use each copy of Mitra Software solely for the
customer's business or professional purposes is granted
to the customer;
3.2.2 that no title to the Mitra Software is transferred to
the customer; and
3.2.3 that the customer shall not transfer, provide or
disclose Mitra Software to any other third party.
3.3 ACCESS shall assign a unique internal number to each sublicense
granted to a customer and shall place this number clearly in the
customer agreement.
3.4 ACCESS shall use reasonable efforts to all the licensing
provisions of customer agreements.
3.5 ACCESS shall demonstrate to Mitra that its software applications
that include Mitra Software have sufficient mechanisms for
tracking usage and preventing unauthorized copying. Without this
ACCESS is required to distribute a copy-protected version of the
Mitra Software administrated by Mitra at installation.
4. License Fees.
4.1 ACCESS agrees to pay to Mitra the following license fees:
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4.1.1 A [*THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
for DAP for Windows and a [*THE CONFIDENTIAL PORTION HAS
BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.] for DAP for UNIX.
4.1.2 A [*THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
for each copy of Lumiscan which is sublicensed to an
ACCESS customer.
4.1.3 A [*THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
for each copy of any application incorporating DAP for
Windows which is sublicensed to an ACCESS customer;
provided that if any copy of such application software
replaces a copy of Lumiscan for which a license fee has
previously been paid pursuant to Section 4.1.2, then
ACCESS shall only be required to pay an upgrade fee of
[*THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
with respect to such replacement copy.
4.1.4 A [*THE CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
for each copy of software incorporating DAP for UNIX
which is sublicensed to an ACCESS customer. Copies of
Server Software may in such application software at [*THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.]
4.2 License and upgrade fees under Sections 4.1.2 through 4.1.4
shall be payable quarterly within 30 days of the end of each
calendar quarter for sublicenses granted to ACCESS Customers
during such quarter. Each payment of such license fees shall be
accompanied by a statement setting forth in reasonable detail
the calculation of the license fees payable. License fees do not
include any customs or import duties, or sales, use or similar
taxes, which shall be the responsibility of ACCESS.
4.3 ACCESS shall keep full, clear and accurate records of the number
of copies of Mitra Software furnished by it to customers or used
by it internally, and the identity and location of each customer
to whom Mitra Software is furnished by ACCESS.
4.4 Mitra shall have the right to make an examination and audit not
more than twice per calendar year, of all records kept pursuant
to Section 4.3.
5. Support.
5.1 Mitra will supply the following materials to ACCESS:
5.1.1 One copy of the latest object code or executable code
for each item of Mitra Software, with upgrades as
provided in Section 5.2. If a
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copy of the Mitra Software initially provided is lost,
damaged or destroyed, Mitra will provide at cost a
replacement copy, which may be a more recent release or
version; and
5.1.2 One copy of documentation in English and documentation
updates as they are prepared and released which, when
taken together, constitute complete documentation of the
Mitra Software complying with Good Manufacturing
Practices as defined in the Food and Drug Act and the
rules, regulations and orders of the FDA thereunder.
5.2 For so long as ACCESS is current in the payment of support costs
as provided in Section 5.3, Mitra warrants to ACCESS that the
Mitra Software will perform in accordance with its
specifications. Mitra will use its best efforts to ensure if
with a such performance and, corrected version of the Mitra
Software as soon as practical after Mitra is notified of any
non-conformity. Mitra will provide generally available upgrades,
maintenance releases, bug fixes and work-arounds at no charge
(except as provided in Section 5.2). Mitra will support the
version of DAP for Windows used by ACCESS as of the date of this
Agreement only until ACCESS upgrades to the next available
version, which ACCESS will do as soon as practicable.
5.3 ACCESS will pay to Mitra aggregate annual support costs of [*THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.] per year with respect
to Mitra Software. Support costs will be payable in advance on
the execution of this Agreement and each anniversary thereof
during the term of this Agreement.
5.4 Notwithstanding Section 5.2, if an upgrade of DAP for Windows
compatible with Windows 95 or Windows NT shall become available
and ACCESS shall request such an upgrade from Mitra, then upon
delivery of such an upgraded version, ACCESS shall pay to Mitra
a one time upgrade fee. This fee shall be equal to [*THE
CONFIDENTIAL PORTION HAS BEEN OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.]
