Exhibit
10.1


Software Reseller
Agreement


Between


Siemens Molecular
Imaging Limited


And


Vital Images


in
respect of


Fusion7D Image
Fusion Software









 



Contents


	
  RECITALS

  	
   

  	
   

  	
   

  	
  1

  	
   

  
	
  ARTICLE
  1:

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  	
   

  
	
  ARTICLE
  2:

  	
   

  	
  APPOINTMENT

  	
   

  	
  3

  	
   

  
	
  ARTICLE
  3:

  	
   

  	
  GENERAL OBLIGATIONS OF
  THE PARTIES

  	
   

  	
  3

  	
   

  
	
  ARTICLE
  4:

  	
   

  	
  PRODUCT DELIVERY

  	
   

  	
  5

  	
   

  
	
  ARTICLE
  5:

  	
   

  	
  LICENCES

  	
   

  	
  6

  	
   

  
	
  ARTICLE
  6:

  	
   

  	
  SOFTWARE MAINTENANCE
  SERVICES

  	
   

  	
  7

  	
   

  
	
  ARTICLE
  9:

  	
   

  	
  APPROVALS; ADVERSE
  REACTIONS; PRODUCT RECALLS

  	
   

  	
  9

  	
   

  
	
  ARTICLE
  10:

  	
   

  	
  WARRANTIES AND REPRESENTATIONS;
  INDEMNIFICATION

  	
   

  	
  10

  	
   

  
	
  ARTICLE
  11:

  	
   

  	
  CONFIDENTIALITY

  	
   

  	
  11

  	
   

  
	
  ARTICLE
  12:

  	
   

  	
  TRADEMARKS AND
  INTELLECTUAL PROPERTY RIGHTS

  	
   

  	
  12

  	
   

  
	
  ARTICLE
  13:

  	
   

  	
  TERM AND TERMINATION

  	
   

  	
  12

  	
   

  
	
  ARTICLE
  14:

  	
   

  	
  FORCE MAJEURE

  	
   

  	
  13

  	
   

  
	
  ARTICLE
  15:

  	
   

  	
  DISPUTE RESOLUTION

  	
   

  	
  14

  	
   

  
	
  ARTICLE
  16:

  	
   

  	
  MISCELLANEOUS

  	
   

  	
  14

  	
   

  
	
  EXHIBIT
  A:

  	
   

  	
  SPECIFICATIONS, PRODUCT
  AND PRODUCT PACKAGING

  	
   

  	
  17

  	
   

  
	
  EXHIBIT
  B:

  	
   

  	
  SALE AND REGULATORY
  TERRITORIES

  	
   

  	
  18

  	
   

  
	
  EXHIBIT
  C:

  	
   

  	
  PRODUCT AND MAINTENANCE
  PRICE LIST

  	
   

  	
  19

  	
   

  
	
  EXHIBIT
  D:

  	
   

  	
  MAINTENANCE

  	
   

  	
  20

  	
   

  
	
  EXHIBIT
  E:

  	
   

  	
  TRAINING

  	
   

  	
  21

  	
   

  
	
  EXHIBIT
  F:

  	
   

  	
  REPORTS

  	
   

  	
  22

  	
   

  
	
  EXHIBIT G:

  	
   

  	
  END USER LICENCE AGREEMENT

  	
   

  	
  23

  	
   

  



 


 
















 


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


between


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


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


 


RECITALS


 


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


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


C.                                     The
parties now wish to terminate the software reseller agreement as of March 30,
2006 between them with effect from the date of this Agreement, except in
relation to existing end users.  In
accordance with this Agreement Siemens desires to reappoint Reseller, and
Reseller desires reappointment, as a nonexclusive reseller of the Products.


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


 


ARTICLE 1:         DEFINITIONS


 


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


1.1                                 Associated Company means any company which
is in relation to another company its parent undertaking or its subsidiary
undertaking, or a subsidiary undertaking of its parent undertaking (and
subsidiary undertaking and parent undertaking shall have the meaning given to
them in the Companies Act 1985).


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


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


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









 



 


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


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


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


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


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


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


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


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


1.12                           Territory means the area described in
Exhibit B.


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


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



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ARTICLE
2:         APPOINTMENT


 


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


1.16                           Dealer Associates. Reseller may appoint one
or more:


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


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


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


1.17                           Use of Terms.  The terms “sale”, “purchase”, “distribution”, “resale”,
“Reseller” and “Dealer” are used herein for convenience only and refer to the
sale of software licences for the Products. 
Reseller hereby acknowledges Siemens retains all right, title and
interest in and to the copyrights and other intellectual property rights in the
Products and that such Products are to be provided to End Users only through an
End User Licence Agreement.


 


ARTICLE 3:         GENERAL OBLIGATIONS OF THE PARTIES


 


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


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


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


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



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


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


1.21                           Marketing and other Obligations of Reseller.  Reseller shall:


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


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


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


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


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


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


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


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


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


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


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


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


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



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


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


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


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


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


 


ARTICLE 4:         PRODUCT DELIVERY


 


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


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


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






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


 



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


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


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


 


ARTICLE 5:         LICENCES


 


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


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


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


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






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



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ARTICLE 6:         SOFTWARE MAINTENANCE SERVICES


 


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


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


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


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


1.41                           End User Contact.  Reseller shall have the primary responsibility
for direct contact with End Users in the Territory in regard to the function,
application, or maintenance of the Products under the First Level Maintenance
and the Second Level Maintenance.


1.42                           Patch Certification. 
If as a result of a substantial change to the operating
system of Service End Users, which may include any security update or critical
update issued by Microsoft, the Products when properly installed and operated,
do not perform substantially the functions in the functional specification for
the Products, or if the Products prohibit the operating system from functioning
properly after the issuance of the security update or critical update, at the
written request of the Reseller at any time, Siemens shall as soon as
reasonably practicable use all commercially reasonable efforts to provide an
Update and certification of the Products to work with a modified operating
system from the prior version of the operating system upon which the Products
are then currently certified.  Not to
exclude other modifications of the operating system, but the parties
acknowledge that a substantial change to the operating system may result from
the issuance by the manufacturer of the operating system of a critical update
or a security update. Following such a substantial change to the operating
system, if Siemens does not certify the Products as soon as reasonably
practicable after the request of the Reseller, and any Service End User
discontinues use of the Products because of the non-certification, maintenance
service fees for such Products 



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shall
be suspended for such Service End User during the period in which the Products
are not certified, and any prepaid maintenance fees shall be credited to future
service fees or license fees for such Service End User due under this
Agreement.


ARTICLE
7:         PRICES AND PAYMENTS


 


1.43                           Prices. Reseller shall pay Siemens in
accordance with the prices for the Products or for Maintenance Support
Agreements as specified in the Product Price List attached at Exhibit C hereto
(the “Product Price List”), as the same may be modified in accordance with
Article 7.2 below for each copy of the Products provided directly or indirectly
by Reseller made within 30 days after the end of each calendar month.  All prices are exclusive of any value added tax
and other applicable sales taxes, local taxes, tariffs and fees which may be
applicable.


1.44                           Price Changes.  At any time during the term of this Agreement,
Siemens may increase or reduce the prices for the Products and for Maintenance
Support Agreements set forth in the Product Price List at its sole discretion
by providing Reseller with 6 months prior written notice of such change.  Increased prices for Products or for
Maintenance Support Agreements shall not apply to any purchase orders accepted
prior to the effective date of the price increase unless such orders provide
for delivery, and delivery in fact is made, more than 90 days after the date of
acceptance of the order.  Price decreases
with respect to Products or Maintenance Support Agreements shall be effective
immediately upon written notice to Reseller on such Products that are not yet
delivered and Maintenance Support Agreements that have not commenced.  Upon any change of the Product Price List by
Siemens in accordance with this Article 7.2, the new Product Price List shall
be annexed to this Agreement and shall become the new Product Price List for
all purposes of this Agreement until subsequently modified in accordance with
this Article 7.2.


