Agreement Number:
[STENTOR LOGO] (Stentor will complete)
MASTER AGREEMENT
This Stentor Master Agreement ("Master Agreement") is between the Stentor entity
as identified below ("Stentor") and the customer as identified below
("Customer").
The Effective Date of this Master Agreement will be January 1, 2005. Each party
agrees to notify the other in accordance with Section 10.8 if the information
below changes during the Term.
Customer: UNIVERSITY OF PITTSBURGH MEDICAL CENTER Name of contracting Stentor Affiliate: STENTOR, INC.
Street Address: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ and State / Province: PITTSBURGH, PA City and State / Province: BRISBANE, CA
Country and Postal Code: USA 15213 Country and Postal Code: USA ▇▇▇▇▇-▇▇▇▇
Contact Name: Stentor Customer Advocate Name and Email Address:
Phone Number: Phone Number: ▇▇▇-▇▇▇-▇▇▇▇
Fax Number: Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
Email Address: Email Address:
For the Attention of:
Accounts Payable Contact Name, Phone Number and
Email Address:
CUSTOMER NOTICES INFORMATION (IF DIFFERENT FROM ALL NOTICES MUST ALSO BE SENT TO:
ABOVE):
Customer Name, Street Address and/or post office Stentor, Inc., Legal Department
box, City and State / Province, Country and Postal ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Code: ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax Number: Fax Number: ▇▇▇-▇▇▇-▇▇▇▇
For the Attention of: For the Attention of: Corporate Counsel
CUSTOMER STENTOR, INC.
By (sign): [Signature by Authorized By (sign): [Signature by Authorized
Agent] Agent]
Name (print):__________________________ Name (print):______________________
Title:_________________________________ Title:_____________________________
Stentor Master Agreement v1.0 9.20.2004 Page 1 of 29
MASTER AGREEMENT
RECITALS
A. Stentor develops and markets software and services to
automate the viewing and/or archiving of medical images.
B. Customer and Stentor entered into a Service Provider
Agreement dated February 1, 2002 (the "SPA") pursuant to which Customer and
various Customer affiliates have obtained medical image archiving and viewing
services from Stentor.
C. The parties wish to enter into a new master agreement,
effective January 1, 2005, that will supersede and replace the SPA in its
entirety thereby terminating the SPA in its entirety and provide Customer and
its affiliates access to Stentor's software and services to automate the viewing
and/or archiving of medical images [**].
In consideration of the mutual representations, warranties,
covenants, conditions and other terms set forth below, the parties agree as
follows:
TERMS AND CONDITIONS
1 PRODUCTS AND SERVICES
1.1 System. Stentor will provide Customer with the additional Stentor
Software and Server Hardware set forth on Rider PS-1 in addition to the Stentor
Software and Hardware currently provided to Customer under the terms of the SPA
(together, the "System").
1.2 Fees. Applicable fees are set forth on Rider PS-1 and any subsequent
Rider(s) PS-n.
1.3 License Terms. Applicable System license terms are set forth on Rider
IFS-1 and any subsequent Rider(s) IFS-n.
1.4 Implementation. Stentor and Customer will implement the System in
accordance with the provisions set forth on Rider IFS-1 and any additional
Riders IFS-n.
1.5 System Hardware. Minimum hardware requirements as of the Effective
Date are set forth on Rider IFS-1, and may be updated in subsequent Rider(s)
IFS-n.
1.6 Service Level. Stentor shall provide Customer with a service level
commitment as set forth on ▇▇▇▇▇ ▇▇.
2 CUSTOMER REQUIREMENTS
2.1 Operating Environment. Customer agrees to provide a suitable location
to install the System that meets the minimum operating environment as set forth
on Rider IFS-1 or any subsequent Riders IFS-n.
2.2 Access to System. Customer agrees to provide Stentor with access to
the System as set forth on Rider IFS-1 and any subsequent Riders IFS-n.
2.3 Export Restrictions. The System is of U.S. origin for purposes of U.S.
export control laws. Customer agrees to comply with all applicable international
and national laws that apply to the System, including the U.S. Export
Administration Regulations, as well as end-user, end-use and destination
restrictions issued by U.S. and other governments.
2.4 Customer Facilities. For the purposes of this Master Agreement, a
Customer "Facility" is defined as: [**]
3 COMPLIANCE WITH LAWS
3.1 FDA. The System is subject to regulation by the U.S. Food and Drug
Administration ("FDA"). The parties agree to cooperate fully to meet and FDA
regulatory compliance obligations at Stentor's expense. Pursuant to the Safe
Medical Devices Act (SMDA) of 1990, if Customer has information that reasonably
suggests that the
Stentor Master Agreement v1.0 9.20.2004 Page 2 of 29
System has or may have caused a death or serious injury, Customer shall submit a
report to Stentor on FDA Form 3500A
(▇▇▇▇://▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇/▇▇▇▇▇▇/▇▇▇▇▇.▇▇▇) within ten (10) working days.
3.2 HIPAA. Stentor is Customer's "Business Associate" as such term is
defined by the Health Insurance Portability and Accountability Act of 1996
("HIPAA"). The parties agree to the HIPAA Business Associate terms set forth at
▇▇▇▇://▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇, provided that Customer agrees that any provisions in
such terms that make Customer's patients and other individuals subject to PHI
(protected health information) third-party beneficiaries of the terms shall be
deemed of no force and effect, and deleted, with respect to Stentor.
3.3 Regulatory Compliance. Stentor shall take such actions as are
necessary to comply with federal, state or local statutes, or regulations
promulgated by regulatory and accreditation agencies (including JCAHO), and any
current requirements or future changes after the date of any legal or regulatory
change, including without limitation, all HIPAA regulations and requirements.
[**] Such actions will be completed within [**]. [**]. [**]. Customer, at
Customer's expense, shall be permitted to [**] notice to Stentor, and no more
frequently than [**] every [**], to ensure that the Customer information stored
by Stentor, or its contractors is secured consistent with regulatory
requirements and that appropriate controls have been established by Stentor so
that data management and use is consistent with the terms of this Agreement.
Based on such audits Customer may request Stentor to [**] to comply with any of
Customer's requested changes.
4 TERM AND TERMINATION
4.1 Term. Unless earlier terminated pursuant to the provisions of Rider
PS-1, the initial term of this Master Agreement shall commence upon the
Effective Date and end on [**] (the "Term"). The Term may be extended as set
forth in Rider PS-1.
4.2 Termination. The parties may terminate this Master Agreement as set
forth on Rider PS-1 or any subsequent Rider PS-n.
5 LIMITED WARRANTIES AND EXCLUSION OF WARRANTIES
5.1 Viruses and Time Bombs. The term "Virus" means any computer code
intentionally designed to (a) disrupt, disable, harm, or otherwise impede in any
manner the proper operation of a computer program or computer system, (b) damage
or destroy any data files residing on a computer system without the user's
consent, or (c) permit Stentor personnel or other individuals to access any
portion of the System without Customer's consent. Stentor warrants that it will
use a commercially-available, industry-standard anti-virus screening program to
screen the Stentor Software and/or the media containing the Stentor Software if
applicable before delivery of the Stentor Software to Customer and regularly
during operation and maintenance of the System. Stentor further warrants that it
shall not intentionally introduce Viruses into Customer's network or computing
environment. Customer acknowledges that not all Viruses can be detected by such
programs and, therefore, Stentor does not represent or warrant that such media
and/or the Stentor Software will be free of Viruses. Stentor's sole obligation
if Customer's screening procedures detect a Virus on or in such media or the
Stentor Software, or if Customer is otherwise able to demonstrate that Stentor
Software as supplied by Stentor is the source of a Virus introduced into
Customer's computing environment, will be to remove such Virus and repair damage
caused thereby. Stentor warrants that it will not knowingly include in the
Stentor Software any time bombs, trap doors, usage locks or other mechanisms
limiting access to, use of, or the security of, the Stentor Software.
5.2 Ownership; Non-Infringement. Stentor is the sole and exclusive owner
of and/or has all rights necessary to all intellectual property rights in and to
the System and the Stentor services developed by or on behalf of Stentor;
Stentor has all legal right and authority to grant and convey to Customer the
rights and licenses contained in this Agreement without violation of any
contract or conflict with any law; there is no action, suit, claim, arbitration,
or other proceeding pending or threatened that questions this Agreement or
Stentor's ownership of the System or any intellectual property rights therein;
and the System and Stentor services do not infringe upon any proprietary right
or intellectual property right of any third party. Customer's exclusive remedy,
and Stentor's exclusive liability, for breach of this Section 5.2 shall be the
obligations specified in Section 6.1 below.
5.3 No Self-Help Remedy. Under no circumstances will Stentor disrupt the
functioning of, or prevent Customer from gaining access to, the System or any
component of any of the System.
5.4 Exclusion of Warranties. THE WARRANTIES SET FORTH IN SECTION 5 AND IN
SECTION 3.3(A) AND SECTION 6 OF ▇▇▇▇▇ ▇▇ ARE CUSTOMER'S EXCLUSIVE WARRANTIES AND
ARE PROVIDED INSTEAD OF ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, OR ANY OTHER WARRANTY, STATUTORY, EXPRESS OR IMPLIED. THERE
IS NO WARRANTY THAT THE
Stentor Master Agreement v1.0 9.20.2004 Page 3 of 29
STENTOR SOFTWARE IS FREE FROM PROGRAMMING ERRORS. Customer acknowledges that the
price of the System reflects this negotiated limited warranty.
5.5 Disclaimer of Oral Warranties. No employee or other representative of
Stentor has any authority to make any other promise regarding Stentor's
obligations for a failure of the System to conform to specifications or
expectations.
5.6 No Warranty Provided by Stentor for Third-Party Products. "Third-Party
Products" are products that Stentor provides to Customer that are not
manufactured by Stentor. Stentor acts as a distributor/reseller of Third Party
Products. Stentor agrees to transfer, assign or "pass through" to Customer any
transferable warranty made to Stentor by suppliers to the extent transferable
and permitted by law. Except as indicated otherwise in a Third Party Product
exhibit, Customer agrees to look solely to the supplier of Third Party Products
for all claims arising from breach of the supplier's warranty for Third Party
Products; provided, however, that to the extent Stentor cannot "pass through" or
assign any third party warranty, Customer may enforce these warranties directly
against Stentor and Stentor may seek recourse against the applicable supplier.
Stentor makes no representation, covenant or warranty with respect to the extent
or enforceability of a supplier's warranty. Notwithstanding anything to the
contrary herein, Stentor shall be solely responsible for correcting any problems
or unavailability of the System and the Stentor services, regardless of whether
such problems or unavailability are attributable to Third Party Products
supplied or utilized by Stentor.
