**Exhibit 10.23**

 

**VITALIMAGES, INC.**

**AND**

##### **TOSHIBA**MEDICAL SYSTEMS CORPORATION

 

**MARKETINGAND DISTRIBUTION AGREEMENT**

 

THIS AGREEMENT ismade as of November 21, 2008 by and between Vital Images, Inc., aMinnesota corporation having its principal place of business at 5850 OpusParkway, Suite 300, Minnetonka, Minnesota 55343 USA (“Vital Images”)  and Toshiba Medical Systems Corporation havingits place of business at 1385, Shimoishigami, Otawara-Shi, Tochigi 324-8550,Japan (“Toshiba”).

 

# **Recitals**

 

A.                                            VitalImages develops and licenses proprietary medical visualization softwareproducts (defined below as the “Products”) and desires to increase themarketing and distribution of the Products.

 

B.                                              Toshibadevelops and markets proprietary medical visualization scanners and relatedhardware and software products and desires to market the Products incombination with the marketing of its products.

 

C.                                             Toshiba possesses thenecessary expertise and marketing organization to promote, market, distributeand support the Products.

 

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

 

NOW, THEREFORE, inconsideration of the mutual premises and covenants hereinafter set forth, theparties agree as follows:

 

**ARTICLE 1:  DEFINITIONS**

 

For purposes of thisAgreement, the following words, terms and phrases shall have the followingmeanings unless the context otherwise requires:

 

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

 

1.2                                 First Level Maintenance.  “First Level Maintenance” shall meanelectronic or telephone or on-site response to deal with any problem orsoftware bug in the Product which is provided by Vital Images, Toshiba or theDealer Associates, as hereinafter specified, to Toshiba’s or the DealerAssociates’ customers in the Territory who have installed the Products that areunder a contractual warranty or software maintenance program with Toshiba orthe Dealer Associates. Such response shall attempt (i) to identify thenature and extent of the customer’s problem, (ii) if appropriate, toobtain a copy of magnetic media, hard copy printout or electronic fileforwarded over the internet containing the problem or software bug to beforwarded promptly to Vital Images electronically or by facsimile, and (iii) toadvise 

 

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the customer in theapplication of any recommended solution or workaround to such problem orbug.  For outside the US, on-siteresponse may be provided by Vital Images at an additional charge.

 

1.3                                 Government Approval.  “Government Approval” shall mean anyapprovals, licenses, registrations or authorizations of any federal, state orlocal regulatory agency, department, bureau or other government entity, foreignor domestic, necessary for use, marketing, sale or distribution of the Productsin a regulatory jurisdiction, including without limitation the U.S. Food andDrug Administration (“FDA”).

 

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

 

1.5                                 Second Level Maintenance.  “Second Level Maintenance” shall meanelectronic or telephone response provided by Vital Images to Toshiba or theDealer Associates to deal with any problem or software bug in the Products thatcannot be handled by Toshiba or the Dealer Associate alone under the FirstLevel Maintenance for such customers in the Territory who have installed the Productsthat are under Vital Images’ standard warranty or under a Toshiba or DealerAssociate current software maintenance contract.

 

1.6                                 Services.  “Services” shall mean the software support andmaintenance services described in Article 6 and Exhibit E hereof.

 

1.7                                 Service Level Agreements. “Service Level Agreements” shall mean anyagreements to be executed between Vital Images and Toshiba or a Dealer Associate,which define any applicable terms and conditions for Services.

 

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

 

1.9                                 *Vitrea**®*.  “*Vitrea**®*” shall mean 2-D, 3-D and 4-Dmedical visualization software marketed by Vital Images under the name “*Vitrea**®*.”

 

1.10                           *Vitrea**®  **fX**.*“*Vitrea**®** fX*” shall mean 2-D, 3-D, and 4-D medical visualizationsoftware marketed by both Toshiba and Vital Images under the name “*Vitrea**®  **fX*”for AquilionOne.

 

1.11                           *ViTALConnect**® .  ViTALConnect**®  *shall mean 2-D and 3-D medicalvisualization software accessible via a web interface marketed by Vital Imagesunder the name *ViTALConnect**®*.

 

1.12                           *ViTAL Enterprise Workstation*shallmean 2-D, 3-D, and 4-D medical visualization software accessible via a webinterface or workstation and is expandable to Vital Images broader Enterprisesolution marketed by Vital Images under the name *ViTALEnterprise*.

 

1.13                           Installation. With regard to Vitrea fX in Japan, “First Level Installation” shallmean unloading, assembling and powering up the applicable computerworkstation(s), installing the Products onto such computer workstation(s) inits factory before shipping the Products to the customer sites and integratingsuch computer workstation(s) onto the customer’s computer network. Withregard to the other Products, “First Level Installation” shall mean unloading,assembling and powering up the applicable computer workstation(s), installingthe Products onto such computer workstation(s) and integrating suchcomputer workstation(s) onto the customer’s computer network.

 

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

 

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**ARTICLE 2:  APPOINTMENT**

 

2.1                                 Scope.  Vital Images hereby appoints Toshiba, andToshiba hereby accepts such appointment, as Vital Images’ nonexclusive resellerof the Products during the term of this Agreement in the Territory, inconnection with sales of Toshiba’s medical equipments, subject to all the terms and conditions of thisAgreement.  All sublicenses of theProducts are one-time sublicenses, whether or not they are granted on a term orperpetual basis, and after the initial sublicense of any Product to a customer,Toshiba or the Dealer Associates may not sublicense any Products that arereturned by that customer, provided that Toshiba may reinstall Products withoutpaying an additional license fee when such reinstallation is in connection witha customer trade-in or upgrade of equipment purchased from Toshiba and it isthe same customer for which the software was initially licensed, or, for VitreafX in Japan, a failed hardware replacement.   With regard to Vitrea fX in Japan, Toshiba may, at its discretion, install it asan accessory for computer workstation(s) sold in connection with ToshibaCT equipment (hereinafter collectively called as “Toshiba CT System(s)”)distributed, sold, leased or otherwise disposed by Toshiba in Japan, but maynot distribute, sell, lease or otherwise dispose of the Products in any othermanner.

 

2.2                                 Dealer Associates.  Effective with the signing of this Agreement,Toshiba hereby appoints and Vital Images consents to the appointment of, theToshiba subsidiaries and distributors listed in Exhibit C as itsagents to market and distribute the Products within the Territory (collectively“Dealer Associates”). Provided, however, Toshiba shall remain fully liable forthe performance of such Dealer Associates and Toshiba hereby indemnifies andholds Vital Images harmless from all damages, losses, costs or expenses  (excluding any consequential or incidentaldamages) arising in any manner from any act or omission on the part of suchDealer Associates if such act or omission constitutes a breach of thisAgreement.  Toshiba shall advise VitalImages 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 andrefer to the sale of software licenses for the Products.  Toshiba hereby acknowledges Vital Imagesretains all right, title and interest in and to the copyrights and other intellectualproperty rights in the Products (except as otherwise agreed between the partiesin a separate agreement concerning one or more options incorporated in theProducts) and that such Products are tobe distributed to Toshiba’s and Dealer Associate’s customers in compliance withsuch acknowledgment.

 

**ARTICLE3:  GENERAL OBLIGATIONS OF TOSHIBA**

 

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

 

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

 

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

 

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

 

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

 

(e)                                  To reasonably investigatepossible leads with respect to potential customers in the Territory who arereferred to Toshiba by Vital Images;

 

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

 

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

 

(h)                                 Toprovide Vital Images with reports of its activities and other informationregarding the Products in the Territory in such detail and with such frequencyas is reasonably agreed between both parties;

 

(i)                                     Toconduct its business in a professional manner, which will reflect positivelyupon Vital Images and its Products;

 

(j)                                     Toprovide Vital Images with customer registration information at the time Toshibaissues Vital Images a Purchase Order, with the exception of sales by Toshiba inJapan and by Toshiba Medical Systems Europe B.V. “TMSE” who will use bestefforts to provide customer information with the purchase order;

 

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

 

(l)                                     Toapprise all customers of the terms of Section 2.3 of this Agreementregarding the ownership of intellectual property embodied in the Products andobtain from all customers a written license agreement containing all of theterms and conditions (except those not related to the protection of VitalImages) contained in Exhibit J to this Agreement, or other similarterms and conditions that protect Vital Images to the same degree as the termsand conditions contained in Exhibit J, except as set forth in Exhibit E.

 

3.2                                 Toshiba DemonstrationLicense.  To enable Toshiba tobetter perform its marketing and distribution of the Products and Toshiba’s medicalequipments, and to assist it with its product development and trainingactivities, Vital Images will grantto Toshiba and/or its Dealer Associates an unlimited number of royalty freesoftware licenses, for the latest version of the Products solely for their owncustomer and trade show demonstration, promotional and training uses (includinga minimum of eight (8) copies for each Toshiba America and Japan TrainingAcademy), subject to the Terms and Conditions for the Demonstration Licenseattached 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 willprovide all hardware related to the Demonstration Licenses, and must track thelocation of all Demonstration Licenses.

 

3.3                                 Promotional Materials.  Vital Images shall furnish Toshiba with areasonable quantity of Vital Images data sheets, brochures and other marketingmaterials for the Products in the English language for use by Toshiba and itsDealer Associates.

 

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

 

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

 

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(c)                                  If Toshiba or its DealerAssociates believes that non-English language versions of such promotionalmaterials or non-English language advertising of the Products are necessary ordesirable for effective marketing of the Products in the Territory, Toshibashall arrange and pay for the preparation of such non-English languagematerials, which shall be subject to the prior review and written approval ofVital Images. If Toshiba or its Dealer Associates believe that non-Englishlanguage versions of user’s manual of the Products are necessary in theTerritory and upon request of Toshiba or its Dealer Associates and theagreement of Vital Images, acting reasonably, Vital Images shall provide suchtranslated version to Toshiba or its Dealer Associates which made such request,at the expense of Toshiba; provided that if such translated version is necessary for Regulatory compliance in the Territory,in the reasonable opinion of Vital Images, Vital Images shall provide it to Toshiba or its Dealer Associates at no charge. In all cases, Vital Imagesshall be the sole and exclusive owner of the copyrights in any such materials,regardless of language.

 

(d)                                 Toshiba and the DealerAssociates will not remove any marks of Vital Images or attributions to VitalImages from the promotional materials provided, even if the materials arecombined with other materials not from Vital Images.

 

(e)                                  Toshibaand Vital Images may create joint promotional material for certainmarkets.  This material must be approvedby both parties prior to distribution.

 

3.4                                 Reverse Engineering.  Toshiba shall not reverse engineer, decompileor 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 thisAgreement, Toshiba and its Dealer Associates assume full responsibilityfor all its own costs and expenses incurred in carrying out its obligationsunder this Agreement, including but not limited to all rents, salaries,commissions, advertising, demonstrations, travel and accommodations.

 

**ARTICLE 4:  GENERAL OBLIGATIONSOF VITAL IMAGES**

 

4.1                                 Development and Integration.  Continuedcollaboration on product is a shared goal of the parties.  Vital Images will use reasonable and promptcommercial efforts to integrate new Products as defined in the DevelopmentAgreement  into its Product solution,when and if such Products are made commercially available.

 

4.2                                 Market Awareness. Vital Images will use reasonable commercial efforts to promote awarenessof the Products for use in the radiology and****cardiologymarket through tradeshows and other marketing venues.  At a minimum, Vital Images will attend thetrade shows set forth in Exhibit G to this Agreement.  Vital Images will exercise its best effortsto attend other trade shows that are not set forth in Exhibit G,provided that Toshiba gives Vital Images reasonable advance notice sufficientto 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 Toshibaalso participates, Vital Images will provide such workstations and qualifiedpersonnel for the Toshiba booth in addition to its own. Vital Images willexercise its reasonable efforts to provide such workstations and qualifiedpersonnel 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 sufficientto allow Vital Images to provide such workstations and qualified personnel.Furthermore, Vital Images will exercise its best efforts to have its boothlocated adjacent to TAMS’ booth where both participate.  Vital Images will also advise TAMS of anytrade shows in which Vital Images participates. Any exhibits prepared by Vital Images for Toshiba’s booth at trade showsmust show the Vital Images products working in conjunction with Toshiba’simages from Toshiba’s CT equipment, but Vital Images is not precluded frompresenting 

 

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additional exhibits that show its productsworking in conjunction with images from other CT manufacturers.

 

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

 

(a)                                  Vital Images has available global support forcustomers who wish to purchase such support in accordance with (i) anyService Level Agreements between TAMS and Vital Images, and (ii) anyService Level Agreements or other agreements for support between Toshiba,Toshiba Medical Systems Europe B.V. (“TMSE”) or the other Dealer Associates andVital Images.

 

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

 

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

 

4.4                                 Training. During the term of this Agreement Vital Images will provide training atits headquarters location, or such other location mutually agreed between theparties, for Toshiba and Dealer Associate personnel in the function,application, installation and the First Level Maintenance of the Products andin the provision of assistance to Vital Images for Second Level Maintenance,provided, however, Toshiba or the Dealer Associates shall pay the salaries andall transportation and living expenses for its staff.  Toshibaand the Dealer Associates in aggregate may place up to four (4) staffmembers in any of Vital Images’ regularly-scheduled training classes, upon atleast two weeks’ advance notice to Vital Images, provided space isavailable.  With regard to Vitrea fX inJapan, Vital Images grants to Toshiba the right to produce and copy trainingmaterials, either in English or Japanese, modifying Vital Images’ materials.

 

4.5                                 Customer Training.  In the US market, Vital Images will providetraining in the form of 8 education units per *Vitrea*and *Vitrea fX*license to be used accordingto the course equivalences outlined in Exhibit E.  Training shallinclude an overview of the Vital Images developed tools and features of theproducts purchased by the customer.  Training in non-US markets will be availablefor an additional charge per session.  Vital Images is under no obligationto provide applications training to end users beyond twelve (12) months fromthe license issuance date of the related software at the end users site ortwelve (12) months from receipt of purchase order for training sold separately.

