Exhibit 10.33
DEVELOPMENT, SUPPLY, MARKETING AND DISTRIBUTION AGREEMENT
THIS PRODUCT DEVELOPMENT, SUPPLY, MARKETING AND DISTRIBUTION AGREEMENT (this
"Agreement") is made and entered into as of October 24, 2001, by and between
E-Z-EM, INC., a Delaware corporation ("EZEM") and Vital Images, Inc., a
Minnesota corporation ("VTAL").
RECITALS:
WHEREAS, VTAL is engaged in the development and manufacture of 2D and 3D
visualization and analysis software products for medical imaging;
WHEREAS, VTAL and EZEM desire VTAL to develop a particular visualization and
analysis software product and grant to EZEM an exclusive, worldwide right to
market such software product, all in accordance herewith.
AGREEMENT:
NOW, THEREFORE, EZEM and VTAL agree as follows:
1.
DEFINITIONS:
As used in this Agreement, the following terms shall have the meanings indicated
(whether used in the singular or plural form), unless otherwise expressly
provided:
1.1.
"PERSON" SHALL MEAN AN INDIVIDUAL, A CORPORATION, A PARTNERSHIP,
AN ASSOCIATION, A JOINT VENTURE, LIMITED LIABILITY COMPANY, GOVERNMENT (OR ANY
AGENCY OR POLITICAL SUBDIVISION THEREOF), AN UNINCORPORATED ORGANIZATION, A
TRUST OR OTHER ENTITY, INCLUDING, WITHOUT LIMITATION, AN EMPLOYEE PENSION,
PROFIT SHARING OR OTHER BENEFIT PLAN OR TRUST.
1.2.
"VITREA 2 SOFTWARE" MEANS THE CURRENT VITREA® 2 SOFTWARE PRODUCT
OF VTAL AND ANY NEW VERSIONS THEREOF MADE COMMERCIALLY AVAILABLE BY VTAL (IT
BEING UNDERSTOOD THAT VTAL RESERVES THE RIGHT TO DESIGNATE WHETHER A SOFTWARE
PRODUCT CONSTITUTES A NEW VERSION OF THE VITREA 2 SOFTWARE PRODUCT OR A NEW
PRODUCT).
1.3.
"SPECIFICATION" SHALL MEAN THE SPECIFICATION FOR THE VIRTUAL
COLONOSCOPY VISUALIZATION AND ANALYSIS SOFTWARE MODULES OF THE APPLIANCE AND THE
OPTION, TOGETHER WITH THE AGREED DEVELOPMENT ACTIVITIES AND TIMELINES FOR
DEVELOPMENT AND RELEASE, AS SET FORTH IN EXHIBIT 1.3 HEREOF; PROVIDED THAT SUCH
SPECIFICATION IS INTENDED ONLY AS A GENERAL DESCRIPTION OF THE PARTIES'
EXPECTATIONS WITH RESPECT TO THE SPECIFICATION, GOALS AND TIMELINES WITH RESPECT
TO THE PRODUCTS AND SHALL BE INITIALLY ESTABLISHED BY VTAL, AND SHALL THEREAFTER
BE SUBJECT TO MODIFICATION IN ACCORDANCE WITH SECTION 2.4.
1.4.
"OPTION"MEANS A VIRTUAL COLONOSCOPY VISUALIZATION AND ANALYSIS
SOFTWARE PRODUCT CONSISTENT WITH THE SPECIFICATION, WHICH IS DESIGNED TO BE
LICENSED AS AN OPTION FOR USE IN CONJUNCTION WITH VITREA 2 SOFTWARE, OR IF VTAL
SO ELECTS INCORPORATED INTO THE VITREA 2 SOFTWARE AS A STANDARD FEATURE.
1.5.
"APPLIANCE" MEANS A VIRTUAL COLONOSCOPY VISUALIZATION AND ANALYSIS
SOFTWARE PRODUCT SUBSTANTIALLY CONSISTENT WITH THE SPECIFICATION WHICH (I) IS
DESIGNED TO BE LICENSED AND FUNCTION ON A STANDALONE BASIS, THAT IS, WITHOUT
NEED FOR A SEPARATE LICENSE FOR VITREA 2 SOFTWARE AND (II) THE PRINCIPAL
FUNCTIONALITY OF WHICH IS LIMITED TO CT VIRTUAL COLONOSCOPY.
1.6.
"APPLIANCE PLATFORM" SHALL MEAN THE HARDWARE AND SOFTWARE
ENVIRONMENT IN WHICH THE APPLIANCE WILL BE DESIGNED TO OPERATE, WHICH
ENVIRONMENT IS CURRENTLY EXPECTED TO BE COMPRISED OF THE HARDWARE AND SOFTWARE
IDENTIFIED IN EXHIBIT 1.6 HEREOF.
1.7.
"APPLIANCE SYSTEM" SHALL MEAN AN INTEGRATED SYSTEM COMPRISED OF
THE APPLIANCE AND THE APPLIANCE PLATFORM.
1.8.
"PRODUCTS"MEANS THE APPLIANCE AND THE OPTION.
1.9.
"AFFILIATE" MEANS, WITH RESPECT TO A DESIGNATED PERSON, ANY ENTITY
CONTROLLED BY, IN CONTROL OF, OR UNDER COMMON