Following delivery of any such upgraded versions, the term "DAP
for Windows" as used in this Agreement shall be deemed to
include such upgraded version for all purposes, it being
understood that the obligations
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of ACCESS and Mitra with respect to the previously existing
version of DAP for Windows shall also remain in full force and
effect.
6. Additional Covenants.
6.1 ACCESS shall include in all copies of Mitra Software made by
ACCESS any copyright notice as furnished by Mitra to ACCESS.
6.2 Each party hereto covenants that it shall keep confidential any
confidential information relating to the other party's business,
finances, marketing and technology, to which it obtains access
(including without limitation DAP for windows, DAP for UNIX and
the pricing and other terms of this Agreement) and that it shall
take all reasonable precautions to protect such confidential
information of the other party or any part thereof from any use,
disclosure or copying except as expressly authorized by this
Agreement.
6.3 ACCESS acknowledges that Mitra Software and all related
information and documentation are the property of Mitra and/or
third parties from whom Mitra has acquired certain rights under
license.
6.4 ACCESS shall indemnify and save harmless Mitra from and against
any and all liabilities, damages, costs or expenses awarded
against or incurred or suffered by Mitra arising out of any
action or proceeding commenced or maintained by any third party
in respect of any acts or omissions of ACCESS in marketing or
distributing the Mitra Software.
7. Warranties.
7.1 Mitra warrants and agrees that:
7.1.1 Mitra has the full authority to grant the license and
rights set forth in this Agreement.
7.1.2 To the best of Mitra's knowledge, the documentation and
code of the Mitra Software have not been published under
circumstances which have caused loss of copyright
therein, and to the best of Mitra's knowledge, the
documentation and code of the Mitra Software do not
infringe upon any copyright or other proprietary right
of any third party.
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7.1.3 Mitra is not aware of any claim of infringement of any
copyright or other proprietary right having been made or
pending against Mitra relative to the documentation or
code of the Mitra Software.
7.1.4 Mitra will, at its expense, defend against, hold ACCESS
harmless from, and pay any final judgment against ACCESS
or any ACCESS customer arising out of any claim that any
Mitra Software infringed a copyright, a patent or a
trade secret provided that (i) ACCESS notifies Mitra in
writing of such claim or action, and (ii) Mitra has sole
control of the defense and settlement of such claim or
action. In defending against such claim or action, Mitra
may, at its option, agree to any settlement in which
Mitra shall either (1) procure for ACCESS and all ACCESS
customers the right to continue using the Mitra
Software; and (2) modify or replace the Mitra Software
so that it no longer infringes, to the extent that the
exercise of such option does not result in a material,
adverse change in the operational characteristics of the
Mitra Software, and equivalent functions and performance
provided by Mitra remain following implementation of
such option. If Mitra concludes in its judgment that
none of the foregoing options is reasonable, Mitra may
remove the Mitra Software and any other components
supplied by Mitra rendered unusable as a result of such
removal and pay to ACCESS all damages arising therefrom,
including damages incurred by reason of ACCESS's
inability to perform its obligations to ACCESS
customers, but without diminishing Mitra's obligations
under this Section 7.1.4. Each party shall promptly
notify the other in the event that it becomes aware of a
claim covered by this Section 7.1.
7.2 Mitra warrants and agrees that the Mitra Software, when properly
installed and configured, will meet all applicable standards of
the American College of Radiology for diagnostic images and is
appropriate for diagnostic radiological examinations, and Mitra
has no knowledge of existing problems which would cause the
Mitra Software to fail to comply with the foregoing warranty.
7.3 The express warranties set forth in Sections 5.21, 7.1 and 7.2
are the only warranties made by Mitra with respect to the Mitra
software and other services provided by Mitra. Mitra makes no
other warranties expressed or implied or arising by custom or
trade usage and specifically makes no warranty of
merchantability.
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8. Term and Termination.
8.1 This agreement shall have an initial term of three years,
subject to earlier termination as provided below.
8.2 If there shall be any material breach of this Agreement by
ACCESS which shall not be cured within 30 days of Mitra giving
written notice thereof to ACCESS, then at any time that such
breach shall be continuing Mitra may terminate this Agreement by
delivery of a separate written termination notice to ACCESS.
8.3 If there shall be any material breach of this Agreement by Mitra
which shall not be cured within 30 days of ACCESS giving notice
thereof to Mitra, then at any time that such breach shall be
continuing ACCESS may terminate this Agreement by delivery of a
separate written termination notice to Mitra.
