MARKETING AND DISTRIBUTION AGREEMENT

Exhibit 10.1

 

VITAL IMAGES, INC.

AND

TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

THIS AGREEMENT is made as of March 30, 2007 by and between Vital Images, Inc., a Minnesota corporation having its principal place of business at 0000 Xxxx Xxxxxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxxx 00000 XXX (“Vital Images”)  and Toshiba Medical Systems Corporation having its place of business at 1385, Shimoishigami, Xxxxxxx-Xxx, Xxxxxxx 000-0000, Xxxxx (“Toshiba”).

Recitals

A.                                            Vital Images develops and licenses proprietary medical visualization software products (defined below as the “Products”) and desires to increase the marketing and distribution of the Products.

B.                                              Toshiba develops and markets proprietary medical visualization scanners and related hardware and software products and desires to market the Products in combination with the marketing of its products.

C.                                             Toshiba possesses the necessary expertise and marketing organization to promote, market, distribute and support the Products.

D.                                            Vital Images desires to appoint Toshiba and the Dealer Associates, and Toshiba and the Dealer Associates desire appointment, as a nonexclusive reseller of the Products.

NOW, THEREFORE, in consideration of the mutual premises and covenants hereinafter set forth, the parties agree as follows:

ARTICLE 1:  DEFINITIONS

For purposes of this Agreement, the following words, terms and phrases shall have the following meanings unless the context otherwise requires:

1.1                                 Confidential Information.  “Confidential Information” shall mean all information designated by a party as confidential and which is disclosed by Vital Images to Toshiba or its Dealer Associates, as hereinafter specified, is disclosed by Toshiba or its Dealer Associates to Vital Images, or is embodied in the Products, relating to markets, customers, products, patents, inventions, procedures, methods, designs, strategies, plans, assets, liabilities, prices, costs, revenues, profits, organization, employees, agents, resellers or business in general, or, in the case of Vital Images, the algorithms, programs, user interfaces and organization of the Products (except as otherwise agreed between the parties in a separate agreement concerning one or more options incorporated in the Products).

1.2                                 First Level Maintenance.  “First Level Maintenance” shall mean electronic or telephone or in-person response to deal with any problem or software bug in the Product which is provided by Vital Images, Toshiba or the Dealer Associates, as hereinafter specified, to Toshiba’s or the Dealer Associates’ customers in the Territory who have installed the Products that are under a contractual warranty or software maintenance program with Toshiba or the Dealer Associates. Such response shall attempt (i) to identify the nature and extent of the customer’s problem, (ii) if appropriate, to obtain a copy of magnetic media, hard copy printout or electronic file forwarded over the internet containing the problem or

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

 

Toshiba-Vital Images Confidential

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software bug to be forwarded promptly to Vital Images electronically or by facsimile, and (iii) to advise the customer in the application of any recommended solution or workaround to such problem or bug.   For outside the U.S., on-site service may be provided by Vital Images at an additional charge.

1.3                                 Government Approval.  “Government Approval” shall mean any approvals, licenses, registrations or authorizations of any federal, state or local regulatory agency, department, bureau or other government entity, foreign or domestic, necessary for use, marketing, sale or distribution of the Products in a regulatory jurisdiction, including without limitation the U.S. Food and Drug Administration (“FDA”).

1.4                                 Products.  “Products” shall mean only those software products in object code form as described in Exhibit A and any related user documentation as released from time to time by Vital Images, including any later authorized releases or versions of such software or documentation during the term of this Agreement.

1.5                                 Second Level Maintenance.  “Second Level Maintenance” shall mean electronic or telephone or in-person response provided by Vital Images to Toshiba or the Dealer Associates to deal with any problem or software bug in the Products that cannot be handled by Toshiba or the Dealer Associate alone under the First Level Maintenance for such customers in the Territory who have installed the Products that are under Vital Images’ standard warranty or under a Toshiba or Dealer Associate standard software maintenance program.

1.6                                 Territory.  “Territory” shall mean the area described in Exhibit B.

1.7                                 Vitreaâ.  “Vitreaâ“ shall mean 2-D and 3-D medical visualization software marketed by Vital Images under the name “Vitreaâ.”

1.8                                 Installation. “First Level Installation” shall mean unloading, assembling and powering up the applicable computer workstation(s), installing the Products onto such computer workstation(s) and integrating such computer workstation(s) onto the customer’s computer network.

1.9                                 Second Level Installation.  “Second Level Installation” shall mean working with the customer and non-Toshiba OEM’s to link non-Toshiba equipment to the computer workstation(s) on which the Products have been installed.

1.10                           Floating License. “Floating License” shall mean one software license for a Product which instead of being restricted to one (1) access point (i.e., a computer workstation), can be used at more than one (1) access point, provided that such use shall be restricted to one access point at a time.

ARTICLE 2:  APPOINTMENT

2.1                                 Scope.  Vital Images hereby appoints Toshiba, and Toshiba hereby accepts such appointment, as Vital Images’ nonexclusive reseller of the Products during the term of this Agreement in the Territory, subject to all the terms and conditions of this Agreement.  All sublicenses of the Products are one-time sublicenses, whether or not they are granted on a term or perpetual basis, and after the initial sublicense of any Product to a customer, Toshiba or the Dealer Associates may not sublicense any Products that are returned by that customer, provided that Toshiba may reinstall Products without paying an additional license fee when such reinstallation is in connection with a customer trade-in or upgrade of equipment purchased from Toshiba and it is the same customer for which the software was initially licensed. Vital Images and Toshiba’s rights and obligations concerning the SurePlaque will continue to be governed by the Software Development Agreement entered into between the parties, dated September 7, 2006.

2.2                                 Dealer Associates.  Effective with the signing of this Agreement, Toshiba hereby appoints and Vital Images consents to the appointment of, the Toshiba subsidiaries and distributors listed in Exhibit C as its agents to market and distribute the Products within the Territory (collectively “Dealer Associates”). Provided, however, Toshiba shall remain fully liable for the performance of such Dealer Associates and

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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Toshiba hereby indemnifies and holds Vital Images harmless from all damages, losses, costs or expenses  (excluding any consequential or incidental damages) arising in any manner from any act or omission on the part of such Dealer Associates if such act or omission constitutes a breach of this Agreement.  Toshiba shall advise Vital Images in writing of any such appointment agreement with any Dealer Associates.

2.3                                 Use of Terms.  The terms “sale”, “purchase”, “distribution”, “resale”, “reseller” and “Dealer” are used herein for convenience only and refer to the sale of software licenses for the Products.  Toshiba hereby acknowledges Vital Images retains all right, title and interest in and to the copyrights and other intellectual property rights in the Products (except as otherwise agreed between the parties in a separate agreement concerning one or more options incorporated in the Products) and that such Products are to be distributed to Toshiba’s and Dealer Associate’s customers in compliance with such acknowledgment.

ARTICLE 3:  GENERAL OBLIGATIONS OF TOSHIBA

3.1                                 Marketing.  Toshiba and the Dealer Associates shall have the following obligations with respect to the marketing and distribution of the Products:

(a)                                  To use its commercially reasonable best efforts to further the promotion, marketing and distribution of the Products in the Territory;

(b)                                 To perform the First Level Installation for customers in the Territory with respect to the Products, and to ensure that only authorized versions of the Products are installed as supplied by Vital Images for customers in the Territory.

(c)                                  To promptly respond to all inquiries or complaints from customers; outside of the United States, to provide all necessary and appropriate First Level Maintenance of the Products; and to cooperate with Vital Images in the provision of the Second Level Maintenance;

(d)                                 To provide Vital Images with appropriate details of all complaints and bugs found in the Products, whether such complaints or bugs were discovered by Toshiba, any of its Dealer Associates or customers thereof;

(e)                                  To reasonably investigate possible leads with respect to potential customers in the Territory who are referred to Toshiba by Vital Images;

(f)                                    To maintain an adequately trained and staffed sales and technical support group for the marketing and distribution of the Products in the Territory, for the First Level Installation in the United States, and for the First Level Installation and First Level Maintenance outside the United States;

(g)                                 To provide appropriate sales staff for training by Vital Images in the United States, and both sales and technical support staff for training by Vital Images outside of the United States, at mutually-agreeable locations;

(h)                                 To provide Vital Images with reports of its activities and other information regarding the Products in the Territory in such detail and with such frequency as is reasonably agreed between both parties;

(i)                                     To conduct its business in a professional manner, which will reflect positively upon Vital Images and its Products;

(j)                                     To provide Vital Images with customer registration information as is reasonably requested by Vital Images;

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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(k)                                  To abide by all applicable laws and regulations in the Territory, including, if applicable, the U.S. Export Administration Regulations; and

(l)                                     To apprise all customers of the terms of Section 2.3 of this Agreement regarding the ownership of intellectual property embodied in the Products and obtain from all customers a written license agreement containing all of the terms and conditions contained in Exhibit K to this Agreement, or other similar terms and conditions that protect Vital Images to the same degree as the terms and conditions contained in Exhibit K.

3.2                                 Toshiba Demonstration License.  To enable Toshiba to better perform its marketing and distribution of the Products, and to assist it with its product development and training activities, Vital Images will grant to Toshiba and/or its Dealer Associates an unlimited number of royalty free software licenses, for the latest version of the Products solely for their own customer and trade show demonstration, promotional and training uses, subject to the Terms and Conditions for the Demonstration License attached hereto as Exhibit D.  This Demonstration License will be valid for the term of this Agreement, and will include upgrades and updates to the Products.  Toshiba and the Dealer Associates will provide all hardware related to the Demonstration Licenses, and must track the location of all Demonstration Licenses.

3.3                                 Promotional Materials.  Vital Images shall furnish Toshiba with a reasonable quantity of Vital Images data sheets, brochures and other marketing materials for the Products in the English language for use by Toshiba and its Dealer Associates.

(a)                                  Upon request of Toshiba or its Dealer Associates, Vital Images shall provide Toshiba and the Dealer Associates with sufficient quantities of promotional materials and any revision(s) thereof, at no charge.

(b)                                 In lieu of providing such promotional materials directly, Vital Images, at its discretion, may provide Toshiba with an electronic media copy of same with a nonexclusive, nontransferable right and license to use same, without modification of any kind, for the local reproduction of such materials solely for purposes of Toshiba’s performance under this Agreement.

(c)                                  If Toshiba or its Dealer Associates believes that non-English language versions of such promotional materials or non-English language advertising of the Products are necessary or desirable for effective marketing of the Products in the Territory, Toshiba shall arrange and pay for the preparation of such non-English language materials, which shall be subject to the prior review and written approval of Vital Images. If Toshiba or its Dealer Associates believe that non-English language versions of user’s manual of the Products are necessary and upon request of Toshiba or its Dealer Associates and the agreement of Vital Images, acting reasonably, Vital Images shall provide such translated version to Toshiba or its Dealer Associates which made such request, at no charge. In all cases, Vital Images shall be the sole and exclusive owner of the copyrights in any such materials, regardless of language.

(d)                                 Toshiba and the Dealer Associates will not remove any marks of Vital Images or attributions to Vital Images from the promotional materials provided, even if the materials are combined with other materials not from Vital Images.

3.4                                 Reverse Engineering.  Toshiba shall not reverse engineer, decompile or disassemble the Products and shall not allow any other person to do so, nor, except as expressly permitted hereunder, copy the Products.

3.5                                 Expenses.  Except as otherwise specified in this Agreement, Toshiba and its Dealer Associates assume full responsibility for all its own costs and expenses incurred in carrying out its obligations under this

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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Agreement, including but not limited to all rents, salaries, commissions, advertising, demonstrations, travel and accommodations.

ARTICLE 4:  GENERAL OBLIGATIONS OF VITAL IMAGES

4.1                                 Development and Integration.  Continued collaboration on product is a shared goal of the parties.  Once Toshiba has made its stent visualization software and its myocardial perfusion software available to Vital Images, Vital Images will use reasonable and prompt commercial efforts to integrate such options into the “VitalCardia” package.