1.45                           Payment Terms.  If
any payment remains outstanding after it becomes due, Siemens shall be entitled
to charge interest of **per month (or part thereof).


1.46                           Product Pricing Review.  A review of the Product Price List
will be conducted annually from the date of this Agreement.


1.47                           Record Keeping and Audit.  Reseller shall keep and shall make
available to Siemens on request accurate records to enable Siemens to verify
all payments due to it.  During the term
of this Agreement and for any period thereafter during which payments continue
to accrue and upon 15 business days’ prior written notice to Reseller, Siemens
shall have the right at any time, during Reseller’s normal business hours, to
send an independent accountant (not generally providing services to Siemens
except in respect of other audits) to audit the records of Reseller relating to
the sale of Products and related services and to verify the payments due to
Siemens under this Agreement.  Reseller
shall give such accountant full access to its premises, computers, employees
and relevant records for such purpose. 
Siemens shall use its reasonable endeavours to procure that such
accountant shall keep confidential the information which comes to his knowledge
as a consequence of his audit (and to enter into any confidentiality
undertaking reasonably requested by Reseller in respect thereof prior to any
disclosure) except that the accountant shall be entitled to reveal to Siemens
any information necessary to provide Siemens with confirmation of the accuracy
of Reseller’s remittances or any deviations therefrom.  If an audit reveals a deficiency of 10 per
cent or more of the payments remitted Reseller shall pay the costs of the
audit.  Payment of such costs and any
deficiency shall be made by Reseller within 7 days after Reseller shall have
received written notice thereof from Siemens together with a copy of the
accountant’s report and, if applicable, an invoice showing the amount due.  Any such deficiency shall carry interest in
accordance with Article 7.4 from the date it was originally due.






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



 8
 






 



 


ARTICLE
8:         TAXES


 


1.48                           Reseller
shall pay all duties and taxes to be imposed as a result of the existence or
operation of this Agreement, including sales tax, import or export duty or tax,
and any other.  Notwithstanding the
foregoing, any income tax imposed by a government or its sub-division within
the Territory on the payments to be made to Siemens under this Agreement shall
be withheld at remittance to Siemens and paid to the tax authorities in the
Territory by Reseller.  Reseller shall
pay all sums payable without deduction unless required by law in which case
Reseller and Siemens shall co-operate in all respects and take all reasonable
steps necessary to: (1) lawfully avoid the making of any such deductions or (2)
enable Siemens to obtain a tax credit in respect of the amount withheld.  If payments are subject to withholding or
other income taxes, Reseller shall ensure that such sum is paid to Siemens as
shall, after deduction of such withholding or other income tax, be equivalent
to the payments otherwise payable under this Agreement.  If required in order to obtain a tax credit,
Reseller shall provide to Siemens a tax receipt certifying payment of the
withheld amount which is issued by the said tax authorities.  At no time shall either party to this
Agreement have any obligation to pay or to contribute to the payment of any tax
levied by the taxing authorities of any nation, state, subdivision of either,
or other governmental authority (whether within the Territory or not) on the
income or profits of the other party.


 


ARTICLE 9:         APPROVALS; ADVERSE REACTIONS; PRODUCT RECALLS


 


1.49                           Government Approval.  Siemens shall make diligent efforts to support
the preparation and filing of all applications by Reseller required to obtain
any necessary Government Approval for each country in the Territory, Reseller
shall keep Siemens apprised of its progress with respect to any such applications.  Siemens shall furnish Reseller, at Reseller’s
cost, with such assistance and cooperation as may be reasonably requested by
Reseller in connection with the securing of such Government Approval.


1.50                           Compliance.  Siemens and Reseller shall each comply with
all applicable regulatory requirements, including the provision of information
by Reseller to Siemens necessary for Siemens to comply with its medical device
reporting requirements in the Territory.


1.51                           Adverse Event Reporting.  Reseller shall advise Siemens, by telephone or
facsimile, within 24 hours after Reseller first believes, acting reasonably,
that an adverse event from the use of any Product or malfunction of any Product
has occurred, including any event which has resulted in or may result in
personal injury or death.  Unless
otherwise required by applicable local laws, Reseller shall advise Siemens of
any such adverse event prior to any report or filing being made with any other
regulatory body without territorial restriction.


1.52                           Corrective Action.


(a)                                  Notice of Corrective Action.  If Siemens believes that a corrective action
with respect to the Products is in its sole discretion desirable or required by
law, or if any governmental agency having jurisdiction shall request or order
any corrective action with respect to the Products, including any recall, End
User notice, restriction, change, corrective action or market action or any
Product change, Siemens shall promptly notify Reseller.  Any and all corrective actions shall be
conducted at the expense of Siemens, except costs associated with notifying End
Users of such corrective action. 
Reseller shall maintain complete and accurate records, for such periods
as may be required by applicable law, of all Products sold by it and any of its
Dealer Associates.  The parties shall
cooperate fully with each other in effecting any corrective action with respect
to the Products pursuant to this Article 9.4, including communication with any
End User and Reseller and its Dealer Associates shall comply with all
reasonable directions of Siemens regarding such corrective action.  This Article 9.4 shall not limit the
obligations of either party under law regarding any corrective action with
respect to the Products required by law or properly mandated by governmental
authority.



 9
 






 



 


(b)                                 Refund.  If any Products are required to be returned to
Siemens pursuant to this Article 9.4 and no replacement is provided therefore
by Siemens, Siemens shall refund to Reseller any licence fees paid by Reseller.


 


ARTICLE
10:       WARRANTIES AND REPRESENTATIONS;
INDEMNIFICATION


 


1.53                           Product Warranties.  Siemens warrants to Reseller that, for a
period of twelve (12) months from the date the Product is received by Reseller
(the “Warranty Period”), the Products, when properly installed and operated,
shall perform substantially the functions described in the functional
specifications for the Products, as contained in the applicable written
documentation for the Products.  The
express terms of this Agreement are in lieu of all warranties, conditions,
terms, undertakings and obligations implied by statute, common law, custom,
trade usage, course of dealing or otherwise, all of which are hereby excluded
to the fullest extent permitted by law.


1.54                           Exclusive Remedy. 
Siemens’s entire liability for any warranty claim made by
Reseller under Article 10.1 above, and Reseller’s exclusive remedy for any such
claim, shall be for Siemens, at its option, either (i) to replace any defective
media which prevents the Products from satisfying the limited warranty
described in Article 10.1, (ii) to attempt to correct any material and
reproducible errors reported by Reseller; or (iii) to terminate this Agreement
and refund that part of the fees paid by Reseller for the Products which the
Reseller has refunded to End Users after using commercially reasonable efforts
to reduce the level of refunds Reseller gives to End Users.


1.55                           Warranty Extension. 
During the Warranty Period, the remedies provided in Article
10.2 above shall be applied to Products replaced or corrected by Siemens under
warranty; but the replacement or correction of a Product under Article 10.2
shall not commence a new Warranty Period.


1.56                           Product Warranties to End Users.  Siemens hereby authorises Reseller to transfer
the Product warranty provided under Article 10.1 to End Users who purchase
Products from Reseller or a Dealer Associate. 
The Warranty Period for End Users shall commence after any applicable
delivery or acceptance period but no later than 30 days after delivery to the
End User.  As part of its First Level
Maintenance obligations, Reseller shall inform Siemens promptly of any claims
made by End Users in the Territory under such software warranties.  Reseller shall ensure that all such warranty
claims shall be made promptly in writing and shall state the nature and details
of the claim, the date the cause of the claim was first observed and the serial
number of the Products concerned, if any.