6 INDEMNIFICATION
6.1 Intellectual Property. Stentor shall, [**] Customer and its Affiliates
harmless against [**] resulting from any third-party claim against Customer: (X)
alleging that the Stentor Software infringes any [**]; provided that, (a)
Customer promptly notifies Stentor in writing of such claim, (b) Stentor has
sole control of the defense and all related settlement negotiations of such
claim, and (c) Customer gives Stentor prompt reasonable assistance at Stentor's
expense to assist in the defense or settlement of such claim, or [**]. If there
is a claim or Stentor reasonably believes a claim is possible hereunder under
clause (X) above, Stentor may either (i) procure for Customer the right to
continue using the Stentor Software or (ii) modify or replace the Stentor
Software so that it no longer creates liability under any such claim, but only
if doing so shall not result in a material adverse change in the material
operational characteristics of the Stentor Software. If the alternatives in the
immediately preceding sentence are not commercially feasible, Stentor may
terminate this Master Agreement or applicable licenses; provided that Stentor
shall be obligated to continue to provide Customer with access to, and use of,
the System for purposes of accessing prior Studies and migrating the existing
Studies to a different system, and [**]. Stentor will have no liability to the
extent a claim of infringement is made against Customer arising out of (A) work
performed by Stentor to specifications provided by Customer, (B) modifications
made to the Stentor Software that were not performed by Stentor, or (C) the
combination of the Stentor Software with other software or hardware not provided
by Stentor. In the event that Customer continues to utilize an infringing
version of the System after Stentor has provided written notice of infringement,
Stentor shall not be liable for any infringement arising after Stentor has: (1)
provided a non-infringing version with no material change in functionality, (2)
provided Customer with a reasonable opportunity to test such version and to
verify its functionality, and (3) [**]. The foregoing indemnity is Customer's
sole and exclusive remedy for any claim that the Stentor Software or its use
infringes or misappropriates any third party intellectual property right or for
any breach of the representations and warranties in Section 5.2.
6.2 By Customer. Customer shall indemnify and hold Stentor, its officers,
agents, and employees harmless, from and against all liability, loss, cost,
damages, claims or expenses (including reasonable attorneys fees) arising out of
any claims or suits, whatever their nature and however arising, that may be
brought or made against Stentor by reason or arising from data corrupted prior
to receipt by the System or Customer's use of the System outside of the scope of
the license granted under this Agreement, provided that, (A) Stentor promptly
notifies Customer in writing of such claim, (B) Customer has sole control of the
defense and all related settlement negotiations of such claim, and (C) Stentor
gives Customer prompt reasonable assistance at Customer's expense to assist in
the defense or settlement of such claim.
7 LIMITATION OF LIABILITY
7.1 Disclaimer of Consequential Damages. [**] TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, [**] SHALL BE LIABLE TO [**] FOR ANY LOST PROFITS,
LOSS OF BUSINESS OR FOR INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE
OR SPECIAL DAMAGES, WHETHER BASED UPON A CLAIM OR ACTION OF TORT, CONTRACT,
WARRANTY, NEGLIGENCE, STRICT LIABILITY, BREACH OF STATUTORY DUTY, OR ANY OTHER
LEGAL THEORY OR CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES. Customer acknowledges that the price of the System reflects this
negotiated disclaimer of consequential damages.
Stentor Master Agreement v1.0 9.20.2004 Page 4 of 29
7.2 Maximum Damages. [**] IN NO EVENT WILL [**] TOTAL LIABILITY FOR ANY
AND ALL CLAIMS ARISING FROM OR RELATED TO THIS MASTER AGREEMENT EXCEED [**]
($[**]). THIS LIMIT IS CUMULATIVE. ALL CLAIMS WILL BE AGGREGATED TO DETERMINE
SATISFACTION OF THIS LIMIT, AND THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT
ENLARGE THIS LIMIT. Customer acknowledges that the price of the System reflects
this negotiated limitation of liability.
7.3 Limitation of Liability of Third Party Products Vendors. EXCEPT AS
SPECIFICALLY SET FORTH IN ANY THIRD PARTY PRODUCT EXHIBIT, IN NO EVENT SHALL
STENTOR'S THIRD PARTY PRODUCTS SUPPLIERS AND LICENSORS BE LIABLE FOR ANY DAMAGES
OF ANY KIND OR NATURE, INCLUDING DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
PUNITIVE, EXEMPLARY OR CONSEQUENTIAL, ARISING OUT OF THE USE OF THE SYSTEM OR
ANY THIRD PARTY PRODUCTS SUPPLIED BY STENTOR, ITS SUPPLIERS OR LICENSORS.
Notwithstanding anything to the contrary herein, this Section 7.3 shall not
relieve Stentor of any liability with respect to performance of the System or
its obligations hereunder, regardless of whether caused by a third party or
Third Party Product, and Stentor shall be solely liable for all Third Party
Products.
7.4 Exclusions. The limitation of liability and disclaimer of damages in
Section [**] shall not apply to: (i) obligations under [**], (ii) obligations
under [**], (iii) [**], (iv) [**]; and (v) [**]. Stentor's liability with
respect to ANY AND ALL CLAIMS ARISING FROM OR RELATED TO ITS OBLIGATIONS UNDER
[**], AND CUSTOMER'S LIABILITY WITH RESPECT TO ANY AND ALL CLAIMS ARISING FROM
OR RELATED TO ITS OBLIGATIONS UNDER [**], SHALL NOT EXCEED THE HIGHER OF [**]
($[**]) OR THE [**] BY CUSTOMER TO STENTOR PURSUANT TO THIS AGREEMENT AS OF THE
DATE THE FIRST SUCH CLAIM ARISES. THIS LIMIT IS CUMULATIVE. ALL CLAIMS WILL BE
AGGREGATED TO DETERMINE SATISFACTION OF THIS LIMIT, AND THE EXISTENCE OF MORE
THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
8 CONFIDENTIALITY
8.1 Confidential Information. Each party will protect the Confidential
Information of the other party from disclosure with the same degree of care that
such party uses to protect its own like information, but at least a reasonable
degree of care, provided that a party may disclose Confidential Information to a
third party in connection with performance of its obligations or exercise of its
rights hereunder, if such third party is required to treat the Confidential
Information in the same manner as the comparable information of the party
disclosing such Confidential Information to such third party. "Confidential
Information" of a party means information and material disclosed by one party
("disclosing party") to the other party ("recipient") (a) in written, graphic,
electronic or any other tangible form that is marked in writing as confidential
or proprietary, or (b) in oral or other intangible form that is (i) identified
as confidential at the time of the initial disclosure in oral or other
intangible form and (ii) documented in a writing that is so marked and
transmitted to the recipient within thirty (30) days after such initial
disclosure. Customer's "Confidential Information" includes all Studies and data
entered into the System by Customer and its Authorized Users (as defined below).
Stentor's "Confidential Information" includes all Stentor Source Code and Source
Code Documentation. Notwithstanding the foregoing, "Confidential Information"
does not include any information or material which (A) now is or hereafter
becomes available to the public other than as the result of a disclosure by the
recipient in breach hereof, (B) is developed by the recipient independently of
any Confidential Information provided hereunder by the disclosing party, (C) was
known by the recipient prior to any disclosure of the information or material
made by the other party to the recipient, (D) is disclosed with the written
consent of the disclosing party, or (E) becomes rightfully known to the
recipient from a source, other than the disclosing other party, that does not
owe a duty of confidentiality to the disclosing party with respect to such
information or material. In addition, the recipient will have the right to
disclose Confidential Information (1) to the extent required by order of a
court, administrative agency or governmental body, or by any law, rule or
regulation, or by subpoena, or any other administrative or legal process,
provided that the recipient shall give the disclosing party, to the extent
reasonable, prompt notice of the pending disclosure so that the other party may
seek a protective order or other appropriate protection; (2) in confidence, to
lawyers and accountants and to banks, underwriters and other financing sources
(and their advisors); and (3) in connection with the enforcement of this Master
Agreement or any rights hereunder.
8.2 Confidentiality of Master Agreement. Customer may not disclose to any
third party a copy of this Master Agreement or the terms and conditions hereof,
except (a) to the extent required by order of a court, administrative agency or
governmental body, or by any law, rule or regulation, or by subpoena, or any
other administrative or legal process, provided that Customer will give Stentor,
to the extent reasonable, prompt notice of the pending disclosure so that
Stentor may seek a protective order or other appropriate protection (including,
without limitation of the generality of the foregoing, to the extent required by
the applicable securities laws, including requirements to file a copy of this
Master Agreement (redacted to the extent reasonably permitted by applicable law)
or to disclose information regarding the provisions hereof to applicable
regulatory authorities); (b) in confidence, to lawyers and accountants and to
banks, underwriters and other financing sources (and their advisors); or (c) in
connection with the enforcement of this Master Agreement or any rights
hereunder.
Stentor Master Agreement v1.0 9.20.2004 Page 5 of 29
8.3 Protected Health Information. Protection and disclosure of protected
health information (as defined by HIPAA) is governed by the HIPAA Business
Associate terms set forth at ▇▇▇▇://▇▇▇▇▇▇▇▇▇▇.▇▇▇▇.▇▇▇.
8.4 Injunctive Relief. Each party acknowledges that any breach of the
obligations specified in this Section 8 (including, without limitation, the
obligations specified in Sections 3.2 and 8.3) without the other party's prior
written consent would cause continuing, substantial and irreparable injury to
the other party and that remedies at law for such disclosure will not be
adequate. Accordingly, each party agrees that the other party shall be entitled
to immediate injunctive relief against the breach or threatened breach of this
Section 8, and that such rights shall be in addition to, and not in limitation
of, any other rights or remedies to which the party may be entitled at law or
equity.
8.5 Data Ownership. Customer and its Affiliates shall be and remain the
sole and exclusive owners of any and all data entered into the System by
Customer, its Affiliates and Authorized Users, including but not limited to all
Studies and Protected Health Information ("Data"). Neither Stentor nor any of
its employees, agents, consultants or assigns shall have any rights in any of
the Data or to use any of the Data in any form except as necessary to fulfill
Stentor's obligations under this Agreement. Notwithstanding anything to the
contrary herein, Stentor may perform statistical and other sorts of analysis of
other data generated by the System, such as usage data, billing data and other
System data that does not incorporate the Data. Stentor may use the results of
such analysis for the purpose of developing product features and functionality
and assessing System performance, provided that Stentor may not disclose such
results to a third party in any manner that would identify Customer, its
Affiliates, Authorized Users or patients.
9 FORCE MAJEURE
9.1 Definition. Force Majeure Event means any act or event, whether
foreseen or unforeseen, that meets all three of the following tests: (a) The act
or event prevents a party (the "Nonperforming Party"), in whole or in part, from
(A) performing its obligations to the other party (the "Performing Party") under
this Master Agreement, or (B) satisfying any conditions to the Performing
Party's obligations under this Master Agreement; (b) The act or event is beyond
the reasonable control of and not the fault of the Nonperforming Party; (c) The
Nonperforming Party has been unable to avoid or overcome the act or event by the
exercise of due diligence. Despite the preceding definition of a Force Majeure
Event, a Force Majeure Event excludes economic hardship, changes in market
conditions or insufficiency of funds.
9.2 Suspension of Performance. If a Force Majeure Event occurs, the
Nonperforming Party is excused from (a) whatever performance is prevented by the
Force Majeure Event to the extent prevented until such time the Force Majeure
Event is eliminated; and (b) satisfying whatever conditions precedent to the
Performing Party's obligations that cannot be satisfied, to the extent they
cannot be satisfied. Despite the preceding sentence, a Force Majeure Event does
not excuse any obligation of either the Performing Party or the Nonperforming
Party to make any payment required under this Master Agreement or any obligation
under ▇▇▇▇▇ ▇▇ to perform disaster recovery and restore data existing prior to
the Force Majeure Event.