 

4.6                                 Hardware Validation. Vital Images shall take measures prior tothe release of any new version Vitrea, Vitrea fX or ViTALConnect or ViTALEnterprise software to ensure that compatible hardware are rigorously testedand validated to determine a market ready recommended hardware specificationthat assures optimal performance of the software. Such recommended hardwarespecification shall be advised to Toshiba or its Dealer Associate before or uponrelease of the new version software.

 

**ARTICLE 5:  ORDERS FOR PRODUCTSAND SERVICES**

 

5.1                                 Purchase Orders.  Toshiba shall cause its Dealer Associates,and itself shall use its best efforts to submit purchase orders for theProducts and Services to Vital Images in writing (preferably by facsimile orother electronic means) at least fifteen (15) days prior to the requesteddelivery date, which orders shall include the following information:

 

(a)                                  An identification of theProducts and Services ordered;

 

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(b)                                 Quantity of Products andServices;

 

(c)                                  Requested delivery dates;

 

(d)                                 Shipping instructions andshipping address; and

 

(e)                                  With the exception of salesby Toshiba in Japan and by TMSE, who will use best efforts to provide customerinformation with the purchase order, the defined Customer Information toprocess the license request; which includes, end user name, end user address,Products to be delivered, maintenance coverage dates and products covered forsoftware maintenance contracts and

 

(f)                                    If applicable, any relevantexport control information or documentation to enable Toshiba and Vital Imagesto comply with applicable U.S. export control laws.

 

Withregard to Products for Japan, Toshiba may order Products to Vital Images andpay for the Products, through the following Toshiba’s agent (“Agent”).

 

Agent:

ToshibaAmerica, Inc. (Boston)

24New England Executive Park,

BurlingtonMA, 01803, U.S.A.

Attention:Branch Manager

 

Forthe purpose of this Agreement, Toshiba hereby appoints Agent as its authorizedagent having an authority to perform any and all of Toshiba’s obligations andundertakings under this Agreement under its own name and on behalf of Toshiba,including, without limitation:

 

(a) tosubmit purchase orders for the Products for Japan;

(b) toreceive shipments of the Products for Japan and invoices therefore;

(c) tomake payments due to the Vital Images for the Products for Japan purchased;

(d) toconfirm and follow up deliveries of the Products for Japan; and

(e) toreturn the defective or non-conforming Products for Japan.

 

Notwithstanding anything else contained herein, Toshiba shall remaindirectly liable to the Vital Images for all actions taken by Agent. Toshibamay, at its sole discretion but with at least forty-five (45) days priorwritten notice to the Vital Images, withdraw all of the authority of Agentprovided above.  Upon receipt of suchnotice, the parties shall agree upon alternative procedural arrangements inorder to ensure the orderly and timely supply of the Products to Toshibahereunder and payment therefor.

 

5.2                                 Acceptance of Orders – All purchase orders fromToshiba and the Dealer Associate are subject to acceptance in writing by VitalImages, which acceptance shall not be unreasonably withheld and shall bedelivered by reply facsimile or by e-mail. Vital Images may withhold itsacceptance only if (a)  the lead time for delivery is less than ten (10) days;(b) Toshiba or the Dealer Associate who has submitted the purchase orderis delinquent in its payments to Vital Images under this Agreement; or (c) Toshibaor the Dealer Associate show has submitted the purchase order is in breach ofthis Agreement. Failure to respond to each purchase order by Vital Imageswithin  five (5) business days fromreceipt of such purchase order shall be deemed acceptance of such purchaseorder by Vital Images. Vital Images will provide to Toshiba monthlyreports no later than 15 days from the end of each month listing all purchaseorders and amounts of such purchase orders placed by each Dealer Associateduring the prior month. Such report shall also list all service contracts andoptions purchased by each Dealer Associate during such month.

 

5.3                                 Delivery.  All deliveries of the Products shall be fromVital Images’ facilities unless otherwise agreed in writing between theparties.  Vital Images shall bearshipping charges for the shipment of any Products to its destination specifiedin the purchase order.  All risk ofdamage to or loss or delay of the Products shall pass to Toshiba or the DealerAssociate upon their delivery to a common carrier.

 

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5.4                                 Modification of Orders.  No accepted purchase order may be modified orcanceled later than thirty (30) days before the scheduled delivery date, exceptupon the written agreement of both parties, provided, however, any pricedecrease or increase for the Products shall be implemented upon the effectivedate of such decrease or increase and therefore, will apply to any purchaseorder for which delivery has not yet taken place. Furthermore, Vital Imageswill, at no additional cost to Toshiba and the Dealer Associate, ship itslatest authorized version or release of a Product in response to any acceptedpurchase order.  Toshiba’s and the DealerAssociate’s purchase orders or mutually-agreed change orders shall be subjectto all provisions of this Agreement, whether or not the purchase order orchange order so states, and any terms and conditions of such purchase order or changeorder which conflict with the terms and conditions of this Agreement shall bedeemed excluded and of no legal effect as between the parties.

 

5.5                                 Purchase Commitment.  Toshiba annual purchase commitment is setforth on Exhibit F attached hereto and incorporated herein by thisreference.  Vital Images shall ship toToshiba and/or its Dealer Associates during the Term of this Agreement suchProducts as are identified in and in accordance with the purchase orders submittedby Toshiba and/or its Dealer Associates. In the event of a Change of Control of Vital Images, as defined in Section 18.11of this Agreement, Toshiba may, in its sole discretion, be relieved of itsminimum purchase Commitment set forth in this Agreement. In such case, Toshibawill provide Vital Images with thirty (30) days’ prior written notice of itsintent to be relieved of its minimum purchase Commitments.  Upon relief of the minimum purchaseCommitment, the pricing set forth in this Agreement shall expire and Section 4.1,Section 4.2, this Section 5.5, and the fourth sentence of Section 7.1shall no longer be in effect.

 

5.6           Product Changes. Vital Imagesmay do any of the following upon sixty (60) days’ prior written notice (or suchsooner notice as practicable, if required for regulatory or legal reasons) toToshiba:

 

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

 

(b)                                 Except as set forth below,discontinue the production of any Product. However, such discontinuation willnot release or modify Vital Images’ obligations for warranty and servicesupport specified in this Agreement;

 

(c)                                  Discontinue the developmentof any new release of a Product, if such new release has not been announcedpublicly; or

 

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

 

Notwithstanding theforegoing, at all times throughout the term of this Agreement, Vital Imagesmust have available for Toshiba *Vitrea or Vitrea fX*ora successor software of *Vitrea or Vitrea fX**®** *that will have specificationsthat are at least equal to or better than those for the version of Vitrea orVitrea fX*®* software existing as of the date of thisAgreement, andgive at least six (6) months’ prior written notice (or such sooner noticeas practicable, if required for regulatory or legal reasons) to Toshiba beforediscontinuing the production of *Vitrea or Vitrea fX**®**.* The following associated options shall alsobe subject to this provision: 3D Angiography, CT Perfusion, CT Colonography,Endovascular Planning (when and if available), CT Cardiac, Cardiac FunctionalAnalysis, SUREPlaque, VScore, Peripheral Vessel Probe, Nodule Probe, DynamicVolume 4D Brain Perfusion, * * * and * * *.” Toshiba’s minimum purchase commitments will end in the eventVital Images discontinues the production of 

 

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

 

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*Vitrea or Vitrea fX**®* and does not provide Toshiba with a successorproduct acceptable to Toshiba.* *Such discontinuation will not releaseor modify Vital Images’ obligations for warranty and service support specifiedin this Agreement.

 

5.7                               Installationof Products.  Unless otherwise agreedin writing by Vital Images, for outside the U.S., all deliveries of theProducts shall be directly to Toshiba or the Dealer Associates, unless theparties agree that Vital Images shall ship the Products directly to thecustomers, and Toshiba and the Dealer Associates shall then have the soleresponsibility for the First Level Installation of such Products into acustomer’s computer system in the Territory in accordance with the standardsand specifications established by Vital Images from time to time and providedto Toshiba and the Dealer Associates hereunder. If the Products need to beintegrated with non-Toshiba equipment, Vital Images will perform the SecondLevel Installation, upon request from Toshiba, or the Dealer Associates or thecustomers, to ensure proper integration. For the U.S., installation, therespective responsibilities shall be as set forth in Exhibit K.

 

5.8                               Distribution Report.  Name, address, telephone and facsimilenumbers of customers who purchased the Product and Service contracts in eachcalendar quarter shall be provided by Toshiba and TMSE to Vital Images withinthirty (30) days after the end of such quarter.

 

**ARTICLE 6:  SOFTWAREMAINTENANCE SERVICES**

 

6.1                                 Software MaintenanceAgreements.  For each customer purchasing a license forthe Products in the Territory, Toshiba and/or the Dealer Associates shall useits reasonable best efforts to persuade such customer to purchase annual orlong-term software maintenance services under a software maintenance program.Such software maintenance services shall include updates and upgrades  to the *Vitrea**®**, Vitrea fX*and other applicable Productsthat have been purchased by the customer, free of charge to the customer, forso long as Toshiba and/or Dealer Associate is current in its payment of feesfor 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 arereleased to Vital Images’ general installed base, and corrections, which are fixes to errors in the Products that arereported by Vital Images customers and are released to Vital Images’general installed base.It is agreed between the parties that newly released options to *Vitrea**®** *or Vitrea fX except for those listed in Exhibit Eand purchased by the customer, shall be excluded from such updates andupgrades, unless explicitly agreed between the parties.  Provided, however, even after the Warranty Period(hereinafter defined in Section 9.1(a)), upon written request from Toshibaor its Dealer Associates for any particular end-user, for up to six (6) monthsafter the expiration date of the Warranty Period, Vital Images shall, withoutcharge, upgrade or update such end-user’s Product to its latest versionavailable within the end-user’s Warranty Period, with downwardcompatibility.  Further, regardless ofwhether a customer is under a warranty or software maintenance program, in theevent Vital Images issues a correction related to a patient safety issueresulting in a product recall or similar governmental action, Vital Images shall provide such correction tothe customers affected at no charge with prior written notice to Toshiba.

 

6.2                               First LevelMaintenance Service.   Toshiba and/orthe Dealer Associates shall provide the First Level Maintenance to customersoutside the United States.  Vital Imagesshall provide First Level Maintenance to customers within the United States,unless defined otherwise in a Service Level Agreement.

 

6.3                               Second Level Maintenance Service.  Vital Images shall provide the Second Level Maintenance to Toshiba andthe Dealer Associates.   In accordancewith their technical ability, and based upon their prior experience andtraining by Vital Images, except for the United States, Toshiba and/or theDealer Associates shall use their reasonable best efforts to assist VitalImages in providing the Second Level Maintenance for the benefit of customersin the Territory.  Toshiba shallpay Vital Images to provide Second Level Maintenance at the amounts set forthin Exhibit E.

 

6.4                                 Customer Contact.  Except as set forth in Section 6.3outside the U.S., and Sections 6.2 and 6.3 within the U.S., Toshiba and/or theDealers Associates shall have the primary responsibility for direct contactwith customers in the Territory in regard to the function, application,installation or maintenance of the 

 

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Products under the FirstLevel Maintenance and the Second Level Maintenance, provided that Vital Imagesmay contact directly any customer not enrolled in support to enter into asupport and maintenance  agreement.

 

**ARTICLE 7:  PRICES AND PAYMENTS**

 

7.1                                Prices.  Toshiba and the Dealer Associates shall payVital Images in accordance with the prices for the Products and theServices as specifiedin the Product Price List, Exhibit E hereto. All Product Price Listprices are for shipment from Vital Images’ facilities to its destination.  Any special packing or handling shall be atthe sole expense of Toshiba.

 

In recognition of the purchase commitments made by Toshiba and itsDealer Associates pursuant to Section 5.5 of this Agreement, Vital Imageshereby covenants and agrees that the transfer price charged to Toshiba and itsDealer Associates for the standalone Products and Product for Japan shall atall times be lowest transfer price charged by Vital Images to anyone, exceptfor governmental customers, research sites, training sites, show sites,luminaries, collaborators, and resolution of customer satisfaction issues.  If Vital Images provides a lower transferprice to an entity not set forth above, the parties shall meet to discusswhether to adjust the pricing set forth herein.

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

 

7.2                                Payment Terms.  For each order of the Products or ServicesToshiba and/or its Dealer Associates, who ordered such Products or Services,shall pay for Product in accordance with the Product Price List in U.S. Dollarswithin forty-five (45) days of the date of shipment or forty-five (45) daysfrom the invoice date whichever is later. Notwithstandingthe foregoing, if a Service Level Agreement is agreed for Services in the USmarket, payment terms may be set forth in the Service Level Agreement. With regard to Products soldin Japan, Toshiba shall seek anexemption from withholding tax obligations to the extent available underapplicable tax treaties between U.S.A. and Japan, and Vital Images shallreasonably cooperate with Toshiba in completing and executing any documentsnecessary for obtaining such exemption, including, without limitation,providing Toshiba with the U.S. residency certificates, completing andexecuting relevant documents to be submitted to applicable taxationauthorities.

