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Oem Development Software Agreement

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Sectors: Manufacturing
Governing Law: Massachusetts, View Massachusetts State Laws
Effective Date: November 09, 1995
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CONFIDENTIAL TREATMENT EXHIBIT 10.27


OEM DEVELOPMENT SOFTWARE AGREEMENT


This agreement is made as of the 9th day of November, 1995, between MITRA IMAGING INCORPORATED, a corporation incorporated under the laws of the Province of Ontario, Canada (hereinafter called "Mitra), and ACCESS RADIOLOGY CORPORATION, a corporation incorporated in the State of Delaware (hereinafter called "ACCESS").


B A C K G R O U N D


1. ACCESS desires to develop application-specific software using software products marketed by Mitra and to distribute Mitra Software to third party end users (hereinafter called "Customers") ; and


2. Mitra has agreed to license ACCESS to do so,


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


1. Interpretation.


1.1 In this Agreement, each of the following terms has the meaning
set out below:


1.1.1 "DAP for Windows" means all or any portion of the
computer programs in object code format, described as
such in the user's manual entitled "Mitra Imaging
Incorporated DICOM Application Platform Revision 1.0 "
dated A---)--il 29, 1995, and conforming to the
specifications set forth therein.


1.1.2 "DAP for UNIX" means all or any portion of the computer
programs in object code format, described as such in
the user's manual entitled "Mitra Imaging Incorporated
DICOM Application Platform Revision 1.011 dated April
29, 1995, and conforming to the specifications set
forth therein.


1.1.3 "FDA" means the United States Food and Drug
Administration.


1.1.4 "Food and Drug Art" means the United States Pure Food
and Drug Act, as amended from time to time.


Confidential Treatment


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1.1.5 "Lumiscan" means all or any portion of the computer
programs in object code format, described in the User's
Manual for Lumisys DICOM 3.0 Tookit Version 0-4.2 dated
August 3, 1995, and conforming to the specifications
set forth therein.


1.1.6 "Mitra Software" means all or any portion of DAP for
Windows, DAP for UNIX, Lumiscan and the server
software.


1.1.7 "Server Software" means all or any portion of the
computer programs in object code for-mat, listed on
Schedule A and conforming to the specifications set
forth therein.


1.2 Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter hereof and
supersedes all prior agreements, understandings, negotiations and
discussions, whether oral Or written, of the parties pertaining
to such subject matter.


1.3 Currency. Unless otherwise indicated, all dollar amounts referred
to in this Agreement are in U.S. funds.


1.4 Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.


2. Grant of Rights.


2.1 Effective upon execution of this Agreement, Mitra hereby appoints
ACCESS a non-exclusive reseller of Mitra Software products and
grants to ACCESS the following nonexclusive rights:


2.1.1 The right to use DAP for Windows and DAP for UNIX to
develop application-specific software and to sublicense
such software incorporated in such ACCESS-developed
software to ACCESS customers in the regular course of
business;


2.1.2 The right to include copies of the Lumiscan and Server
Software in software or devices made available by
ACCESS to its customers and to sublicense Lumiscan and
Server Software included in such software or devices to
ACCESS customers in the regular course of business; and


2.1.3 The right to use copies of the Mitra Software for
internal purposes of ACCESS, including software
development, demonstration,


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support of ACCESS customers and processing of data in
the regular course of 1~ACCESS's business.


3. Customer License Agreements.


3.1 ACCESS shall develop standard form customer sublicensing
provisions acceptable to Mitra for use with Mitra Software. No
customer shall receive any Mitra Software unless such customer
shall have signed an agreement containing the standard form
customer sublicensing provisions.


3.2 Each customer agreement shall set out the name and address of the
customer and the identity and location of the devices on which
the customer is licensed to use a copy of Mitra Software, and
shall include standard form customer sublicensing provisions
which provide:


3.2.1 that only a personal, non-transferable and non-
exclusive right to use each copy of Mitra Software
solely for the customer's business or professional
purposes is granted to the customer;


3.2.2 that no title to the Mitra Software is transferred to
the customer; and


3.2.3 that the customer shall not transfer, provide or
disclose Mitra Software to any other third par-y.


3.3 ACCESS shall assign a unique internal number to each sublicense
granted to a customer and shall place this number clearly in the
customer agreement.


3.4 ACCESS shall use reasonable efforts to all the licensing
provisions of customer agreements.


3.5 ACCESS shall demonstrate to Mitra that its software applications
that include Mitra Software have. sufficient mechanisms for
tracking usage and preventing unauthorized copying. Without this
ACCESS is required to distribute a copy-protected version of the
Mitra Software administrated by Mitra at installation.


4. License Fees.


4.1 ACCESS agrees to pay to Mitra the following license fees:


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4.1.1 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]


4.1.2 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]


4.1.3 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]


4.1.4 [*Redacted pursuant to Confidentiality Treatment
Request dated September 10, 1999.]


4.2 License and upgrade fees under Sections 4.1.2 through 4.1.4 shall
be payable quarterly within 30 days of the end of each calendar
quarter for sublicenses granted to ACCESS Customers during such
quarter. Each payment of such license fees shall be accompanied
by a statement setting forth in reasonable detail the calculation
of the license fees payable. License fees do not include any
customs or import duties, or sales, use or similar taxes, which
shall be the responsibility of ACCESS.


4.3 ACCESS shall keep full, clear and accurate records of the number
of copies of Mitra Software furnished by it to customers or used
by it internally, and the identity and location of each customer
to whom Mitra Software is furnished by ACCESS.


4.4 Mitra shall have the righ
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