9.3 Resumption of Performance. When the Nonperforming Party is able to (a)
resume performance of its obligations under this Master Agreement, or (b)
satisfy the conditions precedent to the Performing Party's obligations, it shall
immediately give the Performing Party written notice to that effect and shall
resume performance under this Master Agreement no later than five working days
after the notice is delivered.
9.4 Exclusive Remedy. In the event that the Nonperforming Party is not
able to restore performance within [**] ([**]) days of the force Majeure Event,
the Performing Party may terminate this Agreement upon written notice to the
Nonperforming Party. The relief offered by this Force Majeure provision is the
exclusive remedy available to the parties with respect to a Force Majeure Event.
10 GENERAL PROVISIONS
10.1 Choice of Law. The laws of the Commonwealth of Pennsylvania (without
giving effect to its conflicts of law principles that would result in the
application of the law of another jurisdiction) govern all matters arising out
of or relating to this Master Agreement, including, without limitation, its
interpretation, construction, performance, and enforcement.
10.2 Dispute Resolution. For any dispute arising under or in connection
with this Master Agreement, the agree to seek to resolve the dispute, subject to
each party's right to immediately seek injunctive or other equitable relief from
a court of competent jurisdiction to protect its Confidential Information,
Protected Health Information and intellectual property rights, by engaging in
good faith negotiations between progressively more senior representatives of
each party as follows:
Stentor Master Agreement v1.0 9.20.2004 Page 6 of 29
LEVEL NEGOTIATING PARTIES MAXIMUM DURATION PRIOR TO ESCALATION
----- ---------------------------------------------------- ------------------------------------
1 Customer Project Manager and Stentor Account Manager 15 days
2 Customer CIO and Stentor SVP of Customer Operations 15 days
3 Customer's and Stentor's legal counsel 15 days
If the dispute is unresolved after Level 3 negotiations, the dispute shall be
resolved by final and binding arbitration before a single arbitrator
("Arbitrator") selected from and administered by the American Arbitration
Society ("AAA") (the "Administrator") in accordance with its then existing
Commercial Arbitration Rules, provided however, upon the written demand of
either party to the arbitration, the arbitration shall be conducted by and
submitted to three Arbitrators selected from and administered by the AAA
Commercial Arbitration Rules, and further subject to each party's right to
immediately seek injunctive or other equitable relief from a court of competent
jurisdiction to protect its Confidential Information and intellectual property
rights. The arbitration hearing shall be held in Pittsburgh, Pennsylvania. The
Arbitrator shall be authorized to award compensatory damages, but shall not be
authorized (i) to award non-economic damages, such as for emotional distress,
pain and suffering, or loss of consortium, (ii) to award punitive damages, or
(iii) to reform, modify or materially change this Agreement or any other
agreements contemplated hereunder; however, the damage limitations described in
parts (i) and (ii) of this sentence will not apply if such damages are
statutorily imposed. The Arbitrator also shall be authorized to grant any
temporary, preliminary or permanent equitable remedy or relief he or she deems
just and equitable and within the scope of this Agreement, including, without
limitation, an injunction or order for specific performance. Each party shall
bear its own attorney's fees, costs, and disbursements arising out of the
arbitration, and shall pay an equal share of the fees and costs of the
Administrator and the Arbitrator; however, the Arbitrator shall be authorized to
determine whether a party is the prevailing party, and if so, to award to that
prevailing party reimbursement for its reasonable attorneys' fees, costs and
disbursements (including, for example, expert witness fees and expenses,
photocopy charges, travel expenses, etc.), and/or the fees and costs of the
Administrator and the Arbitrator. The Arbitrator shall, within fifteen (15)
calendar days after the conclusion of the arbitration hearing, issue a written
award and statement of decision describing the material factual findings and
conclusions on which the award is based, including the calculation of any
damages awarded. Absent the filing of an application to correct or vacate the
arbitration award pursuant to the provisions of Pennsylvania law, each party
shall fully perform and satisfy the arbitration award within 15 days of the
service of the award. Judgment on the award of the arbitrator may be entered by
any court of competent jurisdiction.
10.3 Amendments and Waivers. The parties may not amend or waive this
Master Agreement, except pursuant to a writing executed by the party or parties
against whom any amendment or waiver is sought to be enforced. A waiver made in
writing on one occasion is effective only in that instance and only for the
purpose that it is given and is not to be construed as a waiver on any future
occasion or against any other person.
10.4 Assignment. No party may assign any of its rights or delegate any
performance under this Master Agreement without the prior written consent of the
other party, not to be unreasonably withheld, except by way of merger,
consolidation, dissolution, operation of law, sale of all or substantially all
assets, or assignment to an Affiliate. Any purported assignment of rights or
delegation of performance in violation of this section is void. For the purposes
of this Agreement, an "Affiliate" means a legal entity that (a) Controls the
assigning party or (b) is Controlled by the assigning party, or (c) is under
common Control with the assigning party, and "Control" means control of more
than 50% of the voting stock or other securities or interests that confer the
right to direct the affairs of the entity.
10.5 Successors and Assigns. This Master Agreement binds and benefits the
parties and their respective permitted successors and assigns.
10.6 Integration. This Master Agreement constitutes the final agreement
between the parties. It is the complete and exclusive expression of the parties'
agreement on the matters contained in this Master Agreement. All prior and
contemporaneous proposals, sales quotes, negotiations, documents and agreements
(whether or not signed) between the parties on the matters contained in this
Master Agreement are expressly merged into and superceded by this Master
Agreement, including the Service Provider Agreement dated June 30, 2004 ("SPA")
between Stentor and UPMC-Northwest (the "Northwest SPA") and the SPA which are
terminated without cause or obligation by either Party as of the Effective Date
of this Agreement. Notwithstanding anything to the contrary in the SPA and the
Northwest SPA regarding the survival of any of the SPA's or the Northwest SPA's
terms and conditions, all of the provision of the SPA and Northwest SPA are
terminated and of no further force and effect as of the Effective Date. The
provisions of this Master Agreement may not be explained, supplemented, or
qualified through evidence of trade usage or a prior course of dealings. In
entering into this Master Agreement, neither party has relied upon any
statement, representation, warranty, nor agreement of the other party except for
those expressly contained in this Master Agreement. There are no conditions
precedent to the effectiveness of this Master Agreement other than those
expressly stated in this Master Agreement. Any additional or different terms on
or in any Customer purchase order, acknowledgement or other document submitted
to Stentor shall be of no force or effect.
Stentor Master Agreement v1.0 9.20.2004 Page 7 of 29
10.7 Release of Claims. Each party hereby forever generally and completely
releases and discharges the other party and its servants, agents, directors,
officers, employees, predecessors, successors in interest, and assigns, of and
from any and all claims and demands of every kind and nature, in law, equity or
otherwise, known and unknown, suspected and unsuspected, disclosed and
undisclosed, and in particular of and from all claims and demands of every kind
and nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, for damages actual and consequential, past, present and future,
arising out of or in any way related to: [**], including, without limitation,
claims related to: (i) [**], and (ii) any [**] related to [**] under the [**].
It is understood and agreed that this is a full, complete and final general
release of any and all claims described as aforesaid, and each Party agrees that
it shall apply to all unknown, unanticipated, unsuspected and undisclosed
claims, demands, liabilities, actions or causes of action, in law, equity or
otherwise, as well as those which are now known, anticipated, suspected or
disclosed. This release is not intended to affect either Party's rights or
obligations under the provisions in this Master Agreement.
10.8 Notices. Any party giving or making any notice, request, demand, term
extension or other communication (each, a "Notice") pursuant to this Master
Agreement shall give the Notice in writing and use one of the following methods
of delivery, each of which for purposes of this Master Agreement is a writing:
personal delivery, Registered or Certified Mail (in each case, return receipt
requested and postage prepaid), or nationally recognized overnight courier (with
all fees prepaid), with such notice being effective upon receipt.
Each party giving a Notice shall address the Notice to the appropriate
person at the receiving party at the address listed on the cover page of this
Master Agreement.
Except as provided elsewhere in this Master Agreement, a Notice is
effective only if the party giving the Notice has complied with this Section
10.8 and if the addressee has received the Notice.
10.9 Survival. The following Sections of the Master Agreement shall
survive expiration or termination of the Master Agreement: 5.2, 5.4, 5.5, 5.6,
6, 7, 8 and 10.
10.10 Third Party Beneficiaries. This Master Agreement does not confer any
enforceable rights or remedies upon any person other than the parties, except
that third party software vendors may enforce this Master Agreement as it
applies to their products distributed in connection with this Master Agreement.
The parties reserve the power to modify or terminate this Master Agreement
without the consent of any third party software vendor.
10.11 Relationship of Parties. This Master Agreement does not create a
partnership or joint venture relationship between Customer and Stentor. The
parties are independent contractors with entirely separate businesses. Neither
Customer nor Stentor have any right or authority to assume, create or incur any
liability or any obligation of any kind or character, express or implied,
against or on behalf of the other party to this Master Agreement. Neither party
is responsible for any employee compensation, worker's compensation, benefits,
taxes or other employee-related costs or obligations incurred on behalf of or
with respect to the other party's employee.
10.12 Severability. If any provision of this Master Agreement is
determined to be invalid, illegal or unenforceable, the remaining provisions of
this Master Agreement remain in full force, if the essential terms and
conditions of this Master Agreement for each party remain valid, binding and
enforceable.
10.13 Captions. The captions to this Master Agreement are for reference
only and in no way define, limit or describe the scope or intent of this Master
Agreement or any part hereof, nor in any way affect this Master Agreement or any
part hereof.
10.14 Allocation of Risk. The parties agree that they have had they
opportunity to consult counsel and to negotiate the terms and conditions of this
Master Agreement. The prices paid, the warranty and warranty disclaimers and
limitations, as well as the limitations of liability and the remedy limitations,
and all other provisions of this Master Agreement, were negotiated to reflect
and support an informed and voluntary allocation of risks between Customer and
Stentor under this Master Agreement.
10.15 Counterparts. The parties may execute this Master Agreement in
multiple counterparts, each of which constitutes an original, and all of which,
collectively, constitute one and the same agreement. The signatures of all of
the parties need not appear on the same counterpart, and delivery of an executed
counterpart signature page by facsimile is as effective as executing and
delivering this Master Agreement in the presence of the other parties to this
Master Agreement. In proving this Master Agreement, a party must produce or
account only for the executed counterpart of the party to be charged.
10.16 Conflicts. In the event of any inconsistencies between this Master
Agreement and the Riders attached hereto, the Rider shall govern but only for
the subject matter of the Rider.
Stentor Master Agreement v1.0 9.20.2004 Page 8 of 29
10.17 Organization, Power and Authority, Corporate Action. Each party
represents that such party: (a) is duly organized, validly existing and in good
standing; (b) has the corporate power and authority to execute, deliver and
perform the Master Agreement; (c) has taken all necessary corporate action to
authorize the execution, delivery and performance of the Master Agreement; and
(d) has duly executed the Master Agreement by an authorized officer of such
party.