4.2                                 Market Awareness.  Vital Images will use reasonable commercial efforts to promote awareness of the Products for use in the radiology and cardiology market through tradeshows and other marketing venues.  At a minimum, Vital Images will attend the trade shows set forth in Exhibit G to this Agreement.  Vital Images will exercise its best efforts to attend other trade shows that are not set forth in Exhibit G, provided that Toshiba gives Vital Images reasonable advance notice sufficient to allow Vital Images to send representatives to such shows.  For the shows that are set forth in Exhibit G, if Vital Images will have a separate booth in any trade show in which Toshiba also participates, Vital Images will provide such workstations and qualified personnel for the Toshiba booth in addition to its own. Vital Images will exercise its best efforts to provide such workstations and qualified personnel for the Toshiba booth for the trade shows that are not set forth in Exhibit G, provided that Toshiba gives Vital Images reasonable advance notice sufficient to allow Vital Images to provide such workstations and qualified personnel. Furthermore, Vital Images will exercise its best efforts to have its booth located adjacent to TAMS’ booth where both participate.  Vital Images will also advise TAMS of any trade shows in which Vital Images participates.  Any exhibits prepared by Vital Images for Toshiba’s booth at trade shows must show the Vital Images products working in conjunction with Toshiba’s images from Toshiba’s CT equipment, but Vital Images is not precluded from presenting additional exhibits that show its products working in conjunction with images from other CT manufacturers.

4.3                                 Support.  During the term of this Agreement, Vital Images agrees to maintain an adequate number of trained sales, applications and service support personnel to perform its duties under this Agreement.  Included within Vital Images’ support responsibilities are the following:

(a)                                  Vital Images has available global support for customers who wish to purchase such support in accordance with Exhibit J attached to this Agreement,; and

(b)                                 Vital Images agrees to share statistics for own call center support to Toshiba users

(c)                                  To promptly  respond to all inquiries or complaints from Toshiba or its Dealer Associates; outside of the United States, to provide all appropriate Second Level Maintenance of the Products to Toshiba or its Dealer Associates.

4.4                                 Training. During the term of this Agreement Vital Images will provide training at its headquarters location, or such other location mutually agreed between the parties, for Toshiba and Dealer Associate personnel in the function, application, installation and the First Level Maintenance of the Products and in the provision of assistance to Vital Images for Second Level Maintenance, provided, however, Toshiba or the Dealer Associates shall pay the salaries and all transportation and living expenses for its staff.  Toshiba and the Dealer Associates in aggregate may place up to four (4) staff members in any of Vital Images’ regularly-scheduled training classes, upon at least two weeks’ advance notice to Vital Images, provided space is available.

4.5                                 Customer Training.  Vital Images will provide training for two people per Vitrea license at a Vital Images training location.  Training shall include an overview of the Vital Images

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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developed tools and features of the products purchased by the customer.  Training at other locations will be available for an additional charge per session.

 

ARTICLE 5:  ORDERS FOR PRODUCTS

5.1                                 Purchase Orders.  Toshiba shall cause its Dealer Associates, and itself shall use its best efforts to submit purchase orders for the Products to Vital Images in writing (preferably by facsimile or other electronic means) at least        *     days prior to the requested delivery date, which orders shall include the following information:

(a)                                  An identification of the Products ordered;

(b)                                 Quantity of Products;

(c)                                  Requested delivery dates;

(d)                                 Shipping instructions and shipping address; and

(e)                                  If applicable, any relevant export control information or documentation to enable Toshiba and Vital Images to comply with applicable U.S. export control laws.

5.2                                 Acceptance of Orders – All purchase orders from Toshiba and the Dealer Associate are subject to acceptance in writing by Vital Images, which acceptance shall not be unreasonably withheld and shall be delivered by reply facsimile or by e-mail. Vital Images may withhold its acceptance only if (a)  the lead time for delivery is less than       *     days; (b) Toshiba or the Dealer Associate who has submitted the purchase order is delinquent in its payments to Vital Images under this Agreement; or (c) Toshiba or the Dealer Associate show has submitted the purchase order is in breach of this Agreement. Failure to respond to each purchase order by Vital Images within       *     business days from receipt of such purchase order shall be deemed acceptance of such purchase order by Vital Images. Vital Images will provide to Toshiba monthly reports no later than  *   days from the end of each month listing all purchase orders and amounts of such purchase orders placed by each Dealer Associate during the prior month. Such report shall also list all service contracts and options purchased by each Dealer Associate during such month.

5.3                                 Delivery Terms.  All deliveries of the Products shall be from Vital Images’ facilities unless otherwise agreed in writing between the parties.  Vital Images shall bear shipping charges for the shipment of any Products to its destination specified in the purchase order.  All risk of damage to or loss or delay of the Products shall pass to Toshiba or the Dealer Associate upon their delivery to a common carrier.

5.4                                 Modification of Orders.  No accepted purchase order may be modified or canceled later than thirty (30) days before the scheduled delivery date, except upon the written agreement of both parties, provided, however, any price decrease for the Products shall be implemented upon the effective date of such decrease and therefore, will apply to any purchase order for which delivery has not yet taken place. Furthermore, Vital Images will, at no additional cost to Toshiba and the Dealer Associate, ship its latest authorized version or release of a Product in response to any accepted purchase order.  Toshiba’s and the Dealer Associate’s purchase orders or mutually-agreed change orders shall be subject to all provisions of this Agreement, whether or not the purchase order or change order so states, and any terms and conditions of such purchase order or change order which conflict with the terms and conditions of this Agreement shall be deemed excluded and of no legal effect as between the parties.

5.5                                 Purchase Commitment.  Toshiba annual purchase commitment is set forth on Exhibit F attached hereto and incorporated herein by this reference.  Vital Images shall ship to Toshiba and/or its Dealer Associates during the Term of this Agreement such Products as are identified in and in accordance with the purchase orders submitted by Toshiba and/or its Dealer Associates.  In the event of a Change of Control of Vital Images, as defined in Section 18.11 of this Agreement,   *

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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Annual Vitreaâ software purchases above the minimums set forth in the Commitment may be applied to reduce or  satisfy the next year’s purchase commitments for Products during the term of this Agreement, provided that Vitreaâ software purchases above the minimums set forth in the Commitment during the last year of the current term of this Agreement may be applied to reduce or satisfy the next year’s purchase commitments for Products

5.6           Product Changes. Vital Images may do any of the following upon sixty (60) days’ prior written notice (or such sooner notice as practicable, if required for regulatory or legal reasons) to Toshiba:

(a)                                  Alter the specifications for any Product or any new release thereof, provided, however, that Toshiba has the option to request Vital Images to continue to provide Products without such alteration for any purchase orders submitted by Toshiba and/or Dealer Associates prior to the date that Vital Images notifies Toshiba of such alteration, unless such prior Product has been discontinued for regulatory or other legal reasons;

(b)                                 Except as set forth below, discontinue the production of any Product. However, such discontinuation will not release or modify Vital Images’ obligations for warranty and service support specified in this Agreement;

(c)                                  Discontinue the development of any new release of a Product, if such new release has not been announced publicly; or

(d)                                 Commence the development and distribution of new software products having features, which may make any Product wholly or partially obsolete, provided Toshiba is granted  the right to continue to purchase the obsolete Products for a period of at least one year from the date that the new software products are commercially introduced by Vital Images, unless such prior Product has been discontinued for regulatory or other legal reasons or this Agreement terminates before the expiration of such one-year period.

Notwithstanding the foregoing, at all times throughout the term of this Agreement, Vital Images must have available for Toshiba Vitreaâ or a successor software of Vitreaâ  that will have specifications that are at least equal to or better than those for the version of Vitreaâ software existing as of the date of this Agreement, and give at least six (6) months’ prior written notice (or such sooner notice as practicable, if required for regulatory or legal reasons) to Toshiba before discontinuing the production of Vitreaâ . Toshiba’s minimum purchase commitments will end in the event Vital Images discontinues the production of Vitreaâ  and does not provide Toshiba with a successor product acceptable to Toshiba.  Such discontinuation will not release or modify Vital Images’ obligations for warranty and service support specified in this Agreement.

5.7                               Installation of Products.  Unless otherwise agreed in writing by Vital Images, all deliveries of the Products shall be directly to Toshiba or the Dealer Associates, unless the parties agree that Vital Images shall ship the Products directly to the customers, and Toshiba and the Dealer Associates shall then have the sole responsibility for the First Level Installation of such Products into a customer’s computer system in the Territory in accordance with the standards and specifications established by Vital Images from time to time and provided to Toshiba and the Dealer Associates hereunder.

If the Products need to be integrated with non-Toshiba equipment, Vital Images will perform the Second Level Installation, upon request from Toshiba, or the Dealer Associates or the customers, to ensure proper integration

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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5.8                                 Distribution Report.  Name, address, telephone and facsimile numbers of customers who purchased the Product and Service contracts in each calendar quarter shall be provided to Vital Images within thirty (30) days after the end of such quarter.

 

ARTICLE 6:  SOFTWARE MAINTENANCE SERVICES

6.1                                 Software Maintenance Agreements.  For each customer purchasing a license for the Products in the Territory, Toshiba and/or the Dealer Associates shall use its reasonable best efforts to persuade such customer to purchase annual or long-term software maintenance services under a software maintenance program. Such software maintenance services shall include updates and upgrades  to the Vitreaâ  and other applicable Products that have been purchased by the customer, free of charge to the customer, for so long as that customer is current in its payment of fees for software maintenance services.  Included in software maintenance services is the provision of updates, which are new versions of the products that include enhancements and upgrades and are released to Vital Images’ general installed base, and corrections, which are fixes to errors in the Products that are reported by Vital Images customers and are released to Vital Images’ general installed base. It is agreed between the parties that newly released options to Vitreaâ ,except for those listed in Exhibit E and purchased by the customer, shall be excluded from such updates and upgrades, unless explicitly agreed between the parties.  Provided, however, even after the Warranty Period (hereinafter defined in Section 9.1(a)), upon written request from Toshiba or its Dealer Associates for any particular end-user, for up to six (6) months after the expiration date of the Warranty Period, Vital Images shall, without charge, upgrade or update such end-user’s Product to its latest version available within the end-user’s Warranty Period, with downward compatibility. Further, for non-U.S. sales, after the expiration of such six-month post warranty grace period, Toshiba and/or its Dealer Associates may purchase the latest version of the Vitreaâ 2 for their customers at a price of $ * , provide the customer executes a one-year maintenance contract for $  *  ..

6.2                                 First Level Maintenance Service.   Toshiba and/or the Dealer Associates shall provide the First Level Maintenance to customers outside the United States.  Vital Images shall provide First Level Maintenance to customers within the United States.  If Vital Images requests on-site assistance from Toshiba or TAMS in the United States, such assistance will be provided at a * % discount off of Toshiba’s or TAMS’ prevailing labor rates.

6.3                                 Second Level Maintenance Service.   Vital Images shall provide the Second Level Maintenance to Toshiba and the Dealer Associates.   In accordance with their technical ability, and based upon their prior experience and training by Vital Images, except for the United States, Toshiba and/or the Dealer Associates shall use their reasonable best efforts to assist Vital Images in providing the Second Level Maintenance for the benefit of customers in the Territory.  Toshiba shall pay Vital Images to provide Second Level Maintenance at the amounts set forth in Exhibit E.

6.4                                 Customer Contact.  Except as set forth in Section 6.3 outside the U.S., and Sections 6.2 and 6.3 within the U.S., Toshiba and/or the Dealers Associates shall have the primary responsibility for direct contact with customers in the Territory in regard to the function, application, installation or maintenance of the Products under the First Level Maintenance and the Second Level Maintenance, provided that Vital Images may contact directly any customer not enrolled in support to enter into a support  agreement.

ARTICLE 7:  PRICES AND PAYMENTS

7.1                                 Prices.  Toshiba and the Dealer Associates shall pay Vital Images in accordance with the prices for the Products or for maintenance support services as specified in the Product Price List, Exhibit E hereto. All Product Price List prices are for shipment from Vital Images’ facilities to its destination.  Any special packing or handling shall be at the sole expense of Toshiba.

In recognition of the purchase commitments made by Toshiba and its Dealer Associates pursuant to Section 5.5 of this Agreement, Vital Images hereby covenants and agrees that the transfer price charged to Toshiba and its Dealer Associates for the standalone Products shall at all times be *

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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Toshiba is free to resell the Products and maintenance support services at any price at which Toshiba deems appropriate. Vital Images will not coerce or otherwise dictate such resale price.