 

7.3                                 Overdue Payments.  If and for so long as any payment fromToshiba 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, whicheveris lower, shall become due on all balances outstanding that are past due bymore than 30 days from the date that Vital Images provides written notice toToshiba 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-dayperiod, the above-mentioned interest will be paid beginning the original duedate of the payment; and

 

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

 

**ARTICLE8:  APPROVALS; ADVERSE REACTIONS; PRODUCTRECALLS**

 

8.1                                Government Approval.  Vital Images shall make diligent efforts toprepare and file all applications required to obtain all necessary GovernmentApproval for each country in the Territory specified in Exhibit Bhereto, the Principal Countries, where such Government Approval has not alreadybeen

 

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obtained. For all other countries in the Territory, if any, Vital Images shalldiligently prepare and file all applications required to obtain all necessaryGovernment Approval for each such country as Vital Images, in its solediscretion, deems necessary.  VitalImages shall keep Toshiba apprised of its progress with respect to any suchapplications.  Toshiba shall furnishVital Images with such assistance and cooperation as may be reasonablyrequested in connection with the securing of such Government Approval.  Notwithstanding the above, with regard to the Products for Japan, it isunderstood between the parties that Toshiba will (i) be a legalmanufacturer solely for the purpose of Government Approval of the Toshiba CTSystem incorporating the Products as option (provided that Toshiba’s status orappearance as such legal manufacturer and this Article 8.1 shall notaffect the provisions in Article 3.4 nor Vital Images’s status as thedeveloper of the Products and owner of all rights therein), and (ii) berequired to file all applications required to obtain all necessary registrationand/or Government Approval, including, without limitation, approval under thePharmaceutical Affairs Laws of Japan as may be amended from time to time, forthe Toshiba CT System to be sold by Toshiba in Japan.  Vital Images shallfurnish Toshiba with such assistance and cooperation as may be reasonablyrequested 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 allinformation within its possession  toVital Images necessary for Vital Images to comply with its medical devicereporting requirements to the FDA or any other comparable regulatory body elsewherein the world.  Toshiba shall maintainrecords of distribution in case of recalls and handling of feedback to meetregulatory requirements.  Vital Imagesshall comply with all health registration laws, regulations and orders of anygovernment entity within the Territory and with all other governmentalrequirements relating to the promotion, marketing and sale of the Products ineach country in the Territory.  Toshibashall submit all advertising claims to Vital Images for written approval priorto their first use by any party, such consent not to be unreasonably withheld.Toshiba will comply with all applicable regulatory requirements applicable toToshiba’s marketing and sale of the Products.

 

8.3                                 Adverse Event Reporting.  Toshiba shall advise Vital Images, bytelephone or facsimile, or other electronic communication means within twenty-four (24) hoursor in case the event occurred a day before or on a national holiday or weekend,then the next working business day after it becomes aware of any adverse event(which is defined as personal injury or death) from the use of any Product ormalfunction of any Product.  Unlessotherwise required by applicable local laws, Toshiba shall advise Vital Imagesof any such adverse event prior to any report or filing being made by Toshibawith the FDA or any other comparable regulatory body elsewhere in the world.Vital Images shall appoint an Authorised Representative according to theEuropean 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 correctiveaction with respect to the Products is desirable or required by law, or if anygovernmental agency having jurisdiction (including, without limitation, theFDA) shall request or order any corrective action with respect to the Products,including any recall, customer notice, restriction, change, corrective actionor market action or any Product change, Vital Images shall promptly notifyToshiba and the Dealer Associates.  Anyand all corrective actions shall be conducted at the expense of Vital Images,except costs associated with notifying customers of such correctiveaction.  Toshiba and/or the DealerAssociates shall maintain complete and accurate records, for such periods asmay be required by applicable law, of all Products they sold.  The parties shall cooperate fully with eachother in effecting any corrective action with respect to the Products pursuantto this Article 8.4, including communication with any customers andToshiba shall cause its Dealer Associates, and itself shall comply with allreasonable directions of Vital Images’ regarding such corrective action.  This Article 8.4 shall not limit theobligations of either party under law regarding any corrective action withrespect to the Products required by law or properly mandated by governmentalauthority.  With regard to the Products for Japan,  if a corrective action with respect to theProducts incorporated in the Toshiba CT Systems is required by law, or if anygovernmental agency having jurisdiction (including, without limitation,Ministry of Health, 

 

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Labour and Welfare) shall request or order any corrective action withrespect to the Products incorporated in the Toshiba CT Systems, including anyrecall, customer notice, restriction, change, corrective action or marketaction or any Product change, TOSHIBA shall promptly notify Vital Images.  Any and all corrective actions shall beconducted at the expense of Vital Images, except costs associated withnotifying customers of such corrective action. Toshiba shall maintain complete and accurate records, for such periodsas may be required by applicable law, of all Toshiba CT Systems they sold.  The parties shall cooperate fully with eachother in effecting any corrective action with respect to the Products pursuantto this Article 8.4, including communication with any customers and VitalImages shall comply with all reasonable directions of TOSHIBA’ regarding suchcorrective action.  This Article 8.4shall not limit the obligations of either party under law regarding anycorrective action with respect to the Products required by law or properlymandated by governmental authority.

 

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

 

**ARTICLE9:  WARRANTIES AND REPRESENTATIONS;INDEMNIFICATION**

 

9.1                                 Product Warranties toCustomers.  Vital Images hereby authorizes Toshiba andthe Dealer Associates to pass through to its customers Vital Images’ standardsoftware warranties as set forth below.

 

(a)                                  Limited Warranty.

 

(i) Vital  Images warrantsto Toshiba and the Dealer Associates for * * * months from the license issuancedate, or * * *months from the Delivery date, except for Toshiba in Japan whereVital Images warrants for * * *months from the license issuance date or * **months from the Delivery date, whichever expires first (the “Warranty Period”),that the Products, when properly installed and operated, will perform thefunctions described in the functional specifications for the Products, ascontained in the applicable written documentation for the Products, and thatsuch Product shall be upgraded or updated to its latest version with theassurance of downward compatibility. Vital Images shall have no obligationunder this provision if (a) the Products have not been properly installed,used or maintained (except for any maintenance performed by Vital Images), inaccordance with Vital Images’ then-applicable operating manuals; or (b) theProducts have been modified in any manner by anyone other than Vital Images, orare used or combined with other computer software programs (other than standardoperating software) not approved by Vital Images, hardware not validated byVital Images and without the prior written consent of Vital Images; or (c) theProducts have been distributed to a customer with any warranties orrepresentations, oral or written, made by Toshiba or any third party beyondthose expressly set forth herein., however Vital Images will nevertheless beresponsible for performing its warranty obligations to the extent set forth inthis paragraph, but not for the additional warranties made by Toshiba or anythird party.

 

(ii) Toshibamay offer its customers an extended software Warranty at the time of issuingVital Images a Purchase Order, subject to the pricing set forth in Exhibit Eand the terms set forth in Article 9.1(a)(i), and subject to Toshiba’spaying Vital Images with the software order.

 

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

 

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(iii)   The warranty for sale of any Product inGermany will be * * * monthsfrom installation, subject to Toshiba’s paying Vital Images an amount equal to * * * of the maintenance fees thatwould have been paid for the * * *monthsof the warranty period in Germany, had the warranty not been extended pursuantto this Article 9.1(a)(ii).

 

(iv) Toshibamay include annualor long-term software maintenance services for the Products as part of Toshiba’sservice contract proposals to its customers. However, if the Toshiba customersdo not wish to sign up to such extended software maintenance or softwaremaintenance services, Toshiba is not precluded from offering its medicalequipments or servicecontract without such software maintenance.

 

(b)                                 Exclusive Remedy.  Vital Images’ entire liability for anywarranty claim made by Toshiba or the Dealer Associates under Section 9.1(a) aboveduring the Warranty Period**,**andToshiba’s and its Dealer Associates’ exclusive remedy for any such claim, shallbe for Vital Images, at its option, to either (i) replace any defectivemedia which prevents the Products from satisfying the limited warranty describedin Section 9.1(a); or (ii) attempt to correct any material andreproducible errors reported by Toshiba or the Dealer Associate. Toshiba willhave the right to return the affected licenses and receive a refund of thelicense fees paid by the customers of Toshiba and the Dealer Associates for theaffected Products if Vital Images, after exercising all reasonable commercialefforts, is unable to correct the errors within 30 days (unless otherwiseagreed by the parties) from the date it receives notice of such error. Suchrefund will be provided no later than 60 days from the date of Toshiba’swritten request for refund.  Vital Imagesdoes not warrant that the operation of the Products will be uninterrupted orerror-free, that all errors in the Products will be corrected, that theProducts will satisfy customer’s requirements or that the Products will operatein the combinations which such customer may select for use.

 

(c)                              WarrantyExtension.  Replacement or correctionof all or any part of the Products does not extend the Warranty Period.  However, if Vital Images is unable to correctan error by the deadline by which it projected such correction, the warrantywill be extended for the number of days for which the error remains uncorrectedbeyond 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 whichhas been recommended in writing by Vital Images, and do not perform because theProducts are not compatible with such hardware, the Warranty Period shall notcommence until the date on which all issues defined in the customer’s warrantyclaim regarding the hardware have been resolved. Vital Images and its thirdparty licensors expressly disclaim any commitment to provide maintenance orsupport of the Products beyond the Warranty Period, in the absence of enteringinto a separate software maintenance arrangement with Vital Images and exceptto the extent stated in Section 6.1 for the 6 month post warranty graceperiod. Furthermore, the Products are derived from and include software fromthird party licensors, who make no warranty, express or implied, regarding theProducts, who disclaim any and all liability for the Products and who will notundertake to provide any information or support regarding the Products.

 

(d)                                 Maintenance Obligations.  As part of its First Level Maintenanceobligations outside the U.S., Toshiba shall and it shall cause its DealerAssociates to promptly inform Vital Images of any claims made by theircustomers in the Territory under such software warranties.  All such warranty claims shall state thenature and details of the claim, the date the cause of the claim was firstobserved and the serial number of the Products concerned, if any.  Further, all such warranty claims must bereceived by Vital Images before the expiration of the Warranty Period for suchcustomer, or will be handled as part of Maintenance and Support for customerswho remain current in their fees for Maintenance and Support.

 

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

 

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

 

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

 

(b)                                 Vital Images has entered intoan agreement with PointDx, Inc. and has procured any necessary licensefrom PointDx, Inc. to fulfill its obligations under this Agreement. VitalImages has no knowledge of any claim of infringement by the Products of anythird party intellectual property rights, such as patents, copyrights, tradesecrets or trademarks; and

 

(c)                                  Vital Images has taken allappropriate corporate action to authorize execution and performance of thisAgreement.

 

9.3                                Limited Warranty.  THE WARRANTIES SET FORTH IN ARTICLES 9.1 AND  9.2 ABOVE ARE IN LIEU OF ALL OTHERWARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BYVITAL IMAGES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY ORFITNESS 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 partysuit, claim or other legal action (“Legal Action”) (i) that alleges anybodily injuries or death and damages to tangible property caused solely by useof the Products, but only to the extent caused or contributed to by VitalImages, and/or (ii) that alleges the Products, or any of them, infringeany patent, copyright, or trade secret, including any reasonable costs or legalfees thereby incurred by Toshiba and/or the Dealer Associates.  Vital Images shall be given written notice ofany Legal Action within thirty (30) days of Toshiba’s and/or Dealer Associatesfirst knowledge thereof, provided, that, the failure of Toshiba and/or DealerAssociates to notify Vital Images of any such matter within the thirty (30) dayperiod shall not release Vital Images, in whole or in part, from itsobligations under this Section 9.4, except to the extent Toshiba’s and/orDealer Associates’ failure to so notify Vital Images materially prejudicesVital Images’ ability to defend against such Legal Action.  Vital Images shall have sole and exclusivecontrol of the defense of any Legal Action, including the choice and directionof any legal counsel.  Toshiba and/orDealer Associates may not settle or compromise any Legal Action without thewritten consent of Vital Images.  Toshibaand/or Dealer Associates shall provide all reasonably requested assistance toVital Images, at Vital Images’ expense. If a Product is found to infringe any such third party intellectualproperty right in such a Legal Action, at Vital Images’ sole discretion andexpense, Vital Images may (i) obtain a license from such third party forthe benefit of Toshiba and/or Dealer Associates and their customers; or (ii) replaceor modify the Product so that it is no longer infringing; or (iii) ifneither of the foregoing is commercially feasible, terminate this Agreement andrefund to Toshiba and/or the Dealer Associates all amounts previously paid byToshiba and/or the Dealer Associates for the Software and the Products.

 

9.5                                Indemnification of VitalImages.  Toshiba hereby agrees to indemnify, defendand hold Vital Images harmless from any and all claims, demands, losses andliabilities, including any reasonable costs or legal fees thereby incurred byVital Images, resulting from Toshiba’s acts or omissions, including, withoutlimitation, misrepresentations regarding the Products, any violation ofapplicable laws or regulations relating to the marketing and distribution ofthe Products, any breach of any covenant or term in this Agreement, any failureby Toshiba to provide the required support or training to end users or toproperly install the Products to the extent specified in this Agreement; andany misappropriation by a Toshiba or the Dealer Associate customer of any VitalImages intellectual property.

 

Vital Images herebyagrees to indemnify, defend and hold Toshiba and/or Dealer Associates harmlessfrom any and all claims, demands, losses and liabilities, including anyreasonable costs or legal fees thereby incurred by Toshiba and/or DealerAssociates, resulting from Vital Images’ acts or omissions, including, withoutlimitation, misrepresentations regarding the Products, any violation of applicablelaws or regulations relating to the marketing and distribution of the Products,or any failure by Vital Images to provide the required support or training toend users or to properly install the Products to the extent specified in thisAgreement.

 

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**ARTICLE 10:  LIMITATION OF REMEDIES**

 

10.1                          Delay.   The delivery date for each order placed byToshiba or the Dealer Associate will be indicated on Toshiba or the DealerAssociate’s purchase order.  Once VitalImages accepts such purchase order, if Vital Images fails to deliver theProducts within twenty (20) days of the deadline(s) indicated in suchpurchase orders, Toshiba or the Dealer Associate shall have the right to cancelsuch order and  purchase equivalentproducts from an alternative source. Vital Images shall pay Toshiba or the Dealer Associate for thedifference between the price of the alternative product and the price for theProducts under the cancelled purchase order(s), not later than twenty (20) daysfollowing receipt of Toshiba or the Dealer Associate’s invoice.

 

10.2                          Sole Remedies.   THE SOLE AND EXCLUSIVE REMEDIES FOR BREACHOF ANY AND ALL WARRANTIES****AND THE SOLEREMEDIES FOR VITAL IMAGES’ LIABILITY OF ANY KIND (INCLUDING LIABILITY FOR NEGLIGENCEOR PRODUCTS LIABILITY) WITH RESPECT TO THE PRODUCTS AND THEIR USE, THE SERVICESCOVERED BY THIS AGREEMENT, AND ALL OTHER PERFORMANCE BY VITAL IMAGES UNDER THISAGREEMENT SHALL BE LIMITED TO THE REMEDIES PROVIDED IN THIS AGREEMENT.

