CONFIDENTIAL TREATMENT EXHIBIT 10.23
AMENDED AND RESTATED RESELLER AGREEMENT
This Amended and Restated Reseller Agreement is made as of May 30,
1997, between ISG TECHNOLOGIES, INC., a corporation incorporated under the laws
of the Province of Ontario, Canada (hereinafter called "ISG"), 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 and ISG are parties to a Reseller Agreement dated May 17,
1996, as amended by a Supplemental Agreement dated as of September 30, 1996, (as
so amended, the "Old Reseller Agreement"), under which ACCESS and ISG have
agreed that ACCESS will resell certain medical devices (including software)
developed by ISG.
2. ACCESS and ISG wish to amend the Old Reseller Agreement in
certain respects.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth the parties agree that the Old Reseller Agreement shall be amended and
restated to read in its entirety as follows:
1. Definitions.
1.1 In this Agreement, each of the following terms has the meaning
set out below:
1.1.1 "Carryover Amount" has the meaning set forth in Section
4.2.
1.1.2 "Committed Amount" has the meaning set forth in Section
4.2.
1.1.3 "FDA" means the United States Food and Drug
Administration.
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1.1.4 "Food and Drug Act" means the United States Federal
Food, Drug and Cosmetic Act, 21 U.S.C. et seq., as amended from time to time.
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1.1.5 "GMA Release" means, with respect to any VRS
Application or VRS Option, compliance with all of the conditions set forth
below. The date of GMA Release for any release of any VRS Application or VRS
Option shall be the first date on which the conditions set forth below are
satisfied for such release.
(i) The VRS Application or VRS Option, when
installed on ISG Devices, shall perform all of the functions described for
such software on Schedule I and shall perform reasonably free from bugs
material to such software's intended use.
(ii) ISG shall have certified such VRS Application or
VRS Option for installation on ISG Devices consisting of at least the types
of systems and related equipment required by Section 5.3 as of the date of
GMA Release.
(iii) ISG Devices on which the VRS Application or VRS
Option is installed shall all have been cleared for commercial marketing by
the FDA.
(iv) All ISG Devices including such VRS Application
or VRS Option that are to be resold as contemplated by this Agreement shall
be in compliance with all relevant filings made by ISG with the FDA and
with "good manufacturing practices" as defined in the Food and Drug Act and
the regulations or other measures promulgated by the FDA thereunder.
(v) ISG shall have notified ACCESS that GMA Release
of the VRS Application or VRS Option has occurred.
1.1.6 "ISG Devices" means medical imaging workstations
consisting of Licensed Works provided by ISG, installed by ACCESS in accordance
with instructions provided by ISG on computer hardware and video monitors in
configurations certified by ISG as contemplated by Section 5.3.
1.1.7 "Licensed Works" means all or any part of the VRS
Applications and the VRS Options.
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1.1.8 [*Redacted pursuant to a Confidential Treatment Request
dated September 10, 1999.
]
1.1.9 "Support Period" means, with respect to any ISG Device,
a period of five years from the date of installation of such ISG Device.
1.1.11 "UNIX Termination Date" has the meaning set forth in
Section 5.3(ii).
1.1.10 "Utilization Amount" has the meaning set forth in
Section 4.2.
1.1.11 "VRS Applications" means each of the medical imaging
software applications developed by ISG having the capabilities and service
features described in Schedule I. The features of each VRS Application included
at the base unit price and the VRS Options available for each VRS Application at
additional cost are shown on Schedule I.
1.1.12 "VRS Options" means the options for the VRS
Applications having the capabilities and service features described in Schedule
I.
1.1.13 "VRS NT Software" means the VRS Applications and the
VRS Options for use with the Windows NT operating system, as indicated on
Schedule I.
1.1.14 "VRS UNIX Software" means the VRS Applications and the
VRS Options for use with the Sun Solaris operating system, as indicated on
Schedule I.
2. Grant of Rights.
2.1 Effective upon execution of this Agreement and subject to the
conditions set forth below, ISG hereby appoints ACCESS a non-exclusive reseller
of ISG Devices and grants to ACCESS the following non-exclusive rights:
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2.1.1 The right to make ISG Devices available to customers, whether
on a monthly fee basis or through outright sales. Such sales may be made
through a prime contractor or systems integrator so long as (i) the end user
shall enter into an agreement containing licensing provisions complying with
Section 3, and (ii) such sales shall be Qualifying Contractor Sales.
2.1.2 The right to include copies of the Licensed Works in ISG
Devices made available by ACCESS to customers and to sublicense Licensed Works
included in such devices in the regular course of business.
2.1.3 The right to use copies of the Licensed Works without charge
for internal purposes of ACCESS, which shall be limited to demonstration and
technical support of customers only.
2.2 ACCESS shall not have any right to distribute the source code
of any of the Licensed Works.
3. Customer License Agreements.
3.1 No customer shall receive any Licensed Works unless such customer
shall have signed an agreement (with ACCESS or with a prime contractor or
systems integrator) containing software licensing provisions complying with
Section 3.2 below.
3.2 Each customer agreement shall set out the name of the customer
and the identity and location of the ISG Devices on which the customer is
licensed to use a copy of the Licensed Works. Such a customer agreement shall
comply with this Section 3.2 if it contains:
(i) in the case of any user, substantially the provisions set
forth in Schedule II (it being understood that ISG need not be
identified by name), or
(ii) in a case where the end user is the Government of the United
States of America or an agency or instrumentality thereof,
substantially the provisions set forth in Schedule IIA, or such
other licensing terms as such Government, agency or
instrumentality shall then generally prescribe for the
procurement of commercial software.