7.2                                 Payment Terms.  For each order of the Products or annual maintenance support services, Toshiba and/or its Dealer Associates, who ordered such Products or annual maintenance support service, shall pay for Product in accordance with the Product Price List in U.S. Dollars within forty-five (45) days of the date of shipment and shall pay for services in accordance with the Product Price List in U.S. Dollars on a quarterly basis in advance of the quarter in which the services are to be provided, provided that the ordered item is delivered to the purchaser specified in the purchase order prior to the payment due date.

7.3                                 Overdue Payments.  If and for so long as any payment from Toshiba to Vital Images under this Agreement shall be overdue:

(a)                                  Interest at twelve percent (12%) per annum or the highest rate permitted under applicable law, whichever is lower, shall become due on all balances outstanding that are past due by more than 30 days from the date that Vital Images provides written notice to Toshiba or Dealer Associate, as the case may be, of such past due amount, provided, however, that if payment is not made by the expiration of such 30-day period, the above-mentioned interest will be paid beginning the original due date of the payment; and

(b)                                 Vital Images reserves the right to withhold or suspend shipment of the Products to Toshiba and/or the Dealer Associate if there is an unsettled outstanding balance owed by Toshiba or the Dealer Associate to Vital Images, provided, however, that Vital Images shall first provide Toshiba or the Dealer Associate, as the case may be, with 30-days prior written notice and opportunity to cure before withholding or suspending shipment under this paragraph. Any such withholding or suspension will be effected only against the Dealer Associate that has an unsettled outstanding balance, and not other Dealer Associates or Toshiba.

ARTICLE 8:  APPROVALS; ADVERSE REACTIONS; PRODUCT RECALLS

8.1                                 Government Approval.  Vital Images shall make diligent efforts to prepare and file all applications required to obtain all necessary Government Approval for each country in the Territory specified in Exhibit B hereto, the Principal Countries, where such Government Approval has not already been obtained.  For all other countries in the Territory, if any, Vital Images shall diligently prepare and file all applications required to obtain all necessary Government Approval for each such country as Vital Images, in its sole discretion, deems necessary.  Vital Images shall keep Toshiba apprised of its progress with respect to any such applications.  Toshiba shall furnish Vital Images with such assistance and cooperation as may be reasonably requested in connection with the securing of such Government Approval.

8.2                                 Compliance. Vital Images  shall  comply with all applicable regulatory requirements.  However, Toshiba shall provide all information within its possession  to Vital Images necessary for Vital Images to comply with its medical device reporting requirements to the FDA or any other comparable regulatory body elsewhere in the world.  Vital Images shall comply with all health registration laws, regulations and orders of any government entity within the Territory and with all other governmental requirements relating to the promotion, marketing and sale of the Products in each country in the Territory.  Toshiba shall submit all advertising claims to Vital Images for written approval prior to their first use by any party, such consent not to be unreasonably withheld. Toshiba will comply with all applicable regulatory requirements applicable to Toshiba’s marketing and sale of the Products.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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8.3                                 Adverse Event Reporting.  Toshiba shall advise Vital Images, by telephone or facsimile, within twenty-four (24) hours after it becomes aware of any adverse event (which is defined as personal injury or death) from the use of any Product or malfunction of any Product.  Unless otherwise required by applicable local laws, Toshiba shall advise Vital Images of any such adverse event prior to any report or filing being made by Toshiba with the FDA or any other comparable regulatory body elsewhere in the world. Vital Images shall appoint an Authorised Representative according to the European Union Medical Devices Directive MDD 93/42/EEC as set forth in Exhibit I.

8.4                                 Corrective Action.

(a)          Notice of Corrective Action.  If Vital Images believes that a corrective action with respect to the Products is desirable or required by law, or if any governmental agency having jurisdiction (including, without limitation, the FDA) shall request or order any corrective action with respect to the Products, including any recall, customer notice, restriction, change, corrective action or market action or any Product change, Vital Images shall promptly notify Toshiba and the Dealer Associates.  Any and all corrective actions shall be conducted at the expense of Vital Images, except costs associated with notifying customers of such corrective action.  Toshiba and/or the Dealer Associates shall maintain complete and accurate records, for such periods as may be required by applicable law, of all Products they sold.  The parties shall cooperate fully with each other in effecting any corrective action with respect to the Products pursuant to this Article 8.4, including communication with any customers and Toshiba shall cause its Dealer Associates, and itself shall comply with all reasonable directions of Vital Images’ regarding such corrective action.  This Article 8.4 shall not limit the obligations of either party under law regarding any corrective action with respect to the Products required by law or properly mandated by governmental authority.

(b)         Refund.  If any Products are required to be returned to Vital Images pursuant to this Article 8.4 and no replacement is provided therefor by Vital Images, Vital Images shall refund to Toshiba’s or the Dealer Associate’s customers any unearned license fees paid to Toshiba or the Dealers Associates (the amount of the license fee each such customer paid for the products, less a reasonable value for use determined by prorating the license fee paid on a thirty-six (36) month straight-line amortization method). Vital Images shall indemnify Toshiba or the Dealer Associate from any actions made by Toshiba’s or the Dealer Associate’s customers claiming reimbursement of license fees, whether or not in excess of the amount specified in this paragraph.

ARTICLE 9:  WARRANTIES AND REPRESENTATIONS; INDEMNIFICATION

9.1                                 Product Warranties to Customers.  Vital Images hereby authorizes Toshiba and the Dealer Associates to pass through to its customers Vital Images’ standard software warranties as set forth below.

(a)                                  Limited Warranty.

 

(i) Vital  Images warrants to Toshiba and the Dealer Associates for twelve (12) months from installation or sixteen (16) months from the delivery date, whichever expires first (the “Warranty Period”), that the Products, when properly installed and operated, will perform the functions described in the functional specifications for the Products, as contained in the applicable written documentation for the Products, and that such Product shall be upgraded or updated to its latest version with the assurance of downward compatibility. Vital Images shall have no obligation under this provision if (a) the Products have not been properly installed, used or maintained (except for any maintenance performed by Vital Images), in accordance with Vital Images’ then-applicable operating manuals; or (b) the Products have been modified in any

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

10



manner by anyone other than Vital Images, or are used or combined with other computer software programs (other than standard operating software) not approved by Vital Images, hardware not validated by Vital Images and without the prior written consent of Vital Images; or (c) the Products have been distributed to a customer with any warranties or representations, oral or written, made by Toshiba or any third party beyond those expressly set forth herein., however Vital Images will nevertheless be responsible for performing its warranty obligations to the extent set forth in this paragraph, but not for the additional warranties made by Toshiba or any third party.

 

(ii) The warranty for sale of any Product in Germany will be *                             months from installation, subject to Toshiba’s paying Vital Images an amount equal to                             *of the maintenance fees that would have been paid for *                             *                              the warranty period in Germany, had the warranty not been *  pursuant to this Article 9.1(a)(ii).

 

(iii) TMSE will include annual or long-term software maintenance services for the Products as part of TMSE’s service contract proposals to its customers. However, if the TMSE customers do not wish to sign up to such software maintenance services, TMSE is not precluded from offering its service contract without such software maintenance.

 

(b)                                 Exclusive Remedy.  Vital Images’ entire liability for any warranty claim made by Toshiba or the Dealer Associates under Section 9.1(a) above during the Warranty Period, and Toshiba’s and its Dealer Associates’ exclusive remedy for any such claim, shall be for Vital Images, at its option, to either (i) replace any defective media which prevents the Products from satisfying the limited warranty described in Section 9.1(a); or (ii) attempt to correct any material and reproducible errors reported by Toshiba or the Dealer Associate.         *

*

*

*

*

*.

Vital Images does not warrant that the operation of the Products will be uninterrupted or error-free, that all errors in the Products will be corrected, that the Products will satisfy customer’s requirements or that the Products will operate in the combinations which such customer may select for use.

(c)                                  Warranty Extension.  Replacement or correction of all or any part of the Products does not extend the Warranty Period, which shall begin on the delivery date. However, if Vital Images is unable to correct an error by the deadline by which it projected such correction, the warranty will be extended for the number of days for which the error remains uncorrected beyond such deadline Notwithstanding the foregoing, and notwithstanding Section 9.1(a) above, in the event that the Products have been installed on a hardware platform which has been recommended in writing by Vital Images, and do not perform because the Products are not compatible with such hardware, the Warranty Period shall not commence until the date on which all issues defined in the customer’s warranty claim regarding the hardware have been resolved. Vital Images and its third party licensors expressly disclaim any commitment to provide maintenance or support of the Products beyond the Warranty Period, in the absence of entering into a separate software maintenance arrangement with Vital Images and except to the extent stated in Section 6.1 for the 6-month post warranty grace period. Furthermore, the Products are derived from and include software from third party licensors, who make no warranty, express or implied, regarding the

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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Products, who disclaim any and all liability for the Products and who will not undertake to provide any information or support regarding the Products.

(d)                                 Maintenance Obligations.  As part of its First Level Maintenance obligations outside the U.S., Toshiba shall and it shall cause its Dealer Associates to promptly inform Vital Images of any claims made by their customers in the Territory under such software warranties.  All such warranty claims shall state the nature and details of the claim, the date the cause of the claim was first observed and the serial number of the Products concerned, if any.  Further, all such warranty claims must be received by Vital Images before the expiration of the Warranty Period for such customer, or will be handled as part of Maintenance and Support for customers who remain current in their fees for Maintenance and Support.

9.2                                 Warranty to Toshiba.  Vital Images hereby represents and warrants to Toshiba:

(a)                                  Vital Images owns or has the lawful right from others to grant the rights to market and distribute the Products as set forth in this Agreement;

(b)                                 Vital Images has entered into an agreement with PointDx, Inc. and has procured any necessary license from PointDx, Inc. to fulfill its obligations under this Agreement. Vital Images has no knowledge of any claim of infringement by the Products of any third party intellectual property rights, such as patents, copyrights, trade secrets or trademarks; and

(c)                                  Vital Images has taken all appropriate corporate action to authorize execution and performance of this Agreement.

9.3                                 Limited Warranty.  THE WARRANTIES SET FORTH IN ARTICLES 9.1 AND  9.2 ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY VITAL IMAGES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

9.4                                 Indemnification of Toshiba.  Vital Images hereby agrees to indemnify, defend and hold Toshiba and/or Dealer Associates harmless from any third party suit, claim or other legal action (“Legal Action”) (i) that alleges any bodily injuries or death and damages to tangible property caused solely by use of the Products, but only to the extent caused or contributed to by Vital Images, and/or (ii) that alleges the Products, or any of them, infringe any patent, copyright, or trade secret, including any reasonable costs or legal fees thereby incurred by Toshiba and/or the Dealer Associates.  Vital Images shall be given written notice of any Legal Action within thirty (30) days of Toshiba’s and/or Dealer Associates first knowledge thereof, provided, that, the failure of Toshiba and/or Dealer Associates to notify Vital Images of any such matter within the thirty (30) day period shall not release Vital Images, in whole or in part, from its obligations under this Section 9.4, except to the extent Toshiba’s and/or Dealer Associates’ failure to so notify Vital Images materially prejudices Vital Images’ ability to defend against such Legal Action.  Vital Images shall have sole and exclusive control of the defense of any Legal Action, including the choice and direction of any legal counsel.  Toshiba and/or Dealer Associates may not settle or compromise any Legal Action without the written consent of Vital Images.  Toshiba and/or Dealer Associates shall provide all reasonably requested assistance to Vital Images, at Vital Images’ expense.  If a Product is found to infringe any such third party intellectual property right in such a Legal Action, at Vital Images’ sole discretion and expense, Vital Images may (i) obtain a license from such third party for the benefit of Toshiba and/or Dealer Associates and their customers; or (ii) replace or modify the Product so that it is no longer infringing; or (iii) if neither of the foregoing is commercially feasible, terminate this Agreement and refund to Toshiba and/or the Dealer Associates all amounts previously paid by Toshiba and/or the Dealer Associates for the Software and the Products.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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9.5                                 Indemnification of Vital Images.  Toshiba hereby agrees to indemnify, defend and hold Vital Images harmless from any and all claims, demands, losses and liabilities, including any reasonable costs or legal fees thereby incurred by Vital Images, resulting from Toshiba’s acts or omissions, including, without limitation, misrepresentations regarding the Products, any violation of applicable laws or regulations relating to the marketing and distribution of the Products, any breach of any covenant or term in this Agreement, any failure by Toshiba to provide the required support or training to end users or to properly install the Products to the extent specified in this Agreement; and any misappropriation by a Toshiba or the Dealer Associate customer of any Vital Images intellectual property.