10.18. Debarment. Stentor certifies that neither it nor its Affiliates,
nor any of either entities' employees is excluded, debarred, or otherwise
ineligible for participation in any federal health care program (or any
applicable successor statutory section) or in any other governmental payment
program. If Stentor, or any employee of Stentor, is excluded or debarred from
participation in any federal health care program or other government payment
program, or becomes otherwise ineligible to participate in any such program,
Stentor will notify Customer in writing within three (3) business days after
learning of such event, and if an employee is at issue, will remove such
employee from working on the project. If Stentor becomes excluded, debarred or
ineligible, whether or not such notice is given to Customer, Customer may [**],
if Stentor does not cure such exclusion, debarment or ineligibility within [**]
([**]) days following its commencement. If subcontracting is permitted under
this Agreement, Stentor will include this clause in all subcontract agreements.
10.19 Subcontracting. All subcontractors and independent contractors used
by Stentor in the course of this Agreement shall be subject to written
confidentiality requirements substantially similar to those set forth in this
Agreement. The acts and omissions of the subcontractors of and independent
contractors engaged by Stentor will be deemed to be the acts and omissions of
Stentor.
10.20 Access to Books and Records. Stentor shall maintain, and shall cause
each of its subcontractors to maintain, complete and accurate accounting records
in a form in accordance with generally accepted accounting principles, to permit
substantiation of the charges and prices of Stentor and Stentor's subcontractors
hereunder and to permit verification of and compliance by Stentor with the terms
of this Agreement. Stentor shall retain, and shall cause each of Stentor's
subcontractors to retain, such records for a period of five (5) years from the
date to which each such record pertains. Until at least the fourth (4th)
anniversary of its last having received any payment or furnished any service
pursuant to this Agreement, Stentor shall make available, upon written request
of the Secretary of Health and Human Services, the Comptroller General of the
United States of America, any of their duly authorized representatives, or any
other federal, state, or local governmental agency authorized to review records
in connection with any reimbursement to Customer or to any Affiliate, copies of
this Agreement and any books, documents, and records of Stentor that are
necessary to certify the nature and extent of the costs incurred by Customer or
by any Affiliate for such services.
10.21 Non-Discrimination. Stentor shall perform its obligations under this
Agreement without discrimination toward any employees or other persons
regardless of their race, color, sex, age, religion, national origin, sexual
orientation, marital status, disability, or in any other manner prohibited by
law.
10.22 Non-Solicitation. For the duration of the Agreement and for a period
of [**] ([**]) months following its termination, neither party will directly or
indirectly, for its benefit or for the benefit of any other entity, employ or
solicit any employee of the other party or its subsidiaries, without the other
party's consent, in order to cause the termination of said employee's employment
with the other party or its subsidiaries.
10.23 Source Code Escrow. Contemporaneously with the execution of this
Agreement, Stentor will establish Customer as the beneficiary of an escrow
agreement (the "Escrow Agreement") with Stentor and DSI Technology Escrow
Services, Inc. (the "Escrow Agent"). Stentor shall maintain or deposit with the
Escrow Agent copies of all of the human-readable form of the Stentor Software
which, when compiled or interpreted, renders the executable version of the
Stentor Software then used by Customer, as well as any newer versions released
by Stentor as more fully described below (the "Source Code"), together with all
documentation for the source code (the "Source Code Documentation"), such that a
reasonably skilled programmer could understand and use the Source Code and the
Source Code Documentation to maintain, support, modify and otherwise use the
Stentor Software. Stentor will deliver to the Escrow Agent the Source Code and
Source Code Documentation for all new major releases (defined as a release with
a change of version number before the decimal point or one number to the right
of the decimal point, e.g., 2.4 to 3.0 or 3.2 to 3.3) to the Stentor Software
within sixty (60) days of the time that such Stentor Software is available for
general release. Customer will be entitled to receive all Source Code and Source
Code Documentation from the Escrow Agent in the event that: (i) Stentor files
for bankruptcy under Chapter 7 of the U.S. Bankruptcy Code, or (ii) Stentor
[**]. Stentor grants to Customer a license to use the Source Code to support the
use of the System by Customer hereunder. The parties acknowledge and agree that
this Agreement is intended to be covered under 11 U.S.C. 365(n) and that the
Escrow Agreement is "supplementary" to this Agreement as that term is used in 11
U.S.C. 365(n). Upon written request of Customer to Stentor or to such trustee,
neither Stentor nor such trustee will interfere with the rights granted in this
Agreement, including the right to obtain the Source Code and the Source Code
Stentor Master Agreement v1.0 9.20.2004 Page 9 of 29
Documentation from the Escrow Agent. Customer will pay the actual third party
costs of establishing and maintaining the Escrow Agreement.
10.24 Development of Intellectual Property. The parties acknowledge and
agree that this Agreement does not cover any development of technology or
improvements related to the System. Any such development, and the assignment of
any rights therein, shall be subject to a separate written agreement between the
parties.
Stentor Master Agreement v1.0 9.20.2004 Page 10 of 29
RIDER PS-1
PRODUCTS AND SERVICES
TERMS AND CONDITIONS
1. STENTOR SOFTWARE
A. Existing Applications
iSite(R) Radiology
iVault(TM)
Customer and Stentor acknowledge that the following Facilities have already had
Server Hardware (as defined in Rider IFS-1) installed at their facility and
obtained access to the iSite Radiology and/or iVault software pursuant to the
SPA or other agreements as of the Effective Date, and that their ongoing access
to such software shall be governed, as of the Effective Date, by this Master
Agreement.
* UPMC Presbyterian Hospital
* UPMC ▇▇▇▇▇▇▇▇
* UPMC Children's Hospital
* UPMC Horizon
* UPMC ▇▇▇▇▇ Women's Hospital
* UPMC McKeesport
* UPMC Passavant
* UPMC Shadyside
* UPMC South Side
* UPMC St. Margaret's
* UPMC ▇▇▇
* UPMC Northwest
The Facilities shall include all additional Facilities described in Section 2.4
of the Agreement. Stentor shall provide all additional Server Hardware necessary
to provide access to and performance of the System as Stentor provides prior to
the Effective Date.
The System and all future releases of the System during the term will continue
to maintain and support an open API approach which allows users to develop
self-supported System modifications or enhancements which integrate into the
System pursuant to Stentor's interface standards. In the event that a new
release of the System eliminates any material functionality which Customer views
as critical, Stentor will, upon Customer's request, provide Customer with
reasonable access to information to support Customer's development of comparable
functionality through use of the open API structure.
B. Additional Applications
Customer may elect to license under the terms of this Master Agreement if and
when available, any new software application developed by or for Stentor for any
medical field that uses diagnostic images and which Stentor makes commercially
available during the Term ("Additional Applications"). Such Additional
Applications shall be deemed part of the Stentor Software licensed hereunder if
and when delivered to Customer, and the fees due hereunder shall [**]. Stentor
shall implement the Additional Applications and any required hardware at its
sole expense. The Additional Applications shall be described in Rider(s) PS-x-n,
and any infrastructure requirements for such Additional Applications not already
described in Rider IFS-1 shall be described in Rider(s) IFS-x-n.
2. FEES
2.1 Study Definition. A "Study" means a collection of one or more medical
images generated for a single patient from a single Modality (as defined below)
as a single Digital Imaging and Communication in Medicine unique identifier
(DICOM UID) or other unique identifier based on a different data standard used
by Stentor to track images and transformed into a flexible hierarchical
representation using the System. In sizing the Server Hardware, Stentor assumes
a cumulative average Study size of [**]MB (uncompressed). If Customer's
cumulative average Study size exceeds [**]MB per Study during the PS-1 Term,
then at such point as total System storage is exceeded, Customer shall reimburse
Stentor for Stentor's actual cost of procuring, installing and configuring
additional required storage for:
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CONFIDENTIAL
(1) the number of Studies then currently stored in the System, multiplied by (2)
the number of megabytes by which the cumulative average Study size exceeds
[**]MB. Alternatively, Customer may purchase the additional storage according to
Stentor's approved configuration from a third party. Stentor shall install and
configure such storage at its then-current time and materials rates for work
actually performed.
2.2 Fixed Fee. Customer shall pay a total of [**] Dollars ($[**]) in [**]
as set forth below for the right for Customer to create, archive, access and
otherwise use [**] Studies using the System during the Term (the "Fixed Fee"),
subject to the following limitations and exclusions:
(a) The Fixed Fee does not include any of the following:
(i) License fees for Third Party Products and support services
therefor; provided, however, that if Stentor changes any Third Party
Products necessary to utilize the System from those identified in
this Agreement as of the date of execution, or in any applicable
Rider at the time of execution thereof, Stentor shall procure the
Third Party Products at its sole expense. For purposes of
clarification, Customer shall be responsible for, and the Fixed Fee
does not include, any additional licenses to SQL Server required to
support additional hardware hereunder.
(ii) Any professional services (including but not limited to HL7
integration services) provided by Stentor which are not required
under this Agreement
(iii) Bandwidth costs as described in Section 2.6 of this Rider PS-1
(iv) Any additional storage costs to be paid by Customer pursuant
Section 2.1 of this Rider PS-1 due to average Study size exceeding
[**]MB.
(v) Fees for Studies conducted at Non-Owned Facilities in excess of
an aggregate of [**] ([**]) Studies per year for all such Non-Owned
Facilities. For each such Study in excess of the annual limit,
Customer shall pay a fixed fee of [**] Dollars and [**] Cents
($[**]) per Study. Customer shall take the necessary steps to enable
Customer and Stentor to identify such Studies so that any fees due
therefor can be properly invoiced. Once the annual Study threshold
has been exceeded in any given year of the Term, Stentor shall
invoice Customer monthly in arrears for fees due for additional
Studies in accordance with Section 4.1 of this Rider PS-1.
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
(2005) (2006) (2007) (2008) (2009)
------ ------ ------ ------ ------
ANNUAL
INSTALLMENT
OF FIXED FEE $[**] $[**] $[**] $[**] $[**]
2.3 Microsoft SQL Server. Microsoft SQL Server is a required database
component of the System. Stentor acknowledges that Customer has already obtained
and paid the license fees for copies of Microsoft SQL Server running on the
Server Hardware installed at the Facilities listed in this Rider PS-1 as of the
Effective Date. Customer will be obligated to acquire a license for additional
copies of Microsoft SQL Server for each instance of additional Server Hardware
added to the System after the Effective Date for Stentor's actual cost to
procure such licenses from Microsoft. During the Rider PS-1 Term Stentor will
provide Customer with support for Microsoft SQL Server as a component of the
System. Microsoft will not provide Customer with support for SQL Server. In
consideration for providing Microsoft Software Assurance support for Microsoft
SQL Server during the Rider PS-1 Term, Customer shall pay Stentor's then-current
annual support fee for Microsoft SQL Server. Customer agrees to the terms of the
Microsoft SQL Server end user license agreement attached hereto as Exhibit A.
2.4 Implementation and Training Fees. In consideration for any
implementation and training services outlined in the Implementation Steps and
Timetable which may be attached to a Rider IFS-x, Customer shall pay Stentor the
fee set forth in such Rider IFS-x on the terms set forth in such Rider IFS-x.