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3.3 ACCESS shall use reasonable efforts to enforce all the licensing
provisions of customer agreements.
4. Payments.
4.1 ACCESS agrees to pay to ISG the following license fees:
4.1.1 A license fee as set forth in Table 1 of Schedule I
for each copy of the GMA Release version of any VRS Application installed on an
ISG Device made available by ACCESS to a customer in accordance with this
Agreement, except as provided in Section 4.1.2 below.
4.1.2 [*Redacted pursuant to a Confidential Treatment
Request dated September 10, 1999.
]
4.1.3 A license fee as set forth in Table 1 of Schedule I
for each copy of the GMA Release version of each VRS Option installed on an ISG
Device made available by ACCESS to a customer in accordance with this Agreement.
4.1.4 All prices specified in this Section 4.1 are subject
to adjustment as provided in Section 4.2 below.
4.2 ACCESS and ISG agree to the following purchase commitments and
pricing options:
4.2.1. ACCESS agrees, subject to the termination options set
forth below, to pay the Committed Amounts of license fees for each quarter shown
in Schedule I. ACCESS will issue a purchase order at the beginning of each
quarter for the Committed Amount for that quarter. The Committed Amounts shall
be invoiced and paid on the dates set forth in Schedule I. During each quarter,
ACCESS and ISG will record the installation of each copy of the Licensed Works
for which license fees are payable, using the procedures described in Section
4.4. After the end of each quarter, ISG will deliver to ACCESS a statement
setting forth the calculation of the Utilization Amount, the Committed Amount
and the Carryover Amount for the quarter. ACCESS will pay to ISG within 45 days
of receipt of such statement the amount, if any,
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by which (i) the Utilization Amount for the quarter minus the Carryover Amount
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for the quarter exceeds (ii) the Committed Amount for the quarter.
4.2.2. The following terms used in Section 4.2.1 have the
following meanings:
"Committed Amount" means, for any quarter, the amount so
designated for such quarter in Schedule I.
"Utilization Amount" means, for any quarter, the amount of
license fees that would be payable for all copies of Licensed Works installed
during the quarter, calculated in accordance with Section 4.1 and reflecting any
increase or decrease pursuant to Section 4.2.3.
"Carryover Amount" means, for any quarter, the amount (if any) by
which (i) the sum of the Committed Amounts for all preceding quarters exceeds
(ii) the sum of the Utilization Amounts for all preceding quarters. The
Carryover Amount shall be retroactively adjusted to reflect any retroactive
price adjustments required by Section 4.2.3.
4.2.3. The obligation of ACCESS to pay Committed Amounts shall
be subject to compliance by ISG with its obligations hereunder and shall
terminate upon any termination of this Agreement. ACCESS shall have the
following options to change its obligations to pay the Committed Amounts and the
pricing of Licensed Works.
Option 1. ACCESS may cancel its obligations to pay the Committed
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Amounts for the quarter ended June 30, 1998 and all subsequent quarters upon
notice to ISG delivered on or before June 29, 1997. The obligations of ACCESS to
pay the Committed Amounts for the quarter ending on March 31, 1998 and all prior
quarters will be unaffected by exercise of this option. Upon exercise of this
option, the license fees for Licensed Works will be changed from those shown in
Table 1 of Schedule I to those shown in Table 2 of Schedule I, and Utilization
Amounts and the Carryover Amount shall be calculated on this basis. This change
will apply retroactively to all copies of Licensed Works installed after the
effective date of this Amended and Restated Reseller Agreement and ACCESS will
pay, upon invoice by ISG following exercise of this Option 1, the amount (if
any) by which (i) the payments that would have been made under Section 4.2.1 for
prior quarters based upon Table 2 of Schedule I exceed (ii) the amounts actually
paid by ACCESS during such prior quarters.
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Option 2. ACCESS may cancel its obligations to pay the Committed
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Amounts for the quarter ended June 30, 1999 and all subsequent quarters upon
notice to ISG delivered on or before September 15, 1998. The obligations of
ACCESS to pay the Committed Amounts for the quarter ending on March 31, 1999 and
all prior quarters will be unaffected by exercise of this option. Upon exercise
of this option, the license fees for copies of Licensed Works installed after
March 31, 1998 will be changed from those shown in Table 1 of Schedule I to
those shown in Table 2 of Schedule I, and Utilization Amounts and the Carryover
Amount shall be calculated on this basis. This change will not be retroactive.
If neither Option 1 nor Option 2 is exercised, the license fee for the
VRS NT 200 (v1.1) application will be reduced to zero for all copies installed
after September 15, 1998. If ACCESS shall deliver to ISG an irrevocable waiver
of ACCESS's rights to exercise Option 1 and Option 2 (which may be delivered
after Option 1 has expired), the license fee for the VRS NT 200 (v1.1)
application will be reduced to zero for all copies installed after the date of
the waiver. ACCESS may at any time elect to reduce the license fee for the VRS
XX 000 (v1.1) application to zero by notice to ISG accompanied by payment of a
reduction fee of [*Redacted pursuant to a Confidential Treatment Request dated
September 10, 1999.] Such a reduction will be effective for all copies of the
VRS NT 200 (v1.1) application installed after the date of notice and payment.
