A POINT
RELEASE OF THE OF THE RADIOLOGY PRODUCT DURING 2004.
PSP WILL ALSO MAKE EFFORTS
TO RELEASE A VERSION 2 OF THE SOFTWARE DURING CALENDAR YEAR 2004.
IF VERSION 2
IS NOT COMPLETED IN 2004, THEN PSP AND MEDQUIST WILL REVIEW AND AGREE ON THE
AMOUNT OF EXTRA COSTS TO BE INCURRED IN 2005, AND WILL AGREE ON AN ARRANGEMENT
FOR SHARING COSTS, BEFORE PSP MAKES ANY EXPENDITURES.
ALL SUMS MEDQUIST INCURS
RELATED TO SUCH ARRANGEMENT WILL BE ADDED TO THE LIQUIDATED DAMAGES CALCULATION
AS DESCRIBED IN ARTICLE 2.2.2.
7.1.7.
BASED ON REQUIREMENT NEEDS AND MARKET DEMAND FOR THE PRODUCT, PSP
AND MEDQUIST WILL WORK TOGETHER TO DETERMINE THE DEVELOPMENT PATH FOR FUTURE
VERSIONS OF THE RADIOLOGY PRODUCT IN 2005, HOWEVER, IF THE PARTIES CANNOT AGREE,
PSP WILL MAKE THE FINAL DETERMINATION, WHICH DETERMINATION WILL BE BASED ON
REASONABLE ANALYSIS OF THE NEEDS, MARKET DEMANDS, AND OTHER SUCH FACTORS.
7.1.8.
PSP WILL USE COMMERCIALLY REASONABLE EFFORTS TO RELEASE THE
SOFTWARE FOR END USERS IN THE MEDICAL FIELDS OF:
[***] PROVIDED HOWEVER, PSP
AND MEDQUIST MAY AGREE TO CHANGE THE ORDER OF THE ADDITIONAL MODALITIES SET
FORTH IN CLAUSES (I) THROUGH (III) OF THIS SECTION 7.1.6.
7.2.
IF ANY OF THE DEVELOPMENT SERVICES SET FORTH IN SECTION 7.1 OF
THIS AGREEMENT ARE DELAYED BY MORE THAN THIRTY (30) DAYS, EXCEPT WHERE MEDQUIST
REQUESTS SUCH DELAY OR SUCH DELAY IS DUE SOLELY TO MEDQUIST'S INACTION, THE
EXCLUSIVITY OF MEDQUIST'S RIGHTS IN THE TERRITORY, AS SET FORTH IN SECTION 2.2
ET SEQ. OF THIS AGREEMENT, WILL BE EXTENDED BY THE AMOUNT OF SUCH DELAY.
THE
OBLIGATIONS OF PSP DESCRIBED ABOVE ARE PSP'S ONLY OBLIGATIONS AND MEDQUIST'S
SOLE AND EXCLUSIVE REMEDY FOR ANY SUCH DELAY.
8.
LIMITED WARRANTY.
8.1.
PSP WARRANTS THAT, FOR A PERIOD OF NINETY (90) DAYS AFTER THE
DELIVERY DATE (THE "WARRANTY PERIOD"), THE SOFTWARE WILL PERFORM IN ALL MATERIAL
RESPECTS IN ACCORDANCE WITH THE DOCUMENTATION ACCOMPANYING THE SOFTWARE.
IF ANY
COPY OF THE SOFTWARE IS FOUND NOT TO PERFORM MATERIALLY IN ACCORDANCE WITH THE
DOCUMENTATION, PSP WILL CORRECT SUCH ERROR OR MALFUNCTION OR (AT PSP'S SOLE
OPTION) REPLACE SUCH SOFTWARE FREE OF CHARGE AS SOON AS IS REASONABLY
PRACTICABLE, PROVIDED THAT: (I) THE SOFTWARE HAS BEEN USED IN ACCORDANCE WITH
INSTRUCTIONS FOR USE; (II) NO ALTERATION, MODIFICATION OR ADDITION HAS BEEN MADE
TO THE SOFTWARE WITHOUT PSP'S PRIOR WRITTEN
***
Confidential material which has been omitted and filed separately with the
Securities and Exchange Commission
7
CONSENT; AND (III) PSP HAS BEEN PROMPTLY NOTIFIED OF THE ALLEGED NON-CONFORMITY
WITHIN THE WARRANTY PERIOD SPECIFIED.
8.2.
MEDQUIST WILL SEND EACH CLAIM OF MEDQUIST UNDER THIS WARRANTY TO
PSP IN ACCORDANCE WITH THE NOTICE PROVISIONS OF THIS AGREEMENT.
EACH SUCH CLAIM
WILL STATE GENERALLY THE NATURE OF THE ALLEGED NON-CONFORMITY.
IF PSP
DETERMINES IN ITS SOLE DISCRETION TO REPAIR THE SOFTWARE (OR SUCH PORTION OF IT
AS IS GIVING RISE TO THE NON-CONFORMITY), MEDQUIST WILL AFFORD PSP A REASONABLE
TIME IN WHICH TO DO SO.
ANY SOFTWARE SO REPAIRED OR