Software Reseller Agreement

Software Reseller Agreement

Between

Siemens Molecular Imaging Limited

And

Vital Images

in respect of

Fusion7D Image Fusion Software






Contents

RECITALS 1
ARTICLE 1: DEFINITIONS 1
ARTICLE 2: APPOINTMENT 3
ARTICLE 3: GENERAL OBLIGATIONS OF THE PARTIES 3
ARTICLE 4: PRODUCT DELIVERY 5
ARTICLE 5: LICENCES 6
ARTICLE 6: SOFTWARE MAINTENANCE SERVICES 7
ARTICLE 9: APPROVALS; ADVERSE REACTIONS; PRODUCT RECALLS 9
ARTICLE 10: WARRANTIES AND REPRESENTATIONS; INDEMNIFICATION 10
ARTICLE 11: CONFIDENTIALITY 11
ARTICLE 12: TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS 12
ARTICLE 13: TERM AND TERMINATION 12
ARTICLE 14: FORCE MAJEURE 13
ARTICLE 15: DISPUTE RESOLUTION 14
ARTICLE 16: MISCELLANEOUS 14
EXHIBIT A: SPECIFICATIONS, PRODUCT AND PRODUCT PACKAGING 17
EXHIBIT B: SALE AND REGULATORY TERRITORIES 18
EXHIBIT C: PRODUCT AND MAINTENANCE PRICE LIST 19
EXHIBIT D: MAINTENANCE 20
EXHIBIT E: TRAINING 21
EXHIBIT F: REPORTS 22
EXHIBIT G: END USER LICENCE AGREEMENT 23













THIS AGREEMENT is made on the 12th day of May, 2006

between

1. Siemens Molecular Imaging Limited , a company registered in England under registered number 3417726 with registered office at Siemens House, Oldbury, Bracknell, Berkshire RG12 8FZ, England ("Siemens"), and

2. Vital Images, Inc. a corporation registered in the State of Minnesota, U.S.A. having its principal place of business at 5850 Opus Parkway, Suite 300, Minneapolis, Minnesota, U.S.A. ("Reseller").



RECITALS



A. Siemens develops and licenses proprietary PET, SPECT, molecular and multi-modality imaging software products (defined below as the "Products") and desires to increase the marketing and distribution of the Products.

B. Reseller markets workstation software (defined below as the "Reseller Workstation") and wishes to market the Reseller Workstation in conjunction with the Products. Reseller possesses the necessary expertise and marketing organisation to promote, market, distribute and support the Products.

C. The parties now wish to terminate the software reseller agreement as of March 30, 2006 between them with effect from the date of this Agreement, except in relation to existing end users. In accordance with this Agreement Siemens desires to reappoint Reseller, and Reseller desires reappointment, 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 Associated Company means any company which is in relation to another company its parent undertaking or its subsidiary undertaking, or a subsidiary undertaking of its parent undertaking (and subsidiary undertaking and parent undertaking shall have the meaning given to them in the Companies Act 1985).

1.2 Confidential Information means all information designated by a party as confidential and which is disclosed by Siemens to Reseller, is disclosed by Reseller to Siemens, or is embodied in the Products, regardless of the form in which it is disclosed, relating to markets, customers, products, patents, inventions, procedures, methods, designs, strategies, plans, assets, liabilities, prices, costs, revenues, profits, organisation, employees, agents, resellers or business in general, or, in the case of Siemens, the algorithms, programs, user interfaces and organisation of the Products or, in the case of Reseller, the algorithms, programs, user interfaces and organisation for the Reseller Workstation.

1.3 End User means a purchaser of Products in the Territory, either from Reseller or from a Dealer Associate appointed in accordance with Article 2.2 of this Agreement.

1.4 End User Licence Agreement means the end user licence agreement between Reseller and End Users relating to the use of the Products, which, for purposes of End Users with whom Reseller has entered into contracts on or before March 31, 2006, shall be the Software License








Agreement entered into by Reseller with those End Users, and for all other End Users shall be an end user licence agreement in a form agreed by the parties and failing agreement shall be based on the form set out at Exhibit G.