1.57                           Warranties to Reseller.  Siemens hereby represents and warrants to
Reseller:


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


(b)                                 Siemens
has no knowledge of any infringement by the Products of any third party
intellectual property rights, such as patents, copyrights, trade secrets or
trademarks; and


(c)                                  Siemens
has taken all appropriate corporate action to authorise execution and
performance of this Agreement.


1.58                           Product Indemnification.  Siemens shall indemnify Reseller against any
claim (or claim for indemnity from any licensee against a claim) that the
normal use or possession of the Products infringes the intellectual property
rights of any third party provided that Siemens is given immediate and complete
control of such claim, that Reseller does not prejudice Siemens’ defence of
such claim, that Reseller gives Siemens all reasonable assistance with such
claim and that the claim does not arise as a result of the use of the Products
otherwise than in accordance with the terms of this Agreement or an End User
Licence Agreement or with any equipment or programs 



 10
 






 



 


not
approved by Siemens.  If a Product is
found to infringe any such third party intellectual property right, at Siemens’s
sole discretion and expense, Siemens may (i) obtain a licence from such third
party for the benefit of Reseller and its End Users, or (ii) replace or modify
the Product so that it is no longer infringing, or (iii) terminate this
Agreement and refund to Reseller all amounts previously paid by Reseller for
the Products less a reasonable amount to reflect any period of use of the
Products by Reseller and/or its End Users. 
The foregoing states the entire liability of Siemens to Reseller in
respect of the infringement of the intellectual property rights of any third
party.


1.59                           Indemnification.  Reseller hereby agrees to indemnify, defend
and hold Siemens harmless from any and all claims, demands, losses and
liabilities, including any reasonable costs or legal fees thereby incurred by
Siemens, resulting from Reseller’s acts or omissions, including, without
limitation, misrepresentations regarding the Products, any violation by
Reseller or any Dealer Associate of applicable laws or regulations relating to
the marketing and distribution of the Products, any breach by an End User of
its End User Licence Agreement, any provision of copies of any of the Products
to third parties by Reseller or an End User without corresponding payment to
Siemens by Reseller or any breach of any provision of this Agreement.


1.60                           Limitations of Liability.  With the exception of Reseller liability for
breach of the terms of the software licence in Article 5.1, each party’s
liability in each year of this Agreement shall be limited to the sums paid by
Reseller to Siemens in that year.  With
the exception of Reseller liability for breach of the terms of the software
licence in Article 5.1, each party’s aggregate liability under this Agreement
shall be limited to the prices paid for the Products under this Agreement.  With the exception of Reseller liability for
breach of the terms of the software licence in Article 5.1, in no event shall
either party be liable to the other party for loss of profits or revenues or
data, or any direct, indirect, special, incidental, consequential, punitive or
exemplary damages, even if it has been advised of the possibility of such
damages.  Neither party excludes any
liability for death or personal injury caused by that party’s negligence or for
fraudulent misrepresentation.


 


ARTICLE 11:       CONFIDENTIALITY


 


1.61                           Confidential Information; Term.  All Confidential Information shall be deemed
confidential and proprietary to the party disclosing such information hereunder
(the “Disclosing Party”).  The party that
receives Confidential Information from a Disclosing Party (the “Receiving Party”)
may use the Disclosing Party’s Confidential Information during the term of this
Agreement only as permitted or required for the Receiving Party’s performance
hereunder.  The Receiving Party shall not
disclose or provide any Confidential Information to any third party and shall
take reasonable measures to prevent any unauthorised disclosure by its
employees, agents, contractors or consultants during the term hereof including
appropriate individual nondisclosure agreements.  The foregoing duty shall apply to any
Confidential Information for as long as it remains confidential.


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


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


(b)                                 Information
which was independently developed by the Receiving Party without the use of or
reliance on the Disclosing Party’s Confidential Information; or


(c)                                  Information
which was provided to the Receiving Party by a third party under no duty of
confidentiality to the Disclosing Party.



 11
 






 



 


1.63                           Permitted Disclosure.  Nothing in Article 11.1 shall restrict
disclosure by either party as required by applicable law, regulation, or the
order of any court or administrative agency having jurisdiction regarding such
matters, provided, however, that:





(a)                                  If
the Receiving Party becomes legally compelled to disclose any Confidential
Information, it shall immediately notify the Disclosing Party so that the
Disclosing Party, at its sole and exclusive option, may seek a protective order
or other appropriate remedy or waive compliance with the provisions of this
Agreement.


(b)                                 If
the Disclosing Party elects to seek a protective order or other appropriate
remedy, the Receiving Party shall cooperate with, and not object to, any such
actions.


(c)                                  If
a protective order or other remedy is not obtained or the Disclosing Party
waives compliance with the provisions of this Agreement, the Receiving Party
shall furnish only that portion of such Confidential Information which the
Receiving Party reasonably believes, based on the advice of its legal counsel,
is legally required to be disclosed.


1.64                           Cooperation.  At the Disclosing Party’s request, the
Receiving Party shall cooperate fully with the Disclosing Party in any and all
legal actions taken by the Disclosing Party to protect its rights in its
Confidential Information.  The Disclosing
Party shall bear all out-of-pocket costs and expenses reasonably incurred by
the Receiving Party in the course of such cooperation.


 


ARTICLE 12:       TRADEMARKS AND INTELLECTUAL PROPERTY RIGHTS


 


1.65                           Use of the Name Siemens and of the Trade Mark SIEMENS
and other Trade Marks.  No
reference to Siemens shall be made on Reseller’s stationery, business cards,
sales promotional or other written material without the prior written approval
of Siemens.  Subject to revocation by
Siemens at any time, Reseller shall be permitted to use the trade mark SIEMENS
and FUSION7D registered in Siemens’ name for the purposes of advertising or
promoting the sale of the Products, provided that Reseller observes the
applicable Siemens procedures and uses only those trade mark designs approved
in writing in advance by Siemens. 
Subject to Article 13.3, upon termination of this Agreement, Reseller
shall immediately cease to use in any manner whatsoever the name Siemens and
the trade mark SIEMENS as well as any other trade mark in which Siemens has any
rights.


1.66                           Reseller
shall notify Siemens immediately if Reseller becomes aware of any unauthorised
use of any of the Products or any of the intellectual property rights therein
or relating thereto and will assist Siemens (at Siemens’ expense) in taking all
steps to defend Siemens’ rights therein.


1.67                           No
reference to Reseller’s trade name and the trade name of its products shall be
made on Siemens’ stationery, business cards, sales promotional or other written
material without the prior written approval of Reseller, provided that during
the term of this Agreement Siemens is authorized identify Reseller as an
authorized reseller of the Products and to identify those of Reseller’s
products with which the Products operate. 
Subject to Article 13.3, upon termination of this Agreement, Siemens
shall immediately cease to use in any manner whatsoever the trade name of
Reseller and its products, as well as any trade marks in which Reseller has any
rights.


 


ARTICLE
13:       TERM AND TERMINATION


 


1.68                           Term.  This Agreement shall take effect as of the
date of this Agreement and shall have a term ending on May 12, 2008.


1.69                           Termination.  Notwithstanding the provisions of Article 13.1
above, this Agreement may be terminated earlier by either party upon written
notice to the other party:



 12
 






 



 


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


(b)                                 If
the other party is in material breach of this Agreement and has failed to cure
such breach within thirty (30) days of receipt of written notice thereof from
the first party.  In the case of Reseller
material breach shall include, without limitation, any breach of Article 3.9,
4.5, 4.6 or 7.1;


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


(d)                                 by
Reseller if Siemens AG’s ownership (which may be indirect) in Siemens falls to
50% or below;


(e)                                  by
Siemens if there is a change in control of Reseller; or


(f)                                    upon
mutual agreement by both parties.