Vital Images hereby agrees to indemnify, defend and hold Toshiba and/or Dealer Associates harmless from any and all claims, demands, losses and liabilities, including any reasonable costs or legal fees thereby incurred by Toshiba and/or Dealer Associates, resulting from Vital Images’ acts or omissions, including, without limitation, misrepresentations regarding the Products, any violation of applicable laws or regulations relating to the marketing and distribution of the Products, or any failure by Vital Images to provide the required support or training to end users or to properly install the Products to the extent specified in this Agreement.

ARTICLE 10:  LIMITATION OF REMEDIES

10.1                           Delay.   The delivery date for each order placed by Toshiba or the Dealer Associate will be indicated on Toshiba or the Dealer Associate’s purchase order.  Once Vital Images accepts such purchase order, if Vital Images fails to deliver the Products within twenty (20) days of the deadline(s) indicated in such purchase orders, Toshiba or the Dealer Associate shall have the right to cancel such order and  purchase equivalent products from an alternative source.  Vital Images shall pay Toshiba or the Dealer Associate for the difference between the price of the alternative product and the price for the Products under the cancelled purchase order(s), not later than twenty (20) days following receipt of Toshiba or the Dealer Associate’s invoice.

10.2                           Sole Remedies.   THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR VITAL IMAGES’ LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE OR PRODUCTS LIABILITY) WITH RESPECT TO THE PRODUCTS AND THEIR USE, THE SERVICES COVERED BY THIS AGREEMENT, AND ALL OTHER PERFORMANCE BY VITAL IMAGES UNDER THIS AGREEMENT SHALL BE LIMITED TO THE REMEDIES PROVIDED IN THIS AGREEMENT.

10.3                           Consequential Damages.  VITAL IMAGES AND TOSHIBA OR THE DEALER ASSOCIATE SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, EVEN IF VITAL IMAGES OR TOSHIBA OR THE DEALER ASSOCIATE SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE BY TOSHIBA OR THE DEALER ASSOCIATE OR VITAL IMAGES.  IN NO EVENT SHALL  VITAL IMAGES BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AGGREGATE AMOUNTS ACTUALLY PAID BY TOSHIBA OR DEALER ASSOCIATE TO VITAL IMAGES UNDER THIS AGREEMENT, EXCEPT FOR ACTIONS FOR BODILY INJURY OR DEATH BROUGHT BY THIRD PARTIES, TANGIBLE PROPERTY DAMAGE, INTELLECTUAL PROPERTY INFRINGEMENT, ACTIONS ARISING UNDER FDA OR APPLICABLE LOCAL REGULATIONS IN THE TERRITORY, OR AS OTHERWISE PROVIDED UNDER THIS AGREEMENT OR BY LAW.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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ARTICLE 11:  CONFIDENTIALITY

11.1                           Confidential Information; Term.  All Confidential Information shall be deemed confidential and proprietary to the party disclosing such information hereunder.  Each party may use the Confidential Information of the other party during the term of this Agreement only as permitted or required for the receiving party’s performance hereunder.  The receiving party shall not disclose or provide any Confidential Information to any third party and shall take reasonable measures to prevent any unauthorized disclosure by its employees, agents, contractors or consultants during the term hereof including appropriate individual nondisclosure agreements.  The foregoing duty shall apply to any Confidential Information for a period of five (5) years from the date of its disclosure. All confidential information must be clearly and conspicuously marked by the disclosing party as proprietary information.  Any proprietary information that is disclosed orally must be identified as  confidential at the time of disclosure and must be confirmed in writing no later than thirty (30) days following disclosure.

11.2                           Exclusions.  The following shall not be considered Confidential Information for purposes of this Article 11:

(a)                                  Information which is or becomes in the public domain through no fault or act of the receiving party;

(b)                                 Information which was independently developed by the receiving party without the use of or reliance on the disclosing party’s Confidential Information;

(c)                                  Information which was provided to the receiving party by a third party under no duty of confidentiality to the disclosing party; or

(d)                                 Information which is required to be disclosed by law, provided, however, prompt prior notice thereof shall be given to the party whose Confidential Information is involved.

ARTICLE 12:  TRADEMARKS

12.1                           Use of Trademarks.  Vital Images hereby grants to Toshiba and the Dealer Associates, and Toshiba and the Dealer Associates hereby accepts from Vital Images, a nonexclusive, nontransferable and royalty-free license to use the Vital Images trademarks specified in the List of Trademarks, Exhibit H hereto, as such list may be modified from time to time, solely in connection with the distribution, promotion, advertising and maintenance of the Products.  Toshiba shall cause its Dealer Associates, and itself shall not use any other marks or trade names in connection with the marketing and distribution of the Products.  All such Vital Images trademarks shall be used by Toshiba and/or the Dealer Associates in accordance with Vital Images’ standards, specifications and instructions, but in no event beyond the term of this Agreement.    Toshiba and the Dealer Associates are not granted any right, title or interest in such trademarks other than the foregoing limited license, and Toshiba shall cause its Dealer Associates, and itself shall not use any Vital Image trademarks as part of Toshiba’s or the Dealer Associate’s corporate or trade name or permit any third party to do so.

12.2                           Registration.  Vital Images shall use its best efforts to register the Vital Images trademarks specified in the List of Trademarks, Exhibit H hereto, as such list may be modified during the term of this Agreement, within the Territory when and if Vital Images determines, in its sole discretion, that registration is necessary or useful to the successful distribution of the Products.  Vital Images shall be the sole party to initiate any such registration and shall bear all the expenses thereof.

12.3                           Markings.  Toshibas shall cause its Dealer Associates, and itself shall not remove or alter any Vital Images trade names, trademarks, copyright notices, serial numbers, labels, tags or other identifying marks, symbols or legends affixed to any Products, or images generated by such Products, documentation, containers or packages.  All promotional materials prepared by Toshiba relating to the Products, regardless of manner or media of display, shall conspicuously bear attribution to Vital Images.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

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12.4                           Infringement.  Toshiba shall cause its Dealer Associates, and itself shall promptly notify Vital Images in writing of any unauthorized use of Vital Images’ trademarks or similar marks which may constitute an infringement or passing off of Vital Images’ trademarks, to the extent known to Toshiba or its Dealer Associates.  Vital Images reserves the right in its sole discretion to institute any proceedings against such third party infringers, and Toshiba shall refrain from doing so.  Toshiba shall cooperate fully with Vital Images in any legal action taken by Vital Images against such third parties, provided that Vital Images shall pay all expenses of such action.  All damages, which may be awarded or agreed upon in settlement of any legal action, shall accrue to Vital Images.

12.5                           Termination of Use.  Toshiba shall not adopt, use or register any words, phrases or symbols which are identical to or confusingly similar to any of Vital Images’ trademarks.  Upon termination of this Agreement, Toshiba shall immediately cease any use of the Vital Images trademarks in any manner.  In addition, Toshiba hereby empowers Vital Images and shall assist Vital Images, if requested, to cancel, revoke or withdraw any governmental registration or authorization permitting Toshiba to use Vital Images trademarks in the Territory.

12.6                     Toshiba Trademarks. Vital Images will not, under any circumstances, use any of Toshiba’s or Dealer Associates’ trademarks, without Toshiba’s prior written consent.  Vital Images shall not adopt, use or register any words, phrases or symbols which are identical to or confusingly similar to any of Toshiba’s or Dealer Associates’  trademarks without Toshiba’s or the applicable Dealer Associate’s prior written consent.

ARTICLE 13:  TAXES AND DUTIES

13.1                           Taxes in the Territory.  Toshiba and/or its Dealer Associates shall be responsible for and shall pay all taxes (except Vital Images’ income taxes), duties, import deposits, assessments and other governmental charges, however designated, which are now or hereafter imposed by any governmental authority or agency that are based on (a) the payment of any amount by Toshiba or the Dealer Associates to Vital Images pursuant to this Agreement for the Products or the use thereof, or (b) the import of the Products into the Territory if such transaction is international in nature.

13.2                           Net Payments.  All payments to be made by Toshiba and its Dealer Associates to Vital Images pursuant to this Agreement represent net amounts Vital Images is entitled to receive and shall not be subject to any deductions for any reason whatsoever except as allowed in this Agreement or by law.  In the event any of said charges become subject to withholding taxes, duties, import deposits, assessments or other governmental charges, however designated, except Vital Images’ income taxes, said payments from Toshiba or its Dealer Associates shall be increased to such an extent as to allow Vital Images to receive the net amounts due under this Agreement.

ARTICLE 14:  IMPORT AND EXPORT OF PRODUCTS

14.1                           Import Documentation.  If applicable, Toshiba shall be responsible for obtaining all licenses and permits required to import the Products into the Territory in accordance with applicable laws or regulations in the Territory.

14.2                           Export Regulations.  If applicable, Toshiba shall supply Vital Images on a timely basis with all necessary information and documentation reasonably requested by Vital Images for export of the Products in accordance with U.S. export control laws or regulations. Promptly after execution of this Agreement, Vital Images will notify Toshiba and its Dealer Associates of the U.S. export status of the Products, and will make its best efforts to continue to update Toshiba and its Dealer Associates of any changes in the export status of the Products based on any changes in the U.S. export regulations.  Vital Images shall be responsible for compliance with all applicable U.S. Export Administration Regulations for all Products shipped by it to Toshiba or the Dealer Associates. If applicable, Toshiba hereby assures Vital Images that:

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

15



(a)                                  Toshiba shall cause its Dealer Associates, and itself shall not re-export, directly or indirectly, the Products or the direct product of the Products to any destination forbidden under the then-applicable U.S. Export Administration Regulations;

(b)                                 Toshiba’s commitment in paragraph (a) above shall apply in all cases unless the U.S. Export Administration Regulations expressly permit such re-export or the U.S. Commerce Department’s Office of Export Licensing has granted such authorization in writing; and

(c)                                  Toshiba’s commitment in paragraph (a) above shall survive termination of this Agreement.

ARTICLE 15:  TERM AND TERMINATION

15.1                           Term.  This Agreement shall take effect as of January 1, 2007 and shall have an initial term through December 31, 2008 (the “Term”).  At the end of the Term, this Agreement shall automatically terminate unless prior to the date of termination, this Agreement is extended pursuant to the mutual written agreement of Toshiba and Vital Images. However, in the event of a Change of Control, as defined in Section 18.11 of this Agreement, Toshiba may, in its sole discretion, extend this Agreement for up to an additional term of three (3) years from the date of the Change of Control, by providing Vital Images written notice, specifying the term for which it seeks to extend the agreement. Such notice must be provided no later than 30 days prior to the expiration of the initial Term of this Agreement. In the event of such extension, Toshiba shall have the continued right for the duration of the extension to obtain the products and services available under this Agreement at prices and under terms to be mutually determined, negotiating in good faith, which prices shall not exceed the commercially-available prices for such products and services, and all terms and conditions of this Agreement, including pricing and the Commitment, will discontinue for the extension term of the Agreement, unless otherwise agreed by the parties in writing.

15.2                           Termination.  Notwithstanding the provisions of Section 15.1 above, this Agreement may be terminated earlier by either party upon written notice to the other party:

(a)                                  If the other party files a petition of any type as to its bankruptcy, is declared bankrupt, becomes insolvent, makes an assignment for the benefit of creditors, goes into liquidation or receivership or otherwise loses legal control of its business voluntarily;

(b)                                 If the other party is in material breach of this Agreement and has failed to cure such breach within thirty (30) days of receipt of written notice thereof from the first party;

(c)                                  If an event of Force Majeure continues for more than six (6) months.

(d)                                 If Vital Images so elects due to a Legal Action, as specified in Article 9.4 above.

(e)                                  Upon mutual agreement by both parties.

