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 A---)--il 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 1.011 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 for-mat, 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 1~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 par-y.
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 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]
4.1.2 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]
4.1.3 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]
4.1.4 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]
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.
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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 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
[*Redacted pursuant to Confidentiality Treatment Request dated
September 10, 1999.] 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. [ *Redacted pursuant to Confidentiality
Treatment Request dated September 10, 1999.]
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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 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's knowledge, the
documentation and code of the Mitra
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Software do not infringe upon any copyright or other
proprietary right of any third party.
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
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implied or arising by custom or trade usage and specifically
makes no warranty of merchantability.
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
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expiration shall survive such termination or expiration, and
Sections 6.2, 6.3 and 7.1 shall survive any such termination
or expiration.
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.
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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 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/ Xxxx Xxxxxxxx By: /s/ Xxxxxx Xxxxxx
----------------------- ----------------------------
Name: Xxxx Xxxxxxxx Name: Xxxxxx Xxxxxx
President Vice President of Technology
----------------------- ----------------------------
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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