 

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

 

**ARTICLE 11: CONFIDENTIALITY**

 

11.1                          Confidential Information;Term.  All Confidential Information shall be deemedconfidential and proprietary to the party disclosing such informationhereunder.  Each party may use theConfidential Information of the other party during the term of this Agreementonly as permitted or required for the receiving party’s performancehereunder.  The receiving party shall notdisclose or provide any Confidential Information to any third party and shalltake reasonable measures to prevent any unauthorized disclosure by itsemployees, agents, contractors or consultants during the term hereof includingappropriate individual nondisclosure agreements.  The foregoing duty shall apply to anyConfidential Information for a period of five (5) years from the date ofits disclosure. All confidential information must be clearly andconspicuously marked by the disclosing party as proprietary information.  Any proprietary information that is disclosedorally must be identified as confidential at the time of disclosure and must be confirmed in writingno later than thirty (30) days following disclosure.

 

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

 

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

 

(b)                                 Information which wasindependently developed by the receiving party without the use of or relianceon the disclosing party’s Confidential Information;

 

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(c)                                  Information which wasprovided to the receiving party by a third party under no duty ofconfidentiality to the disclosing party; or

 

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

 

**ARTICLE12:  TRADEMARKS**

 

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

 

12.2                          Registration.  Vital Images shall use its best efforts toregister the Vital Images trademarks specified in the List of Trademarks, Exhibit Hhereto, as such list may be modified during the term of this Agreement, withinthe Territory when and if Vital Images determines, in its sole discretion, thatregistration is necessary or useful to the successful distribution of theProducts.  Vital Images shall be the soleparty to initiate any such registration and shall bear all the expensesthereof.

 

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 suchProducts, documentation, containers or packages.  All promotional materials prepared by Toshibarelating to the Products, regardless of manner or media of display, shallconspicuously bear attribution to Vital Images.

 

12.4                          Infringement.  Toshiba shall cause its Dealer Associates,and itself shall promptly notify Vital Images in writing of any unauthorizeduse of Vital Images’ trademarks or similar marks which may constitute an infringementor passing off of Vital Images’ trademarks, to the extent known to Toshiba orits Dealer Associates.  Vital Imagesreserves the right in its sole discretion to institute any proceedings againstsuch third party infringers, and Toshiba shall refrain from doing so.  Toshiba shall cooperate fully with VitalImages 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 agreedupon in settlement of any legal action, shall accrue to Vital Images.

 

12.5                          Termination of Use.  Toshiba shall not adopt, use or register anywords, phrases or symbols which are identical to or confusingly similar to anyof Vital Images’ trademarks.  Upontermination of this Agreement, Toshiba shall immediately cease any use of theVital Images trademarks in any manner. In addition, Toshiba hereby empowers Vital Images and shall assist VitalImages, if requested, to cancel, revoke or withdraw any governmental registrationor authorization permitting Toshiba to use Vital Images trademarks in theTerritory.

 

12.6                          ToshibaTrademarks. Vital Images will not, under any circumstances, use any ofToshiba’s or Dealer Associates’ trademarks, without Toshiba’s prior written consent.  VitalImages shall not adopt, use or register any words, phrases or symbols which areidentical to or confusingly similar to any of Toshiba’s or Dealer Associates’  trademarks without Toshiba’s or theapplicable Dealer Associate’s prior written consent.

 

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**ARTICLE13:  TAXES AND DUTIES**

 

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

 

13.2                          Net Payments.  All payments to be made by Toshiba and itsDealer Associates to Vital Images pursuant to this Agreement represent netamounts Vital Images is entitled to receive and shall not be subject to anydeductions for any reason whatsoever except as allowed in this Agreement or bylaw.  In the event any of said chargesbecome subject to withholding taxes, duties, import deposits, assessments orother governmental charges, however designated, except Vital Images’ incometaxes, said payments from Toshiba or its Dealer Associates shall be increasedto such an extent as to allow Vital Images to receive the net amounts due underthis Agreement.

 

**ARTICLE 14:  IMPORT AND EXPORT OF PRODUCTS**

 

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

 

14.2                          Export Regulations.  If applicable, Toshiba shall supply VitalImages on a timely basis with all necessary information and documentationreasonably requested by Vital Images for export of the Products in accordancewith U.S. export control laws or regulations. Promptly after execution of thisAgreement, Vital Images will notify Toshiba and its Dealer Associates of theU.S. export status of the Products, and will make its best efforts to continueto update Toshiba and its Dealer Associates of any changes in the export statusof the Products based on any changes in the U.S. export regulations.  Vital Images shall be responsible forcompliance with all applicable U.S. Export Administration Regulations for allProducts shipped by it to Toshiba or the Dealer Associates. If applicable,****Toshiba hereby assures Vital Images that:

 

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

 

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

 

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

 

**ARTICLE 15: TERM AND TERMINATION**

 

15.1                          Term.  This Agreement shall take effect as of January 1,2009 and shall have an initial term through December 31, 2013 (the “Term”).  At the end of the Term, this Agreement shallautomatically terminate unless prior to the date of termination, this Agreementis extended pursuant to the mutual written agreement of Toshiba and VitalImages. However, in the event of a Change of Control, as defined in Section 18.11of this Agreement, Toshiba may, in its sole discretion, extend this Agreementfor up to an additional term of three (3) years from the date of theChange of Control, by providing Vital Images written notice, specifying theterm for which it seeks to extend the agreement. Such notice must be providedno later than 30 days prior to the expiration of the initial Term of thisAgreement. In the event of such extension, Toshiba shall have the continuedright for the duration of the extension to obtain the 

 

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products andservices available under this Agreement at prices and under terms to bemutually determined, negotiating in good faith, which prices shall not exceedthe commercially-available prices for such products and services, and all termsand conditions of this Agreement, including pricing and the Commitment, willdiscontinue for the extension term of the Agreement, unless otherwise agreed bythe parties in writing.

 

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

 

(a)                                  If the other party files apetition of any type as to its bankruptcy, is declared bankrupt, becomesinsolvent, makes an assignment for the benefit of creditors, goes intoliquidation or receivership or otherwise loses legal control of its businessvoluntarily;

 

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

 

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

 

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

 

(e)                                  Upon mutual agreement by bothparties.

 

(f)                                    After* * *, the agreement may be terminated on * * * of * * *  year provided a * * * is provided by Toshibato ViTAL by * * * .  Toshiba isresponsible for delivering the minimum commitment for then-current year.

 

ThisAgreement may also be terminated by Toshiba in the event of a Change ofControl, if the acquiring entity is a competitor of Toshiba, defined as ** *, * **, and* * *.Toshiba will provide Vital Images with thirty (30) days’ prior written noticeof termination.

 

15.3                          Rights and Obligations onTermination.  Upon the effectiveness of any termination ofthis Agreement for any reason, the parties shall have the following rights andobligations:

 

(a)                                  Subject to obligations setforth in Section 15.2(f) , neither party shall be released from theobligation to make payment of all amounts then or thereafter due and payable;

 

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

 

(c)                                  Toshiba’s indemnificationobligation under Article 2.2, Vital Images’ obligations to provide FirstLevel Maintenance (U.S.) and Second Level Maintenance as well as Second LevelInstallation for all purchase orders submitted by Toshiba and/or DealerAssociates 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 toupdate section numbers when contract final] shall survive any termination ofthis Agreement;

 

(d)                                 Unless the parties otherwiseagree in writing, Toshiba shall cause its Dealer Associates and itself shallreturn all copies of the Products and any other items of ConfidentialInformation to Vital Images and, if applicable, shall erase all copies of theProducts from its computer systems and shall certify in writing to Vital Imagesthat it has done so; and

 

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

 

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

 

18

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**ARTICLE16:  FORCE MAJEURE**

 

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

 

16.2                          Notice.  Upon written notice to the other party, aparty affected by an event of Force Majeure shall be suspended without anyliability on its part from the performance of its obligations under thisAgreement, except for the obligation to pay any amounts due and owinghereunder.  Such notice shall include adescription of the nature of the event of Force Majeure, and its cause andpossible consequences.  The partyclaiming Force Majeure shall also promptly notify the other party of thetermination of such event.

 

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

 

**ARTICLE17:  ARBITRATION**

 

17.1                          Dispute Resolution.  Except as provided in Section 17.2below, Vital Images and Toshiba shall each use its best efforts to resolve anydispute between them promptly and amicably and without resort to any legalprocess if feasible within thirty (30) days of receipt of a written notice byone party to the other party of the existence of such dispute.  Except as provided in Section 17.2below, no further action may be taken under this Article 17 unless anduntil executive officers of Vital Images and Toshiba have met in good faith todiscuss and settle such dispute.  Theforegoing requirement in this Article 17.1 shall be without prejudice toeither party’s right, if applicable, to terminate this Agreement under Article 14.2above.

 

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

 

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

 

(a)                               Each party shall have theright to request from the arbitrators, and the arbitrators shall order upongood cause shown, reasonable and limited pre-hearing discovery, including (i) exchangeof witness lists, (ii) depositions under oath of named witnesses at amutually convenient location, (iii) written interrogatories and (iv) documentrequests.

 

19

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(b)                                 Upon conclusion of the pre-hearingdiscovery, the arbitrators shall promptly hold a hearing upon the evidence tobe adduced by the parties and shall promptly render a written opinion andaward.

 

(c)                                  The arbitrators may not awardor assess punitive damages, consequential or indirect damages against eitherparty.

 

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

 

**ARTICLE18:  MISCELLANEOUS**

 

18.1                          Relationship.  This Agreement does not make either party theemployee, agent or legal representative of the other for any purposeswhatsoever.  Neither party is granted anyright 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 independentcontractor.

 

18.2                          Assignment.   Toshiba shall not assign or otherwisetransfer its rights and obligations under this Agreement except with the priorwritten consent of Vital Images, which consent will not be unreasonablywithheld.  Vital Images shall not assignor otherwise transfer its rights and obligations under this Agreement exceptwith the prior written consent of Toshiba, which consent will not beunreasonably withheld, except that consent may be withheld for any reason(whether or not reasonable) for assignments or transfers to any of thefollowing entities: * * *,* * *, and ** *.  This restriction against assignment ortransfer by Vital Images shall not apply to any entity who purchases 50% ormore of the shares of stock of Vital Images. Any prohibited assignment shall be null and void.

 

18.3                          Notices.  Notices permitted or required to be givenhereunder shall be deemed sufficient if given by registered or certified mail,postage prepaid, return receipt requested, by private courier service, or byfacsimile addressed to the respective addresses of the parties as first writtenabove or at such other addresses as the respective parties may designate bylike notice from time to time.  Noticesso given shall be effective upon (i) receipt by the party to which noticeis given, or (ii) on the fifth (5th) day following domesticmailing or the tenth (10th) day following internationalmailing, as may be the case, whichever occurs first.

 

18.4                          Entire Agreement.  This Agreement, including the Exhibits heretowhich are incorporated herein, constitutes the entire agreement of the partieswith respect to the subject matter hereof and supersedes all proposals, oral orwritten, and all negotiations, conversations, discussions, and previousdistribution or value added reseller agreements heretofore between the parties,including, without limitation, the Marketing and Distribution Agreementdated March 30, 2007, and the amendments 1, 2 and 3 to said Agreement(together “2007 Agreement”).However, Vital Images and Toshiba’s rights and obligations concerning pricing,installation (First Level and Second Level), warranty and maintenance (FirstLevel and Second Level) for all purchase orders issued under the 2007 Agreementwill continue to be subject to the 2007 Agreement. Toshiba and Vital Imageshereby acknowledge that neither party has been induced to enter into thisAgreement by any representations or statements, oral or written, not expresslycontained herein. Vital Images and Toshiba’s rights and obligations concerningthe SurePlaque will continue to be governed by the License Agreement enteredinto between the parties, dated September 7,. 2006.

 

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

 

18.6                          Publicity.  This Agreement is confidential, and no partyshall issue press releases or engage in other types of publicity of any naturedealing with the commercial or legal details of this Agreement without theother party’s prior written approval, which approval shall not be unreasonablywithheld.  However, approval of suchdisclosure shall be deemed to be given to the extent such disclosure isrequired

 

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

 

20

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tocomply with governmental rules, regulations or other governmentalrequirements.  In such event, thepublishing 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 ofthe state within which the action is filed as specified in Section 17.3above, excluding its choice of law rules. “The parties hereby excludeapplication of the 1980 United Nations Convention on Contracts for theInternational Sale of Goods.”

 

18.8                          Severability.  Ifany provision of this Agreement is found unenforceable under any of the laws orregulations applicable thereto, such provision terms shall be deemed strickenfrom this Agreement, but such invalidity or unenforceability shall notinvalidate any of the other provisions of this Agreement.

 

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

 

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

 

18.11                    Change of Control.  Forpurposes of this Agreement, “Change of Control” shall mean: (i) anymerger, statutory share exchange or consolidation of a party with or into any thirdparty, that entitles the shareholders of the third party to receive at leastone (1) seat on the board of directors and at least thirty-three andone-third percent (33-1/3%) of the outstanding capital stock of the post-mergercompany (*provided, however,* thatany acquisition merger, statutory share exchange or consolidation of a partywith or into * * *, * * *, and * * *or any of their affiliates  that entitles any such company of at leastthirty-three and one-third percent (33-1/3%) of the outstanding capital stockof Vital Images shall be a Change of Control, whether or not such entity alsoreceives a seat on the board of directors of Vital Images; (ii) any thirdparty becoming the holder of a majority of the capital stock of a partyentitled to vote generally for the election of directors; or (iii) thesale, lease, assignment, transfer or other conveyance of all or substantiallyall of the assets of a party in any transaction or series of transactions bysuch party.  In case of “Change ofControl” of either party, that party shall assure that the acquiring equityshall agree to honor and fullfill the obligation of the party as contained inthis Agreement.