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


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


(b)                                 Reseller
shall return to Siemens the software libraries for the Products, any master
encryption keys provided by Siemens, all copies of Products and all related
documentation held by Reseller;


(c)                                  The
rights of any End Users and Service End Users who hold a valid and binding End
User Licence Agreement prior to the effective date of such termination shall
not be affected;


(d)                                 Reseller
shall continue to provide First Level Maintenance to all Service End Users and
End Users entitled to receive it and all provisions of this Agreement in
respect of the provision of such First Level Maintenance and payments in
relation thereto shall continue in full force and effect unless otherwise
directed by Siemens, in which case Reseller shall promptly co-operate with such
direction; and


(e)                                  The
parties’ obligations under Articles 6, 7, 8, 10, 11, 13, 15, and 16 shall
survive any termination of this Agreement.


1.71                           No Compensation.  In the event of any termination of this
Agreement under Article 13.2, subject to Article 13.3(a), neither party shall
owe any compensation to the other party for lost profits, lost opportunities,
goodwill or any other loss or damage as a result of or arising from such
termination.  Reseller shall not be entitled
to any compensation or indemnity (whether for loss of distribution rights,
goodwill or otherwise) as a result of the termination of this Agreement in
accordance with its terms.


 


ARTICLE 14:       FORCE MAJEURE


 


1.72                           Definition.  “Force Majeure” shall mean any event or
condition beyond the reasonable control of either party which prevents, in
whole or in material part, the performance by one of the parties of its
obligations hereunder or which renders the performance of such obligations so
difficult or costly as to make such performance commercially unreasonable.  Without limiting the foregoing, the following
shall constitute events or conditions of Force Majeure: acts of State or
governmental action, riots, disturbance, war, strikes, lockouts, slowdowns, prolonged
shortage of energy or 



 13
 






 



 


other
supplies, epidemics, fire, flood, hurricane, typhoon, earthquake, lightning and
explosion, or any refusal or failure of any governmental authority to grant any
export licence legally required.


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


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


 


ARTICLE 15:       DISPUTE RESOLUTION


 


1.75                           Dispute Resolution. 
Except as provided in Article 15.2 below, Siemens and
Reseller shall each use its best efforts to resolve any dispute between them
promptly and amicably and without resort to any legal process if feasible
within thirty (30) days of receipt of a written notice by one party to the
other party of the existence of such dispute. 
Except as provided in Article 15.2 below, no further action may be taken
under this Article 15 unless and until executive officers of Siemens and
Reseller have met in good faith to discuss and settle such dispute, unless the
other party has refused to do so on 14 days’ notice.  The foregoing requirement in this Article
15.1 shall be without prejudice to either party’s right, if applicable, to
terminate this Agreement under Article 13 above.


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


 


ARTICLE 16:       MISCELLANEOUS


 


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


1.78                           Assignment.  Neither party may assign or transfer this
Agreement or any of its rights and obligations under this Agreement without the
prior written consent of the other party, except that Siemens may assign this
Agreement in the case of a merger, sale of shares or assets or other
reorganisation; provided that any permitted assignee agrees in writing to be
bound by the terms of the Agreement. 
Subject to the foregoing, this Agreement shall be binding on and inure
to the benefit of any permitted assignee. 
Any attempted assignment in violation of this Article 16.2 shall be
void.


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



 14
 






 



 




	
  Reseller

  	
   

  	
  Address:

  	
   

  	
  5850 Opus Parkway, Suite 300

  
	
   

  	
   

  	
   

  	
   

  	
  Minnetonka,
  Minnesota 55343

  
	
   

  	
   

  	
   

  	
   

  	
  U.S.A.

  
	
   

  	
   

  	
  Attention:

  	
   

  	
  General Counsel

  
	
   

  	
   

  	
  Facsimile Number

  	
   

  	
  952-487-9530

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Siemens

  	
   

  	
  Address:

  	
   

  	
  Siemens House

  
	
   

  	
   

  	
   

  	
   

  	
  Oldbury

  
	
   

  	
   

  	
   

  	
   

  	
  Bracknell

  
	
   

  	
   

  	
   

  	
   

  	
  Berkshire

  
	
   

  	
   

  	
   

  	
   

  	
  RG12 8FZ

  
	
   

  	
   

  	
  Attention:

  	
   

  	
  Managing Director

  
	
   

  	
   

  	
   

  	
   

  	
  Siemens
  Molecular Imaging Ltd

  
	
   

  	
   

  	
  Facsimile Number

  	
   

  	
  +44 (0)1865 265501

  






 


1.80                           Entire Agreement.  This Agreement, including the Exhibits hereto
which are incorporated herein, constitutes the entire agreement of the parties
with respect to the subject matter hereof and supersedes all proposals, oral or
written, and all negotiations, conversations, discussions, and previous distribution
or value added reseller agreements heretofore between the parties.  The parties agree that the software reseller
agreement made as of March 30, 2006 by and between Reseller and Siemens shall
terminate with effect from the date of this Agreement, except in relation to
existing end users who received products under that agreement up to the date of
this Agreement.


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


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


1.83                           Governing Law.  This Agreement shall be governed by and
interpreted under the laws of England and Wales.  All disputes arising out of or in connection
with this Agreement shall be finally settled under the Rules of Arbitration of
the International Chamber of Commerce by one or more arbitrators appointed in
accordance with the said Rules.  The venue
of arbitration shall be an agreed location in the USA, or if not agreed a
location determined by the arbitrator(s).


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


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


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



 15
 






 



 


1.87                           Further Assurances. 
The parties shall perform all such further acts, provide such
further documents or written assurances, and execute such further documents as
are reasonably required or necessary to carry out the acts and transactions
contemplated by this Agreement.


 


SIGNATURES AND DOCUMENT AUTHORISATION


 


AS
WITNESS, the parties’ duly authorised representatives
have signed this Agreement the day and year first above written.


	
  SIEMENS MOLECULAR IMAGING LIMITED

  	
   

  	
  Vital Images, Inc

  
	
   

  	
   

  	
   

  
	
  By /s/ Chris
  Behrenbruch

  	
   

  	
  By /s/ Michael H. Carrel

  
	
   

  	
   

  	
   

  
	
  Name Chris
  Behrenbruch

  	
   

  	
  Name Michael H. Carrel

  
	
   

  	
   

  	
   

  
	
  Title Vice
  President — Applications

  	
   

  	
  Title Chief Operating Officer and Chief Financial Officer

  



 


 



 16














 


EXHIBIT A:          SPECIFICATIONS, PRODUCT AND PRODUCT PACKAGING


 


1.  The Products:


·                   Fusion7D
Image Fusion Software


·           Tier
1 — Fusion Viewer


·           Tier
2 — Basic Fusion


·           Tier
3 — Standard Fusion


·           Tier
4 — Advanced Fusion


 


·                   Additional
options which Siemens fully integrates and supports as part of the Fusion7D
image fusion software, currently


·           RTist


·           Burn
To CD Viewer


·           Fusion
MIP


·           DICOM
Print


 


·                   Upgrades
or Updates to the Products listed above.


 


2.  Reseller
Workstation 


Vitrea


3.  Software
Specifications for the Products on the Reseller Workstation


Base OEM Edition
Fusion7D.


4.  Product Packaging:


None.  OEM software product supplied on single
compact disc.



 17














 


 


EXHIBIT B:          SALE AND REGULATORY TERRITORIES


 


North America, European
Union, Other European Territories


The addition of other
countries are subject to the agreement of Siemens in accordance with Article
2.1.