2.5 HL7 Integration Fee. HL7 integration services include integrating the
System to handle HL7 messages for a single MRN/Accession issuer (RIS) and
possibly related HL7 messages from a HIS:
A. ADT (Patient demographic - usually from HIS)
Stentor Rider PS v1.0 8/27/04 Page 12 of 29
CONFIDENTIAL
- Updates patient demographics real-time
- Facilitates patient merges
B. ORM (Order - usually from RIS)
- Facilitates technologist worklist
- Updates order status real-time
- Facilitates patient worklist filtering by referring
physician
C. ORU (Diagnostic report - usually from RIS)
- Facilitates display of diagnostic reports with images
All functionality listed above is dependent upon receipt of HL7 messages
that contain appropriate data. For example, Stentor cannot provide filtering by
referring physician if the referring physician information is not included in
the ORM messages. Customer is responsible for third-party fees, if any, charged
by RIS or HIS vendors. Stentor will modify without charge the integration as
required as a result of upgrades or modifications to the HIS or RIS during the
Rider PS-1 Term.
In the event that Customer requires integration of the System with RIS at
a new facility, Stentor shall provide such services as may be reasonable
requested. With respect to integration of IDX RIS products, Customer shall not
be charged if Stentor provides such services remotely. If Customer requests
Stentor to provide the integration services for IDX products at Customer's
Facilities, or if Customer requests integration with any other third party RIS
product, Customer shall pay Stentor [**] per integration.
2.6 Bandwidth to Datacenter. In consideration for providing bandwidth
connections between the System and Stentor's datacenter in connection with the
iVault service, Customer shall pay Stentor all bandwidth charges and bandwidth
related hardware fees as a pass through.
2.7 Addition/Divestiture of Facilities.
(a) In the event that Customer acquires an additional inpatient
facility during the Term, Customer may add such facility as a Facility using the
System under this Agreement. The parties shall determine the proposed Facility's
Study volume for the preceding twelve (12) months as a percentage of Study
volume for Customer during the preceding twelve (12) months. Upon integration of
the proposed Facility into the System, the annual fee paid by Customer hereunder
shall be increased by such percentage.
(b) In the event that Customer divests itself of one or more
inpatient facilities during the Term (such that it no longer owns or operates
such Facility), the parties shall [**]. Upon closing of the divestiture, the
annual fee paid by Customer hereunder shall be [**]. During the first [**]
([**]) months after divestiture of a Facility, authorized users affiliated with
such Facility may continue to utilize the System to view and input new Studies
by paying an amount equal to [**]. If Stentor and the divested Facility are
unable to mutually agree upon fees for continued use of the System during that
[**] month period, Stentor may notify the divested Facility that its full access
to the System will be terminated [**] ([**]) months thereafter. The divested
Facility may continue to use the System for the purpose of viewing Studies
through different PACS systems and migrating the Studies for a period of up to
[**] ([**]) months from the date of divestiture. During any month in which the
Facility is making full use of the System (including adding new Studies and
viewing Studies through Stentor's software), the Facility shall pay [**]. During
any month in which the Facility is only utilizing the System for viewing through
third party systems or migration purposes, the Facility shall pay [**] percent
([**]%) of such [**].
3. RIDER PS-1 TERM
3.1 Rider PS-1 Term. The term of this Rider PS-1 (the "Rider PS-1 Term")
shall commence upon the Effective Date of this Master Agreement and shall
continue for a period of five (5) years unless earlier terminated as set forth
below.
4. PAYMENT TERMS
Stentor Rider PS v1.0 8/27/04 Page 13 of 29
CONFIDENTIAL
4.1 Payments Due. Each [**] of the Fixed Fee shall be paid [**]. All
payments due to Stentor hereunder shall be due and payable in full by Customer
within [**] ([**]) days of the date of Stentor's invoice, which shall be
presented on the first day of each month during the Term. All past due payments
will accrue interest at a rate of one and one-half percent (1.5%) per month (or
the maximum amount permitted by applicable law) on the unpaid balance from the
due date until paid in full. In the event that any payment is disputed by
Customer in good faith, such interest shall not accrue until [**] ([**]) days
after the original due date. If the parties resolve the dispute prior to the
expiration of such [**] ([**]) day period, the interest shall not apply to any
related payments.
4.2 Survival of Obligations. All obligations with respect to the amounts
due either party shall survive any expiration or termination of this Rider PS-1
or the Master Agreement.
4.3 Taxes, Duties, etc. All payments by Customer to Stentor under this
Rider PS-1 for any fees due will be exclusive of any sales, use, service, value
added or withholding taxes, or any other levy, tariff, duty or tax of any kind
whatsoever imposed by any governmental authority with respect to the services
rendered or expenses incurred by Stentor hereunder (other than a tax imposed
upon Stentor's income). Customer agrees to pay, within thirty (30) days of the
date of the applicable Stentor invoices, any tax whenever a governmental
authority imposes such tax. Customer's failure to pay Stentor the Service Fee as
defined herein or the taxes described above constitutes a material breach of
this Master Agreement.
5. TERMINATION; RENEWAL
5.1 Termination. Either party may terminate this Rider PS-1 if the other
party materially breaches a material term of this Rider PS-1 and does not cure
such breach within the following number of days after receiving written notice
from the non-breaching party specifying the nature of such breach: (i) [**]
([**]) days for breaches of confidentiality obligations, (ii) [**] ([**]) days
if Customer breaches a payment obligation, (iii) [**] ([**]) days for other
materials breaches; provided, however, that such [**] day period may be extended
an additional [**] ([**]) days if the breaching party demonstrates that it began
working on the cure promptly after receipt of notice and has worked to cure the
breach on a continuous best efforts basis during the first [**] days and
continues to do so for the remaining period. Either party may terminate this
Rider PS-1 immediately if the other party makes an assignment for the benefit of
creditors, files a petition in bankruptcy or is adjudged bankrupt (unless the
party continues to pay all debts when they become due), becomes insolvent or is
placed in the hands of a receiver.
5.2 Renewal Term. Customer may renew this Agreement upon written notice
for one five-year term or additional consecutive one-year terms upon written
notice to Stentor. To renew the Agreement for one five-year term, Customer must
give Stentor written notice no later than six (6) months before expiration of
the initial Term. To renew the Agreement for one or more one-year terms,
Customer must give Stentor written notice no later than six (6) months before
expiration of the initial Term and no later than three (3) months before the end
of any subsequent renewal term.
If Customer elects to renew for a five-year term, the fixed fee for the
renewal term shall be, subject to adjustment pursuant to Section 2.7 of this
Rider, [**] Dollars ($[**]), payable in five annual installments as follows:
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
(2010) (2011) (2012) (2013) (2014)
------ ------ ------ ------ ------
ANNUAL
INSTALLMENT
OF FIXED FEE $[**] $[**] $[**] $[**] $[**]
If Customer elects to renew for consecutive one-year terms, the annual fee for
each such renewal term shall be [**] Dollars ($[**]) per year.
5.3 Post Expiration / Termination Obligations.
(a) Following expiration or termination of this Master Agreement for any
reason, Customer may continue to utilize the System for a reasonable period of
time not to exceed [**] ([**]) years (the "Transition Period") to transition to
a different image storage system and to migrate data and images on the Server
Hardware to a DICOM-compliant PACS, or another DICOM-compliant data and image
storage distribution system. During the Transition Period, Customer shall pay
Stentor the then-applicable Fixed Fee, if the Master Agreement is terminated
during the Initial Term or the then-applicable annual fee for a renewal term,
subject to adjustment as follows: (i) pursuant to Section 2.7 of this Rider; and
(ii) in the event that a given Facility transitions to a "dormant archive"
option (in which new
Stentor Rider PS v1.0 8/27/04 Page 14 of 29
CONFIDENTIAL
Studies are not created and stored, but existing Studies are retrieved and
viewed) as further described in subsection (b) below. If a Facility transitions
to the dormant archive mode during the Transition Period, the parties shall
determine the Study volume of the Facility or Facilities electing the dormant
archive option as a percentage of Study volume for Customer during the preceding
twelve (12) months. Upon such Facility or Facilities entering into dormant
archive mode, the annual fee paid by Customer during the Transition Period shall
be decreased prospectively by such percentage, and Customer shall pay the
dormant archive fee for such Facility or Facilities as set forth below.
(b) As an alternative to full use of the System for new and archived
Studies, Customer may elect, on a per-Facility basis, for a fee of equal to such
Facility's pro-rata share (as determined on the basis of the ratio of Facilities
in the Migration Period, as defined below, to Facilities still in the Transition
Period) of [**] percent ([**]%) of (i) the then-applicable Fixed Fee if the
Master Agreement is terminated during the Initial Term or (ii) the
then-applicable annual fee for a renewal term, to utilize the System solely to
access and migrate Studies that were archived on the System prior to expiration
or termination of the Master Agreement (the "Migration Period"). Once a Facility
has elected to enter into a Migration Period, such Migration Period shall not
exceed [**] ([**]) years. Customer will not be permitted to utilize the System
to view or archive new Studies during the Migration Period for the applicable
Facility or Facilities if it elects this dormant archive option.
(c) Upon the completion of migration of data or expiration of the
Migration Period, Customer shall cease using and return to Stentor or destroy
all copies of the Stentor Software and certify to Stentor in writing that such
return or destruction has occurred. This Section shall survive the expiration or
termination of this Master Agreement.
(d) The following example is included solely for purposes of clarifying
the application of Sections 5.3(a) and (b). If a single Facility accounts for
[**] percent ([**]%) of the Study volume for Customer, the Facility's active
fees during the Transition Period under Section 5.3(a) would be $[**] per year
during the original Term and $[**] per year thereafter. Once Customer shifts
such Facility to "dormant mode," the applicable fees for such Facility under
Section 5.3(b) would be $[**] per year for years falling during the original
Term and $[**] per years falling after the original Term.
5.4 Post-Termination Hardware Option. Upon expiration of the initial Rider
PS-1Term, Customer may elect to purchase all (and only all) of the Server
Hardware using a [**]. In such case, Customer shall be solely responsible for
maintaining all equipment required to operate the Stentor Software and Stentor
will no longer be obligated to provide Server Hardware obsolescence protection
pursuant to Rider IFS, Section 3.2. If Customer exercises this hardware purchase
option and renews the Rider PS-1 Term pursuant to Section 5.2 above, the annual
maintenance fee for continued use of the System shall be $[**] per year in lieu
of the annual renewal fees set forth in Section 5.2. If Customer exercises this
hardware purchase option and elects the dormant archive option pursuant to
Section 5.3(b) of this Rider PS-1, the dormant archive fee shall be reduced by
[**]%.
5.5 Migration of Data.
(a) Customer may migrate data and images on the Server Hardware to a
DICOM-compliant PACS, or another DICOM-compliant data and image storage
distribution system using the DICOM export tool included with the System. If
Stentor owns a software tool which supports bulk migration of image objects,
DICOM and related DICOM header data and all other Customer data in the System
database, it will provide this tool to Customer at no charge to use for this
purpose. If Stentor has access to a third party tool for such purposes that
Stentor may sublicense to Customer, Customer shall have the option to sublicense
such tool at Stentor's actual cost for providing such sublicense. In addition,
Stentor shall provide (subject to appropriate restrictions on use and
nondisclosure provisions pursuant to this Agreement) a data dictionary that
describes Stentor's database structure (e.g., field descriptions and information
on the relationship between database indexes and tables) in sufficient detail to
enable Customer or a designee of Customer (provided such designee is subject to
a written nondisclosure agreement containing substantively similar restrictions
and confidentiality provisions as provided in this Agreement) to write automated
migration scripts to accomplish the migration of all Customer data in the System
database and migration of DICOM header data (if such DICOM header data is not
migrated pursuant to use of the conversion tool described above) in an
efficient, automated manner; provided, however, that in lieu of providing such
information, Stentor may in its sole discretion elect, at no additional charge,
to provide such scripts to Customer to enable automated migration of all
Customer data in the System database and all DICOM and DICOM header data (not
otherwise migrated pursuant to use of the above-referenced bulk migration tool).