This Agreement may also be terminated by Toshiba in the event of           *

*

* .                                   Toshiba will provide Vital Images with thirty (30) days’ prior written notice of termination.

15.3                           Rights and Obligations on Termination.  In the event of termination of this Agreement for any reason, the parties shall have the following rights and obligations:

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

16



(a)                                  Neither party shall be released from the obligation to make payment of all amounts then or thereafter due and payable;

(b)                                 The rights of any customer of Toshiba or the Dealer Associates who holds a valid license for the Products prior to the effective date of such termination shall not be affected;

(c)                                  Toshiba’s indemnification obligation under Article 2.2, Vital Images’ obligations to provide First Level Maintenance (U.S.) and Second Level Maintenance as well as Second Level Installation for all purchase orders submitted by Toshiba and/or Dealer Associates prior to the date of termination of this Agreement, and the parties’ obligations under Articles 7, 8, 9, 10, 11, 12, 13, 16, 17, and 18.11 [need to update section numbers when contract final] shall survive any termination of this Agreement;

(d)                                 Unless the parties otherwise agree in writing, Toshiba shall cause its Dealer Associates and itself shall return all copies of the Products and any other items of Confidential Information to Vital Images and, if applicable, shall erase all copies of the Products from its computer systems and shall certify in writing to Vital Images that it has done so; and

(e)                                  Unless the parties otherwise agree in writing, Vital Images shall return all Confidential Information of Toshiba or the Dealer Associate and any copy thereof to Toshiba or the Dealer Associate.

ARTICLE 16:  FORCE MAJEURE

16.1                           Definition.  “Force Majeure” shall mean any event or condition beyond the reasonable control of either party which prevents, in whole or in material part, the performance by one of the parties of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make such performance commercially unreasonable.  Without limiting the foregoing, the following shall constitute events or conditions of Force Majeure:  acts of State or governmental action, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged shortage of energy or other supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning and explosion, or any refusal or failure of any governmental authority to grant any export license legally required.

16.2                           Notice.  Upon written notice to the other party, a party affected by an event of Force Majeure shall be suspended without any liability on its part from the performance of its obligations under this Agreement, except for the obligation to pay any amounts due and owing hereunder.  Such notice shall include a description of the nature of the event of Force Majeure, and its cause and possible consequences.  The party claiming Force Majeure shall also promptly notify the other party of the termination of such event.

16.3                           Suspension of Performance.  During the period that the performance by one of the parties of its obligations under this Agreement has been suspended by reason of an event of Force Majeure, the other party may likewise suspend the performance of all or part of its obligations hereunder to the extent that such suspension is commercially reasonable.

ARTICLE 17:  ARBITRATION

17.1                           Dispute Resolution.  Except as provided in Section 17.2 below, Vital Images and Toshiba shall each use its best efforts to resolve any dispute between them promptly and amicably and without resort to any legal process if feasible within thirty (30) days of receipt of a written notice by one party to the other party of the existence of such dispute.  Except as provided in Section 17.2 below, no further action may be taken under this Article 17 unless and until executive officers of Vital Images and Toshiba have met in good faith to discuss and settle such dispute.  The foregoing requirement in this Article 17.1 shall be

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

17



without prejudice to either party’s right, if applicable, to terminate this Agreement under Article 14.2 above.

17.2                           Litigation Rights Reserved.  If any dispute arises with regard to the unauthorized use or infringement of the Confidential Information by any party hereto, the party whose Confidential Information is being infringed may seek any available remedy at law or in equity from a court of competent jurisdiction.

17.3                           Procedure for Arbitration.  Except as provided in Section 17.2 above, any dispute, claim or controversy arising out of or in connection with this Agreement which has not been settled through negotiation within a period of thirty (30) days after the date on which either party shall first have notified the other party in writing of the existence of a dispute shall be settled by final and binding arbitration under the International Arbitration Rules of the American Arbitration Association (“AAA”).  Any such arbitration shall be conducted by three (3) neutral arbitrators appointed by mutual agreement of the parties or, failing such agreement, in accordance with said Rules.  At least one (1) arbitrator shall be an experienced computer software professional, and at least one (1) arbitrator shall be an experienced business attorney with a background in the licensing and distribution of computer software. Any such arbitration initiated by Vital Images shall be conducted in Orange County, California, U.S.A., and any such arbitration initiated by Toshiba or Dealer Associate shall be conducted in Minneapolis, Minnesota, U.S.A., any such arbitration to be conducted in the English language.  An arbitral award may be enforced in any court of competent jurisdiction.  Notwithstanding any contrary provision in the AAA Rules, the following additional procedures and rules shall apply to any such arbitration:

(a)                                  Each party shall have the right to request from the arbitrators, and the arbitrators shall order upon good cause shown, reasonable and limited pre-hearing discovery, including (i) exchange of witness lists, (ii) depositions under oath of named witnesses at a mutually convenient location, (iii) written interrogatories and (iv) document requests.

(b)                                 Upon conclusion of the pre-hearing discovery, the arbitrators shall promptly hold a hearing upon the evidence to be adduced by the parties and shall promptly render a written opinion and award.

(c)                                  The arbitrators may not award or assess punitive damages, consequential or indirect damages against either party.

(d)                                 Each party shall bear its own costs and expenses of the arbitration and one-half (1/2) of the fees and costs of the arbitrators, subject to the power of the arbitrators, in their sole discretion, to award all such reasonable costs, expenses and fees to the prevailing party.

ARTICLE 18:  MISCELLANEOUS

18.1                           Relationship.  This Agreement does not make either party the employee, agent or legal representative of the other for any purposes whatsoever.  Neither party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other party.  Each party is acting as an independent contractor.

18.2                           Assignment.   Toshiba shall not assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of Vital Images, which consent will not be unreasonably withheld.  Vital Images shall not assign or otherwise transfer its rights and obligations under this Agreement except with the prior written consent of Toshiba, which consent will not be unreasonably withheld, except that consent may be withheld for any reason (whether or not reasonable) for assignments or transfers to any of the following entities: GE Healthcare, Philips Medical Systems, and Siemens Medical Solutions.  This restriction against assignment or transfer by Vital Images shall not apply to any entity who purchases 50% or more of the shares of stock of Vital Images.  Any prohibited assignment shall be null and void.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

18



18.3                           Notices.  Notices permitted or required to be given hereunder shall be deemed sufficient if given by registered or certified mail, postage prepaid, return receipt requested, by private courier service, or by facsimile addressed to the respective addresses of the parties as first written above or at such other addresses as the respective parties may designate by like notice from time to time.  Notices so given shall be effective upon (i) receipt by the party to which notice is given, or (ii) on the fifth (5th) day following domestic mailing or the tenth (10th) day following international mailing, as may be the case, whichever occurs first.

18.4                           Entire Agreement.  This Agreement, including the Exhibits hereto which are incorporated herein, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes all proposals, oral or written, and all negotiations, conversations, discussions, and previous distribution or value added reseller agreements heretofore between the parties, including, without limitation, the Marketing and Distribution Agreement dated January 21, 2002, and effective October 1, 2001, and the amendments 1, 2 and 3 to said Agreement (together “2001 Agreement”). However, Vital Images and Toshiba’s rights and obligations concerning pricing, installation (First Level and Second Level), warranty and maintenance (First Level and Second Level) for all purchase orders issued under the 2001 Agreement will continue to be subject to the 2001 Agreement. Toshiba and Vital Images hereby acknowledge that neither party has been induced to enter into this Agreement by any representations or statements, oral or written, not expressly contained herein.  Vital Images and Toshiba’s rights and obligations concerning the SurePlaque will continue to be governed by the License Agreement entered into between the parties, dated September 7,. 2006. Vital Images and Toshiba America Medical Systems, Inc.’s rights and obligations under the letter agreement dated May 31, 2006, will continue and are not superceded or otherwise altered by this Agreement.

18.5                           Amendment.  This Agreement may not be modified, amended, rescinded, canceled or waived, in whole or in part, except by written amendment signed by both parties hereto.

18.6                           Publicity.  This Agreement is confidential, and no party shall issue press releases or engage in other types of publicity of any nature dealing with the commercial or legal details of this Agreement without the other party’s prior written approval, which approval shall not be unreasonably withheld.  However, approval of such disclosure shall be deemed to be given to the extent such disclosure is required to comply with governmental rules, regulations or other governmental requirements.  In such event, the publishing party shall furnish a copy of such disclosure to the other party.

18.7                           Governing Law.    This Agreement shall be governed by and interpreted under the laws of the state within which the action is filed as specified in Section 17.3 above, excluding its choice of law rules. “The parties hereby exclude application of the 1980 United Nations Convention on Contracts for the International Sale of Goods.”

18.8                           Severability.  If any provision of this Agreement is found unenforceable under any of the laws or regulations applicable thereto, such provision terms shall be deemed stricken from this Agreement, but such invalidity or unenforceability shall not invalidate any of the other provisions of this Agreement.

18.9                           Counterparts.  This Agreement may be executed in two or more counterparts in the English language and each such counterpart shall be deemed an original hereof.  In case of any conflict between the English version and any translated version of this Agreement, the English version shall govern.

18.10                     Waiver.  No failure by either party to take any action or assert any right hereunder shall be deemed to be a waiver of such right in the event of the continuation or repetition of the circumstances giving rise to such right.

18.11                     Change of Control.  For purposes of this Agreement, “Change of Control” shall mean: (i) any merger, statutory share exchange or consolidation of a party with or into any third party, that entitles the shareholders of the third party to receive at least one (1) seat on the board of directors and at least

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

19



thirty-three and one-third percent (33-1/3%) of the outstanding capital stock of the post-merger company (provided, however, that          *

*

*

*;                                                                                                                  (ii) any third party becoming the holder of a majority of the capital stock of a party entitled to vote generally for the election of directors; or (iii) the sale, lease, assignment, transfer or other conveyance of all or substantially all of the assets of a party in any transaction or series of transactions by such party.  In case of “Change of Control” of either party, that party shall assure that the acquiring equity shall agree to honor and fullfill the obligation of the party as contained in this Agreement.

 

18.12                                                                     *. The parties agree that *

* subject to legal, regulatory or governance constraints and an agreement that is appropriate                * .. The parties further agree that they will diligently and in good faith use their best efforts to determine whether there are any legal, regulatory or governance obstacles to           *                 which they mutually agree would render *

*                                         inadvisable. The parties agree that there will be some instances in which *

*                                                           and that they will diligently and in good faith use their best efforts to identify specific circumstances under which they mutually agree                                                *

*                                         (such as owing to                     *

*                                                                                                      ). The parties will use their good faith and diligent best efforts to resolve these issues on or before            *                                     .

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized

representatives below.

VITAL IMAGES, INC.

 

Toshiba Medical Systems

 

 

 

 

 

 

By

 

 

 

By

 

 

 

 

 

Name

 

 

 

Name

 

 

 

 

 

Title

 

 

 

Title

 

 

 

 

LIST OF EXHIBITS

A                                      Products

B                                        Territory

C                                        List of Dealer Associates

D                                       Terms and Conditions for the Demonstration License

E                                         Product Price List

F                                         Product Commitments

G                                        Principal Countries

H                                       List of Vital Images Trademarks

idmsmpl:482368_7

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

20



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT A

PRODUCTS

Vitrea â

VScoreÔ option

VScore with EKG GateÔ option

VScore with AutoGateÔ option

3D Angiography option

CT Perfusion option

CT Colonography option

Automated Vessel Measurements option

CT Cardiac option

Cardiac Functional Analysis option

CT Cardiac Option with Peripheral Vessel Probe option

SUREPlaque™ option

Electro-physiology option*

Peripheral Vessel Probe option

Soft Read option

Nodule Probe option (Lung option)

Fusion7D™ option

Fusion7D™ Advanced option

Fusion7D™ Standard option

Fusion7D™ Advanced option with DICOMPrint &CDburn

Fusion7D™ Standard option with DICOMPrint &CDburn

Fusion7D™ Basic option with DICOMPrint &CDburn

ImageChecker® Lung CAD(Ver.2.0) option

AutoPoint Temporal Comparison option (must also buy Lung CAD)

Pulmonary Artery Patency Exam option (must also buy Lung CAD)

Vitrea ACCESSTM option(3)(4)

VitreaACCESS Remote option

 

*when and if available

21



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT B

TERRITORY

Worldwide, except for Japan and those countries barred by the

Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury

22



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT C

LIST OF DEALER ASSOCIATES

Company Name

 

MAIN COUNTRY

 

Address

TOSHIBA AMERICA MEDICAL SYSTEMS, INC.