 18














 


 


EXHIBIT C:          PRODUCT AND MAINTENANCE PRICE LIST


 


1.  Product and
Maintenance Pricing:


Product Licence Fees


All prices are exclusive
of any local taxes and fees which may be applicable.


The following pricing
shall apply when Reseller deploys the Products as an option on the Reseller
Workstations sold by Reseller in the Territory:


 


	
  USD ($)

  	
   

  	
  List Price to
 end User

  	
   

  	
  1 – 100

  	
   

  	
  101 – 200

  	
   

  	
  201 – 300

  	
   

  	
  Over 300

  
	
  Tier 1 (node
  locked)

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  Tier 2 (node
  locked)

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  Tier 3 (node
  locked)

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  Tier 4 (node
  locked)

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  Concurrent
  licencing enablement*

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  







*within any network of
access points, node locked licences as specified may be floated across the
network of access points on payment of a one off charge per site as specified.


All discount tiers are
cumulative throughout the term of the Agreement.


The following options may
be added to any tier subject to payment of an additional licence fee as
specified in the table below. Where licences float across a network of access
points, an option must be added to all available licences for a given tier, and
each individual licence shall attract an additional option charge as specified
below. For example, where three licences float across a network of access
points and the end user elects to add the ‘Burn to CD Viewer’ option, each
floating licence shall be upgraded to support ‘Burn to CD Viewer’ at a list
price to end user of ** per licence or ** in total. Option prices are the same
regardless of whether the base tier is node locked or floated.


 


	
  USD ($)

  	
   

  	
  List Price to

  end User

  	
   

  	
  1 – 100

  	
   

  	
  101 – 200

  	
   

  	
  201 – 300

  	
   

  	
  Over 300

  
	
  RTist

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  Burn to CD
  Viewer

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  DICOM Print

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  
	
  Fusion MIP

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  	
   

  	
  **

  



 


Software Maintenance
Services Fees


·                   For maintenance
provided by Reseller to an End User, Reseller shall pay to Siemens annual
maintenance fees equal to ** of the software licence fees paid by Reseller to
Siemens.


·                   Maintenance may
be purchased for a ** period at a rate of ** per annum.


 






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



 19
 






 



EXHIBIT
D:          MAINTENANCE


First Level
Maintenance to be provided by Reseller to End Users 


·                             Preferred
maintenance, to include priority telephone support, priority email support, and
where required on-site support and software Updates.


·                             Delivery
of Updates and enhancements to End Users.


·                             NB -
Upgrades must always be paid for as additional items.


·                             Electronic,
telephone or in-person response to deal with any problem or software bug in the
Product which is provided by Reseller to End Users in the Territory who have
installed the Products that are under a standard warranty or to Service End
Users.  Such response shall attempt (i)
to identify the nature and extent of the End User’s problem, (ii) if appropriate,
to obtain a copy of magnetic media, hard copy printout or electronic file
forwarded over the Internet containing the problem or software bug to be
forwarded promptly to Siemens electronically or by facsimile, and (iii) to
advise the End User in the application of any recommended solution or
workaround to such problem or bug.


·                             Telephone
support to End Users during local office hours.


·                             Email
support to End Users.


·                             Reseller
shall inform Siemens promptly of any claims made by End Users under the Product
warranties.  Reseller shall ensure that
all such warranty claims shall be made promptly in writing and shall state the
nature and details of the claim, the date the cause of the claim was first
observed and the serial number of the Products concerned, if any.


Second Level Maintenance
to be provided by Siemens to Reseller


·                             Preferred
maintenance, to include priority telephone support, priority email support and
where required software Updates.


·                             Delivery
of Updates and enhancements.


·                             NB -
Upgrades must always be paid for as additional items.


·                             Electronic,
telephone or in-person response by Siemens to Reseller to deal with any problem
or software bug in the Product that cannot be handled by Reseller alone under
First Level Maintenance for End Users in the Territory who have installed
Products that are under a standard warranty or Service End Users.  For such problems, and upon request by
Reseller, Siemens may also provide support directly to End Users in the
Territory, in each case during the hours Monday – Friday 9am to 6pm UK time
(excluding Bank Holidays).


·                             Bug
fixes.


·                             Unlimited
email support during the hours Monday – Friday 9am to 6pm UK time (excluding
Bank Holidays).


·                             Unlimited
telephone support during the hours Monday – Friday 9am to 1am UK time (excluding
Bank Holidays).


·                             On-site
support at Reseller’s primary place of business after email and telephone
support has been exhausted with no satisfactory resolution to the issue in
question.



 20
 






 



EXHIBIT
E:           TRAINING


·                 Siemens shall
provide up to ** days of training in the first year of this Agreement and up to
** days of training per year in subsequent years regarding the sale,
demonstration, use, operation and support of the product to Reseller personnel.


·                 Siemens shall
provide ** additional training ** for each major software Update.


·                 Training
participation of up to ** people during training sessions.


·                 Training to take
place at Reseller principal place of business.


·                 Additional
training may be provided at ** per day (with a minimum of ** days per engagement)
at Reseller’s principal place of business. 
All costs of training (flights, accommodation, etc) will be the
responsibility of Siemens.  Reseller
shall provide at least 14 days prior notice for all training engagements.






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



 21
 






 



EXHIBIT
F:           REPORTS


The regular reports to be
provided by Reseller to Siemens shall include the following:


1.     For each new End User:


·                Name,
address, telephone, fax number and contact person.


·                The
Products installed for such End User.


·                The
date of installation.


·                The
licence fee payable by Reseller to Siemens for such End User.


 


2.     The total licence fees payable for that period.


3.     For each new Service End User:


·                Name,
address, telephone, fax number and contact person.


·                The
Products to be maintained.


·                The
start date for maintenance.


·                The
maintenance fee payable by Reseller to Siemens for such Service End User.


 


4.     The total maintenance fees payable for that period.


5.     Confirmation that all End Users have agreed to the terms of the
End User Licence Agreement.


6.                The number of
copies of the Products created for Reseller’s demonstration and other use in accordance
with Article 5.2 in that period.


7.                The total number
of copies of the Products created for Reseller’s demonstration and other use in
accordance with Article 5.2 in existence.


8.     Confirmation that the information in the report is accurate and
complete.



 22
 






 



EXHIBIT
G:          END USER LICENCE AGREEMENT


Fusion7D
Licence Agreement


This Licence Agreement (“LICENCE”) and Limited Warranty set forth below
constitutes a legally binding agreement between you the User or licensee,
and/or purchaser (collectively or individually) and [INSERT RESELLER NAME, COMPANY NUMBER AND ADDRESS] (“Reseller”),
covering the Use (as defined below) of the Siemens Products (as defined below).


By installing,
downloading, accessing or otherwise Using the Siemens Products including the
Software Products in any way, you agree to be bound by all of the terms,
conditions and restrictions of this LICENCE. 
Absent an Original Equipment Manufacturer (“OEM”) relationship with
Siemens, and such OEM relationship requires Siemens to provide source code for
the Software and/or Software Product(s) no source code for the Software shall
ever be provided or subject to any licence hereunder.


If you do not agree with the terms, conditions and/or
restrictions contained herein, Reseller does not grant a licence to Use the
Siemens Products. In such event, you are not
authorised to install, access, or otherwise in any way Use any of the Siemens
Products to which this LICENCE pertains, and you should promptly contact
Reseller and comply with its instructions on returning the Siemens Product(s)
for a full or partial refund as applicable.




1       Definitions


The following definitions
shall be relied upon and comprise a portion of this LICENCE wherever and
whenever found in the document:


“Computer” means an
electronic device that accepts information in digital or similar machine
readable form and manipulates it to achieve a result initiated by a sequence of
instructions.