(b) Customer may also elect to have Stentor migrate data and images on the
Server Hardware to a DICOM-compliant PACS, or another DICOM-compliant data and
image storage distribution system for a fee equal to Stentor's then current time
and materials rate and Stentor's reasonable out of pocket expenses incurred in
connection with migration.
Stentor Rider PS v1.0 8/27/04 Page 15 of 29
CONFIDENTIAL
EXHIBIT A
MICROSOFT(R) SQL SERVER(TM) 2000 STANDARD EDITION
RUNTIME-RESTRICTED USE SOFTWARE
LICENSES: [2]
END-USER LICENSE AGREEMENT (Per Processor)
IMPORTANT -- READ CAREFULLY: This End-User License Agreement ("▇▇▇▇") is a legal
agreement between you (either an individual or a single entity) and the licensor
("Licensor") of the software application or suite of applications with which you
acquired the Microsoft software product identified above, which includes
computer software and may include associated media, printed materials, and
"online" or electronic documentation ("Product"). An amendment or addendum to
this ▇▇▇▇ may accompany the Product. Microsoft Corporation or one of its
affiliates (collectively, "Microsoft") has licensed the Product to Licensor. YOU
AGREE TO BE BOUND BY THE TERMS OF THIS ▇▇▇▇ BY INSTALLING, COPYING, OR OTHERWISE
USING THE PRODUCT. IF YOU DO NOT AGREE, DO NOT INSTALL OR USE THE PRODUCT; YOU
MAY RETURN IT TO YOUR PLACE OF PURCHASE FOR A FULL REFUND.
The Product may contain the following software:
- "Server Software" provides services or functionality on your
server (your computers capable of running the Server Software are
"Servers");
- "Client Software" allows an electronic device ("Device") to
access or utilize the Server Software.
1. GRANT OF LICENSE. Licensor grants you the following rights provided you
comply with all terms and conditions of this ▇▇▇▇:
a. SERVER SOFTWARE. You may install one copy of the Server Software on
a single Server. If the Server has more than one processor, you must
obtain a separate license for each processor on that Server. You may
use the Server Software only with that number of processors for
which you are properly licensed, as set forth above. You may install
and use additional copies of the Server Software on additional
Servers, and/or use the Server Software with additional processors.
However, the sum of the total number of processors with which the
Server Software is used and the total number of Devices on which SQL
Server Personal Edition is installed pursuant to Section 1(h) below
may not exceed the number of "Licenses" specified above. If a number
of "Licenses" is not indicated above, then you are licensed to use
either (i) one copy of the Server Software with one processor, or
(ii) one copy of SQL Server Personal Edition on one Device pursuant
to Section 1(h) below. You may use the Management Tools,
Books-Online, and Development Tools components of Microsoft SQL
Server (collectively "Tools") solely for internal use in conjunction
with your Server Software. SQL SERVER, ENTERPRISE EDITION. If you
have acquired the Enterprise Edition of the Server Software, you may
also install any number of instances of the Server Software on the
Server for use by any processor for which you have acquired a
license. An "instance" shall mean a running copy of the Server
Software.
b. CLIENT SOFTWARE. You may either (i) install and use the Client
Software (SQL Server Personal Edition) on any number of internal
Devices so long as it is being used only in conjunction with the
Server Software and the integrated software turnkey application or
suite of applications delivered by or on behalf of Licensor of the
Product (such application or applications referred to as the
"Integrated Application") as part of the Integrated Application, or
(ii) install and use SQL Server Personal Edition without installing
the Server Software as specified in Section 1(h) below so long as
SQL Server Personal Edition is used only in conjunction with the
Integrated Application as part of the Integrated Application.
c. SQL SERVER 2000 DEVICE ACCESS. Any number of Devices may use or
access the services of the Server Software in conjunction with the
Integrated Application so long as you have acquired a valid license
for each processor running such Server Software. This ▇▇▇▇ grants
you the right to permit Devices to access or use only the services
of the Server Software provided with the Integrated Application.
d. USE OF REDISTRIBUTABLE CODE. In addition to the rights granted
above, Licensor grants you the nonexclusive, royalty-free right to
use, reproduce and distribute the Microsoft SQL Server Desktop
Engine ("MSDE") and the files listed in the REDIST.TXT contained in
the Product (collectively, the "Redistributable Code"), provided
that you also comply with the following:
Stentor Rider PS v1.0 8/27/04 Page 17 of 29
CONFIDENTIAL
i. GENERAL REQUIREMENTS. If you choose to redistribute any
portion of the Redistributable Code, you agree:
A. to distribute the Redistributable Code in object code form
and only in conjunction with and as a part of a software application
product developed by you that adds significant and primary
functionality to the Product ("Application");
B. not to use Microsoft's name, logo, or trademarks to market
the Application;
C. to include a valid copyright notice in your name on the
Application;
D. to indemnify, hold harmless, and defend Licensor and
Microsoft from and against any claims or lawsuits, including
attorney's fees, that arise or result from the use or distribution
of the Application; and
E. to otherwise comply with the terms of this ▇▇▇▇.
You also agree not to permit further distribution of the
Redistributable Code by your end users except you may permit further
redistribution of the Redistributable Code by your distributors if they
only distribute the Redistributable Code in conjunction with, and as part
of, the Application and you and your distributors comply with all other
terms of this ▇▇▇▇.
ii. ADDITIONAL REQUIREMENTS FOR MSDE. If you choose to
redistribute MSDE, you also agree:
A. that your Application shall not substantially duplicate the
capabilities of Microsoft Access or, in the reasonable opinion of
Microsoft, compete with same; and
B. that unless your Application requires your customers to
license Microsoft Access in order to operate, you shall not
reproduce or use MSDE for commercial distribution in conjunction
with a general purpose word processing, spreadsheet or database
management software product, or an integrated work or product suite
whose components include a general purpose word processing,
spreadsheet, or database management software product except for the
exclusive use of importing data to the various formats supported by
Microsoft Access. NOTE: A product that includes limited word
processing, spreadsheet or database components along with other
components which provide significant and primary value, such as an
accounting product with limited spreadsheet capability, is not
considered to be a "general purpose" product.
e. RESERVATION OF RIGHTS. Licensor and Microsoft reserve all rights not
expressly granted to you in this ▇▇▇▇.
f. BENCHMARK TESTING. You may not disclose the results of any benchmark
test of either the Server Software or Client Software to any third
party without Microsoft's prior written approval.
g. DOWNGRADES. Instead of installing and using the Server Software, you
may install and use one copy of an earlier version of the Server
Software on a single Server, provided that you completely remove
such earlier version and install the original Server Software within
a reasonable time. Your use of such earlier version shall be
governed by this ▇▇▇▇, and your rights to use such earlier version
shall terminate when you install the original Server Software.
h. USE OF SQL SERVER PERSONAL EDITION NOT IN CONJUNCTION WITH SERVER
SOFTWARE. You may install and use one copy of SQL Server Personal
Edition on one internal Device without installing or using the
Server Software in conjunction with that copy of SQL Server Personal
Edition so long as SQL Server Personal Edition is used only in
conjunction with the Integrated Application. You may install
additional copies of SQL Server Personal Edition on additional
Devices without installing the Server Software provided that such
copies of SQL Server Personal Edition are used only in conjunction
with the Integrated Application. However, you must acquire a
separate SQL Server processor license for each Device on which you
install SQL Server Personal Edition that is not used in conjunction
with the Server Software. Furthermore, the sum of the total number
of processors with which the Server Software is used and the total
number of Devices on which SQL Server Personal Edition is installed
pursuant to this Section 1(h) may not exceed the number of
"Licenses" specified above. If a number of "Licenses" is not
indicated above, then you are licensed to use either (i) one copy of
the Server Software with one processor, or (ii) one copy of SQL
Server Personal Edition on one Device pursuant to this Section 1(h).
Any number of Devices may use or access the services of a Device
running SQL Server Personal Edition that is not used in conjunction
with the Server Software and that is used in conjunction with the
Integrated Application so long as you have acquired a separate,
valid processor license for the Device being used or accessed.
i. RUNTIME-RESTRICTED USE SOFTWARE. The Product is "Runtime-Restricted
Use" software; as such, the Product may only be used to run the
Integrated Application as part of the Integrated Application. The
Product may not be used either (i) to develop and/or (ii) in
conjunction with, new applications, databases or tables other than
those contained in the Integrated Application. The foregoing
provision, however, does not prohibit you from using a tool to run
queries or reports from existing tables, and/or from using a
development environment or workbench which is part of the Integrated
Application to configure or extend such Integrated Application.
Notwithstanding any provision of this ▇▇▇▇, you may only transfer
the "Runtime-Restricted Use" Product as part of the Integrated
Application, subject to the terms and conditions specified in
Section 5 below.
2. INSTALLATION OF SERVER SOFTWARE ON PASSIVE FAIL-OVER SERVER. If the Server
Software is used in a clustered environment, you may use the Server
Software on a temporary basis on a Server that is employed only for
fail-over support (the "Passive Server") so long as the number of
processors on the Passive Server does not exceed the number of processors
on your primary active Server.
3. NO RENTAL/NO COMMERCIAL HOSTING. You may not rent, lease, lend, or provide
commercial hosting services with the Product.
4. ADDITIONAL SOFTWARE/COMPONENT LICENSES. This ▇▇▇▇ applies to updates or
supplements to the original Product provided by Licensor or Microsoft,
unless Licensor or Microsoft provides other terms along with the update or
supplement. The Product may contain certain components (each, a
"Component") that included a separate end user license agreement (a
"Component Agreement"). The terms of any Component Agreement are herein
incorporated by reference to this ▇▇▇▇; in the event of any
inconsistencies between this ▇▇▇▇ and any Component Agreement, the terms
of this ▇▇▇▇ shall control.
5. TRANSFER -- INTERNAL. You may move the Server Software to a different
Server or SQL Server Personal Edition (installed and used pursuant to
Section 1(h) above) to a different Device. TRANSFER TO THIRD PARTY. The
initial user of the Product may make a one-time transfer of the Product to
another end user. The transfer has to include all component parts, media,
printed materials, this ▇▇▇▇, and if applicable, the Certificate of
Authenticity. The transfer may not be an indirect transfer, such as a
consignment. Prior to the transfer, the end user receiving the transferred
Product must agree to all the ▇▇▇▇ terms.
6. LIMITATION ON REVERSE ENGINEERING, DECOMPILATION, AND DISASSEMBLY. You may
not reverse engineer, decompile, or disassemble the Product, except and
only to the extent that it is expressly permitted by applicable law
notwithstanding this limitation.
7. TERMINATION. Without prejudice to any other rights, Licensor or Microsoft
may cancel this ▇▇▇▇ if you do not abide by the terms and conditions of
this ▇▇▇▇, in which case you must destroy all copies of the Product and
all of its component parts.