1.5 Excluded Field means pre-clinical use, such as medical image processing to the pharmaceutical domain, in particular: (i) the processing and analysis of images acquired for research purposes to create and tune new treatments, on animal models or on human models, in vivo or in vitro; and (ii) phase I pharmaceutical trials (exploratory pharmaceutical trials, toxicity), phase II trials (study of doses, study of efficiency), phase III trials (study of efficiency for regulatory approval) and phase IV trials (study of the effects of the drug after approval for control and to quantitatively measure the socio-economical impact of the medical treatment).

1.6 First Level Maintenance means the first level maintenance to be provided by Reseller to End Users as set out at Exhibit D.

1.7 Government Approval means any approvals, licences, registrations or authorisations of any national, state or local regulatory agency, department, bureau or other government entity, foreign or domestic, necessary or expedient for use, marketing, sale or distribution of system or equipment incorporating the Products or the Products themselves (hereinafter called "Transaction") in a regulatory jurisdiction, including the Japanese Ministry of Health, Labour and Welfare ("MHLW") or equivalent statutory bodies.

1.8 Products means only those computer software products in object code form as described in Exhibit A and any related user documentation as released from time to time by Siemens, including any later authorised releases or versions of such software or documentation during the term of this Agreement. Products shall conform to specifications as described in Exhibit A.

1.9 Reseller Workstation means the hosting software or software and hardware package into which the Products defined in this schedule may be integrated. Reseller Workstation is defined in Exhibit A.

1.10 Second Level Maintenance means the second level maintenance to be provided by Siemens to Reseller as set out at Exhibit D.

1.11 Software means the object code for the machine instructions associated with the user level software as embodied in the Products.

1.12 Territory means the area described in Exhibit B.

1.13 Update means a change to the Software, including modifications such as a 91bug fix92 or program patch, or which improves existing functions or features of the Software. For purposes of this Agreement, an Update includes the latest version or release of previously-purchased Software, such as providing Edition 6 "Advanced" Tier product to End-users who have previously purchased an "Edition 5 Fusion7D licence key," providing "Edition 6 Access Point only" to End-users who have previously purchased "Edition 5 Fusion7D Access points," and providing Edition 6 "Enablement of floating licences" to End-users who have previously purchased Edition 5 "Enablement of floating licences."

1.14 Upgrade means an enhancement or change to a newer version of the Products which increases the performance of the Software by adding new features or functionality and (i) is marketed by Siemens as a separate product or option: or (ii) is a superior product from the product purchased by the End User, such as if an End User purchases Tier 3, then Tier 4 would be an Upgrade.

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ARTICLE 2: APPOINTMENT



1.15 Scope. Siemens hereby appoints Reseller, and Reseller hereby accepts such appointment, from the date of this Agreement as Siemens92 non-exclusive reseller of the Products only in conjunction with the Reseller Workstation in the Territory during the term of this Agreement, subject to all the terms and conditions of this Agreement. Upon Reseller92s written proposal, Siemens shall discuss in good faith to add new area to the Territory or products to the Products during the term of this Agreement; provided that Siemens may accept or reject Reseller92s proposed additions to the Territory or Products in Siemens92 sole discretion.

1.16 Dealer Associates. Reseller may appoint one or more:

(a) of its Associated Companies to act as agents of the Reseller to market and distribute the Products within the Territory; and/or

(b) third parties which are not Associated Companies to act as agents of the Reseller to market and distribute the Products within the Territory, subject to the prior written consent of Siemens;

(collectively "Dealer Associates") provided Reseller enters into an agreement with such Dealer Associates on substantially the same provisions as this Agreement.

1.17 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 licences for the Products. Reseller hereby acknowledges Siemens retains all right, title and interest in and to the copyrights and other intellectual property rights in the Products and that such Products are to be provided to End Users only through an End User Licence Agreement.



ARTICLE 3: GENERAL OBLIGATIONS OF THE PARTIES



1.18 Promotional Materials. Siemens shall furnish Reseller with a reasonable quantity of Siemens data sheets, brochures and other marketing materials for the Products in the English language for use by Reseller as may be mutually deemed necessary to market the Products.