4.3 After termination of the obligations of ACCESS to pay Committed
Amounts ACCESS shall nonetheless have the rights to resell ISG Devices and
license the Licensed Works as set forth herein for the remaining term of this
Agreement. After any termination of the Committed Amount obligations, license
fees for the Licensed Works shall be calculated in accordance with Sections 4.1
and 4.2.3 and shall be paid monthly upon invoice by ISG for Licensed Works
installed during each month. Any Carryover Amount remaining after termination of
the Committed Amount obligations shall be applied on a first dollar basis to
reduce license fees otherwise payable.
4.4 Within 15 business days of the end of each month, ACCESS will
deliver to ISG a written statement setting forth a list of all ISG Devices
shipped or installed during the month, the Licensed Works included in such ISG
Devices, the name and address of the end user site for each device, a contact
name and telephone number for each end user, and the host ID of each system on
which Licensed Works are installed. These statements
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will be the basis for quarterly statements of utilization required by Section
4.2.1 and the monthly invoices required by Section 4.3. Terms and conditions for
all ISG Devices ordered hereunder shall be in accordance with this Agreement and
shall not be modified by any terms of ACCESS's purchase order or other forms or
ISG's invoice, xxxx of lading, installation certificate or other forms. Payment
of all invoices shall be due 45 days from receipt of invoice. Amounts overdue
beyond this limit will bear interest at the rate of 1% per month.
4.5 ACCESS shall maintain complete and accurate records of each ISG
Device sold and each copy of Licensed Works installed hereunder, including
without limitation all records required for compliance with FDA regulations. ISG
may, not more often than twice in any period of twelve consecutive months,
conduct a review of the records of ACCESS relating to ISG Devices and Licensed
Works, at reasonable times and upon reasonable notice. ISG shall bear its own
costs incurred for any such audit unless the audit results in a determination of
a discrepancy of more than 10% between license fees payable as originally
reported by ACCESS and license fees actually payable for Licensed Works
installed by ACCESS for the period covered by the audit, in which case ACCESS
shall pay the reasonable out of pocket costs of the audit. All information made
available by ACCESS under Section 4.4 or this section 4.5 shall be treated as
confidential in accordance with Section 6.2 and shall not be used for any
purpose other than determination of the amounts payable under this Agreement.
4.6 Prices do not include sales tax or similar taxes. ACCESS shall
pay such taxes either directly or when invoiced by ISG, or shall supply
appropriate tax exemption certificates in a form satisfactory to ISG.
4.7 Payments to ISG shall not be deemed to have been made until the
funds are available to ISG in Xxxxxxxxxxx, Xxxxxxx, Xxxxxx. Alternatively, if
ACCESS is prevented by government regulations from transferring funds to Canada,
ISG shall have the right to require ACCESS to deposit the blocked funds or an
equivalent amount denominated in another currency due to ISG in a bank and
country designated by ISG and for ISG's account.
4.8 ACCESS shall be responsible, at its own expense, for obtaining
all necessary import permits and for the payment of any and all taxes and duties
imposed on the delivery, importation, sale or license of the ISG Devices and
Licensed Works in locations designated by ACCESS; except that ISG shall be
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responsible for complying with all regulations or other measures promulgated by
the FDA under the Food and Drug Act which are required to be complied with for
the importation of ISG Devices into the United States.
4.9 If any copy of Licensed Works installed on an ISG Device is lost
or is so damaged as to be unusable prior to delivery of such ISG Device to the
customer, ISG will permit installation of a replacement copy of such lost or
damaged Licensed Works without payment of an additional license fee.
5. Support.
5.1 ISG will supply the following materials to ACCESS:
5.1.1 Five copies of the latest object code or executable
code for the GMA Release version of each item included in the Licensed Works,
with updates as provided in Section 5.2.3. Each copy of Licensed Works will
enable ACCESS to install and integrate such Licensed Works on ISG Devices, and
will enable users to use such ISG Devices for an unlimited time, without
requiring any activation or other action by ISG. If a copy of the Licensed Works
initially provided is lost, damaged or destroyed, ISG will provide at cost a
replacement copy, which may be a more recent release or version.
5.1.2 Either (i) for each ISG Device for which a license fee
is recorded, one copy of documentation in English and documentation updates as
they are prepared and released which, when taken together, constitute complete
documentation for the ISG Devices complying with the requirements of the Food
and Drug Act and the regulations and other measures promulgated by the FDA
thereunder or (ii) all materials necessary to permit ACCESS to produce
documentation as set forth in clause (i), which will include soft copy of text
and updates as well as art work for covers, backs and spines of user manuals.
5.1.3 Five copies of all installation scripts and procedures
necessary or appropriate for installation of the GMA Release version of each
item of Licensed Software on ISG Devices.
5.1.4 Five copies of any modifications to the Licensed Works
(with revisions to the documentation to reflect such modifications) which are
provided to other customers of ISG without charge and are not proprietary to
such customers.