“Documentation” shall
mean any and all written materials including user manuals, “Read Me” files,
product specifications, and/or other explanatory written materials associated
with or pertaining to the Software or Software Products, as well as any and all
Updates or Upgrades thereto which are made available to you from time-to-time
by Siemens or through your Siemens Products Supplier.


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


“Hardware” means any
computer system or computer system component that has been provided to you in
conjunction with the Software Product, excluding any Software Licence Key
devices.


“Maintenance and Support”
means to service, maintain and support the intended functionality of the
Software Product covered under this LICENCE for the benefit of both Siemens and
the User/subscriber under the Service Level Agreement which separately governs
maintenance and support.


“Maintenance and Support
Term” means a twelve (12) calendar month period, or other period agreed to by
Reseller, during which Reseller agrees to provide to the User the Maintenance
and Support services in accordance with the Service Level Agreement.


“Service Level Agreement”
(SLA) means a separate term limited, renewable, subscription for ongoing or
continuous User desired Maintenance and Support of a Software Product for an
associated Maintenance and Support Term which may be on the basis set out at
Schedule 1.  Pursuant to the terms of the
SLA between the User and Reseller, Reseller accepts certain responsibilities to
maintain and support the functionality of only those versions or releases for
which second level maintenance is provided to Reseller by Siemens as well as to
make reasonable efforts to resolve problems encountered during the Use of the
same in return for a pre-paid subscription fee.


“Siemens” means [Mirada Solutions Limited], a company
registered in England under registered number 3417726 with registered office at
23-28 Hythe Bridge Street, Oxford, Oxfordshire OX1 2EP, England.


“Siemens Products” means
Software, Software Products, Updates, Upgrades, and Documentation owned by
and/or licensed to Siemens.


“Siemens Products
Supplier” means Reseller or any Siemens approved and authorised source of
supply from whom all or any portion of the Software Product is lawfully
purchased and obtained, or through whom any Software Product was originally and
lawfully acquired by one from whom you lawfully acceded to ownership and
possession.  The Siemens Products
Supplier may not be the source of supply for Hardware and only an authorised
Siemens Products Supplier has a right to provide you the User with this
LICENCE.


“Software” means the
object code for the machine instructions associated with the user level
software  known as Fusion 7D as embodied
in the Software Products and licensed pursuant to the terms of this LICENCE.


“Software Licence Key”
means any software system or physical hardware device (e.g. a ‘dongle’) used in
conjunction with the Software to manage, control and restrict access to the
Software.


“Software Product(s)”
means any and all media having Software stored thereon, including but not
limited to any and all content storage devices such as disks(s), CD-ROM(s),
DVD, tapes, USB memory devices, etc., capable of storing files, subroutines,
program statements or the like in machine readable object code as such media is
used by 



 23
 






 



Siemens to distribute the
Software, together with any associated Software Licence Key.


“Update” means a change
to the Software, including modifications such as a ‘bug fix’ or program patch,
or which improves existing functions or features of the Software.


“Upgrade” means an
enhancement or change to a newer version of the Software Products which
increases the performance of the Software by adding new features or
functionality.


“Use”, “Used” or “Using”,
etc., means to install, access, manipulate data through operation of the
Software and/or any of its features, or to otherwise benefit from the
functionality of the Software via a Software Product or the Documentation.


“User” is one who
directly, or indirectly through the operation or manipulation of any hardware
device capable of functioning in response to machine readable object code or
BIOS, as well as any other software programs functionally connected to the
Software, Uses the software.


“Warranty Period” means twelve
(12) months from the date of delivery to you of the Software Product.


2       Grant
of LICENCE


This LICENCE grants you
the User a non-exclusive right to install, Use, access, display and run one (1)
installation of the Software Product on one (1) Computer in accordance with the
terms of this LICENCE.


The Software Product may
not be installed, accessed, displayed, run, shared or Used concurrently on or
from different Computers, and is not authorised for use across a network
environment.


NO PART OF THIS LICENCE
SHALL GRANT THE USER ANY RIGHT TO COPY ANY OF THE SIEMENS PRODUCTS.  ANY AND ALL COPYING OF THE SIEMENS PRODUCTS
THAT IS INCONSISTENT WITH ALL APPLICABLE LAWS, NATIONAL AND INTERNATIONAL
TREATIES GOVERNING SOFTWARE PIRACY AND ILLEGAL DISTRIBUTION, IS COMPLETELY AND
TOTALLY PROHIBITED.


Siemens and its Siemens
Products Supplier(s) expressly reserve all rights not granted to the User of
the Software Products covered by this LICENCE.


3       Limitations
and additional rights


This LICENCE grants the
licence rights to the User only if the Software and Software Product is
genuine, as determined by Siemens, and has been supplied by Reseller after
confirmation that the Software Products in question has been duly and properly
purchased from Reseller in order for the purchaser to receive this LICENCE or
any licence to Use the Siemens Products. 
The Software, Software Product(s) and Documentation is/are owned by
Siemens or its suppliers and is protected by copyright law and international
copyright treaty.  Siemens and/or its
suppliers and licensors retain title to the Software and/or Software Product
and all associated intellectual property rights attributable and apportioned
thereto.


The licence granted by
Reseller under this LICENCE permits use of the Siemens Products for clinical
use, but specifically excludes use in the Excluded Field.  Accordingly you shall not use the Siemens
Products in the Excluded Field.


You acknowledge that the
Software and Software Product in source code form is and remains a confidential
trade secret of Reseller, Siemens and/or its suppliers and licensors and
therefore you agree not to modify the Software Product or attempt to reverse
engineer, decompile, or disassemble the Software Product to in any way access
or discover the source code except to the extent expressly required to be
permitted by law.  Furthermore you
explicitly undertake not to bypass, subvert or render ineffective or to attempt
to bypass, subvert or render ineffective any Software Licence Key elements or
their interfaces within the Software.


You further undertake to
keep confidential all information embodied in the Software or any other
information notified to you as being confidential and not to use such
information other than for the intended purposes for which the Software and Software
Products are subject to the LICENCE hereunder as well as the permissible Use of
the Software Product, or receipt of Maintenance and Support in accordance with
this LICENCE.


Except as expressly
agreed in writing by Reseller, you may not transfer, rent, lease, lend, copy,
modify, sub-license, time-share or electronically transmit or receive the
Software, Software Product, media or Documentation, or assign, license or
sub-license the same under this LICENCE. The preceding restriction includes a
prohibition on using the Software Product to provide commercial hosting
services or for the benefit of any third party.


All Hardware items
provided with the Software Product are warranted, licensed and supported under
separate specific agreements as provided by the original manufacturer thereof,
and Reseller makes no representation and expressly disclaims any and all
warranty in respect of such Hardware items under this LICENCE.


If the Software Product
is sold as a combined package with associated Hardware, then the Software
Product is licensed with the Hardware as a single integrated product. The
Software Product may only be used with the associated Hardware as
supplied.  If the Software Product is
licensed as a single product, its component parts may not be separated or be
disassociated from the whole for Use on more than one (1) Computer.


If you have purchased an
Upgrade version of the Software Product or you have been provided with an
Upgrade version of the Software Product under any Maintenance and Support agreement,
it constitutes a single product with the Software Product that you upgraded.
You may Use the Upgrade version of the Software Product only in accordance with
this LICENCE.


Any additional software
provided by Siemens or a Siemens Product Supplier to you, which updates or
supplements the original Software Product is governed by this LICENCE unless
alternative terms are provided with such updates or supplements as issued by
Siemens or a Siemens Product Supplier.