(a) Electronic copy. In lieu of providing such promotional materials directly, Siemens, at its discretion, may provide Reseller with an electronic media copy of same with a nonexclusive, non-transferable right and licence to use same, without modification of any kind, for the local reproduction or translation of such materials solely for purposes of Reseller92s performance under this Agreement.

(b) Languages. If non-English language versions of such data sheets or brochures or non-English language advertising of the Products are necessary or desirable for effective marketing of the Products in the Territory, if available Siemens shall provide copies or an electronic copy, but if not available Reseller shall arrange and pay for the preparation of such non-English language materials. In all cases, Siemens shall be the sole and exclusive owner of the copyrights in any such materials, regardless of language.

1.19 Modification and Integration. Reseller shall perform all necessary modifications to the Reseller Workstation to ensure full integration between the Products and the Reseller Workstation. Siemens shall provide reasonable support by telephone and email to support such modification work. Reseller shall grant to Siemens an irrevocable royalty-free transferable licence to such modifications. Reseller shall have full responsibility for undertaking any such modification work, and shall follow any guidelines which are published by Siemens for the execution of such work. Siemens shall not be liable for any software errors or faults which are caused directly or indirectly by the modifications performed by Reseller. Subject to agreement on the scope of work and

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charges payable, Siemens shall make modifications to the Products to assist their integration with the Reseller Workstation.

1.20 Training. Siemens will provide training on the Products to Reseller in accordance with terms and conditions set forth in Exhibit E hereof.

1.21 Marketing and other Obligations of Reseller. Reseller shall:

(a) use its best endeavours to further the promotion, marketing and distribution of the Products in the Territory, in accordance with the marketing plan prepared by the Reseller in consultation with Siemens, and if requested by Siemens cease using any advertising or promotional materials Siemens considers not to be in Siemens92 best interests;

(b) demonstrate the Products at trade shows and user conferences in the Territory where the Reseller Workstation is being marketed;

(c) conduct its business in a professional manner, which will reflect positively upon Siemens and the Products;

(d) at all times to display, demonstrate and otherwise represent the Products fairly in comparison with competitive products from other suppliers;

(e) not make any promises or representations or give any warranties, guarantees or indemnities in respect of the Products except such as are contained in an End User Licence Agreement or as expressly authorised by Siemens in writing and not supply the Software to any person knowing that it does not meet that person92s specified requirements;

(f) install only authorised versions of the Products as supplied by Siemens for End Users;

(g) promptly respond to all inquiries or complaints from End Users, to provide all necessary and appropriate First Level Maintenance and to cooperate with Siemens in the provision of the Second Level Maintenance;

(h) provide Siemens with appropriate details of all material complaints and bugs found in the Products, whether product issues were discovered by Reseller or End Users;

(i) supply to Siemens such reports, returns and other information relating to orders and projected orders for the Products and regarding customers as Siemens may from time to time reasonably require;

(j) not make Products available to competitors of Siemens;

(k) not include any Products in any tender, quotation or sale of Reseller Workstations in conjunction with competitors of Siemens or where such competitors are a partner or co-supplier or have a material or commercial interest in the tender, quotation or sale. For the purposes of this Article, " competitor" shall include, without limitation, GE Healthcare and Philips Medical Systems;

(l) abide by all applicable laws and regulations in the Territory; and

(m) permit Siemens and its authorised agents at all reasonable times to enter any of Reseller92s premises for the purpose of ascertaining that Reseller is complying with its obligations under this Agreement (and Reseller hereby irrevocably licenses Siemens, its employees and agents to enter any such premises for such purpose).

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1.22 Siemens Sales Support. Siemens shall provide reasonable sales support to Reseller including, but not limited to, assisting Reseller in the demonstration of the Products, participating in sales presentations and assisting in the preparation of RFP responses. Such sales support shall be limited to ** person days per year, and the cost of providing suitably trained staff to provide this support shall be borne by Siemens. Reasonable travel, accommodation and subsistence costs incurred by Siemens when providing such sales support at the request of Reseller shall be reimbursed in full by Reseller on presentation of receipts or invoices for such expenses.