 

U.S.A.

 

0000 XXXXXXXX XX., XXXXXX, XX 00000, X.X.X.

TOSHIBA OF CANADA LTD.

 

CANADA

 

000 XxXXXX XXXXXX, XXXXXXX, XXXXXXX, X0X 0X0 XXXXXX

TOSHIBA MEDICAL SYSTEMS EUROPE B.V.

 

EUROPE

 

XXXXXXXXXXXX 0, 0000 XX XXXXXXXXXX, XXX XXXXXXXXXX

TOSHIBA (AUSTRALIA) PTY.

 

AUSTRALIA

 

00 Xxxxxxxx Xxxx, Xxxxx Xxxx, XXX 0000

TOSHIBA MEDICAL DO BRAZIL LTDA

 

BRAZIL BOLIVIA PARAGUAY

 

RUA XXXXXXX XXXXXX XXXXXXXX,110 CEP 06765-280 TABOAO XX XXXXX-SP, BRASIL

TOSHIBA MEDICAL SYSTEMS ASIA PTE., LTD.

 

SINGAPORE

 

BLOCK 000, XXXXXXXXX XXXX, #00-00, XXXXXXXXX XXXXXXXXXX XXXX XXXXXXXXX 000000

XXXXX MEDICAL SYSTEMS CO., LTD.

 

CHINA

 

7/F.,AIR-CHINA BLDG.,5-2,TORANOMON 2-CHOME, MINATO-KU,TOKYO

DAEYOUNG MEDICAL CORPORATION

 

KOREA

 

0-0 XXXX-XXXX XXXX-XX, XXXXXXXX, XXXXX

ROTARY TRADING CO., LTD

 

TAIWAN

 

0X, XX.000, XXXXX-XXXX XX., XXX-XXXX XXXXXXXX, XXXXXX, XXXXXX

XXXXX MEDICAL SYSTEMS (H.K.) LTD.

 

HONGKONG

 

XX000, 0X XXXXX 0, XXX XXXXXXX, XXXXXXX XXXX, TSIM SHA TSUI, KOWLOON, HONG KONG

PHILIPPINE MEDICAL SYSTEMS INC.

 

PHILIPPINES

 

SUITE 4A, VERNIDA L CONDOMINIUM 000 XXXXXXXX XX., XXXXXXX XXXXXXX, XXXXXX XXXXX XXXXXX, XXXXXXXXXXX

PT MURTI INDAH SENTOSA

 

INDONESIA

 

JI. SULTAN ISKANDAR MUDA KAV. 29 KEBAYORAN LAMA XXXXXXX XXXXXXX 00000, XXXXXXXXX

ABEX MEDICAL SYSTEM SDN. BHD.

 

MALAYSIA

 

XXX 0-0, XXXXX XX/0X XXXX XXXXXXXXXX XXXX SECTION 26, 40000 SHAH ALAM SELANGOR DARUL EHSAN

CMC BIOTECH COMPANY LIMITED

 

THAILAND

 

364 MUBAN TOWN-IN-TOWN, LADPHRAO 94(SOI PANJAMIT) XXXXXXXXXXXXX, XXXXXXX 00000, XXXXXXXX

GOLD LITE

 

VIET NAM MYAMMAR CAMBODIA

 

BLOCK 000, XXXXXXXXX XXXX, #00-00, XXXXXXXXX XXXXXXXXXX XXXX XXXXXXXXX 000000

 

23



 

ERBIS ENGINEERING XX.XXX.

 

INDIA BANGLADESH NEPAL

 

XXXXXX-XXX XXXXX XXXXXXXX 0-00, 0XXXXX-XXXXXXXXX, XXXXXX-XX, XXXXX, XXXXX

MEDIQUIPMENT (PTE) LTD.

 

SRI LANKA

 

00, XXXXX XXXX, XXXXXXX 0, XXX XXXXX

MEDIQUIPS

 

XXXXXXXX

 

00, XXXXXXX-X-XXXXX-X-XXXX XXXXXX, XXXXXXXX

MODERN MEDICAL TECHNOLOGY EST

 

YEMEN

 

HADDA ST. BOX16165, SANA’A,YEMEN

EBIN RUSHED PHARMACY CO. LLC.

 

OMAN

 

XX XXX 000, XXXXXX XXXXXXXXX XX XXXX

XXXXXXXX HOSPITAL SUPPLIES

 

U.A.E.

 

XX XXX 000, XXX XXXXX, X.X.X.

MEDISERV

 

SAUDI ARABIA

 

P.O. BOX 17550, AL TAHLIA XX. XXXXX, XXXXXX 00000, XXXXX XXXXXX

AL-JISHI CORPORATION WLL.

 

BAHRAIN

 

XX XXX 000, XXXXXXXXX XXX. XXXXX XX XXXXXXX

TAREQ COMPANY

 

KUWAIT

 

XX XXX 00000, 00000 SAFAT, KUWAIT

TMST TIBBI SISTEMLER TICARET VE SERVIS A.S.

 

TURKEY

 

ALEMDAG CAD. NO.46 XXXXXXXX IS MERKEZI E BLOK XX. 00 XXXXXXX 00000 XXXXXXXX, XXXXXX

FILM TRADING COMPANY

 

SYRIA

 

AL CHABANDAR XXXXXX XX. X.X. XXX 0000, XXXXXXXX, XXXXX

TRADING MEDICAL SYSTEM JORDAN EST.

 

JORDAN

 

SIXTH CIRCLE- 2nd FLOOR –ORBIT BUILDING, OPPOSITE XXXX XXXXX X.X. XXX 0000 XXXXX 00000. XXXXXX

LIFE SCIENCE EQUIPMENT SARL

 

LEBANON

 

VILLA XXXXXXXX XXXXXX, GREEN ZONE, ADONIS, ZOUK MODSBEH, KESROUAN, BEIRUT, LEBANON, 90-2000

THE PALESTINIAN MEDICAL SYSTEMS TRADE CO.

 

PALESTINE

 

GAZA, AL THALATHINI ST., BEHIND THE GOVERNERATE OF GAZA X.X.XXX 4040 GAZA - PALESTINE

TRADING MEDICAL SYSTEMS

 

EGYPT

 

0 XXXXXXX XX XXXX XX. 0XX XXXXX, XXXXXXXXXX, XXXXX, XXXXX

MEDICAL TECHNOLOGY FOR TRADING

 

EGYPT

 

00 XX XXXXXXXX XXXXXX, XXXXXXXXXX, XXXXX, XXXXX

UNIVERSEL SYSTEM

 

MOROCCO

 

000-000 XXXXXXXXX XX XX XXXXXXXXXX, XXXXXXXXXX, XXXXXXX

AFRIC MEDICAL

 

IVORY COAST

 

XXXX 0, XXX XXX XXXXXXXXXXX, 00 XX 000, XXXXXXX 25, IVORY COAST

SAVANNAH HOSPITAL & MEDICAL APPLICATIONS LTD.

 

NIGERIA

 

XXXX 0000, XXXXXX XXXXXXX XXXXXX, XXXXXXXX XXXXXX, XXXXX, XXXXXXX

TECMED (PTY) LTD.

 

X.XXXXXX

 

TECMED CENTRE, XXXXXX ROAD ERAND GARDENS, MIDRAND XX XXX 0000, XXXXXXX XXXXX 0000 XXXXXXXX XX XXXXX XXXXXX

GRIENSU S.A.

 

ARGENTINA URUGUAY

 

AV. XXXXX X. XXXX 000 (X00, 00 & 00) 0000 XXXXXX XXXXX, XXXXXXXXX

 

24



 

TECNOIMAGEN S.A.

 

XXXXX

 

XXXXXXX XX.000, XXXXXXXXXXX, XXXXXXXX, XXXXX

CYMED MEDICAL S.A.C.

 

PERU

 

AV.XXXXXXXXX XXXXXXX 346-352 SAN XXXXXX-XXXX-PERU

TOP MEDICAL ECUADOR S.A.

 

ECUADOR

 

AV. AMAZONAS 4430 Y VILLALENGUA OFICINA 1005, QUITO-ECUADOR

TOP MEDICAL SYSTEMS S.A.

 

COLOMBIA

 

TRANSVERSAL 00 XX. 000-00 XXXXX XX XX XXXXXX X.X., XXXXXXXX

SEIJIRO YAZAWA IWAI C.A.

 

VENEZUELA

 

CALLE PARIS ENTRE MUCUCHIES Y LA TRINIDAD EDIFICIO SEIJIRO XXXXXX XXXX, XXX XXXXXXXX, XXXXXXX 0000, XXXXXXXXX

RESERMA S. A.

 

PANAMA

 

AVENIDA 1RA D. SUR Y CALLE 60 E, OBARRIO APARDADO 55-0645 PAITILLA, PANAMA, REPUBLICA DE PANAMA

MULTISERVICIOS ELECTROMEDICOS X.X.

 

XXXXX RICA

 

APDO. 00-0000 XXX XXXX, XXXXX XXXX

DISTRIBUIDORA FOTORAFICA , S.A

 

GUATEMALA

 

00 XXXXX 00-00, XXXX 0 XXXXXXXXX, XXXXXXXXX

TELECOMUNICACION Y EQUIPOS S.A.

 

MEXICO

 

RIO AMAZONAS NO.15 COL.XXXXXXXXXX 06500,   MEXICO.D.F.,   MEXICO

 

25



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT D

TERMS AND CONDITIONS FOR THE DEMONSTRATION LICENSE

ARTICLE 1: LICENSE GRANT AND USE FOR DEMONSTRATION LICENSE

1.1                                 License Grant.  Subject to the terms of this Exhibit D, Vital Images hereby grants to Toshiba and its Dealer Associates (“Licensees”) a nonexclusive, non-transferable, royalty free license (“Demonstration License”) to use the Products limited solely to promotion, demonstration, evaluation and testing.  Except as provided herein, Licensees hereby agree that the Products under this License shall not be used for any business activities of the Licensees without the prior written consent of Vital Images, such consent to be at the sole discretion of Vital Images.  No software provided under this Demonstration License may be provided to customers.

1.2                                 Restrictions on Use.  Licensees agree not to engage in, cause or permit the reverse engineering, disassembly, recompilation, modification or any similar manipulation of the Products, nor may Licensees loan, lease, distribute, assign or otherwise transfer the Products or copies thereof, in whole or in part, to any third party.

1.3                                 Copying.  Licensees shall not copy the Products, except that each Licensee may make and maintain one (1) copy of the Products for back-up and archival purposes, provided such copy includes all Vital Images copyright, proprietary rights and other notices included on or in the Products.

1.4                                 Ownership.  All right, title and interest in the Products (except as otherwise agreed between the parties in a separate agreement concerning one or more options incorporated in the Products) shall at all times remain the property of Vital Images and its licensors, subject to the Demonstration Licenses granted to Licensees under this Exhibit D.  Licensees understand and agree that it takes title only to the media on which the Products are provided to it, but that the Products shall remain the property of, and proprietary to, Vital Images.

ARTICLE 2: TERM AND TERMINATION

2.1                                 Term.  The term of each Demonstration License shall be for the duration of the Agreement.

2.2                                 Termination.  Each Licensee may terminate the Demonstration License at any time by giving written notice to Vital Images.

2.3                                 Termination of a Demonstration License.  Upon any termination of a Demonstration License, Licensee shall (a) immediately cease all use of the Products licensed pursuant to such Demonstration License, and (b) certify in writing to Vital Images within thirty (30) days after such termination that Licensee has either destroyed, permanently erased or returned to Vital Images the Products and all copies thereof licensed pursuant to such Demonstration License.