 24
 






 



Siemens has been granted
licences to distribute certain third party programs. As a condition of those
permissions and licences, Siemens is required to distribute the programs
subject to specific terms and conditions, which may be different from or
additional to those contained herein for the Siemens Products. Any software
provided along with the Siemens Products that is associated with a separate
user licence agreement is licensed to you under the terms of that licence
agreement in addition to the prohibition of copying as set forth in this LICENCE.
You understand and agree that acceptance of this LICENCE also confirms your
acceptance of the applicable provisions for use of such third party programs.
If you breach the applicable provisions of any third party’s licence terms then
that shall also be considered a material breach of this LICENCE.


You may receive the
Software Product in more than one medium. Regardless of the type or size of
medium you receive, you may use only one (1) medium that is appropriate for the
Computer. You may not use or install the other medium on another computer. You
may not loan, rent, lease, lend or otherwise transfer the other medium to
another person, user or entity, except as part of any permitted permanent
transfer of the Software Product in accordance with this LICENCE.


4       Intellectual
Property Indemnity


Reseller shall indemnify
you against any claim that the normal use or possession of the Software
Products infringes the intellectual property rights of any third party provided
that Reseller and/or Siemens is given immediate and complete control of such
claim, that you do not prejudice Reseller or Siemens’ defence of such claim,
you give Reseller and/or Siemens all reasonable assistance with such claim and
that the claim does not arise as a result of the use of the Software Products
otherwise than in accordance with the terms of this LICENCE or with any
equipment or programs not approved by Reseller. 
If a Software Product is found to infringe any such third party
intellectual property right, at Reseller’s sole discretion and expense,
Reseller may (i) obtain a licence from such third party for your benefit, or
(ii) replace or modify the Software Product so that it is no longer infringing,
or (iii) terminate this LICENCE and refund to you all amounts previously paid
by you for the Software Products less a reasonable amount to reflect any period
of Use of the Software Product by you up to the date of such termination.  The foregoing states the entire liability of
Reseller and/or Siemens to you in respect of the infringement of the
intellectual property rights of any third party.


5       Maintenance
and Support


During the Warranty
Period Reseller shall deliver to you without additional charge any subsequent
Update version releases of the Software Products which may be released and applicable
to the Software Product licence you have purchased.


During the Warranty
Period you are entitled to receive Maintenance and Support services from
Reseller in relation to the Software Product as set out in Schedule 1.


During any paid
Maintenance and Support Term, if applicable, you are entitled to receive
Maintenance and Support services from Reseller in relation to the Software
Product, in accordance with your Service Level Agreement (“SLA”).


If your entitlement to
Maintenance and Support services and your SLA should lapse for any reason, or
be revoked for any reason, then Reseller may at its discretion grant you
permission to re-subscribe for another Maintenance and Support Term so that the
Maintenance and Support services are not interrupted, and your entitlement to
Maintenance and Support services is re-established by the payment of an
appropriate fee for a new SLA covering your existing Software Product
version.  However, Reseller, in it’s sole
discretion may require you to purchase additional product Upgrades as necessary
prerequisites to any Maintenance and Support services in order to bring your
then current version of the Software Product to the most current version
thereof (i.e., the latest released version), before any new Maintenance and Support
SLA may be entered into or enjoyed. 
Reseller has the option to maintain and support only the most up-to-date
version of the Siemens Products.


No warranty is given,
express or implied, that the Software Product is compatible with, or capable of
running on the same Computer as, any third party software product. Reseller
does not undertake to make the then existing product compatible with any other
such product, or with any other use of the Computer then running the Software
Product in accordance with the instructions, whether the Software Product is
sold as a combined package with associated hardware, or whether the Computer is
supplied by a third party.


Reseller does not
undertake to repair any malfunction caused by any such incompatible use.
Reseller shall not be liable to remedy any damage caused by virus attack,
hacking, or any damage caused by the actions of third parties to which the
Software Product has been exposed through connection to any networks, including
public, private, world wide web and intranets.


Reseller reserves the
option to discontinue, in whole or in part, providing Maintenance and Support
for any version or release of the Siemens Products, provided that if you have a
current and fully paid up Maintenance and Support agreement in place with
Reseller for such Siemens Product, Reseller may do so only if it offers to you
free of charge a version or release of that Siemens Product for which it is
prepared to continue providing Maintenance and Support.


6       Your
Obligations


Among other things, you
undertake to ensure that any premises at which Reseller staff or
representatives are required to perform Maintenance and Support services under
this LICENCE comply with all applicable health and safety legislation and are
safe, secure and suitably equipped for the performance of such services and you
shall indemnify Reseller against any loss, liability, expense or cost which it
incurs in relation to your breach of this undertaking.


By accepting the
Software, as evidenced by the installation and Use of it on a Computer owned,
leased or operated by



 25
 






 



you, the licensee
hereunder, you acknowledge that you have been fully appraised and made aware of
the approved uses of the Software and you further agree not to misuse the
Software or enable or encourage others to misuse the Software.


You agree that your Use,
or that of your authorised designees who Use the software at your direction,
under your supervision, or within your employ, under this LICENCE have been
made aware of the terms and provisions of this LICENCE and such Use is limited
solely to the uses for which the Software has been approved.  Furthermore you further agree that you will
not use or encourage the use of the Software for any purpose other than the
purpose for which the Software was intended (with the prior understanding of
the limitations on the uses of the Software).


You undertake to comply
with the reasonable instructions and recommendations of Reseller and/or Siemens
as to the Use of the Software Product set out in any Documentation or issued
from time to time during the course of provision of the Maintenance and Support
services and Reseller and Siemens shall not be liable for any defect or failure
of the Software Product which could have been avoided other than by your
compliance with such Documentation, instructions or recommendations.


You undertake to take
reasonable care of the Siemens Products, and specifically the Software Products
by protecting and insulating the Computer from physical damage, power surges
and cut-offs; protection of the network to which the Computer may be connected
(and while having the understanding that the Software and Software Products are
not licensed for use over a network); protection from virus transmission,
hacking, and any other harmful actions of third parties; and the maintenance of
any backups or other data protection measures specified in the documentation.


You further acknowledge
responsibility for the implementation and enforcement of any data protection,
data security and data confidentiality measures which are appropriate to your
use of the Software, and for the appropriate and correct use of any such
measures which form part of the Computer’s operating system.


You undertake that,
during any Maintenance and Support Term and for a period of one (1) year
following termination of such Maintenance and Support Term, you will not
employ, sub-contract or otherwise engage employees or contractors of, or for,
Reseller or Siemens.


7       Termination


Without prejudice to any
other rights or remedies available to it, Reseller may terminate this LICENCE
and the licence herein shall automatically terminate if you do not abide by the
terms and conditions contained herein. Upon termination, you shall immediately
cease Using and shall return to Reseller any and all copies of the Siemens
Products including any and all Software, Software Products, any and all
uninstalled Upgrade, as well as the Documentation and all of their component
parts in your possession or under your control.


Reseller may IMMEDIATELY
AND WITHOUT NOTICE terminate this LICENCE and any and all Maintenance and
Support of the Siemens Products in the event of your bankruptcy or insolvency,
in the event a receiver or administrative receiver is appointed over all or any
part of your undertaking or assets or if you have passed a resolution for
winding up (other than for the purpose of a bona fide scheme of solvent
amalgamation or reconstruction) or a court of competent jurisdiction has made
an order to that effect or you have entered into any voluntary arrangement with
your creditors or shall become subject to an administration order or shall
cease to carry on business, or any event analogous to any of the foregoing
events has occurred in any other jurisdiction.


8       Limited
warranty / limitation of remedies


Reseller warrants that it
has the right to grant the licence rights hereunder. Reseller warrants that the
Software Product, as updated and when properly Used, will perform substantially
in accordance with the functional specification for the Software Product as
contained in the applicable Documentation for the purposes intended, and the
Software media will be free from material defects in materials and workmanship,
for the Warranty Period.  Although
Reseller uses all reasonable efforts to ensure that the Software Product is
free from viruses, no warranty is given or is to be implied that the Software
or Software Products and distribution media will be free from viruses.