1.23 Reverse Engineering. Reseller shall not reverse engineer, decompile or disassemble the Products and shall not knowingly allow any other person to do so.

1.24 Product Sunsetting. Siemens may, at its sole discretion, by written notice to Reseller withdraw any or all of the Products from the market or from this Agreement at any time. To enable Reseller to effectively perform its duties under this Agreement, Siemens will use reasonable efforts to provide Reseller with at least six (6) months92 advance written notice of such Product withdrawals and of the replacements for such withdrawn Products. If a Product is withdrawn from this Agreement, Reseller shall return to Siemens all unsold copies of such Product held by Reseller, and the software library and master encryption key relating to that Product. Siemens shall continue to make available to Reseller Second Level Maintenance in relation to such Product for a period specified in that notice which shall be at least five years from the date of such notice.

1.25 Sales Forecasts. Upon Siemens92s request and no more than once per quarter, Reseller shall provide Siemens with a forecast of estimated installations and sales of Products in the then current quarter.

1.26 Reports. Reseller shall within 14 days of the end of each calendar month provide to Siemens a report signed by an officer of Reseller with such details of End Users and Service End Users (as defined in Article 6.1) as Siemens may advise from time to time relating to such period, including (without limitation) the details described in Exhibit F.



ARTICLE 4: PRODUCT DELIVERY



1.27 Software Library. Siemens shall promptly provide to Reseller a software library of the Products with a master encryption key and from time to time Updates or Upgrades [as agreed by the parties]. The Reseller shall keep such software library and master encryption key strictly confidential and not disclose them to any other party. The Reseller shall use the software library and master encryption key only in accordance with this Agreement.

1.28 Reproduction of the Products. Reseller shall use the software library to produce copies of the Products only in such form approved by Siemens (and in particular shall reproduce Siemens92 copyright and proprietary notices on every such reproduction) and shall only make such number of copies as are necessary to satisfy Reseller92s obligations pursuant to End User Licence Agreements together with a reasonable number of copies for demonstration, support and training purposes pursuant to Article 5.2. Reseller shall implement a copy protection mechanism approved in writing in advance by Siemens to prevent unauthorised use of the Products on each copy of the Products made by Reseller.

1.29 Installation of Products. Reseller shall have the sole responsibility for the installation of Products into an End User92s Reseller Workstation in the Territory in accordance with the standards and specifications established by Siemens from time to time and provided to Reseller hereunder. Reseller shall not provide the Products to any party for use outside the Territory.




** 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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1.30 Customer Pricing. Reseller will have the right, in its sole discretion, to determine the fees, prices and other amounts that it will charge to End Users for the Products and for any related services. Siemens reserves the right to publish the list prices for the products as provided in Exhibit C.

1.31 End User Licence Agreement. Reseller shall prepare a standard form End User Licence Agreement for use with End Users in each jurisdiction of the Territory compatible with applicable law in that jurisdiction. Reseller shall ensure that all End User Licence Agreements shall ** unless prohibited by applicable law. Except as provided in Article 5.3, Reseller shall not, and shall procure that End Users do not, deliver possession of any copies of the Products to any third party unless that person has first entered into an End User Licence Agreement with Reseller. Reseller shall keep a copy of each executed End User Licence Agreement entered into by End Users, and make such copies available to Siemens for inspection at any time on reasonable notice.

1.32 Reseller shall procure that each End User complies with its End User Licence Agreement. Reseller undertakes to Siemens to comply with and perform its obligations under each End User Licence Agreement fully and promptly. If Reseller fails to comply with any of its obligations under an End User Licence Agreement, Siemens or its representative may effect compliance on behalf of Reseller, after providing Reseller with written notice of such failure and a reasonable opportunity to cure, in which case Reseller shall reimburse Siemens all reasonable costs and expenses incurred by Siemens or its representative as a result.



ARTICLE 5: LICENCES



1.33 Reseller Licence. Subject to Article 5.4, Siemens hereby grants Reseller a non-exclusive licence to reproduce, distribute and sub-license the Products for clinical use and provide First Level Maintenance on the terms and conditions set out in this Agreement.