 

18.12                    Board Observer. The parties agree that a representative ofToshiba shall obtain non-voting “Observer” status for the meetings of the boardof directors of Vital Images, Inc, subject to legal, regulatory or governanceconstraints and an agreement that is appropriate for such status. The partiesfurther agree that they will diligently and in good faith use their bestefforts to determine whether there are any legal, regulatory or governanceobstacles to such an appointment which they mutually agree would render such anappointment inadvisable. The parties agree that there will be some instances inwhich the Observer should not participate and that they will diligently and ingood faith use their best efforts to identify specific circumstances underwhich they mutually agree such an Observer would not participate in thatportion of the board meeting (such as owing to conflict-of-interest on aparticular issue or attorney/client communication with the board in a specificinstance). The parties will use their good faith and diligent best efforts toresolve these issues on or before the 2007 annual meeting of VitalImages, Inc.

 

*** * * Confidential Treatment has been requested, the portionindicated has been redacted and the redacted portion has been separately filedwith the Securities and Exchange Commission.**

 

21

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INWITNESS WHEREOF, the parties have caused this Agreement to be executed by theirduly authorized representatives below.

 
| VITAL  IMAGES, INC.      |                        | Toshiba  Medical Systems            |
|--------------------------|-----------------------------|-------------------------------------|
|                     |                        |                                |   |   |
|                     |                        |                                |   |   |
| By                       |  /s/ Michael H. Carrel |                                | By |  /s/ Yasuo Nobuta |
|                     |                        |                                |   |   |
| Name  Michael H. Carrel  |                        | Name  Yasuo Nobuta                  |
|                     |                        |                                |   |   |
| Title  President and CEO |                        | Title  General Manager / CT Systems |

 

### LISTOF 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 |   | Major  Trade Show List                              |
| H |   | List  of Vital Images Trademarks                    |
| I |   | Authorized  Representative                          |
| J |   | Terms  and Conditions for the Customer Agreement    |
| K |   | US  Installation, Education, and Service            |

 

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**VITAL IMAGES, INC. AND TOSHIBA MEDICAL SYSTEMSCORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

 

**EXHIBIT A**

**PRODUCTS**

 
| *Vitrea**®*                                                       |
|------------------------------------------------------------------------|
| *VScore**TM**option*                                               |
| *3D Angiography option*                                                |
| *CT Perfusion option*                                                  |
| *CT Colonography option*                                               |
| * * **(a)*                                                             |
| *Automated Vessel Measurements option(b)*                              |
| *CT Cardiac option*                                                    |
| *Car**d**iac  Functional Analysis option*                              |
| *CT Cardiac Option with Peripheral Vessel Probe  option*               |
| *SUREPlaqueTM option*                                              |
| *Electro-physiology option*                                            |
| *Peripheral Vessel Probe option*                                       |
| *Soft Read option***                                                   |
| *Nodule Probe option (Lung option)*                                    |
| *Fusion7DTM Basic option*                                          |
| *Fusion7DTM Advanced option*                                       |
| *Fusion7DTM Standard option*                                       |
| *Fusion7DTM Advanced option with  DICOMPrint &CDburn*     |
| *Fusion7DTM Standard option with  DICOMPrint &CDburn*     |
| *Fusion7DTM Basic option with  DICOMPrint &CDburn*        |
| *MeVis ImageChecker® Lung CAD(Ver.2.0) option*                    |
| *MeVis AutoPoint Temporal Comparison option (must  also buy Lung CAD)* |
| *MeVis Pulmonary Artery Patency Exam option (must  also buy Lung CAD)* |
| *Vitrea ACCESS**TM** option*                                      |
| *VitreaACCESS Remote  option*                                          |
| *Medicsight Colon CAR  option*                                         |
| *Vitrea*® fX                                                 |
| *Dynamic Volume 4D Brain  Perfusion option*                            |
| ** * *(a)*                                                             |
| ** * *(a)*                                                             |
| *ViTALConnect*®                                                   |
| *ViTALEnterprise  Workstation*                                         |

 

----

*(a)when and if available*

*(b)** ** * *

 

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

 

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**VITAL IMAGES, INC. AND TOSHIBA MEDICAL SYSTEMSCORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

 

**EXHIBIT B**

**TERRITORY**

 

Worldwide, except for those countries barred by the

 

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

 

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**VITAL IMAGES, INC. AND TOSHIBA MEDICAL SYSTEMSCORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

** **

**EXHIBIT C**

**LIST OF DEALER ASSOCIATES**

 
| **Company  Name**                            | ** ** | **MAIN COUNTRY**         | ** ** | **Address**                                                                                        |
|----------------------------------------------|------------|--------------------------|------------|----------------------------------------------------------------------------------------------------|
| TOSHIBA  AMERICA MEDICAL SYSTEMS, INC.       |       | U.S.A.                   |       | 2441 MICHELLE DR., TUSTIN, CA 92780, U.S.A.                                                        |
| TOSHIBA  OF CANADA LTD.                      |       | CANADA                   |       | 191 McNABB STREET, MARKHAM, ONTARIO, L3R 8H2  CANADA                                               |
| TOSHIBA  MEDICAL SYSTEMS EUROPE B.V.         |       | EUROPE                   |       | ZILVERSTRAAT 1, 2718 RP ZOETERMEER, THE  NETHERLAND                                                |
| TOSHIBA MEDICAL SYSTEMS NV/SA                |       | BELGIUM                  |       | Bijkhoevelaan, 32C 2110 Wijnegem-Antwerpen,  Belgium                                               |
| TOSHIBA MEDICAL SYSTEMS GmbH                 |       | GERMANY                  |       | Hellersbergstrasse 4, D-41460 Neuss 1, Germany                                                     |
| TOSHIBA  MEDICAL SYSTEMS S.R.L.              |       | ITALY                    |       | Via  Canton 115, 00144 Roma,Italy                                                                  |
| TOSHIBA  MEDICAL SYSTEMS Ltd.                |       | U.K.                     |       | Boundary  Court, Gatwick Road, Crawley RH10 9X, U.K.                                               |
| TOSHIBA  MEDICAL SYSTEMS S.A.                |       | SPAIN  PORTUGAL          |       | Carretera  de Fuencarral,Km15,100 Poligono Industrial de Alcobendas 28100,Madrid,Spain             |
| TOSHIBA  MEDICAL SYSTEMS AG                  |       | SWITZERLAND              |       | Kreuzlenstrasse  5.CH-8618, Oetwil am See. Switzerland                                             |
| TOSHIBA  MEDICAL SYSTEMS Gesellschaft m.b.H. |       | AUSTRIA                  |       | Industriezentrum  No-Sud Ricoweg 40 A-2351 Wiener Neudorf,Austria                                  |
| TOSHIBA  MEDICAL FRANCE S.A.                 |       | FRANCE                   |       | 7,Rue  Ampere-BP14,92802,PUTEAUX Cedex,France                                                      |
| TOSHIBA  (AUSTRALIA) PTY., LTD               |       | AUSTRALIA                |       | MEDICAL  DIVISION BUILDING C, 12-24 Talavera Road, North Ryde, NSW 2113, AUSTRALIA                 |
| TOSHIBA MEDICAL DO BRAZIL  LTDA              |       | BRAZIL  BOLIVIA PARAGUAY |       | Av. CECI, 328-TAMBORÉ,  06460-120-BARUERI-SP-BRASIL                                           |
| TOSHIBA  MEDICAL SYSTEMS ASIA PTE., LTD.     |       | SINGAPORE                |       | BLOCK  211, HENDERSON ROAD, #08-02,  HENDERSON INDUSTRIAL PARK SINGAPORE 159552                    |
| TOSHIBA  MEDICAL SYSTEMS (CHINA) CO., LTD    |       | CHINA                    |       | BUILDING  1, YARD 9, NANHUNANLU, CHAOYANG DISTRICT, BEIJING, CHINA                                 |
| ROTARY  TRADING CO., LTD                     |       | TAIWAN                   |       | 5F,  NO.233, CHUNG-YANG RD., NAN-KANG DISTRICT, TAIPEI, TAIWAN                                     |
| TAIHAN  METRA CORPORATION                    |       | KOREA                    |       | HEASUNG  B/D 5F, 147-4 KURO-3DONG, KURO-KU, SEOUL, KOREA                                           |
| SANKO  MEDICAL SYSTEMS (H.K.) LTD.           |       | HONGKONG                 |       | RM808,  8/F TOWER 1, THE GATEWAY, HARBOUR CITY, 25 CANTON ROAD, TSIM SHA TSUI,  KOWLOON, HONG KONG |

 

25

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| PHILIPPINE  MEDICAL SYSTEMS INC.                         |   | PHILIPPINES                |   | SUITE 4A, VERNIDA ~~IL~~ CONDOMINIUM 120  AMORSOLO ST. LEGASPI  VILLAGE, MAKATI CITY, PHILIPPINES               |
|----------------------------------------------------------|--------|----------------------------|--------|-----------------------------------------------------------------------------------------------------------------|
| PT.  MURTI INDAH SENTOSA                                 |   | INDONESIA                  |   | JI. SULTAN ISKANDAR MUDA KAV. 29 KEBAYORAN LAMA,  SELATAN JAKARTA 12240, INDONESIA                              |
| ABEX  MEDICAL SYSTEM SDN. BHD.                           |   | MALAYSIA                   |   | LOT  2-6, JALAN SU/6A LION INDUSTRIAL PARK SECTION 26, 40000 SHAH ALAM  SELANGOR DARUL EHSAN               |
| CMC  BIOTECH COMPANY LIMITED                             |   | THAILAND                   |   | 364  MUBAN TOWN-IN-TOWN, SOI LADPHRAO 94 LADPHRAOROAD(WANGTHONGLANG, BANGKOK  10310, THAILAND                   |
| GOLD  LITE                                               |   | VIET  NAM MYAMMAR CAMBODIA |   | BLOCK  211, HENDERSON ROAD, #13-01,  HENDERSON INDUSTRIAL PARK, SINGAPORE  159552                               |
| ERBIS  ENGINEERING CO.LTD.                               |   | INDIA  BANGLADESH NEPAL    |   | KAMIYA-CHO  PLAZA BUILDING  1-14, 4CHOME-TORANOMON, MINATO-KU, TOKYO,  JAPAN                                    |
| MEDIQUIPMENT  LTD.                                       |   | SRI  LANKA                 |   | 95, COTTA ROAD, COLOMBO 8, SRI LANKA                                                                            |
| MEDEQUIPS                                                |   | PAKISTAN                   |   | 30, SHAHRAH-E-QUAID-E-AZAM LAHORE,  PAKISTAN                                                                    |
| MODERN  MEDICAL TECHNOLOGY EST                           |   | YEMEN                      |   | HADDA  ST. BOX16165, SANA’A,YEMEN                                                                          |
| EBIN  RUSHED PHARMACY CO. LLC.                           |   | OMAN                       |   | PO  BOX 169, MUSCAT SULTANATE OF OMAN                                                                           |
| EMIRATES  HOSPITAL SUPPLIES                              |   | U.A.E.                     |   | PO  BOX 366, ABU DHABI, U.A.E.                                                                                  |
| MEDISERV                                                 |   | SAUDI  ARABIA              |   | P.O. BOX  17550, AL TAHLIA ST. OLAYA, RIYADH 11494,  SAUDI ARABIA                                          |
| AL-JISHI  CORPORATION WLL.                               |   | BAHRAIN                    |   | PO  BOX 617, SALMANIYA AVE. STATE OF BAHRAIN                                                                    |
| TAREQ  COMPANY                                           |   | KUWAIT                     |   | PO  BOX 20506, 13066 SAFAT, KUWAIT                                                                              |
| TMST  TIBBI SISTEMLER  PAZARLAMA TICARET  VE SERVIS A.S. |   | TURKEY                     |   | ALEMDAG  CAD. NO.46 MASALDAN IS MERKEZIE BLOK NO. 10 CAMLICA 81190 ISTANBUL, TURKEY                             |
| FILM  TRADING COMPANY                                    |   | SYRIA                      |   | AL  CHABANDAR BOURAN ST. P.O. BOX 5350, DAMASCUS,  SYRIA                                                   |
| TRADING  MEDICAL SYSTEM  JORDAN EST.                     |   | JORDAN                     |   | SIXTH  CIRCLE- 2nd FLOOR —ORBIT BUILDING, OPPOSITE AMRA HOTEL P.O. BOX  3279 AMMAN 11181. JORDAN |
| LIFE  SCIENCE EQUIPMENT SARL                             |   | LEBANON                    |   | VILLA  ESTEPHAN NAWFAL, GREEN ZONE, ADONIS, ZOUK MODSBEH, KESROUAN, BEIRUT, LEBANON,  90-2000                   |
| BEIT  AL MAKDES HEALTH SERVICES, BEAM                    |   | PALESTINE                  |   | THALATHINI  STREET REMAL P.O. BOX4040 GAZA, PALESTINE                                                      |
| TRADING  MEDICAL SYSTEMS                                 |   | EGYPT                      |   | 16  EL KHARTOUM STREET, HELIOPOLIS, CAIRO, EGYPT                                                                |

 