Any warranty claims by
you shall be made promptly in writing and shall state the nature and details of
the claim, the date the cause of the claim was first observed and the serial
number of the Software Products concerned, if any.


Reseller’s, Siemens’ and
its suppliers’ entire liability and your exclusive remedy for breach of
warranty shall be, at Reseller’s option, either (a) the correction or
workaround by Reseller of defects within a reasonable time, or (b) should such
correction or workaround prove neither satisfactory or practical, termination
of this LICENCE and refund of the price paid less a reasonable amount to
reflect any period of Use of the Software Product by you up to the date of such
termination.


This Limited Warranty is
void if failure of the Software Product has resulted from accident, abuse, or
misapplication of the Software and/or Software Product, an unapproved or
unauthorised Use of the Software or Software Products, or a modification of the
Software Product in any manner or by any person not approved in writing by
Reseller.  The remedies described in this
section shall be available in respect of any replacement Software for the
remainder of the original warranty period.


To the maximum extent
permitted by applicable law, Reseller, Siemens and its suppliers disclaim all
other warranties and conditions, either express or implied by statute or
otherwise, including, but not limited to, implied warranties of satisfactory
quality, merchantability, fitness for a particular purpose, title, and
non-infringement, with regard to the software, and the provision of or failure
to provide support services. This limited warranty gives you specific legal
rights. You may have others, which vary from state/jurisdiction to
state/jurisdiction.



 26
 






 



To the maximum extent
permitted by applicable law, in no event shall Reseller, Siemens or its
suppliers be liable for any loss of data, loss of business profits, loss of
anticipated savings, business interruption, loss of business information, or
any other pecuniary loss including without limitation loss of profits or
revenue or loss of anticipated benefits or any special, incidental, indirect,
or consequential damages whatsoever arising out of the use of or inability to
use the Software Product or the provision of or failure to provide support
services whether in contract, tort (including negligence) or otherwise, even if
Reseller or Siemens has been advised of the possibility of such damages. In any
case, Reseller’s entire liability under any provision of this LICENCE shall be
limited to the amount actually paid by you for the Software Product; provided,
however, if you have entered into a Maintenance and Support agreement, Reseller’s
entire liability regarding support services shall be governed by the terms of
that agreement. Because some states and jurisdictions do not allow the
exclusion or limitation of liability, the above limitation may not apply to
you.


Reseller does not exclude
any liability for death or personal injury caused by its negligence or for
fraudulent misrepresentation.


9       High
risk activities


The Software is not
fault-tolerant and is not designed, manufactured or intended for use or resale
in hazardous environments requiring fail-safe performance, in which the failure
of the Software could lead directly to death, personal injury, or severe
physical or environmental damage (“High Risk Activities”). Reseller, Siemens
and its suppliers specifically disclaim any and all express or implied warranty
of fitness for a particular purpose as mentioned above, including High Risk
Activities.


10    Compliance
with licences


If you are a business or
organisation, you agree that upon request from Siemens or a Siemens Products
Supplier, you will within thirty (30) days fully document and certify that use
of any and all Software at the time of the request is in conformity with your
valid licences from Reseller.


11    General
provisions


In the absence of
appropriate exemption certificate(s), you shall pay any duties, customs, sales
or use tax liabilities which may attach to this LICENCE.


This LICENCE is personal
to you and you shall not assign, sub-licence or otherwise transfer this LICENCE
or any rights or obligations under it in whole or in part.


If any part of this
LICENCE is found void and unenforceable, it will not affect the validity of the
balance of the LICENCE, which shall remain valid and enforceable according to
its terms.


This LICENCE shall not
prejudice the statutory rights of any party dealing as a consumer.


This LICENCE may only be
modified by a writing signed by an authorised officer of Reseller.


Reseller may licence
Updates to you with additional or different terms.


This is the entire
agreement between Reseller and you relating to the Siemens Products and it
supersedes any prior representations, discussions, undertakings, communications
or advertising relating to the Siemens Products.


No failure by a party in
exercising any right, power or privilege hereunder shall constitute a waiver by
such party of any such right, power or privilege, nor shall any single or
partial exercise thereof preclude any further exercise of any such right, power
or privilege.


Siemens has the right to
enforce any term of this LICENCE on behalf of itself or as if it were
Reseller.  No other person who is not a
party to this LICENCE has any right under the Contracts (Rights of Third
Parties) Act 1999 to enforce any term of this LICENCE but this does not affect
any right or remedy of a third party which exists or is available apart from
that Act.


This LICENCE is governed
by the laws of England and you submit to the non-exclusive jurisdiction of the
English courts.


12    Third
Party Licences


This application may
include components licensed under the following conditions:


The Apache Software
Licence, Version 1.1. Copyright (c) 2000 The Apache Software Foundation.  All rights reserved. Redistribution and use
in source and binary forms, with or without modification, are permitted
provided that the following conditions are met:


1.           Redistributions
of source code must retain the above copyright notice, this list of conditions
and the following disclaimer.


2.           Redistributions
in binary form must reproduce the above copyright notice, this list of
conditions and the following disclaimer in the documentation and/or other
materials provided with the distribution.


3.           The
end-user documentation included with the redistribution, if any, must include
the following acknowledgment:  “This
product includes software developed by the Apache Software Foundation
(http://www.apache.org/). Alternately, this acknowledgment may appear in the
software itself, if and wherever such third-party acknowledgments normally
appear.


4.           The
names “Apache” and “Apache Software Foundation” must not be used to endorse or
promote products derived from this software without prior written permission.
For written permission, please contact apache@apache.org.


5.           Products
derived from this software may not be called “Apache”, nor may “Apache” appear
in their name, without prior written permission of the Apache Software
Foundation.


This software is provided
“as is” and any expressed or implied warranties, including, but not limited to,
the implied warranties of merchantability and fitness for a 



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particular purpose are
disclaimed.  In no event shall the apache
software foundation or its contributors be liable for any direct, indirect,
incidental, special, exemplary, or consequential damages (including, but not
limited to, procurement of substitute goods or services; loss of use, data, or
profits; or business interruption) however caused and on any theory of
liability, whether in contract, strict liability, or tort (including negligence
or otherwise) arising in any way out of the use of this software, even if
advised of the possibility of such damage.


This software consists of
voluntary contributions made by many individuals on behalf of the Apache
Software Foundation.  For more
information on the Apache Software Foundation, please see
<http://www.apache.org/>.


Portions of this software
are based upon public domain software originally written at the National Center
for Supercomputing Applications, University of Illinois, Urbana-Champaign.


AS
WITNESS the Parties’ duly authorised representatives have
signed this LICENCE on the date given below.


	
  [FULL NAME OF RESELLER]

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
  Date:

  	
   

  
	
  [FULL
  NAME OF END USER]

  
	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
  Date:

  	
   

  



 



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Schedule
1 - Maintenance and Support


·                     Preferred
maintenance, to include priority telephone support, priority email support, and
where required on-site support and software updates.


·                     Updates
and enhancements.


·                     NB
- Upgrades must always be paid for as additional items.


·                     Electronic,
telephone or in-person response to deal with any problem or software bug in any
Software Product that is under warranty. 
Such response shall attempt (i) to identify the nature and extent of the
problem, (ii) if appropriate, to obtain a copy of magnetic media, hard copy
printout or electronic file forwarded over the Internet containing the problem
or software bug to be forwarded promptly to Reseller electronically or by
facsimile, and (iii) to advise you in the application of any recommended solution
or workaround to such problem or bug.


·                     Telephone
support during local office hours.


·                     Email
support.


 


 



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