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5.2 ISG will provide the following support:
5.2.1 ISG will make support as provided in this Section 5.2
available for each ISG Device for the duration of the Support Period for such
device, subject to payment of support fees as provided herein. ISG will at all
times support the current release of each of the Licensed Works and the
immediately preceding Major Release of each of the Licensed Works. ISG will
support each Major Release of VRS UNIX Software for at least 12 months from the
date of GMA Release, regardless of the number of additional releases during such
period. After June 30, 1998, ISG will support each Major Release of VRS NT
Software for at least 12 months from the date of GMA Release, regardless of the
number of additional releases during such period. A "Major Release" is a release
of a Licensed Work which has undergone full GMA Release procedures and is
identified by the first two numerals in a version number (that is, "x.y").
5.2.2 ACCESS will provide first line support to its
customers. In the event of a problem, ACCESS's end customer will contact ACCESS
with problems, queries and/or help line requests. Trained ACCESS customer
service personnel will respond to calls and attempt to diagnose and repair
problems according to procedures defined in ISG's training courses and
documentation. ACCESS will contact ISG only after having done so without
resolving the problem, with such contact being made as defined for the relevant
geographical territory and the problem being logged in accordance with an agreed
procedure. ISG will then provide second line support. ISG will issue a Customer
Service Order Number and one or more of the following courses of action will be
taken as deemed appropriate by ISG technical support staff:
i) Technical or applications support via telephone to trained
ACCESS service personnel.
ii) In depth problem investigation and analysis via modem to
end customer system. This support is provided only where direct high speed
modem access is available via a dedicated telephone line.
iii) A monthly problem report will be provided to ACCESS
detailing the Customer Service Order Number, date and type of call and
resolution of each support call.
iv) On site consultation is available upon request at then
applicable ISG standard time and materials
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rates and is subject to availability of technical or applications support
personnel.
v) Five master copies of software updates will be provided from
time to time to ACCESS, as provided in Section 5.2.3 below.
5.2.3 In providing maintenance support, ISG shall:
i) Respond to and verify any alleged errors in the
documentation or code upon notification by ACCESS; and
ii) Provide resolution of defects as detailed below:
1. Safety - Deficiency affects patient safety or FDA
reportable defects.
2. Critical - Deficiency causes the VRS application to
fail catastrophically.
3. Urgent - Deficiency causes the VRS application to give
erroneous, distorted or severely deficient function from which users
must be isolated.
4. Serious to Minor - Deficiency similar to level 3 above,
but for which a work-around can be implemented allowing the user to
achieve the desired accuracy or function, with minor inconvenience, or
deficiency causes minor inconvenience, but is a definite deficiency
against specification.
5. Improvements - ACCESS requests new functionality not
covered by specification.
For priority levels 1, 2 and 3, ISG will immediately take corrective action
and provide a validated bug fix, in the form of an update, within a
reasonably expeditious time frame.
For priority level 4, ISG will take corrective action and provide a
validated bug fix, in the form of an update, without charge, within a
reasonable time frame.
For priority level 5, ISG will determine in its good faith judgment whether
the requested functionality is appropriate for inclusion in the next
general release to customers. If
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ISG so determines, ISG will provide an update to ACCESS without charge. If
ISG does not so determine, ISG will provide the requested modification at
ISG's standard charges.
5.2.4 ACCESS will pay support fees [*Redacted pursuant to a
Confidential Treatment Request dated September 10, 1999.
] ISG will in
any event make support available after that date to the extent provided in this
Agreement at ISG's then applicable time and materials charges.
5.3 ISG hereby certifies the compatibility only of the hardware and
systems configurations listed in Schedule I for inclusion in ISG Devices on
which Licensed Works are installed. ISG will cause the Licensed Works to be
compatible with, and will certify to ACCESS that ISG Devices may include:
(i) At all times during the term of this Agreement prior to the
UNIX Termination Date, the release of the Sun Solaris operating system
immediately prior to the then most current release.
(ii) At all times during the term of this Agreement on or after
the UNIX Termination Date, the most current release of the Sun Solaris
operating system as of the UNIX Termination Date; provided that if support
of a newer release of the Sun Solaris operating system is necessary to
correct a defect of Level 3 or higher (as defined in Section 5.2.3(ii)),
ISG will provide the necessary support. The "UNIX Termination Date" means a
date of which ACCESS is notified at least twelve months in advance, on
which ISG shall cease to make VRS UNIX Software available to customers.
(iii) At all times during the term of this Agreement, the release
of the Windows NT operating system immediately prior to the then most
current release.
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ISG Devices including any of the systems and components set forth
above, and Licensed Works installed thereon, shall be covered by all support
obligations, representations, warranties and agreements of ISG contained herein.
5.4 While it is acknowledged that the ISG Devices may be used in
certain surgical, medical life support or other applications of a similar degree
of potential hazard, ACCESS acknowledges that ISG Devices are not designed or
intended to substitute for or override the training, experience and knowledge of
end users.
1. Additional Covenants.
6.1 ACCESS shall include in all copies of Licensed Works made by
ACCESS any copyright or similar notice as furnished by ISG 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 the Licensed Works 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. The obligations of
the parties under this Section 6.2 are in addition to, and not in substitution
of, their respective obligations under the Confidentiality Agreement dated as of
March 31, 1995 between ACCESS and ISG.
6.3 The parties agree as follows with respect to proprietary rights:
6.3.1 ACCESS acknowledges that, except as set forth in Section
6.3.2 below, the Licensed Works and all related information and documentation
are the property of ISG and/or third parties from whom ISG has acquired certain
rights under license.