8. CONSENT TO USE OF DATA. You agree that Microsoft and its affiliates may
collect and use technical information you provide as a part of support
services related to the Product. Microsoft agrees not to use this
information in a form that personally identifies you.
9. NOT FOR RESALE SOFTWARE. Product identified as "Not for Resale" or "NFR,"
may not be resold, transferred or used for any purpose other than
demonstration, test or evaluation.
10. EXPORT RESTRICTIONS. You acknowledge that Product is subject to U.S.
export jurisdiction unless otherwise indicated by Microsoft. You agree to
comply with all applicable international and national laws that apply to
the Product, including the U.S. Export Administration Regulations, as well
as end-user, end-use and destination restrictions issued by U.S. and other
governments. For additional information, see
.
11. U.S. GOVERNMENT LICENSE RIGHTS. All Product provided to the U.S.
Government pursuant to solicitations issued on or after December 1, 1995
is provided with the commercial license rights and restrictions described
elsewhere herein. All Product provided to the U.S. Government pursuant to
solicitations issued prior to December 1, 1995 is provided with
"Restricted Rights" as provided for in FAR, 48 CFR 52.227-14 (JUNE 1987)
or ▇▇▇▇, ▇▇ ▇▇▇ 252.227-7013 (OCT 1988), as applicable.
12. The Product is protected by copyright and other intellectual property laws
and treaties. Microsoft or its suppliers own the title, copyright, and
other intellectual property rights in the Product. THE PRODUCT IS
LICENSED, NOT SOLD.
13. NOT FAULT TOLERANT. THE PRODUCT IS NOT FAULT TOLERANT. LICENSOR HAS
INDEPENDENTLY DETERMINED HOW TO USE THE PRODUCT IN THE INTEGRATED SOFTWARE
APPLICATION OR SUITE OF APPLICATIONS THAT IT IS LICENSING TO YOU, AND
MICROSOFT HAS RELIED ON LICENSOR TO CONDUCT SUFFICIENT TESTING TO
DETERMINE THAT THE PRODUCT IS SUITABLE FOR SUCH USE.
14. NO WARRANTIES BY MICROSOFT. YOU AGREE THAT IF YOU HAVE RECEIVED ANY
WARRANTIES WITH REGARD TO EITHER (A) THE PRODUCT, OR (B) THE SOFTWARE
APPLICATION OR SUITE OF APPLICATIONS WITH WHICH YOU ACQUIRED THE PRODUCT,
THEN THOSE WARRANTIES ARE PROVIDED SOLELY BY THE LICENSOR AND DO NOT
ORIGINATE FROM, AND ARE NOT BINDING ON, MICROSOFT.
15. NO LIABILITY OF MICROSOFT FOR CERTAIN DAMAGES. TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, MICROSOFT SHALL HAVE NO LIABILITY FOR ANY
INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN
CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCT OR THE SOFTWARE
APPLICATION OR SUITE OF APPLICATIONS WITH WHICH YOU ACQUIRED THE PRODUCT.
THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL
PURPOSE. IN NO EVENT SHALL MICROSOFT BE LIABLE FOR ANY AMOUNT IN EXCESS OF
TWO HUNDRED FIFTY U.S. DOLLARS (US$250.00).
Microsoft is a registered trademark of Microsoft Corporation in the
United States and/or other countries.
Stentor Rider PS v1.0 8/27/04 Page 18 of 29
CONFIDENTIAL
RIDER IFS-1
INFRASTRUCTURE
1 CLIENT HARDWARE
1.1 Client Devices. A "Client Device" means a computer, workstation,
terminal, or other electronic device used to access the server hardware.
Customer is responsible for procuring, maintaining and upgrading all Client
Devices for use with the System.
1.2 Minimum Requirements for Client Devices. System performance requires
that Client Devices meet the minimum requirements set forth in the current
product documentation and posted on Stentor's website at
▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇.▇▇▇/▇▇▇▇_▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇. Minimum requirements for Client
Devices may change (e.g., operating systems, processor speed, internet software)
throughout the Term. Stentor shall provide Customer at least [**] ([**]) months
notice of any increase in the minimum requirements required to support
then-existing features and performance levels and shall continue to support
prior versions of the System for up to [**] ([**]) months after the date of such
notice if so requested by Customer. Stentor shall provide Customer at least [**]
([**]) months notice of any increase in the minimum requirements required to
support a new feature, provided that the new requirements do not affect
then-existing features and performance levels, and shall continue to support
prior versions of the System for up to [**] ([**]) months after the date of such
notice if so requested by Customer Thereafter, Customer may use any
non-compliant Client Devices, provided that Stentor shall not be obligated to
deliver the system response times specified in ▇▇▇▇▇ ▇▇ in connection with such
Client Devices.
2 USE OF SERVICES
2.1 Services. Customer hereby agrees to retain Stentor to: (i) install new
elements of the System after the Effective Date as described in Implementation
Steps and Timetable set forth in Section 7 below; (ii) to provide the System
during the Term at the performance levels specified in ▇▇▇▇▇ ▇▇; and (iii) to
provide customer support, Heartbeat monitoring, Updates and training as
described on ▇▇▇▇▇ ▇▇. Stentor shall provide all of these services at no expense
to Customer.
2.2 Client Software. "Client Software" means the portion of the Stentor
Software installed on a Client Device that enables a Client Device to access the
Stentor Software operating on the Server Hardware.
2.3 Permitted Use of Services. Subject to the terms and conditions of the
Master Agreement, Stentor hereby grants Customer a non-exclusive,
non-transferable (except in accordance with Section 10.5 of the Master
Agreement), non-sublicensable, limited right during the Term to access and use
the System solely to permit Authorized Users to view, manipulate, distribute and
otherwise use Studies in connection with Customer's and its Affiliates internal
business purposes (including, without limitation, research and educational
purposes). Customer will not provide access to any portion of the System to any
person or entity other than its Authorized Users who are bound by
confidentiality provisions as protective of Stentor's confidential information
as those contained in the Master Agreement. An "Authorized User" shall be
limited to the following: a current employee or independent contractor of
Customer or its Affiliates, or a health care professional, clinician, student
(or their staff) with privileges at Customer's or its Affiliates' facilities and
researchers that (a) have been assigned a unique password or other identifier by
Customer, and (b) use the Client Software solely to perform duties within the
scope of Customer's, its Affiliates' or the applicable user's internal business
purposes. Authorized Users may access the System locally or remotely to view
Studies. Customer may reproduce and install the Client Software on an unlimited
number of Client Devices for use in connection with the System, provided that
all such copies bear all of the proprietary notices on or in the original.
Stentor retains title to all such copies.
3 SERVER HARDWARE
3.1 Server Hardware Provided. Stentor shall provide Customer with all
required hardware to operate the Server Software during the Term (the "Server
Hardware") to support the service levels as set forth on ▇▇▇▇▇ ▇▇. Stentor
maintains all right, title and interest in and to the Server Hardware. Customer
agrees to keep the Server Hardware free and clear from all claims, liens, and
encumbrances and will not assign, sublet, or grant a security interest in the
Server Hardware. Customer shall pay for directly or through insurance for up to
the replacement cost if the Server Hardware is stolen, damaged, destroyed, or
otherwise rendered inoperable.
Stentor Rider IFS v1.0 8/27/04 Page 20 OF 29
CONFIDENTIAL
3.2 Server Hardware Obsolescence Protection. Stentor shall upgrade or
replace the Server Hardware, at Stentor's sole expense, as necessary during the
term (a) to support the service levels as set forth on ▇▇▇▇▇ ▇▇, and (b) if
required to support an Update of the Server Software.
3.3 Server Hardware Operating Environment. Server Hardware will be
installed and connected to Customer's network at Customer's site. Customer is
responsible for providing, without charge, an adequate operating environment for
Server Hardware during the Term as set forth on Exhibit B. In the event that
multiple server racks are required to support the System Customer shall provide,
without charge, contiguous rack space at Customer's site.
3.4. Facilities Consolidation. The parties acknowledge that circumstances
may arise that would make the consolidation of multiple Facilities' access to
Server Hardware beneficial to both parties in terms of managing workflow and
costs. Customer agrees to negotiate in good faith with Stentor if Stentor
reasonably proposes such a consolidation of Server Hardware to a single server
accessed by multiple Facilities and such consolidation will not result in
degradation of services or performance. In addition, if Customer adds a
Facility, Customer will use reasonable commercial efforts to enable such
Facility to access the System via Server Hardware already installed at an
existing Facility.
3.5 Network, Email, and Physical Access to Server Hardware.
(a) Consistent with Customer's reasonable security requirements,
Customer shall provide remote network access to the Server Hardware to enable
Stentor to monitor, maintain, upgrade and support the System. Customer shall
provide Stentor with the necessary security information to access the Server
Hardware over a network.
(b) Customer shall allow outgoing e-mail from the Server Hardware
consistent with Customer's reasonable security requirements either through
Customer's SMTP e-mail services or shall allow the Server Hardware to access the
Stentor SMTP e-mail service. Email access is required in order for Stentor to
monitor, maintain, upgrade and support the System.
(c) Upon reasonable advance notice, Customer shall provide Stentor
personnel or subcontractors with physical access to all Server Hardware to
support, maintain and upgrade such Server Hardware.
3.6 No Modification of Server Hardware. Customer may not modify, relocate,
or install third-party software on the Server Hardware without Stentor's prior
written consent.
3.7 Modalities. A "Modality" means a device used to capture medical images
in a DICOM 3.0 format or in a generally accepted industry standard format that
is a successor to the DICOM 3.0 format. Each Customer Modality connected to the
System must have a published DICOM 3.0 (or successor industry standard)
conformance statement. Stentor will provide connectivity testing for all
Modalities without charge. Stentor will not validate the quality of the data
generated by Customer Modalities. Stentor will confirm that the Modality will
connect to the System and the System will be able to store and display the data
as delivered by the Modality. Stentor will cooperate with Customer's Modality
vendors without charge to troubleshoot any Modality connectivity issues.
3.8 Print Capabilities. Customer must retain film print capabilities for
use in the event of a catastrophic failure of the System.
3.9 Return of Server Hardware. Upon expiration or termination of the
Agreement, Customer shall return the Server Hardware in the same condition as
when received by Customer, reasonable commercial wear and tear excepted.
4 RESTRICTIONS ON SYSTEM USE
4.1 Diagnostic Use. iSite Radiology is the only Stentor product provided
for diagnostic use as of the Effective Date. Customer may only use iSite
Radiology for diagnostic purposes if Customer's diagnostic workstations utilize
diagnostic quality monitors (as determined by Customer) and Customer maintains
the diagnostic quality monitors in accordance with the monitor manufacturer's
specifications. Additional Applications are subject to FDA approval before they
may be used for diagnostic purposes. Customer undertakes any diagnostic use of
the System other than as described above at its own risk and responsibility.