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| MEDICAL  TECHNOLOGY FOR TRADING                         |   | EGYPT               |   | 16  EL KHARTOUM STREET, HELIOPOLIS, CAIRO, EGYPT                                                                                      |
|---------------------------------------------------------|--------|---------------------|--------|---------------------------------------------------------------------------------------------------------------------------------------|
| UNIVERSEL  SYSTEM                                       |   | MOROCCO             |   | 207-209  BOULEVARD DE LA RESISTANCE, CASABLANCA, MOROCCO                                                                              |
| AFRIC  MEDICAL                                          |   | IVORY  COAST        |   | ZONE  3, RUE DES CARROSSIERS, 25 BP 897, ABIDJAN 25, IVORY COAST                                                                      |
| SAVANNAH  HOSPITAL & MEDICAL APPLICATIONS LTD. |   | NIGERIA             |   | PLOT  1438, SANUSI FAFUNWA STREET,  VICTORIA ISLAND, LAGOS, NIGERIA                                                                   |
| TECMED  (PTY) LTD.                                      |   | S.AFRICA            |   | TECMED  CENTRE, GEORGE ROAD ERAND GARDENS, MIDRAND PO BOX 4229, HALFWAY HOUSE 1685  REPUBLIC OF SOUTH AFRICA                          |
| GRIENSU  S.A.                                           |   | ARGENTINA  URUGUAY  |   | AV.  JULIO A. ROCA 636 (F10, 11 & 12) 1067 BUENOS AIRES, ARGENTINA                                                           |
| TECNOIMAGEN  S.A.                                       |   | CHILE               |   | LAUTARO  NO.754, PROVIDENCIA, SANTIAGO,  CHILE                                                                                        |
| CYMED  MEDICAL S.A.C.                                   |   | PERU                |   | AV.GUILLERMO PRESCOT 346-352 SAN  ISIDRO-LIMA-PERU                                                                                    |
| TOP MEDICAL ECUADOR S.A.                                |   | ECUADOR             |   | Av. AMAZONAS 4430 Y VILLALENGUA, PISO 7, OF.  709, QUITO-ECUADOR                                                                      |
| TOP  MEDICAL SYSTEMS S.A.                               |   | COLOMBIA            |   | CRA.  18A No. 103A-30 BOGOTÁ, COLOMBIA                                                                                      |
| SEIJIRO  YAZAWA IWAI C.A.                               |   | VENEZUELA           |   | CALLE PARIS ENTRE MUCUCHIES Y LA TRINIDAD  EDIFICIO SEIJIRO YAZAWA IWAI, LAS MERCEDES, CARACAS 1060, VENEZUELA                        |
| RESERMA  S. A.                                          |   | PANAMA              |   | AVENIDA 1RA D. SUR Y CALLE 60 E, OBARRIO  APARDADO 55-0645 PAITILLA, PANAMA,  REPUBLICA DE PANAMA                                     |
| MULTISERVICIOS  ELECTROMEDICOS S.A.                     |   | COSTA  RICA         |   | APDO. 74-1005 SAN JOSE, COSTA RICA                                                                                                    |
| TEKMEDICA, S.A.                                         |   | GUATEMALA           |   | 6 AV. L 103A, KANAJUYU I ZONA 16, GUATEMALA  GUATEMALA 01016                                                                          |
| ELECOMUNICACION Y EQUIPOS S.A.                          |   | MEXICO              |   | AV. GOBERNADOR JOSE GUADALUPE COVARRUBIAS  NO.78, COL. SAN MIGUEL CHAPULTEPEC, DELEG. MIGUEL HIDALGO, C.P.  11850, MEXICO D.F. MEXICO |
| TOYO MEDICAL COMPANY                                    |   | VENEZUELA  HONDURAS |   | CANTEL  WEST INDUSTRIAL PARK, 10645 N.W 37TH TERRACE MIAMI FLORIDA U.S.A                                                              |
| BIOMEL S.A. DE C.V.                                     |   | EL SALVADOR         |   | 25 CALLE PONIENTE 1254. COL. LAYCO, SAN SALVADOR  EL SALVADOR                                                                         |

 

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**VITAL IMAGES, INC. AND TOSHIBA MEDICAL SYSTEMSCORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

** **

**EXHIBIT D**

**TERMS AND CONDITIONS FOR THE DEMONSTRATION LICENSE**

 

## **ARTICLE 1: LICENSE GRANTAND USE FOR DEMONSTRATION LICENSE**

 

1.1                                License Grant. Subject to the terms of this Exhibit D, Vital Images herebygrants to Toshiba and its Dealer Associates (“Licensees”) a nonexclusive, non-transferable,royalty free license (“Demonstration License”) to use the Products limitedsolely to promotion, demonstration, evaluation and testing.  Except as provided herein, Licensees herebyagree that the Products under this License shall not be used for any businessactivities 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 DemonstrationLicense may be provided to customers for production or testing; provided,however, that Toshiba may provide demonstration software to customers fortraining and showsite purposes on a limited term, not perpetual, basis, uponthe execution by the customer of a software license agreement with terms andconditions protecting Vital Images to the same extent as the terms andconditions contained in this Demonstration License, and with the consent ofVital Images, such consent not to be unreasonably withheld.

 

1.2                                Restrictions on Use. Licensees agree not to engage in, cause or permit the reverseengineering, disassembly, recompilation, modification or any similarmanipulation of the Products, nor, except as expressly set forth herein, mayLicensees loan, lease, distribute, assign or otherwise transfer the Products orcopies thereof, in whole or in part, to any third party.

 

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

 

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

 

ARTICLE 2: TERM AND TERMINATION

 

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

 

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

 

2.3                                Termination of a Demonstration License.  Uponany termination of a Demonstration License, Licensee shall

(a) immediatelycease all use of the Products licensed pursuant to such Demonstration License,and (b) certify in writing to Vital Images within thirty (30) days aftersuch termination that Licensee has either destroyed, permanently erased orreturned to Vital Images the Products and all copies thereof licensed pursuantto such Demonstration License.

 

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2.4                                Effect of Termination of DemonstrationLicense.  Upon termination of the DemonstrationLicense,  such License to the Productsgranted under this Exhibit D shall immediately terminate.  Articles 1.4, 3, 4 and 5 of this Exhibit Dshall survive such termination of the Demonstration License, if theProduct(s) licensed pursuant to such Demonstration License is notpurchased. Otherwise, as provided in Section 3.2 of the main body of thatcertain Marketing and Distribution Agreement between Toshiba and VitalImages, Inc. dated November 21, 2008 (the “Agreement’), the terms andconditions under this Exhibit D shall be superseded upon purchaseof the Products and shall be totally subject to the terms and conditionsprovided in the main body of the Agreement.

## ** **

## **ARTICLE 3: WARRANTIES;INDEMNIFICATION**

 

3.1                                No Warranty.  Vital  Images makes no warranty to Licensees thatthe Products licensed under the Demonstration License, even when properlyinstalled and operated, will substantially perform the functions described inthe functional specifications for the Products, as contained in the applicablewritten documentation for the Products. All Products licensed under the Demonstration License are provided toLicensees “AS IS.” Provided however, during the term of each DemonstrationLicense, Vital Images shall provide Licensees with any update or upgradereleases to the *Vitrea**®* orother applicable Products licensed thereunder, as soon as they becomeavailable.  It is agreed between theparties that newly released options to*Vitrea**®*,except for those listed in Exhibit E to the Marketing andDistribution Agreement between Toshiba and Vital Images, Inc. datedNovember 21, 2008 (the “Agreement”) and licensed under the applicableDemonstration License, shall be excluded from such updates and upgrades unlessexplicitly agreed between the parties.

 

3.2                                Exclusive Remedy. Vital Images’ entire liability, and Licensees’ exclusive remedy, for anyclaim made by Licensees under Article 3.1 above shall be for Licensee toterminate the Demonstration License for such Product.   Vital Images does not warrant that the operationof the Products will be uninterrupted or error-free, that all errors in theProducts will be corrected, that the Products will satisfy Licensee’srequirements or that the Products will operate in the combinations whichLicensees may select for use.

 

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

 

## **ARTICLE 4: LIMITATION OFREMEDIES**

 

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

 

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

 

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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 IMAGESSHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE,INCLUDING ANY LIABILITY FOR DAMAGES ARISING OUT OF OR RESULTING FROM THE USE,MAINTENANCE OR PERFORMANCE OF THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, THELOSS OR CORRUPTION OF LICENSEES’ OR ANY THIRD PARTY DATA.

 

## **ARTICLE 5: RELATIONSHIPOF THIS EXHIBIT D AND THE MAIN BODY OF THE AGREEMENT**

 

Inall other respects, the main body of the Agreement shall prevail and shallapply to the Demonstration Licenses granted under this Exhibit D aswell.  Specifically, and not inlimitation of the foregoing, defined terms used in this Exhibit D, if notdefined herein, shall have the meaning given them in the Agreement.

 

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**VITALIMAGES, INC. AND TOSHIBA MEDICAL SYSTEMS****CORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

# ** **

**EXHIBITE**

**PRODUCTPRICE LIST - VITREA**

 
| ** **                                                             | ** ** | **U.S.****(1)** | ** ** | **Non-U.S.****(2)** | ** ** |
|------------------------------------------------------------------------|------------|-----------------|------------|---------------------|------------|
| **License  (4)**                                                       | ** ** | **(2009-2010)** | ** ** | **(2009-2010)**     | ** ** |
| *Vitrea**®*                                                       |       | * * *           |       | * * *               |       |
| *Peripheral Vessel Probe option*                                       |       | * * *           |       | * * *               |       |
| *Vitrea ACCESS**TM** option*                                      |       | * * *           |       | * * *               |       |
| *VitreaACCESS  Remote option*                                          |       | * * *           |       | * * *               |       |
| *CT Colonography option*                                               |       | * * *           |       | * * *               |       |
| *Automated Vessel Measurements option(b)*                              |       | * * *           |       | * * *               |       |
| * * **(c)*                                                             |       | * * *           |       | * * *               |       |
| *CT Cardiac option*                                                    |       | * * *           |       | * * *               |       |
| *Cardiac Functional Analysis option*                                   |       | * * *           |       | * * *               |       |
| *SUREPlaque option*                                                    |       | * * *           |       | * * *               |       |
| *CT Cardiac Option with Peripheral Vessel  Probe option*               |       | * * *           |       | * * *               |       |
| *EP (Electro-physiology) Planning option*                              |       | * * *           |       | * * *               |       |
| *VScore**TM** option*                                             |       | * * *           |       | * * *               |       |
| *CT Perfusion option*                                                  |       | * * *           |       | * * *               |       |
| *CT Lung / Nodule Probe option*                                        |       | * * *           |       | * * *               |       |
| *3D Angiography Option*                                                |       | * * *           |       | * * *               |       |
| *Soft Read option(b)*                                                  |       | * * *           |       | * * *               |       |
| *Medicsight Colon CAR*                                                 |       | * * *           |       | * * *               |       |
| *Fusion7DTM Advanced option*                                       |       | * * *           |       | * * *               |       |
| *Fusion7DTM Standard option*                                       |       | * * *           |       | * * *               |       |
| *Fusion7DTM Basic option*                                          |       | * * *           |       | * * *               |       |
| *Fusion7DTM Advanced option with  DICOMPrint &CDburn*     |       | * * *           |       | * * *               |       |
| *Fusion7DTM Standard option with  DICOMPrint &CDburn*     |       | * * *           |       | * * *               |       |
| *Fusion7DTM Basic option with  DICOMPrint &CDburn*        |       | * * *           |       | * * *               |       |
| *MeVis ImageChecker® Lung CAD(Ver.2.0)  option*                   |       | * * *           |       | * * *               |       |
| *MeVis AutoPoint Temporal Comparison option  (must also buy Lung CAD)* |       | * * *           |       | * * *               |       |
| *MeVis Pulmonary Artery Patency Exam option  (must also buy Lung CAD)* |       | * * *           |       | * * *               |       |

 

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*(a) Software options are included in the transfer pricing for**Vitrea****®*

 

*(b) ** * **(c) when and ifavailable*

 
| (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 15%  discount on additional *Vitrea*purchases  for multi-license purchases by the same customer site on the same purchase  order (the customer purchases more than one *Vitrea**®** *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.                                                                                         |

 

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

 

31

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**SOFTWARE PACKAGE PRICING - VITREA**

** **
| ** **                   | ** ** | **Pricing  (2009-2010)** | ** ** |
|------------------------------|------------|--------------------------|------------|
| **Vitrea Package**           | ** ** | **U.S.  (1)**            | ** ** | **Non  U.S. (2)** | ** ** |
| ***US Radiology Package***   |       | * * *                    |       | * * * |   |
| ·*Vitrea**®*       |       |                     |       |   |   |
| ·*VitreaAccess*         |       |                     |       |   |   |
| ·*VitreaAccess  Remote* |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * **(a)*            |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
|                         |       |                     |       |   |   |
| ***US Cardiology  Package*** |       | * * *                    |       | * * * |   |
| ·*Vitrea**®*       |       |                     |       |   |   |
| ·*VitreaAccess*         |       |                     |       |   |   |
| ·*VitreaAccess Remote*  |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * **(a)*            |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
|                         |       |                     |       |   |   |
| ***Non-US Package -1***      |       | * * *                    |       | * * * |   |
| ·*Vitrea**®*       |       |                     |       |   |   |
| ·*VitreaAccess*         |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
|                         |       |                     |       |   |   |
| ***Non-US Package -2***      |       | * * *                    |       | * * * |   |
| ·*Vitrea**®*       |       |                     |       |   |   |
| ·*VitreaAccess*         |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * **)*              |       |                     |       |   |   |
|                         |       |                     |       |   |   |
| ***Non-US Package -3***      |       | * * *                    |       | * * * |   |
| ·*Vitrea**®*       |       |                     |       |   |   |
| ·*VitreaAccess*         |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |
| · * * *                 |       |                     |       |   |   |

 

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

 

32

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| ***Angio XA Basic  Package***                                        |         | * * *        |         | * * *        |         |
|----------------------------------------------------------------------|--------------|--------------|--------------|--------------|--------------|
| ·*Vitrea**®** for Angio XA(b)*                        |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| *** ***                                                         | *** *** | *** *** | *** *** | *** *** | *** *** |
| ***Angio XA CT  Package***                                           |         | * * *        |         | * * *        |         |
| ·*Vitrea**®** for Angio XA(b)*                        |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| *** ***                                                         | *** *** | *** *** | *** *** | *** *** | *** *** |
| ***Angio XA Basic  Package for Existing Customers off Maintenance*** |         | * * *        |         | * * *        |         |
| ·*Vitrea**®** for Angio XA(b)*                        |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| *** ***                                                         | *** *** | *** *** | *** *** | *** *** | *** *** |
| ***Angio XA CT Package  for Existing Customers off Maintenance***    |         | * * *        |         | * * *        |         |
| ·*Vitrea**®** for Angio XA(b)*                        |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |
| · * * *                                                         |         |         |         |         |         |

 

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*(a) ** * **(b) Doesnot include VitreaAccess, VitreaAccessRemote,** * **, and** * **option*

 

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

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

 