6.3.2 ISG acknowledges that ACCESS has provided and will provide
to ISG certain software applications, know-how and trade secrets relating to
wavelet compression and decompression of images, which are included in Licensed
Works made available to ACCESS under this Agreement. ISG agrees that it will
treat the particular specifications ACCESS has provided
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regarding compression and decompression as proprietary information of ACCESS.
This applies to the specifications and concepts including the following:
1. Non-standard DICOM transport mechanisms for image transmission
2. Controls over the number of images in a study
3. The use of progressive decompression
4. Modifications to the DICOM header elements reflecting changes in
certain data such as image matrix size and compression status
5. Error and exception handling
6. PPP server transmission methodologies
ISG agrees that it will not provide other customers for its workstation products
with the above information and know-how (or devices or applications including
them). Nothing in this paragraph will be construed so as to restrict ISG from
developing and/or marketing a solution similar to any or all of the ACCESS
solutions specified in items 1 to 6 above, provided that ISG has received the
specifications and/or know-how for such similar solutions from a third party
without solicitation or assistance from ISG and without any knowledge on ISG's
part that such third party is in violation of any confidentiality obligation or
proprietary right.
6.4 ACCESS at all times will comply with all provisions of the Food
and Drug Act and the regulations and other measures promulgated by the FDA
thereunder which are applicable to ACCESS as a distributor of ISG Devices as
contemplated by this Agreement.
6.5 ISG represents that the ISG Devices, when configured and marketed
as contemplated by this Agreement and assuming compliance by ACCESS with its
covenant set forth in Section 6.4, will at all times comply with all applicable
provisions of the Food and Drug Act, the regulations and other measures
promulgated by the FDA thereunder, and all filings made by ISG thereunder, and
will have all necessary FDA clearances or approvals for commercial marketing in
the United States of America. ISG will at all times comply with all provisions
of the
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Food and Drug Act, the regulations and other measures promulgated by the FDA
thereunder, and all filings made by ISG thereunder, which are applicable to ISG
as the manufacturer of ISG Devices distributed as contemplated by this
Agreement.
6.6 The parties agree to the following indemnity provisions:
6.6.1 ACCESS shall indemnify and save harmless ISG from and
against any and all liabilities, damages, costs or expenses (including
attorney's fees as incurred) resulting from any negligence or misconduct of
ACCESS in marketing or installing ISG Devices or failure to comply with ACCESS's
obligations set forth in Section 6.4.
6.6.2 ISG shall indemnify and save harmless ACCESS from and
against any and all liabilities, damages, costs or expenses (including
attorney's fees as incurred) resulting from any negligence or misconduct of ISG
in manufacturing ISG Devices, any defect in ISG Devices installed and configured
as instructed by ISG, or any inaccuracy or failure of compliance with ISG's
representations and obligations set forth in Section 6.5.
6.6.3 Any party seeking indemnification hereunder shall promptly
inform the indemnifying party in writing upon becoming aware of any claim for
which indemnity may be sought. Such notice shall include a statement of the
facts and circumstances relevant to such claim. Following such notice, the
indemnifying party may participate in the defense. Neither party shall settle
or compromise any claim for which indemnity is sought hereunder without the
prior written consent of the indemnifying party.
6.7 At least two qualified ACCESS employees will attend two days of
service training at ISG's facility annually. ACCESS will pay a charge of $3,000
per person per year for such training. Attendance by ACCESS personnel for whom
the training charge has been paid in any year at additional new training courses
during that year will be free of charge.
6.8 ISG agrees to the following development obligations.
6.8.1 ISG will release for resale by ACCESS hereunder either a
software patch for VRS UNIX 2.1 or a release of VRS UNIX 2.2 , which will in
either case include additional functionality as set forth in Schedule I. This
patch or release
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will be released in a beta test version by June 30, 1997 and a GMA Release
version by October 31, 1997.
6.8.2 ISG will release for resale by ACCESS hereunder a GMA
Release version of the VRS NT-200 Release 1.1 application, having the
functionality specified in Schedule I, by May 30, 1997.
6.8.3 ISG will release for resale by ACCESS hereunder a GMA
Release version of the VRS NT Software having the decompression functionality
specified in Schedule I by June 30, 1997.
6.8.4 If ISG does not release any of the applications set forth
above by the date specified, payment of all Committed Amounts falling due after
the specified release date will be deferred until release occurs. During any
period of deferral, ACCESS will pay license fees as provided in Section 4.3.
Upon resumption of payment of Committed Amounts, payments made during the
deferral period will be credited on a first dollar basis against Committed
Amounts payable.
7. Warranties.
7.1 ISG warrants and agrees that:
7.1.1 ISG has the full authority to grant the license and rights
set forth in this Agreement.
7.1.2 To the best of ISG's knowledge, the documentation and code
of the Licensed Works have not been published under circumstances which have
caused loss of copyright therein, and to the best of the ISG's knowledge the
documentation and code of the Licensed Works do not infringe upon any copyright
or other proprietary right of any third party.
7.1.3 ISG is not aware of any claim of infringement of any
copyright or other proprietary right having been made or pending against ISG
relative to the documentation or code of the Licensed Works.