1.34 Reseller Demonstration Licence. Subject to Article 5.4, Siemens agrees to grant to Reseller a royalty-free, non-exclusive, non-sublicenseable software licence, for the latest version of the Products, solely for Reseller92s own customer demonstration and promotional, training, verification and support use and to enable Reseller to perform the modifications to the Reseller Workstation as set out in Article 3.2. Reseller shall ensure all copies of the Products for these uses include the copy protection mechanism approved by Siemens in accordance with Article 4.2 and notify Siemens of such copies in the report to be provided by Reseller in accordance with Article 3.9. If Siemens determines the number of such copies is greater than an appropriate level, the Reseller shall reduce the number of such copies to the number notified by Siemens in its absolute discretion.

1.35 Customer Trial Licence. Subject to Article 5.4, Siemens agrees to grant Reseller the right to provide 30 day trial licences for the use of the Products for clinical use to prospective customers, for evaluation purposes only. Only one such trial period may be offered to any site for any Product. On demand, Reseller shall provide Siemens with a list of all sites currently enjoying use of the Products on such a trial basis. Reseller agrees to make commercially reasonable efforts to support sites using the Products on a trial basis, and to make commercially reasonable efforts to make a sale of the Product to the site at the end of the trial period. Siemens is not obliged to provide support for sites operating the Products on a trial basis. There shall be no charge for 30 day trial licences as described in this Article. Reseller shall ensure that trial users cease all use of the Products on expiry of the 30 day licence period.

1.36 The licences granted by Siemens under this Agreement cover use of the Products for clinical use, but specifically exclude the Excluded Field.




** 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 6: SOFTWARE MAINTENANCE SERVICES



1.37 Maintenance Support Agreements. For each End User purchasing a licence for the Products in the Territory, Reseller shall use its reasonable efforts to persuade such End User to purchase annual software maintenance services under a software maintenance program (a " Maintenance Support Agreement"). A Maintenance Support Agreement shall entitle the End User purchasing it (a "Service End User") to receive from the Reseller, free of charge, all Updates (but not Upgrades) to the Products that have been purchased by the Service End User that are issued during the term of the Maintenance Support Agreement. Reseller and Siemens agree that newly released options to the Products shall be excluded from such Updates, unless explicitly agreed between the parties. Reseller shall within 30 days of each new Maintenance Support Agreement or renewal thereof pay to Siemens the maintenance fees due for such Service End Users.

1.38 First Level Maintenance Service. Reseller shall provide First Level Maintenance to all End Users for the first year of their licence and to all Service End Users as long as they remain Service End Users as set out in Exhibit D. If a Service End User92s Maintenance Support Agreement lapses for any reason, and Reseller at a later date again provides software maintenance services to that Service End User, Siemens reserves the right to charge the Reseller an appropriate fee to bring such Service End User up to date with its software maintenance services.

1.39 Second Level Maintenance Service. Siemens shall provide the Second Level Maintenance to Reseller for the Products, subject to withdrawal of Second Level Maintenance for non-current releases of the Products set out in Article 6.4. Reseller shall assist Siemens in providing the Second Level Maintenance if at any time Siemens determines, at its sole discretion, to provide Second Level Maintenance directly to an End User. For the avoidance of doubt, maintenance services shall not include Upgrades which must be purchased by End Users as additional items.

1.40 Version Sunsetting. Siemens may at any time, at its sole discretion, by written notice to Reseller withdraw the provision of Second Level Maintenance for any release of the Products, except the most current release. If Siemens withdraws Second Level Maintenance for a particular release and Reseller is providing First Level Maintenance to fully paid up Service End Users for such release, Siemens shall make available to Reseller free of charge for those Service End Users a release of the Product for which Siemens provides Second Level Maintenance. Siemens shall not be responsible for any associated costs of the Reseller or Service End Users. Siemens will provide Second Level Maintenance for previous releases for at least twelve (12) months following the subsequent release.

1.41 End User Contact. Reseller shall have the primary responsibility for direct contact with End Users in the Territory in regard to the function, application, or maintenance o ...