8.4 If this Agreement shall be terminated under Section 8.2 or
Section 8.3, then:
8.4.1 ACCESS's right to develop application specific software
using Mitra Software and to furnish Mitra Software to
customers and to make copies of the Mitra Software shall
immediately terminate;
8.4.2 Mitra's maintenance and support obligations hereunder
shall immediately terminate;
8.4.3 ACCESS shall pay, within ten (10) days, all amounts
which have accrued to Mitra;
8.4.4 ACCESS shall immediately deliver the master copy of
Mitra Software and all other copies to Mitra at ACCESS's
expense; and
8.4.5 ACCESS shall provide a list of names and addresses of
customers who have entered into sublicenses with ACCESS
since the date of this Agreement.
8.5 Notwithstanding any termination or expiration of this Agreement,
any sublicense granted to an ACCESS customer prior to such
termination or expiration shall survive such termination or
expiration, and Sections 6.2, 6.3 and 7.1 shall survive any such
termination or expiration.
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8.6 The remedies set forth in Sections 8.1 through 8.5 shall not be
exclusive, but shall be in addition to any other remedies
available to either party at law or in equity.
9. General.
9.1 Mitra agrees for one year from the date of this Agreement not to
itself incorporate wavelet-based compression in its acquisition
software.
9.2 Assignment:
9.2.1 Subject to ACCESS's right to grant sublicenses
hereunder, ACCESS may not assign this Agreement or any
rights hereunder without the prior written consent of
Mitra, except that, without such consent and upon notice
to Mitra, Mitra may assign all of its rights hereunder
to a corporation or other legal entity that acquires
substantially all of ACCESS's assets or where ACCESS is
consolidated or merged but then only upon the express
assumption by such transferee or its successor of the
obligations set forth in this Agreement.
9.2.2 Mitra may not assign this Agreement or any rights
hereunder without the prior written consent of ACCESS,
except that, without such consent and upon notice to
ACCESS, Mitra may assign all of its rights hereunder to
a corporation or other legal entity that acquires
substantially all of Mitra's assets or where Mitra is
consolidated or merged, but then only upon the express
assumption by such transferee of its successor of the
obligations set forth in this Agreement.
9.2.3 This Agreement is binding upon, and inures to the
benefit of, the successors and permitted assigns of the
parties.
9.3 The waiver or failure of either party to exercise in any respect
any right provided for in this Agreement shall not be deemed a
waiver of any further or future right hereunder.
9.4 The headings used in this Agreement are for convenience of
reference only and are not to be used in interpreting the
provisions of this Agreement.
9.5 If any provision of this Agreement is invalid or unenforceable
in any particular case, such case shall not invalidate or render
unenforceable any
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other part of this Agreement. The Agreement shall simply be
construed as not containing the particular provision or
provisions held to be invalid or unenforceable to the extent of
the particular case, and the rights and obligations of the
parties hereto shall be construed accordingly.
9.6 This Agreement is effective when executed by both parties. This
Agreement may be executed in counterparts, each of which shall
constitute one and the same instrument.
9.7 Notices:
All notices provided for in this Agreement shall be in writing
or facsimile, addressed to the appropriate party at the
respective address set forth below or to such other then-current
address as is specified by notice, as follows:
(a) to Mitra: Mitra Imaging Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxx X0X 0X0 XXXXXX
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxxxx
(b) to ACCESS: ACCESS Radiology Corporation
Bay Colony Corporate Center
000 Xxxxxx Xxxxxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the first date set forth above.
ACCESS RADIOLOGY CORPORATION MITRA IMAGING INCORPORATED
By: /s/ Xxxxxx Xxxxxx By: /s/ Xxxx Xxxxxxxx
----------------------------- ----------------------------
Name: Xxxxxx Xxxxxx Name: Xxxx Xxxxxxxx
Vice President of Technology President
----------------------------- ----------------------------
Title Title
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SCHEDULE A
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The MITRA TTY interface is intended to provide end-user functionality to a set
of functions employing a VT style interface. The functionality includes:
. the capability to manually delete a stud
. the capability to set the autopurge functions, including the software
which executes the autopurge of patient studies
. the capability to protect a study from autopurge and delete
. the ability to set up DICOM Query/Retrieval Class nodes
. the ability to manually route a study to a DICOM node demographics
. the ability of the above sorted by date and name
. any additional functionality provided in the interface not listed
above
The interface is relevant to the UNIX implementation of the DAP database.
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