7.1.4 ISG 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 the use of any Licensed Work as contemplated by
this Agreement infringed a copyright, a patent or a trade secret provided that
(i) ACCESS notifies ISG in writing of such claim or action, and (ii) ISG has
sole control of the defense and settlement of such
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claim or action. In defending against such claim or action, ISG may, at its
option, agree to any settlement in which ISG shall either (1) procure for ACCESS
and all ACCESS customers the right to continue using the Licensed Works; or (2)
modify or replace the Licensed Works so that they no longer infringe, to the
extent that the exercise of such option does not result in a material adverse
change in the operational characteristics of the Licensed Works, and equivalent
functions and performance provided by ISG remain following implementation of
such option. If ISG concludes in its judgment that none of the foregoing options
is reasonable, ISG may remove the Licensed Works and any other components
supplied by ISG rendered unusable as a result of such removal and repay to
ACCESS all amounts paid with respect to the infringing products by ACCESS to ISG
under this Agreement. Any such payment shall be in addition to, and shall not
diminish, ISG's obligation to defend and indemnify against claims for
infringement. 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 The ISG Devices, when properly installed and configured, will meet
all applicable standards of the American College of Radiology for diagnostic
images and are appropriate for diagnostic radiological examinations, and ISG has
no knowledge of existing problems which would cause the ISG Devices to fail to
comply with the foregoing warranty.
8. Term and Termination.
8.1 This agreement shall have an initial term ending on March 31,
2000, 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 ISG giving written notice thereof to
ACCESS, then at any time thereafter that such breach shall be continuing ISG 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 ISG
which shall not be cured within 30 days of ACCESS giving notice thereof to ISG,
then at any time thereafter that such breach shall be continuing ACCESS may
terminate this Agreement by delivery of a separate written termination notice to
ISG.
8.4 If either party to this Agreement shall wind up or discontinue its
business, shall make an assignment for the
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benefit of creditors, shall have a receiver appointed for its assets, shall
commence bankruptcy or insolvency proceedings, or shall have bankruptcy or
insolvency proceedings commenced against it which shall not be dismissed or
stayed within 60 days, the other party may terminate this Agreement upon notice
to the affected party.
8.5 If this Agreement shall be terminated under Section 8.2, Section
8.3 or Section 8.4, then:
8.5.1 ACCESS's right to resell ISG Devices and to furnish
Licensed Works to customers and to use and make copies of the Licensed Works
shall immediately terminate ;
8.5.2 ISG's support obligations hereunder shall immediately
terminate;
8.5.3 ACCESS shall pay, within ten (10) days, all amounts which
have accrued to ISG;
8.5.4 ACCESS shall immediately deliver the master copy of the
Licensed Works and all other copies in the possession of ACCESS to ISG at
ACCESS's expense; and
8.5.5 ACCESS shall provide a list of names and addresses of
customers who have entered into sublicenses with ACCESS since the date of this
Agreement.
8.6 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,
6.6 and 7.1 shall survive any such termination or expiration. The rights of
ACCESS under Section 9.10 and the Escrow Agreement referred to therein shall
survive any termination of this Agreement by ACCESS. The obligations of ISG to
provide support set forth in Section 5.2 and the obligations of ISG under
Section 9.10 shall survive expiration of the term of this Agreement for the
remainder of the Support Period for any ISG Device, subject to continued payment
of support fees by ACCESS.
8.7 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.
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9.1.1 ACCESS and ISG are independent contractors and separate legal
entities and shall in no way be interpreted as partners, joint-venturers,
agents, employees or legal representatives of each other for any purpose.
ACCESS shall solicit orders for ISG Devices only as an independent contractor.
The parties shall not be responsible for or bound by any act of the other party
or such other party's agents, employees or any person in any capacity in its
service.
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 ISG except that, without such consent and upon notice to ISG,
ACCESS 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 ISG 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, ISG may assign all of its rights hereunder to a
corporation or other legal entity that acquires substantially all of ISG's
assets or where ISG 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.
9.2.3 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 other part of this Agreement. The Agreement shall simply be construed as not
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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 This Agreement and the Confidentiality Agreement dated March 31,
1995 constitute 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.
9.8 Unless otherwise indicated, all dollar amounts referred to in this
Agreement are in U.S. funds.
9.9 This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Massachusetts.
9.10 ISG shall place a copy of the source code for the Licensed Works
(the "Escrow Materials") it has the authority to so deliver, in escrow with Fort
Xxxx Escrow Services, Inc. (the "Escrow Agent") under an Escrow Agreement in the
form of Schedule IV. The Escrow Agent shall be authorized to release the Escrow
Materials to ACCESS if and when ACCESS is deemed to have the right thereto as
determined below.
9.10.1 Provided that ACCESS is not then in material default under
the terms of this Agreement, the Escrow Agent shall provide to ACCESS the Escrow
Materials upon notification by ACCESS to the Escrow Agent, with a copy to ISG,
of the occurrence of any of the following events (each a "Release Condition"):
(a) The undisputed failure by ISG, following not less than 90
days written notice from ACCESS, clearly indicating the
nature of the default, to maintain the Licensed Works and
such failure results in the occurrence or continuance of a
defect classified as Xxxxx 0 Xxxxxx, Xxxxx 0 Critical or
Xxxxx 0 Xxxxxx under Section 5.2.3 above, or if such failure
is disputed, the notice must be supplemented by a court
order resolving the dispute; or
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(b) Proceedings shall be commenced by or against ISG under the
United States Bankruptcy Code or the Canadian Bankruptcy and
Insolvency Act and (in the case of a proceeding commenced
against ISG) shall not be dismissed or discharged within 90
days of commencement.