**SOFTWARE MAINTENANCE PRICING OPTIONS - VITREA**

** **
| ** **                                             | ** ** | **U.S. (4)** | ** ** | **Non-U.S.(3)** | ** ** |
|--------------------------------------------------------|------------|--------------|------------|-----------------|------------|
| *Vitrea® - Annual Renewal*                        |       | * * *        |       | * * *           |       |
| *Vitrea® - Extended Warranty Option Per Year (1)* |       | * * *        |       | * * *           |       |
| *Vitrea® - One-Time SW Upgrade*                   |       | * * *        |       | * * *           |       |
| *Fusion7DTM option (2)*                            |       | * * *        |       | * * *           |       |
| *ImageChecker® option (2)*                        |       | * * *        |       | * * *           |       |
| *Medicsight Colon CAR (2)*                             |       | * * *        |       | * * *           |       |

 

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| (1)    |   | Must be ordered from Vital Images upon placement of the software  license order for a specific customer site and will be paid with the software  license according to terms defined in Article 7.2.                                                                 |
|--------|--------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                                                                                                     |
| (2)    |   | If the customer purchases any of the above 3rd Party options through Vital Images, the  customer must purchase maintenance for Vitrea and all of 3rd Party Option purchased to receive upgrades  to these options.                                             |
|   |   |                                                                                                                                                                                                                                                                     |
| (3)    |   | Vital Images and Toshiba, * *  *agree to create an Installed Base program to increase the attachment  rate of Software Maintenance.                                                                                                                                      |
|   |   |                                                                                                                                                                                                                                                                     |
| (4)    |   | * * * commits to  a * * *annual increase to the  annual renewal software maintenance transfer price beginning January 1,  2010 and each subsequent year after through the term of this agreement. This  increase does not apply to any existing customer contracts. |

 

*** * * Confidential Treatment has been requested, the portionindicated has been redacted and the redacted portion has been separately filedwith the Securities and Exchange Commission.**

 

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**ADDITIONAL SOFTWARE PACKAGE PRICING - VITREAfX**

** **
| ** **                                                    | ** ** | **Pricing  (2009-2010)** | ** ** |
|---------------------------------------------------------------|------------|--------------------------|------------|
| **VitreafX Package**                                          | ** ** | **U.S.  (1)**            | ** ** | **Non  U.S. (2)** | ** ** |
| ***Base Vitrea fX Package***                                  |       | * * *                    |       | * * * |   |
| ·*Vitrea**®** fX*                              |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * **(a)*                                             |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
|                                                          |       |                     |       |   |   |
| ***Vitrea fX Neuro  Package (3)***                            |       | * * *                    |       | * * * |   |
| ·*Vitrea**®** fX*                              |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
|                                                          |       |                     |       |   |   |
| ***Vitrea fX Cardiology Package (3)***                        |       | * * *                    |       | * * * |   |
| ·*Vitrea**®** fX*                              |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
|                                                          |       |                     |       |   |   |
| ***Vitrea fX Radiology Package (3)***                         |       | * * *                    |       | * * * |   |
| ·*Vitrea**®** fX*                              |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
| · * * *                                                  |       |                     |       |   |   |
|                                                          |       |                     |       |   |   |
| Existing Aquilion customer Upgrade from Vitrea2 to Vitrea fX. |       | * * *                    |       | * * * |   |

 

----

|   |   | *(a) ** * *                                                                                                                                                                      |
|--------|--------|---------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |   |                                                                                                                                                                                  |
| (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)    |   | These  packages may only be sold when multiple *Vitrea*fX  licenses are sold to a single customer site and Toshiba is delivering a *Base Vitrea fX Package* as the first workstation. |

 

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

 

34

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**ADDITIONALPRODUCT PRICE LIST – VITREA fX**

** **
| **License**                                              | ** ** | **U.S.********(2009-2010)** | ** ** | **Non-U.S.********(2009-2010)** | ** ** |
|----------------------------------------------------------|------------|-----------------------------|------------|---------------------------------|------------|
| *Dynamic Volume 4D Brain Perfusion option*               |       | * * *                       |       | * * *                           |       |
| ** * *(a)*                                               |       | * * *                       |       | * * *                           |       |
| ** * *(a)*                                               |       | * * *                       |       | * * *                           |       |
| *Peripheral Vessel Probe option*                         |       | * * *                       |       | * * *                           |       |
| *VitreaACCESS Remote option(a)*                          |       | * * *                       |       | * * *                           |       |
| *CT Colonography option*                                 |       | * * *                       |       | * * *                           |       |
| *Automated Vessel Measurements option(b)*                |       | * * *                       |       | * * *                           |       |
| *EP (Electro-physiology) Planning option*                |       | * * *                       |       | * * *                           |       |
| * * **(a)*                                               |       | * * *                       |       | * * *                           |       |
| *CT Cardiac option*                                      |       | * * *                       |       | * * *                           |       |
| *Cardiac Functional Analysis option*                     |       | * * *                       |       | * * *                           |       |
| *SUREPlaque option*                                      |       | * * *                       |       | * * *                           |       |
| *CT Cardiac Option with Peripheral Vessel  Probe option* |       | * * *                       |       | * * *                           |       |
| *VScore**TM option*                                 |       | * * *                       |       | * * *                           |       |
| *CT Lung / Nodule Probe option*                          |       | * * *                       |       | * * *                           |       |

 

----

*(a) ** * **(b) ** * *

 

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

 

35

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**ADDITIONAL SOFTWARE MAINTENANCE PRICINGOPTIONS — VITREA fX**

** **

| ** **                                                | ** ** | **U.S. (2)** | ** ** | **Non-U.S.** | ** ** |
|-----------------------------------------------------------|------------|-------------------|------------|--------------|------------|
| *Vitrea®fX - Annual Renewal*                         |       | * * *             |       | * * *        |       |
| *Vitrea®fX - Extended Warranty Option Per  Year (1)* |       | * * *             |       | * * *        |       |
| *Vitrea®fX - One Time SW Upgrade*                    |       | * * *             |       | * * *        |       |

 

----

(1)           Must be ordered from Vital Images uponplacement of the software license order for a specific customer site and willbe paid with the software license according to terms defined in Article 7.2.

(2)          * * *,* * *commits to a * * *annual increase to the annualrenewal software maintenance transfer price beginning January 1, 2010 andeach subsequent year after through the term of this agreement. .  This increase does not apply to any existingcustomer contracts.

 

**ADDITIONAL SERVICE OPTIONS — VITREA &VITREA fX**

** **

| ** **               | ** ** | **U.S.(2)** | ** ** | **Non-U.S.(3)** | ** ** |
|--------------------------|------------|-------------|------------|-----------------|------------|
| *Customer Education (1)* |       | * * *       |       | * * *           |       |

 

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(1)          Education Units are equivalent to * * *per Education Unit.

(2)          In ** *, * * *units areincluded with each Vitrea license and can be applied according to the belowtable

(3)          In ** *, Toshiba may purchase Education units for * * *per unit and apply according to below table.

 
| ** **                                                                   | ** ** | **Setting**    | ** ** | **Days** | ** ** | **Units***** | ** ** |
|------------------------------------------------------------------------------|------------|----------------|------------|----------|------------|--------------|------------|
| Basic Course for Advanced Visualization  (In-House or Road Show)*            |       | Classroom      |       | * * *    |       | * * *        |       |
| Specialty Course for Cardiovascular, CT  Colonography, Neurology or Oncology |       | Classroom      |       | * * *    |       | * * *        |       |
| Administrator On-Site Course                                                 |       | Your  Facility |       | * * *    |       | * * *        |       |
| On-Site Advanced Visualization Course                                        |       | Your  Facility |       | * * *    |       | * * *        |       |
| Enterprise Administrator On-Site Course                                      |       | Your  Facility |       | * * *    |       | * * *        |       |
| 3-hour Webinar                                                               |       | online         |       | * * *    |       | * * *        |       |
| Five Laptops for On-Site Course                                              |       | Your  Facility |       | * * *    |       | * * *        |       |
| eLearning*                                                                   |       | online         |       | * * *    |       | * * *        |       |
| VITAL UTM Live*                                                         |       | online         |       | * * *    |       | * * *        |       |
| Travel**                                                                     |       | N/A            |       | * * *    |       | * * *        |       |

 

----

*Availableto VITALPerformance customers at no additional charge

**Eight education units included with purchase includes classroom courses withtravel or any combination of education units determined by customerrequirements.

 

***1Education Unit =* * *

 

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

 

36

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**ADDITIONAL****PRODUCT PRICELIST — VITALCONNECT**

** **
| ** **                                                                              | ** **                                                                                                                   | **Pricing (2009-2010)** | ** ** |
|-----------------------------------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------|------------------------------|------------|
| **ViTALConnect® Pricing(1)**                                                  | ** **                                                                                                                   | **U.S.**                     | ** ** | **Non U.S.** | ** ** |
| ***ViTALConnect®  5 Concurrent User******Package (2)***                            | ** **                                                                                                                   | * * *                        | ** ** | * * * | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | *Professional  Services (Implementation & Setup)*                                                                   | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                                                    | ·      Up  to * * *hours of remote and  on-site service at Vital Images standard rates         | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                                                    | ·      The  customer needs to commit resources on-site to assist with installation and  setup. | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | *12  Education Units*                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | *1 Year  Software Maintenance and Warranty*                                                                                  | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ***ViTALConnect® 5 Concurrent User************Package — Software Only  (3)*** | ** **                                                                                                                   | * * *                        | ** ** | * * * | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | * * *                                                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                                                  | *1 Year Software  Maintenance and Warranty*                                                                                  | ** **                   | ** ** | ** ** | ** ** | ** ** |

 

----

(1)          Toshiba may sell these products, packages andoptions to new customers only as components of sales of Toshiba scanner bundlesincluding Vitrea and to existing customers only as components of sales ofToshiba scanner upgrades to customers already running Vitrea.  Toshiba may not sell these products, packagesand options to run on a PACS.

(2)          Vital Images conducts Professional Servicesand End-User Education.  Within the US,Customer must sign Vital Images Software License Agreement at the point of saleas Vital Images will be responsible for on-going support and maintenance.  Professional services offered with theSoftware license will expire 6 months from the delivery date of the software tothe customer.

(3)          Toshiba conducts Professional Services andEnd-User Education

 

**ADDITIONAL MAINTENANCE PRICING - VITALCONNECT**

** **

| ** **                                              | ** ** | **U.S.(1)** | ** ** | **Non-U.S.** | ** ** |
|---------------------------------------------------------|------------|-------------|------------|--------------|------------|
| *ViTALConnect — Annual Renewal*                    |       | * * *       |       | * * *        |       |
| *ViTALConnect - Extended Warranty Option Per  Year (1)* |       | * * *       |       | * * *        |       |
| *Vitrea®fX - One Time SW Upgrade*                  |       | * * *       |       | * * *        |       |

 

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(1)          Must be ordered from Vital Images uponplacement of the software license order for a specific customer site and willbe paid with the software license according to terms defined in Article 7.2.

 

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

 

37

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**ADDITIONAL****PRODUCT PRICELIST — VITALENTERPRISE - FULL**

 
| ** **                                                     | ** **                                                                                                                   | **Pricing (2009-2010)** | ** ** |
|----------------------------------------------------------------|------------------------------------------------------------------------------------------------------------------------------|------------------------------|------------|
| **ViTALEnterprise - Full Pricing**                             | ** **                                                                                                                   | **U.S.**                     | ** ** | **Non U.S.** | ** ** |
| ***ViTALEnterprise  — Full (1)***                         | ** **                                                                                                                   | * * *                        | ** ** | * * * | ** ** |
| ·                                                         | *Includes Vitrea, ViTALConnect,** * *                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                         | *1 Concurrent User*                                                                                                          | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                         | *Professional  Services (Implementation & Setup)*                                                                   | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·      Up  to * * *hours of remote and  on-site service at Vital Images standard rates         | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·      The  customer needs to commit resources on-site to assist with installation and  setup. | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                         | * * **Education Units*                                                                                                       | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                         | *1 Year  Software Maintenance and Warranty*                                                                                  | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·      *24x7 live Customer Support*                                                            | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·*      Dedicated Service Account  Manager*                                                    | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·*      3 Education units - Annually*                                                          | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ***VitalEnterprise -******Full —  Software Only (1)(2)*** | ** **                                                                                                                   | * * *                        | ** ** | * * * | ** ** |
| ·                                                         | *Includes Vitrea, ViTALConnect,** * *                                                                                        | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                         | *1 Concurrent User*                                                                                                          | ** **                   | ** ** | ** ** | ** ** | ** ** |
| ·                                                         | *1 Year  Software Maintenance and Warranty*                                                                                  | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·      *24x7 live  Customer Support*                                                           | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·      *Dedicated  Service Account Manager*                                                    | ** **                   | ** ** | ** ** | ** ** | ** ** |
|                                                           | ·      *3  Education units - Annually*                                                         | ** **                   | ** ** | ** ** | ** ** | ** ** |

 

----

(1)          Vital Images conducts Professional Servicesand End-User Education.  Customer mustsign Vital Images Software License Agreement at the point of sale as VitalImages will be responsible for on-going support and maintenance.  Professional services offered with theSoftware license will expire 6 months from the delivery date of the software tothe customer.

(2)          May only be sold when a Vital Imagessalesperson is involved in the opportunity and the opportunity is expanded toinclude multiple concurrent users. Professional Services and End-User Education will sold by Vital Images.

 

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

 

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**VITALIMAGES, INC. AND TOSHIBA MEDICAL SYSTEMS****CORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

 

**EXHIBITF**

**PRODUCTCOMMITMENTS**

 

| ** **             | ** ** | ** ** | ** ** | **(US dollar)** | ** ** |
|------------------------|------------|------------|------------|----------------------|------------|
| **Calendar Year** | ** ** | **2009**   | ** ** | **2010**             | ** ** |
| **Commitment**         |       | * * *      |       | * * *                |       |

 

**Conditions:**

 

1)              The Minimum Commitment and subsequentTransfer Pricing for each year beginning in 2011, will be agreed upon no laterthan September 30 of the current year. For example, the Minimum Commitment for 2011 will be agreed upon nolater than September 30, 2010.

 

2)              If the Minimum Commitment for thefollowing year is not agreed upon by September 30 of any given year andToshiba has not provided Vital Images with written notice of its intent toterminate per the terms of Article 15.2(f), the current year’s MinimumCommitment will be applied to the following year.