2.4                                 Effect of Termination of Demonstration License.  Upon termination of the Demonstration License,  such License to the Products granted under this Exhibit D shall immediately terminate.  Articles 1.4, 3, 4 and 5 of this Exhibit D shall survive such termination of the Demonstration License, if the Product(s) licensed pursuant to such Demonstration License is not purchased. Otherwise, as provided in Section 3.2 of the main body of that certain Marketing and Distribution Agreement between Toshiba Corporation and Vital Images,

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

26



Inc. dated January   , 2007 (the “Agreement’), the terms and conditions under this Exhibit D shall be superseded upon purchase of the Products and shall be totally subject to the terms and conditions provided in the main body of the Agreement.

ARTICLE 3: WARRANTIES; INDEMNIFICATION

3.1                                 No Warranty.  Vital  Images makes no warranty to Licensees that the Products licensed under the Demonstration License, even when properly installed and operated, will substantially perform the functions described in the functional specifications for the Products, as contained in the applicable written documentation for the Products.  All Products licensed under the Demonstration License are provided to Licensees “AS IS.” Provided however, during the term of each Demonstration License, Vital Images shall provide Licensees with any update or upgrade releases to the Vitrea® or other applicable Products licensed thereunder, as soon as they become available.  It is agreed between the parties that newly released options to Vitrea®, except for those listed in Exhibit E to the Agreement and licensed under the applicable Demonstration License, shall be excluded from such updates and upgrades unless explicitly agreed between the parties.

3.2                                 Exclusive Remedy.  Vital Images’ entire liability, and Licensees’ exclusive remedy, for any claim made by Licensees under Article 3.1 above shall be for Licensee to terminate the Demonstration License for such Product.   Vital Images does not warrant that the operation of the Products will be uninterrupted or error-free, that all errors in the Products will be corrected, that the Products will satisfy Licensee’s requirements or that the Products will operate in the combinations which Licensees may select for use.

3.3                                 Warranty Disclaimer.  THE WARRANTY SET FORTH IN ARTICLE 3.1 ABOVE IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY VITAL IMAGES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR USE, AND ALL OBLIGATIONS OR LIABILITIES ON THE PART OF VITAL IMAGES FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE, MAINTENANCE OR PERFORMANCE OF THE PRODUCTS.  Furthermore, the Products are derived from and include software from third party licensors, who make no warranty, express or implied, regarding the Products, who disclaim any and all liability for the Products and who will not undertake to provide any information or support regarding the Products.

ARTICLE 4: LIMITATION OF REMEDIES

4.1                                 Delay.  VITAL IMAGES SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN FURNISHING PRODUCTS OR ANY OTHER PERFORMANCE UNDER THIS EXHIBIT D.

4.2                                 Sole Remedies.  THE SOLE AND EXCLUSIVE REMEDIES FOR BREACH OF ANY AND ALL WARRANTIES AND THE SOLE REMEDIES FOR VITAL IMAGES’ LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCE OR PRODUCT LIABILITY) WITH RESPECT TO THE PRODUCTS COVERED BY THIS EXHIBIT D AND ALL OTHER PERFORMANCE BY VITAL IMAGES UNDER THIS EXHIBIT D SHALL BE LIMITED TO THE REMEDIES PROVIDED IN ARTICLE 3 OF THIS EXHIBIT D.

4.3                                 Damages Limitation.  VITAL IMAGES SHALL HAVE NO LIABILITY OF ANY KIND FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE, EVEN IF VITAL IMAGES SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE, INCLUDING ANY LIABILITY FOR DAMAGES ARISING OUT OF OR RESULTING

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

27



FROM THE USE, MAINTENANCE OR PERFORMANCE OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THE LOSS OR CORRUPTION OF LICENSEES’ OR ANY THIRD PARTY DATA.

ARTICLE 5: RELATIONSHIP OF THIS EXHIBIT D AND THE MAIN BODY OF THE AGREEMENT

In all other respects, the main body of the Agreement shall prevail and shall apply to the Demonstration Licenses granted under this Exhibit D as well.  Specifically, and not in limitation of the foregoing, defined terms used in this Exhibit D, if not defined herein, shall have the meaning given them in the Agreement.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

28



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT E

PRODUCT PRICE LIST

 

 

 

 

U.S.(2007) (1)

 

Non-U.S. (2)

 

Non-U.S. (2)

License

 

U.S.(2006) (1)

 

Standalone

 

Enterprise

 

(2006)

 

(2007)

Vitrea â

 

*

 

*

 

*

 

*

 

*

VScoreÔ option

 

*

 

 

*

 

 

*

 

*

VScore with EKG GateÔ option

 

*

 

 

*

 

 

*

 

*

VScore with AutoGateÔ option

 

*

 

 

*

 

 

*

 

*

3D Angiography option

 

*

 

 

*

 

 

*

 

*

CT Perfusion option

 

*

 

 

*

 

 

*

 

*

CT Colonography option

 

*

 

 

*

 

 

*

 

*

Automated Vessel Measurements option

 

*

 

 

*

 

 

*

 

*

CT Cardiac option

 

*

 

 

*

 

 

*

 

*

Cardiac Functional Analysis option

 

*

 

 

*

 

 

*

 

*

CT Cardiac Option with Peripheral Vessel Probe option

 

*

 

 

*

 

 

*

 

*

SUREPlaque option

 

*

 

 

*

 

 

*

 

*

Electro-physiology option*

 

*

 

 

*

 

 

*

 

*

Peripheral Vessel Probe option

 

*

 

 

*

 

 

*

 

*

Soft Read option

 

*

 

 

*

 

 

*

 

*

Nodule Probe option (Lung option)

 

*

 

 

*

 

 

*

 

*

Fusion7D™ option

 

*

 

 

*

 

 

*

 

*

Fusion7D™ Advanced option

 

*

 

 

*

 

 

*

 

*

Fusion7D™ Standard option

 

*

 

 

*

 

 

*

 

*

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

29



 

Fusion7D™ Basic option

 

*

 

 

*

 

 

*

 

*

Fusion7D™ Advanced option with DICOMPrint &CDburn

 

*

 

 

*

 

 

*

 

*

Fusion7D™ Standard option with DICOMPrint &CDburn

 

*

 

 

*

 

 

*

 

*

Fusion7D™ Basic option with DICOMPrint &CDburn

 

*

 

 

*

 

 

*

 

*

ImageChecker® Lung CAD(Ver.2.0) option

 

*

 

 

*

 

 

*

 

*

AutoPoint Temporal Comparison option (must also buy Lung CAD)

 

*

 

 

*

 

 

*

 

*

Pulmonary Artery Patency Exam option (must also buy Lung CAD)

 

*

 

 

*

 

 

*

 

*

Vitrea ACCESSTM option(3)(4)

 

*

 

 

*

 

 

*

 

*

VitreaACCESS Remote option

 

*

 

 

*

 

 

*

 

*

 

*when and if available

(1)          Includes warranty pursuant to Section 9.1(a) of the Agreement and end user training, and the Second Level Installation.

(2)          Includes warranty pursuant to Section 9.1(a) of the Agreement, and the Second Level Installation.

(3)          Prices are subject to an additional *  discount on additional Vitrea purchases for multi-license purchases by the same customer on the same purchase order (the customer purchases more than one Vitrea â Software License).

(4)          Any purchases made by Toshiba and/or its Dealer Associates pursuant to Sections 3.2 and 3.3 of this Agreement shall not be credited against the Commitment.

SOFTWARE PACKAGE PRICING

 

Pricing

 

 

 

U.S.

 

 

 

Packages

 

Standalone

 

Enterprise

 

Non-U.S.

 

US Radiology Package

·Vitrea â

·CT Colonography option

·Automated Vessel Measurements option

·VScoreÔ option

·Peripheral Vessel Probe option

·CT Cardiac option

·Cardiac Functional Analysis option

·Nodule Probe option (Lung option)

·CT Perfusion option

 

*

 

*

 

*

 

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

30



 

US Cardiology Package

·Vitrea â

·CT Cardiac option

·Cardiac Functional Analysis option

·Peripheral Vessel Probe option

·Automated Vessel Measurements option

·VScoreÔ option

 

*

 

*

 

*

 

 

 

 

 

 

 

 

 

Non-US Package -1

·Vitrea â

·CT Colonography option

·Automated Vessel Measurements option

·Peripheral Vessel Probe option

·VScoreÔ option

·CT Cardiac option, including Cardiac Functional Analysis option

 

*

 

*

 

*

 

 

 

 

 

 

 

 

 

Non-US Package -2

·Vitrea â

·CT Colonography option

·Automated Vessel Measurements option

·VScoreÔ option

·Peripheral Vessel Probe option

·CT Cardiac option, including Cardiac Functional Analysis option

·Nodule Probe option (Lung option)

 

*

 

*

 

*

 

 

 

 

 

 

 

 

 

Non-US Package -3

·Vitrea â

·CT Colonography option

·Automated Vessel Measurements option

·VScoreÔ option

·Peripheral Vessel Probe option

·Nodule Probe option (Lung option)

 

*

 

*

 

*

 

 

MAINTENANCE PRICING OPTIONS

 

 

US (2006)

 

US (2007)

 

Non-US (2006)

 

Non-US (2007)

Vitrea® incl. ViTAL options
For both of standalone and enterprise

 

*

 

*

 

*

 

*

Fusion7D™ option

 

*

 

*

 

*

 

*

ImageChecker® option

 

*

 

*

 

*

 

*

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

31



ADDITIONAL MAINTENANCE PRICING OPTIONS

 

 

US (2006)

 

US (2007)

 

Non-US (2006)

 

Non-US (2007)

Premium Maintenance Package (24x7, 4 hour on-site, proactive support and preventative maintenance)

 

*

 

*

 

*

 

*

530 Memory Upgrade

 

*

 

*

 

*

 

*

ATI Graphics Upgrade (Dell 530 and 650)

 

*

 

*

 

*

 

*

License Transfer Fee

 

*

 

*

 

*

 

*

Technology Refresh (from old hardware to new Toshiba provided hardware)

 

*

 

*

 

*

 

*

 

If the parties elect to renew this Agreement, Vital Images and Toshiba hereby agree to use their best efforts to determine Products Prices and Product Commitments which go into effect on January 1, 2008 by not later than December 31, 2007.   In the event Vital Images and Toshiba do not reach an agreement regarding new Products Prices and Product Commitments by January 1, 2008, the Products Prices and product commitments set forth in Exhibit E (but not including third party products) shall remain as the Products Prices and the product commitments for the year 2008.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

32



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT F

PRODUCT COMMITMENTS

 

 

 

(million US dollar)

Calendar Year

 

2007

 

2008

Commitment

 

*

 

*

 

Conditions :

1) Vital Images shall use reasonable commercial efforts to develop a body perfusion software such as for liver and pancreas and such software may be sold under terms to be agreed upon by the parties when and if such software is developed.

2) Vital Images shall agree to reduce a missed revenue in China from the commitment above in case Toshiba is unable to sell Vitrea in China because Vital Images could not get a SFDA approval for the current Vitrea model.