9.10.2 Upon taking possession of the Escrow Materials due to the
occurrence of a Release Condition, ACCESS agrees that such source code shall be
subject to restrictions on use, transfer, sales and reproduction placed on the
Licensed Works themselves by this Agreement.
9.10.3 The Escrow Agreement will continue in full force and effect,
except that this Agreement shall govern any inconsistencies between this
Agreement and the Software Escrow Agreement.
9.10.4 ACCESS shall use the Escrow Materials only for what would
otherwise be obligations of ISG to provide support of the Licensed Works. It is
expressly understood that the Software Escrow Agreement pertains to the right to
use the Escrow Materials and that no rights to ownership of the Escrow Materials
pass from ISG to ACCESS. It is also expressly understood that the Escrow
Materials are confidential and secret assets of ISG and the Escrow Materials
will be held by ACCESS and not reproduced or copied, or made available to any
third party, except in accordance with this Agreement. It is expressly
understood that the Escrow Materials will be either returned to ISG or destroyed
once the default giving rise to a Release Condition is cured and adequate
assurances of ISG's future performance are given to ACCESS. UNDER NO
CIRCUMSTANCES IS THE SOURCE CODE TO BE SOLD, TRANSFERRED OR COPIED BY ACCESS OR
ITS DISTRIBUTORS. This Agreement shall be deemed to be a "License Agreement"
referred to in the Escrow Agreement and Section 365(n) of the United States
Bankruptcy Code.
9.11 EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT (INCLUDING WITHOUT
LIMITATION ARTICLE 5), ISG MAKES NO WARRANTIES OF ANY KIND WITH RESPECT TO THE
ISG DEVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. Except as otherwise set forth in this
Agreement, in no event shall ISG be liable to ACCESS for any indirect, special,
incidental or consequential damages of any nature or kind whatsoever or for any
damages (whether caused directly or indirectly) related to loss of profits, loss
of
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revenue, loss of data or other economic loss in connection with, or arising out
of, the use or supply or non-supply of the ISG Devices. Except as otherwise set
forth in this Agreement (including without limitation Articles 6 and 7), the
liability of ISG to ACCESS under this Agreement or resulting from this Agreement
under any theory of law or equity is limited to money damages not to exceed the
total amount paid by ACCESS to ISG hereunder.
9.12 Notices:
All notices provided for in this Agreement shall be in writing or facsimile,
addressed to the appropriate party at its respective address set forth below or
to such other then-current address as is specified by notice, as follows:
(a) to ISG: ISG Technologies, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxx
XXXXXX X0X 0X0
Facsimile: (000) 000-0000
Attention: VP Finance
(b) to ACCESS: ACCESS Radiology Corporation
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
Notices shall be deemed to be received upon actual delivery, upon confirmation
of receipt of a facsimile, or five days after mailing with first class postage
prepaid.
9.13. This Amended and Restated Reseller Agreement shall become
effective when executed by ISG and ACCESS. All references to "this Agreement",
"herein", "hereby" and similar references shall refer to this Amended and
Restated Reseller Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the first date set forth above.
ACCESS RADIOLOGY CORPORATION ISG TECHNOLOGIES, INC.
By: /s/ Xxxxx Xxxx /s/ Xxxxx Xxx
---------------------- ---------------------
By: ______________________
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Name: Xxxxx Xxxx Name: Xxxxx Xxx
---------------------------
---------------------------
Title: Vice President of Title: Vice
Business Operations President of Product
Development
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SCHEDULE I
----------
Licensed Works Description and Pricing
--------------------------------------
Pricing Table 1
==============================================================================================================
Product VRS-NT- VRS-NT- VRS-NT-ICU VRS-NT-DX VRS-NT-XS VRS-UNIX VRS-UNIX
Feature 200 600 DX XS
(v1.1)
==============================================================================================================
Base Pricing
==============================================================================================================
[*] [*] [*] [*] [*] [*] [*] [*]
==============================================================================================================
Options Pricing
==============================================================================================================
[*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
--------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
==============================================================================================================
*Redacted pursuant to a Confidential Treatment Request dated September 10, 1999.
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Pricing Table 2
============================================================================================================
Product VRS-NT- VRS-NT- VRS-NT-ICU VRS-NT-DX VRS-NT-XS VRS-UNIX- VRS-UNIX
Feature 200 600 DX XS
(v1.1)
============================================================================================================
Base Pricing
============================================================================================================
[*] [*] [*] [*] [*] [*] [*] [*]
============================================================================================================
Options Pricing
============================================================================================================
[*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
------------------------------------------------------------------------------------------------------------
[*] [*] [*] [*] [*] [*] [*] [*]
============================================================================================================
*Redacted pursuant to a Confidential Treatment Request dated September 10, 1999.
Base Unit Feature Content:
--------------------------
[*Redacted pursuant to a Confidential Treatment Request dated September 10,
1999.
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]
Options Pricing Legend:
-----------------------
[*Redacted pursuant to a Confidential Treatment Request dated September
10, 1999.