 

3)              Vital Images is committed to launching aversion of * * * with mutuallyagreed upon specifications to Toshiba. Until this version is launched, Toshiba may apply any * * *sales sold directly to Toshibaand Dealer Associates to the Minimum Commitment.

 

4)              If agreed upon Development activities aredelayed significantly and there is a significant variance in the actual resultscompared to the Minimum Commitment, both parties agree in good faith to resolveany variance.

 

5)              If Vital Images is not able to obtain * * *approval for * * *or * * *for the China market and there is a significant variance inthe actual results compared to the Minimum Commitment, both parties agree ingood faith to resolve any variance.

 

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

 

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**VITAL IMAGES, INC. AND TOSHIBA MEDICAL SYSTEMS**CORPORATION

# **MARKETING ANDDISTRIBUTION AGREEMENT**

 

**EXHIBITG**

##### **PRINCIPAL COUNTRIES**

 

 

**2009 MAJOR TRADE SHOW LIST**

 

**US**

 
| **Event**                                        | ** ** | **Date**         | ** ** | **Location**       | ** ** |
|--------------------------------------------------|------------|------------------|------------|--------------------|------------|
| ACC                                              |       | March 24-27 |       | New Orleans        |       |   |
| Stanford Annual Symposium on MDCT (WS Face  Off) |       | June 13-16  |       | San  Francisco, CA |       |   |
| SCCT                                             |       | July             |       | Arlington,  VA     |       |   |
| RSNA                                             |       | Nov25-30         |       | Chicago, IL        |       |   |
|                                             |       |             |       |               |       |   |
| **Europe**                                       |       |             |       |               |       |   |
| ** **                                       |       |             |       |               |       |   |
| **Event**                                        | ** ** | **Date**         | ** ** | **Location**       | ** ** |   |
| ECR                                              |       | March            |       | Vienna, Austria    |       |   |
| JFR                                              |       | Oct. 20-24  |       | Paris,  France     |       |   |
|                                             |       |             |       |               |       |   |
| **International**                                |       |             |       |               |       |   |
| ** **                                       |       |             |       |               |       |   |
| **Event**                                        | ** ** | **Date**         | ** ** | **Location**       | ** ** |   |
| China Med                                        |       | Apr. 22-24  |       | Beijing,  China    |       |   |
|                                                  |            |                  |            |                    |            |  |  |  |

 

 

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**VITALIMAGES, INC. AND TOSHIBA MEDICAL SYSTEMS****CORPORATION**

# **MARKETING ANDDISTRIBUTION AGREEMENT**

 

**EXHIBITH**

**LISTOF VITAL IMAGES TRADEMARKS**

 

### *Vital Images®*

###  

*Vitrea**â*

 

*Vitrea**â fX*

 

*ViTALConnect®*

 

**LIST OF TOSHIBA TRADEMARKS**

 

*SURE*Plaque*TM*

 

CorE64*TM*

 

41

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**VITAL IMAGES, INC. AND TOSHIBA MEDICALSYSTEMS CORPORATION**

**MARKETING AND DISTRIBUTION AGREEMENT**

 

**EXHIBIT I**

**AUTHORISED REPRESENTATIVE**

 

Medimark Europe

Address:11, rue Emile Zola - BP 2332, 38033 Grenoble Cedex 2 -FRANCE

Phone: +33 (0)4 76 86 43 22  Fax: +33 (0)4 76 17 19 82

 

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**VITAL IMAGES, INC. AND TOSHIBA MEDICALSYSTEMS CORPORATION**

**MARKETING AND DISTRIBUTION AGREEMENT**

 

**EXHIBIT J**

**CUSTOMER AGREEMENT**

 

**TERMS AND CONDITIONS OF SALE**

 

**1****.****                                     ****GENERAL TERMS****.**   Unlessotherwise 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 dateof submission to Customer.

 

**2****.****                                     ****TITLE AND RISK OF LOSS****.**  Titleand risk of loss to the Equipment purchased under this Agreement will pass toCustomer: (a) if Toshiba is to provide installation, upon Toshiba’scompletion of installation, or (b) if Toshiba will not provideinstallation, upon delivery by Toshiba to a common carrier at Toshiba’sfacility from which the Equipment is shipped.

 

**3****.****                                     ****TERMS OF PAYMENT****.**  Unless otherwise specified on the face of this document, prices statedare F.O.B.  Tustin, CA. or otherfacilities 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 inconnection with the sale, use, or possession of the Equipment (excluding incometaxes), and transportation charges (including rigging) for shipment toinstallation site will be paid by Customer in addition to the quotedprice.  Terms of payment for, * * *, * * * and * * * will be * * *upon * * *, * * *upon * * *, * * *upon * * *, whichever isearlier.  Terms of payment for * * *and * * *will be * * *upon * * *, * * *upon * * *, whichever is earlier.All invoices paid after due date will be assessed a late payment charge of thelesser of 1 1/2% per month or the maximum rate permitted by law.

 

**4****.****                                     ****DELAYS****.** If Customer changes the scheduled deliverydate specified on the face of this document (“Scheduled Delivery Date”) duringthe period of * * *days preceding such date, Customer willnevertheless pay * * *, on the Scheduled Delivery Date as ifdelivery had been made on such date.  Inaddition, Customer will pay all extra costs incurred by Toshiba as a result ofsuch delay, including, without limitation, storage and transportation.  Storage fees will be charged at commerciallycomparable rates for storage on Toshiba’s site. If delivery is delayed by 12 months or more from the Scheduled DeliveryDate, except through the fault of Toshiba, the price set forth in thisAgreement may be increased by Toshiba to a level equal to the prevailing pricein effect at the time of the revised delivery date.

 

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

 

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

 

**7****.****                                     ****EQUIPMENT OPERATION ANDINDEMNITY****.**  Customer agrees that all Equipment purchasedunder this Agreement will be operated exclusively by duly qualified techniciansand/or medical doctors in a safe and reasonable manner in accordance withToshiba’s written instructions, applicable laws and regulations, and for the 

 

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

 

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purposesfor which such Equipment was intended. Customer agrees to defend, indemnify and hold Toshiba and Toshiba’sofficers, directors and employees harmless from and against all claims,demands, lawsuits, liabilities, judgments and costs (including reasonableattorney’s fees, expert fees, and other litigation costs) arising out of or inconnection with the Customer’s negligent****operationof the Equipment.

 

**8****.****                                     ****LIMITED WARRANTY AND REMEDY****.**  Forthe warranty period described below by product, Toshiba, as its onlyobligation, will replace or repair, without charge to Customer during Toshiba’snormal working hours (if Customer requests warranty service outside such hours,Customer will pay overtime premium for labor), any component of the Equipmentthat is****defective in materials orworkmanship, provided such defect is reported to Toshiba within the warrantyperiod. Toshiba’s warranty period is as follows:  (a) Systems and Major Components - oneyear 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 operationof 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 themanufacturer’s warranty, if any, and without any warranty whatsoever byToshiba.  During the warranty period,Toshiba will furnish free of charge any upgrades, including software requiredto correct any defect in the Equipment or as required under applicable laws.  All defective parts replaced by Toshiba willbecome the property of Toshiba. Replacement parts may be re-manufactured.However, such parts will meet the manufacturer’s specifications for newcomponents as of the date of completion of installation. TOSHIBA’S OBLIGATIONTO REPAIR OR REPLACE DEFECTIVE PARTS WILL BE CUSTOMER’S SOLE AND EXCLUSIVEREMEDY FOR A BREACH OF THE WARRANTY SET FORTH IN THIS SECTION.  SUCH WARRANTY WILL BE IN LIEU OF ALL OTHERWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE WARRANTIES OFMERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  The warranty set forth in this Section willnot apply to, and Toshiba will not be liable for any defects resulting frommisuse, repairs performed by unauthorized third parties, accidents, acts ofGod, 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 ORRELATED TO THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT, EVEN IF TOSHIBA ISAPPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.  IN NO EVENT WILL TOSHIBA’S LIABILITY TOCUSTOMER (WHETHER BASED ON AN ACTION OR CLAIM IN CONTRACT, TORT, INCLUDINGNEGLIGENCE, STRICT LIABILITY, OR OTHERWISE) ARISING OUT OF OR RELATING TO THETRANSACTIONS CONTEMPLATED IN THIS AGREEMENT EXCEED THE AGGREGATE AMOUNTACTUALLY PAID BY CUSTOMER TO TOSHIBA UNDER THIS AGREEMENT. THE LIMITATION OFLIABILITY SET FORTH ABOVE WILL NOT APPLY TO CLAIMS FOR PERSONAL INJURY ORPROPERTY DAMAGE CAUSED BY EQUIPMENT DEFECTS, OR TO CLAIMS FOR PATENTINFRINGEMENT.

 

**10****.****                              ****SECURITY INTEREST****.**  Toshiba hereby reserves and Customer grants to Toshiba a securityinterest pursuant to the Uniform Commercial Code, in and to the Equipment (andall products and proceeds of it) until full payment of the purchase price isreceived.

 

**11****.****                              ****REMOVAL OF EQUIPMENT****.**  UntilToshiba has received full payment of the purchase price, Customer will notremove all or any part of the Equipment from Customer’s premises, nor willCustomer sell, lease, transfer or otherwise part with the possession of, orpermit any lien or encumbrance to be placed on all or any part of theEquipment.

 

**12****.****                              ****REMEDIES OF TOSHIBA****.**  IfCustomer fails to make any payment when due under this Agreement or under any otheragreement between Customer and Toshiba, or becomes insolvent or makes anassignment for the benefit of creditors, or if a petition in Bankruptcy isfiled by or against Customer, or if the financial responsibility of Customerbecomes impaired or unsatisfactory in Toshiba’s judgment, or if Customerotherwise breaches any of the terms and conditions of this Agreement, thenToshiba may, without prior notice or demand, defer shipments, cancel 

 

44

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thebalance of the order, suspend performance of any obligation (including withoutlimitation, all obligations set forth under Limited Warranty And Remedy above),and/or take immediate possession of the Equipment delivered, until the fullpurchase price of the Equipment is paid by Customer or, at Toshiba’sdiscretion, until security satisfactory to Toshiba is given by Customer.  Any costs incurred by Toshiba as a result ofsuspending performance or repossession or collection will be payable byCustomer. Toshiba may sell repossessed Equipment with proceeds to be applied tounpaid 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 otherfor non-performance or delay in performance resulting directly or indirectlyfrom 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 ofmaterials and labor, delays caused by suppliers, or laws, regulations, or actsof any governmental agency.

 

**14.****                              ****SOFTWARE****.**  Allrights 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 orits licensors.  Such software is beingfurnished to Customer under a non-exclusive license.  Customer will not, or allow others toreverse-engineer, disassemble, decompile, modify, copy, reproduce, ortranscribe the software nor use it to create derivative works, nor allow thirdparties to use the same without Toshiba’s prior written consent.  All rights, title and interest to theSoftware not expressly granted to you will remain the property of Toshiba orits licensors.  Customer may notsublicense, loan, lease, distribute, assign or otherwise transfer any Softwareor copies thereof, in whole or in part, or otherwise make any Softwareavailable to third parties or allow third parties to use of the Softwarewithout the written consent of Toshiba or, if such Software is owned by alicensor to Toshiba, such licensor.  UponToshiba’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 withToshiba’s prior written consent. In the event of such cancellation, Toshibawill be entitled to recover any and all damages suffered by it caused by thecancellation as allowed by law, but in no event less than an amount equal to * * * of the purchase price for a restocking charge.

 

**16.****                              ****ASSIGNMENT****.** Neither party may assign any of itsobligations under this Agreement without the prior written consent of the otherparty.

 

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

 

**18.****                              ****ENTIRE AGREEMENT****.**  Thisquotation contains the entire agreement between the parties and supersedes allprior and contemporaneous agreements between the parties, whether oral orwritten, relating to its subject matter, including, without limitation, alldifferent or additional terms and conditions which may be contained in Customer’sbid documents, purchase order or any other documents furnished by Customer.****The provisions of this Agreement may notbe modified unless in writing and executed by both parties.

 

**19.**                               **U.S. GOVERNMENT RIGHTS**.  TheSoftware is provided with Restricted Rights. Use, duplication or disclosure by the U.S. government is subject torestrictions as set forth in (a) this Agreement pursuant to DFARs227.7202-3(a); (b) subparagraph (c)(1)(i) of the Rights in TechnicalData and Computer Software clause at DFARs 252.227-7013; or (c) theCommercial Computer Software Restricted Rights clause at FAR 52.227-110subdivision (c)(1) and (2), as applicable.

 

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

 

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**VITALIMAGES, INC. AND TOSHIBA MEDICAL SYSTEMS****CORPORATION**

**MARKETING AND DISTRIBUTION AGREEMENT**

 

**EXHIBITK**

**U.S., INSTALLATION, EDUCATION AND SERVICE**

 

 

Hereis the go to market strategy that lists the different configurations that ViTALand TAMS will provide to our mutual customers:

 

A.                                   One CT with One ViTAL Workstation

B.                                     ViTALConnect, as an added option toconfiguration A.

C.                                     One CT with One ViTAL Enterprise — Fullconfiguration (expandable to ViTAL Enterprise)

D.                                    Aquilion ONE with Vitrea fX

 

Hereare the respective responsibilities for each configuration

 
| **Configuration** | ** ** | **HW  Procurement** | ** ** | **Installation/Deployment** | ** ** | **Education** | ** ** | **Actual Support** | ** ** | **Who owns  contract** | ** ** |
|-------------------|------------|---------------------|------------|-----------------------------|------------|---------------|------------|-------------------------|------------|-----------------------------|------------|
| A                 |       | T*                  |       | T                           |       | V**           |       | V                       |       | T                           |       |
| B                 |       | T                   |       | V                           |       | V             |       | V                       |       | V                           |       |
| C                 |       | T                   |       | V                           |       | V             |       | V                       |       | V                           |       |
| D                 |       | T                   |       | T                           |       | V             |       | V                       |       | T                           |       |

 

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*TAMS

**ViTAL Images

 

ActualSupport includes first and second level.

 

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