3) Toshiba Europe shall agree to promote Vital Images’ maintenance contract to Toshiba Europe group companies. And Vital Images shall provide Toshiba Europe marketing materials as appropriate to support sales of Vital Images maintenance and support services by Toshiba Europe group companies.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

33



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT G

PRINCIPAL COUNTRIES

2007 MAJOR TRADE SHOW LIST

US

Event

 

Date

 

Location

ACC

 

March 24-27

 

New Orleans

Stanford Annual Symposium on MDCT (WS Face Off)

 

June 00-00

 

Xxx Xxxxxxxxx, XX

SCCT

 

July

 

Arlington, VA

ESI : Annual Spiral/Helical CT: National Symposium

 

Xxx.00-00

 

Xxx Xxxxx, XX

NASCI

 

October 4-9

 

Washington, DC

ASTRO

 

Oct 28- Nov.1

 

Los Angels, CA

TCT

 

Oct 00-00

 

Xxxxxxxxxx, XX

XXX

 

Xxx 0-0

 

Xxxxxxx, XX

RSNA

 

Nov25-30

 

Chicago, IL

 

Europe

Event

 

Date

 

Location

ECR

 

March

 

Vienna, Austria

ESC

 

Sept. 0-0

 

Xxxxxx, Xxxxxxx

XXX

 

Oct. 00-00

 

Xxxxx, Xxxxxx

 

International

Event

 

Date

 

Location

XXXX

 

Xxx. 0-0

 

Xxxxxx, Xxxxx

Singapore Live

 

Jan.20-24

 

Singapore

Arab Health

 

Jan.29-Feb.1

 

Dubai

JPR

 

Apr.13-16

 

Sao Paulo, Brazil

China Med

 

Xxx. 00-00

 

Xxxxxxx, Xxxxx

XX/XX/XX

 

Xxx.00-00

 

Xxxx Xxxxx, Xxxxxxxxx

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

34



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT H

LIST OF VITAL IMAGES TRADEMARKS

Vitrea â

ViTALConnect®

VScoreÔ

VScore with EKG GateÔ

VScore with AutoGateÔ

VitreaACCESS™

LIST OF TOSHIBA TRADEMARKS

SUREPlaqueÔ

CorE64TM

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

35



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT I

AUTHORISED REPRESENTATIVE

Medimark Europe

Address: 00, xxx Xxxxx Xxxx - XX 0000,
38033 Grenoble Cedex 2 -FRANCE

Phone: x00 (0)0 00 00 00 22
Fax: x00 (0)0 00 00 00 82

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

36



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT J

GLOBAL SERVICE PLAN

Slide 1

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

37



Slide 2

*

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

38



Slide 3

*

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

39



Slide 4

*

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

40



Slide 5

*

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

41



Slide 6

 

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

42



Slide 7

*

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

43



Slide 8

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

44



VITAL IMAGES, INC. AND TOSHIBA CORPORATION

MARKETING AND DISTRIBUTION AGREEMENT

EXHIBIT K

CUSTOMER AGREEMENT

TERMS AND CONDITIONS OF SALE

1.                                      GENERAL TERMS.   Unless otherwise specified on the face of this document, this Quotation/Order (“Agreement”) will remain valid only if accepted by Customer no later than 60 days from date of submission to Customer.

2.                                      TITLE AND RISK OF LOSS.  Title and risk of loss to the Equipment purchased under this Agreement will pass to Customer: (a) if Toshiba is to provide installation, upon Toshiba’s completion of installation, or (b) if Toshiba will not provide installation, upon delivery by Toshiba to a common carrier at Toshiba’s facility from which the Equipment is shipped.

3.                                      TERMS OF PAYMENT.   Unless otherwise specified on the face of this document, prices stated are F.O.B.  Tustin, CA. or other facilities of Toshiba in the U.S.A. from which the Equipment may be shipped, freight prepaid and charged. All taxes which are payable by Toshiba in connection with the sale, use, or possession of the Equipment (excluding income taxes), and transportation charges (including rigging) for shipment to installation site will be paid by Customer in addition to the quoted price.  Terms of payment for, C.T., M.R.I. and X-Ray will be cash-10% upon execution of this Agreement, 70% upon delivery, balance due upon completion of installation and/or availability for first use, whichever is earlier.  Terms of payment for Ultrasound and Nuclear will be cash-10% upon execution of this Agreement, 90% NET upon completion of installation and/or availability for first use, whichever is earlier. All invoices paid after due date will be assessed a late payment charge of the lesser of 1 1/2% per month or the maximum rate permitted by law.

4.                                      DELAYS. If Customer changes the scheduled delivery date specified on the face of this document (“Scheduled Delivery Date”) during the period of 120 days preceding such date, Customer will nevertheless pay the installment of the purchase price which would have been payable upon delivery, on the Scheduled Delivery Date as if delivery had been made on such date.  In addition, Customer will pay all extra costs incurred by Toshiba as a result of such delay, including, without limitation, storage and transportation.  Storage fees will be charged at commercially comparable rates for storage on Toshiba’s site.  If delivery is delayed by 12 months or more from the Scheduled Delivery Date, except through the fault of Toshiba, the price set forth in this Agreement may be increased by Toshiba to a level equal to the prevailing price in effect at the time of the revised delivery date.

5.                                      ACCEPTANCE BY TOSHIBA. This Quotation/Order will not be binding on Toshiba even if signed by a Toshiba employee, until Customer’s order for the Equipment is booked by Toshiba’s Headquarter office.

6.                                      EQUIPMENT INSTALLATION.  Toshiba will install all Equipment purchased under this Agreement and connect them to existing power and/or plumbing lines at no additional charge to Customer. Customer will be responsible for electrical wiring, plumbing, carpentry, plastering, painting, or all other site preparation required prior to installation and connection of the Equipment by Toshiba.  Customer will provide space at the installation site for the safe storage of Toshiba’s tools, test equipment and other materials used for installation at no charge to Toshiba.  Customer shall, at its cost, obtain all permits and licenses required by governmental authorities in connection with the installation and operation of the Equipment. The Equipment may contain certain components that may have been re-manufactured. However, such components will meet the manufacturer’s specifications for new components as of the date of completion of installation.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

45



7.                                      EQUIPMENT OPERATION AND INDEMNITY.  Customer agrees that all Equipment purchased under this Agreement will be operated exclusively by duly qualified technicians and/or medical doctors in a safe and reasonable manner in accordance with Toshiba’s written instructions, applicable laws and regulations, and for the purposes for which such Equipment was intended.  Customer agrees to defend, indemnify and hold Toshiba and Toshiba’s officers, directors and employees harmless from and against all claims, demands, lawsuits, liabilities, judgments and costs (including reasonable attorney’s fees, expert fees, and other litigation costs) arising out of or in connection with the Customer’s negligent operation of the Equipment.

8.                                      LIMITED WARRANTY AND REMEDY.  For the warranty period described below by product, Toshiba, as its only obligation, will replace or repair, without charge to Customer during Toshiba’s normal working hours (if Customer requests warranty service outside such hours, Customer will pay overtime premium for labor), any component of the Equipment that is defective in materials or workmanship, provided such defect is reported to Toshiba within the warranty period. Toshiba’s warranty period is as follows:  (a) Systems and Major Components - one year from date of completion of installation; (b) Accessories/Options (except glassware) - six months from date of completion of installation.  Toshiba does not warrant that the operation of the Equipment will be uninterrupted. Components not manufactured by Toshiba, including but not limited to X-Ray tubes, monitors, glassware, VTRS, cameras, computer equipment, and software will be furnished subject only to the manufacturer’s warranty, if any, and without any warranty whatsoever by Toshiba.  During the warranty period, Toshiba will furnish free of charge any upgrades, including software required to correct any defect in the Equipment or as required under applicable laws.  All defective parts replaced by Toshiba will become the property of Toshiba. Replacement parts may be re-manufactured. However, such parts will meet the manufacturer’s specifications for new components as of the date of completion of installation. TOSHIBA’S OBLIGATION TO REPAIR OR REPLACE DEFECTIVE PARTS WILL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.  SUCH WARRANTY WILL BE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  The warranty set forth in this Section will not apply to, and Toshiba will not be liable for any defects resulting from misuse, repairs performed by unauthorized third parties, accidents, acts of God, or neglect of anyone other than Toshiba.

9.                                      LIMITATION OF LIABILITY.  TOSHIBA WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR EXEMPLARY DAMAGES OR ECONOMIC LOSS ARISING OUT OF OR RELATED TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, EVEN IF TOSHIBA IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.  IN NO EVENT WILL TOSHIBA’S LIABILITY TO CUSTOMER (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) ARISING OUT OF OR RELATING TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY CUSTOMER TO TOSHIBA UNDER THIS AGREEMENT. THE LIMITATION OF LIABILITY SET FORTH ABOVE WILL NOT APPLY TO CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY EQUIPMENT DEFECTS, OR TO CLAIMS FOR PATENT INFRINGEMENT.

10.                               SECURITY INTEREST.   Toshiba hereby reserves and Customer grants to Toshiba a security interest pursuant to the Uniform Commercial Code, in and to the Equipment (and all products and proceeds of it) until full payment of the purchase price is received.

11.                               REMOVAL OF EQUIPMENT.  Until Toshiba has received full payment of the purchase price, Customer will not remove all or any part of the Equipment from Customer’s premises, nor will Customer sell, lease, transfer or otherwise part with the possession of, or permit any lien or encumbrance to be placed on all or any part of the Equipment.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

46



12.                               REMEDIES OF TOSHIBA.  If Customer fails to make any payment when due under this Agreement or under any other agreement between Customer and Toshiba, or becomes insolvent or makes an assignment for the benefit of creditors, or if a petition in Bankruptcy is filed by or against Customer, or if the financial responsibility of Customer becomes impaired or unsatisfactory in Toshiba’s judgment, or if Customer otherwise breaches any of the terms and conditions of this Agreement, then Toshiba may, without prior notice or demand, defer shipments, cancel the balance of the order, suspend performance of any obligation (including without limitation, all obligations set forth under Limited Warranty And Remedy above), and/or take immediate possession of the Equipment delivered, until the full purchase price of the Equipment is paid by Customer or, at Toshiba’s discretion, until security satisfactory to Toshiba is given by Customer.  Any costs incurred by Toshiba as a result of suspending performance or repossession or collection will be payable by Customer. Toshiba may sell repossessed Equipment with proceeds to be applied to unpaid balance and expenses incurred in sale, repossession and collection. Customer will pay any remaining deficiency.  Toshiba may exercise any other rights available to it by law.

13.                               EXCUSED PERFORMANCES. Neither party will be liable to the other for non-performance or delay in performance resulting directly or indirectly from any occurrences beyond such party’s control, including without limitation, strikes or other labor troubles, acts of God, war, accidents, fires, floods, other catastrophes, inclement weather, transportation, unavailability of materials and labor, delays caused by suppliers, or laws, regulations, or acts of any governmental agency.

14.                               SOFTWARE.  All rights and interest in any software that may be furnished under this Agreement, and any updates and enhancements to it, will remain the property of Toshiba or its licensors.  Such software is being furnished to Customer under a non-exclusive license.  Customer will not, or allow others to reverse-engineer, disassemble, decompile, modify, copy, reproduce, or transcribe the software nor use it to create derivative works, nor allow third parties to use the same without Toshiba’s prior written consent.  All rights, title and interest to the Software not expressly granted to you will remain the property of Toshiba or its licensors.  Customer may not sublicense, loan, lease, distribute, assign or otherwise transfer any Software or copies thereof, in whole or in part, or otherwise make any Software available to third parties or allow third parties to use of the Software without the written consent of Toshiba or, if such Software is owned by a licensor to Toshiba, such licensor.  Upon Toshiba’s request, Customer will execute an End-User Software License Contract, in a form to be mutually agreed between the parties.

15.                               CANCELLATION.  Customer may not cancel the order subject to this Agreement except with Toshiba’s prior written consent. In the event of such cancellation, Toshiba will be entitled to recover any and all damages suffered by it caused by the cancellation as allowed by law, but in no event less than an amount equal to twenty percent (20%) of the purchase price for a restocking charge.

16.                               ASSIGNMENT. Neither party may assign any of its obligations under this Agreement without the prior written consent of the other party.

17.                               EXPORT REGULATIONS.  This Agreement involves products, and/or technical data that may be controlled under the U.S. Export Administration Regulations and may be subject to the approval of the U.S. Department of Commerce prior to export.  Any export or re-export by Customer, directly or indirectly, in contravention of such Regulations is prohibited.

18.                               ENTIRE AGREEMENT.  This quotation contains the entire agreement between the parties and supersedes all prior and contemporaneous agreements between the parties, whether oral or written, relating to its subject matter, including, without limitation, all different or additional terms and conditions which may be contained in Customer’s bid documents, purchase order or any other documents furnished by Customer. The provisions of this Agreement may not be modified unless in writing and executed by both parties.

19.                               U.S. GOVERNMENT RIGHTS.  The Software is provided with Restricted Rights.  Use, duplication or disclosure by the U.S. government is subject to restrictions as set forth in (a) this Agreement pursuant to DFARs

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

47



227.7202-3(a); (b) subparagraph (c)(1)(i) of the Rights in Technical Data and Computer Software clause at DFARs 252.227-7013; or (c) the Commercial Computer Software Restricted Rights clause at FAR 52.227-110 subdivision (c)(1) and (2), as applicable.

* Confidential Treatment has been requested, the portion indicated has been redacted and the redacted portion has been separately filed with the Securities and Exchange Commission.

48


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Filed: May 10th, 2007
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