]
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Commitment Table
=========================================================================
Quarter Amount Invoice Date Paid Date
(On or Before) (On or Before)
=========================================================================
Q1 [*] - -
-------------------------------------------------------------------------
Q2 [*] June 30/th/ 1997 August 14/th/ 1997
-------------------------------------------------------------------------
Q3 [*] September 30/th/ 1997 November 14/th/ 1997
-------------------------------------------------------------------------
Q4 [*] December 31/st/ 1997 February 14/th/ 1998
-------------------------------------------------------------------------
Q5 [*] March 31/st/ 1998 May 15/th/ 1998
-------------------------------------------------------------------------
Q6 [*] June 30/th/ 1998 August 14/th/ 1998
-------------------------------------------------------------------------
Q7 [*] September 30/th/ 1998 November 14/th/ 1998
-------------------------------------------------------------------------
Q8 [*] December 31/st/ 1998 February 14/th/ 1999
-------------------------------------------------------------------------
Q9 [*] March 31/st/ 1999 May 15/th/ 1999
-------------------------------------------------------------------------
Q10 [*] June 30/th/ 1999 August 14/th/ 1999
-------------------------------------------------------------------------
Q11 [*] September 30/th/ 1999 November 14/th/ 1999
-------------------------------------------------------------------------
Q12 [*] December 31/st/ 1999 February 14/th/ 2000
-------------------------------------------------------------------------
Q13 [*] March 31/st/ 2000 May 15/th/ 2000
=========================================================================
*Redacted pursuant to a Confidential Treatment Request dated September
10, 1999.
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VRS UNIX Release 2.1 Patch / Release 2.2
ACCESS Radiology Corporation Additional Features to VRS
UNIX Release 2.1
The following additional features to VRS UNIX Release 2.1 will be
provided to ACCESS Radiology Corporation in the form of either a patch to VRS
UNIX Release 2.1 or a new version VRS UNIX Release 2.2.
===================================================================
Feature Description
-------------------------------------------------------------------
[*] [*
]
-------------------------------------------------------------------
[*] [*
]
-------------------------------------------------------------------
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-------------------------------------------------------------------
[*] [*
]
-------------------------------------------------------------------
[*] [*
]
===================================================================
*Redacted pursuant to a Confidential Treatment Request dated
September 10, 1999.
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VRS-NT 200 Release 1.1
ACCESS Radiology Corporation Additional Features to VRS-NT 200
Release 1.0
The following features, in addition to those already provided in VRS-NT 200
Release 1.0, will be provided to ACCESS Radiology Corporation in VRS-NT 200
Release 1.1.
=================================================================
Feature Description
-----------------------------------------------------------------
[*] [*
]
-----------------------------------------------------------------
[*] [*
]
-----------------------------------------------------------------
[*] [*
]
-----------------------------------------------------------------
[*] [*
]
-----------------------------------------------------------------
[*] [*
]
=================================================================
*Redacted pursuant to a Confidential Treatment Request dated
September 10, 1999.
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VRS-NT Software
ACCESS Radiology Corporation Additional Features to VRS-NT
Software
The following features, in addition to those stated in VRS NT marketing
Specifications Document Revision 12, #1997-00295, will be provided to ACCESS
Radiology Corporation.
==================================================================
Feature Description
------------------------------------------------------------------
[*] [*
]
------------------------------------------------------------------
[*] [*
]
------------------------------------------------------------------
[*] [*
]
==================================================================
*Redacted pursuant to a Confidential Treatment Request dated
September 10, 1999.
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SCHEDULE II
-----------
Standard Form Sublicensing Provisions
-------------------------------------
Each customer agreement shall provide:
1. That the customer is granted a non-exclusive, nontransferable
license to operate, at the location specified in the customer agreement and for
its own business and professional purposes only, a copy or copies of the object
code form of the software.
2. That title, ownership rights, intellectual property rights and all
other rights associated with the software and applicable under law shall remain
vested in ISG.
3. That the obligations (if any) of ISG are limited to those
expressly stated in the sublicense, are in lieu of all other warranties or
conditions expressed or implied, including without limitation warranties of
merchantability or fitness for a particular use, or those arising by statute or
otherwise in law, or from a course of dealing or usage of trade.
4. That the liability of ISG under any theory of law or equity is
limited to money damages not to exceed the total amount paid by the customer for
ISG Devices.
5. That ISG shall have no liability to the customer with respect to
any claim of patent or copyright infringement to the extent that such claim is
based upon (i) the combination of licensed software with machines, systems or
devices other than those included in the ISG Devices sold to the customer, (ii)
modification of the licensed software by the customer, or (iii) use of the
licensed software not in accordance with its specifications.
6. That the customer shall:
(a) maintain the software in confidence, utilizing at least the same
degree of care used by the customer to protect its own
confidential information;
(b) not transfer the software to any other party, except in
connection with a sale of the ISG Device in which it is
installed;
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-32-
(c) not attempt to produce any work derived from the software or
modify the software in any manner whatsoever;
(d) not attempt to decode, decipher, decompile, decompose,
disassemble, reverse engineer or otherwise render the software to
a human-perceivable form; and
(e) not attempt to defeat the mechanisms which control the number of
copies of the software which are allowed to operate
simultaneously during any particular time period.
7. That the customer acknowledges that, although the software may be
used in certain surgical, medical life support or other applications of a
similar degree of potential hazard, the software is not designed or intended to
substitute for or override the training, experience and knowledge of end users.
8. That the customer acknowledges that ISG Devices are resold to the
customer by agreement of ISG, and that the customer is agreeing to the foregoing
provisions in consideration of ISG making the ISG Devices available under such
agreement.
-33-