4.2 Restrictions on Use of Stentor Software. Customer shall not:
Stentor Rider IFS v1.0 8/27/04 Page 21 OF 29
CONFIDENTIAL
(a) decompile, reverse engineer, disassemble or otherwise reduce the
Stentor Software to a human perceivable form or permit any other party to do so;
(b) sublicense, lease, rent, loan, time-share, operate as a service
bureau or otherwise distribute or otherwise provide access to the Service to
anyone other than Authorized Users; or
(c) remove, modify or obscure any copyright, trademark or other
proprietary rights notices that appear on the Stentor Software or that appear
during the use of the Stentor Software.
5 THIRD PARTY HARDWARE AND SOFTWARE REQUIREMENTS
N/A as of the Effective Date
6 NETWORK
6.1 Customer Network Requirements. Customer must provide a switched
100Mbit local area network for iSite Radiology Client Software and a switched
10Mbit local area network for iSite Enterprise Client Software.
7 IMPLEMENTATION
7.1 Cooperation. The parties shall use commercially reasonable efforts and
work in good faith to implement any additions to the System in accordance with
an implementation timetable to be mutually agreed upon at a project initiation
workshop. The Stentor implementation services shall be provided to Customer at
no additional expense unless expressly stated otherwise in this Agreement.
7.2 Customer requirements. Customer shall provide the following resources
(a) Customer shall provide a dedicated project manager to act as a
single point of contact with authority to make decisions and execute
documents on behalf of Customer. The Customer project manager is:
Customer Project Manager:
Name:
Title:
Address:
Telephone:
Fax:
Email:
(b) Customer shall provide an HL7 feed from Customer's RIS to be
integrated with the System.
Stentor Rider IFS v1.0 8/27/04 Page 22 OF 29
CONFIDENTIAL
EXHIBIT B
INSTALLATION AND ENVIRONMENTAL SPECIFICATIONS
ISITE ENTERPRISE, ISITE RADIOLOGY, & IVAULT 42U MODULE
ENVIRONMENTAL REQUIREMENTS
QA4.09-16 - REV. 12/20/01
DIMENSIONS TOTAL CABINET SHIPPING
Height 79.5 in/202 Cm 85.5 in/220 Cm
Depth 43.3 in/110 Cm 50 in/129 Cm
Width 25.6 in/68 Cm 32 in/92 Cm
Weight 2042 lbs/930 kg (Max. w/UPS) 2500 lbs/1136 kg (Max. w/UPS)
- Physical space required for Operation & Service:
The server will require a minimum unrestricted working space of
82 in/211 Cm x 42 in/108 Cm.
- Building structural requirements:
See weight above.
- Raised floor requirements:
See weight above.
- Power requirements:
INPUT REQUIREMENTS WITHOUT UPS
Range Line Voltage 90 to132 VAC
Nominal Line Voltage 220 to 240 VAC
Rated Input Current 2 30A (220V) NEMA L6-30R Twist lock receptacles
Rated Input Frequency 50 to 60 Hz
Rated Input Power 1850W
BTU RATING 13,500 BTU/HR
INPUT REQUIREMENTS WITH UPS OR WHEN CUSTOMER REQUIRES 30 AMP POWER
Range Line Voltage 180 to 265 VAC
Nominal Line Voltage 220 to 240 VAC
Rated Input Current 2 30A (220V) NEMA L6-30R Twist lock receptacle
Rated Input Frequency 50 to 60 Hz
Rated Input Power 1850W
BTU RATING 13,740 BTU/HR
- Power conditioning requirements, including the need for UPS None. UPS will
be supplied if location does not have provided UPS power to server
location.
- Air-conditioning requirements
TEMPERATURE RANGE
Operating 50(degree)to 95(degree)F/10(degree)to 35(degree)C
Shipping - 22(degree)to 122(degree)F/ - 30(degree)to
50(degree)C
RELATIVE HUMIDITY
(non-condensing)
Operating 8% to 90%
Non-operating 5% to 95%
Stentor Rider IFS v1.0 8/27/04 Page 23 OF 29
CONFIDENTIAL
MAXIMUM WET BULB TEMPERATURE
101.7(degree)F/38.7(degree)C
THERE ARE NO SPECIAL REQUIREMENTS FOR EXHAUST, WATER, WASTE OR CHEMICAL
Stentor Rider IFS v1.0 8/27/04 Page 24 OF 29
CONFIDENTIAL
▇▇▇▇▇ ▇▇
SERVICE LEVEL AGREEMENT
1. CUSTOMER SUPPORT
1.1 General. Stentor strives to deliver world-class customer support.
Customer and Stentor must work together in order to achieve the most effective
support.
1.2 Support Hours. The Stentor customer support center is available 24
hours per day 7 days per week via telephone at ▇▇▇-▇▇▇-▇▇▇▇.
1.3 Customer Requirements. Stentor's provision of customer support is
conditioned upon the following Customer requirements:
(a) Customer Personnel. Customer must staff a system administrator
to serve as the primary Customer technical contact for the System.
(b) Training. Customer must ensure that Customer's Authorized Users
are properly trained in the use and operation of the Stentor Software.
(c) System Access. Customer must provide Stentor with 24x7 direct
VPN access to all Server Hardware. Additionally, the Customer must provide
Stentor with administrator access to all Stentor Software and Third Party
Software that exist on all Server Hardware. Customer will provide Stentor with
24x7 contact information for a system administrator in case on-site assistance
is necessary to resolve a critical issue. Customer will also provide Stentor
with a direct dial-in (via 56K modem) solution to access all Server Hardware.
(d) Software Updates. Stentor supports the current product release
and one prior product release. A prior product release is the most recent
product release with a lower release number than the current product release.
Stentor shall support the prior release for at least 90 days after the date of
the subsequent release to permit Customer reasonable time to implement and test,
and train staff with respect to, the new release, and up to a period of 180 days
in the event that the new release materially changed the functionality of the
System and Customer requires time to develop enhancements through use of the
System's open API structure. In any event, if a Critical bug (as defined below)
is reported for the new version during the foregoing 90 or 180 notice periods,
Stentor will continue to support the prior version(s) until after Stentor has
resolved such Critical bug in the new version.
1.4 Issue Levels.
ISSUE TYPE
- QUESTION: Any inquiry about the basic functionality of
the Stentor Software
- PROBLEM: A non-critical issue in which the Stentor
Software is not working as it was designed (as described
in the applicable Documentation), but does not prohibit
the Customer from performing critical functions.
- REQUEST: a need for additional or modified Stentor
Software capabilities or Stentor services (e.g., a
custom interface, System Manager training).
1.5 Response Times.
ISSUE TYPE PRIORITY RESPONSE
---------- -------- ------------------------------------------------------------------------
Problem Critical Stentor acknowledges receipt and begins diagnosis and resolution within
[**] and communicates the status of the problem to the Customer.
Stentor applies continuous, sustained effort on a twenty-four by seven
basis until the criticality is resolved. If the criticality can only be
diminished by a code change, Stentor considers hot-fix solutions.
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High Stentor acknowledges the receipt and
begins diagnosis and resolution within
[**] and communicates the status of the
problem with an update within 8 business
hours. Stentor applies continuous,
sustained effort on a twenty-four by
seven basis until the criticality is
resolved.
Medium Stentor acknowledges receipt within [**]
and enters a note with the assigned
support team. If the problem results in
the need for a Stentor Software
correction, Stentor queues the issue for
Development to evaluate for inclusion in
a future Release.
Low Stentor acknowledges receipt within [**]
and enters a note with the assigned
support team.
*Question All Responsiveness is on a case-by-case basis.
*Request All Due to the varying nature of these service requests, responsiveness and
resolve time for additional service requests are on a case-by-case
basis. The Customer should submit the request with as much advance
notice as possible, providing responsiveness expectations within the
request for the Stentor support center to use as a guideline. Factors
for responsiveness for these additional service requests include current
software/system support activities, other scheduled service requests,
and the urgency of the request within the Customer's deployment plans.
Issues related to image quality resulting from the System (and not caused by the
modalities or workstation monitors) shall be treated as Critical issues. If
these issues are not resolved within [**] ([**]) hours of reporting, the issues
shall be escalated to Stentor's Vice-President of Operations, who shall then be
directly involved in ongoing resolution efforts.
2. HEARTBEAT SUPPORT
Heartbeat support by the Stentor support center actively monitors Customer
systems, including server and application health indicators. When Heartbeat
support detects a fault, Stentor immediately opens a new trouble ticket in
Stentor's internal support system for resolution.
3 UPTIME WARRANTY
3.1 Definitions.
(a) "Unscheduled Downtime" means all time that, solely due to a cause that
originates with the Server Hardware or the Server Software: (i) the Server
Software on a single Server (and any applicable back-up thereof) cannot be
accessed by [**]; or (ii) the Authorized Users are unable to [**]. Unscheduled
Downtime does not include Scheduled Downtime or External Downtime. Measurement
of Unscheduled Downtime begins when Customer notifies Stentor customer support
of the existence of Unscheduled Downtime. Stentor customer support will
immediately issue and log a trouble ticket upon confirmation of Unscheduled
Downtime. Unscheduled Downtime ends when Stentor customer support confirms and
records the resumption time of the availability of the Server Software and/or
receives one heartbeat report back from the Server Hardware confirming Server
Software availability; provided, however, that if a heartbeat report would have
been received but for external problems that prevent the heartbeat report from
reaching Stentor, downtime ends as is reasonably determined by Stentor.
(b) "Scheduled Downtime" means all time that the Server Software cannot be
accessed due to scheduled maintenance including, but not limited to,
preventative maintenance, updates, upgrades, scheduled reboots and restarts.
Stentor will work with Customer to determine a mutually agreeable time for
Scheduled Downtime; however, in the event that downtime is required to remedy a
critical issue, including without limitation a patient-care issue, FDA
reportable event or HIPAA related issue, Stentor has the sole discretion in
determining the final timing of Scheduled Downtime.
(c) "External Downtime" means all time that the Server Software cannot be
accessed due to causes beyond Stentor's reasonable control and occurring without
its fault or negligence, including, without limitation,
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war, terrorism, strikes, fires, floods, acts of God, governmental restrictions,
power failures or surges, disruptions in telephone service or manual shutdowns
by Customer, subject to Stentor's obligations under Section 7.
3.2 Warranty Commencement. The uptime performance warranty shall apply
during the Term.
3.3 Uptime Warranty.
(a) Stentor warrants that the System will be available [**]% of the time
during any given month. Uptime for a given month is measured using the following
formula:
TOTAL NUMBER OF MINUTES IN THE MONTH - MINUTES OF UNSCHEDULED DOWNTIME X 100%
TOTAL NUMBER OF MINUTES IN THE MONTH
(b) All time is measured in one-minute increments with fractions
truncated.
(c) One month is defined as a calendar month. For purposes of the uptime
performance guarantee, a 31-day month has 44,640 minutes, a 30-day
month has 43,200 minutes, a 29-day month has 41,760 and a 28-day
month has 40,320 minutes.
(d) If a recoverable failure occurs on a redundant component, this event
shall not be considered Unscheduled Downtime. For example, if one
RAID volume goes down but the System remains available, then the
System is not considered to be experiencing Unscheduled Downtime.
Likewise, if Stentor supplies a cluster of redundant servers and one
of the servers is unavailable, then that event is not considered
Unscheduled Downtime so long as the user can access the active
server.
(e) The presence of software on the Server Hardware that has not been
approved by Stentor invalidates this Uptime Warranty.
3.4 Discount for Unscheduled Downtime. In the event that Stentor is unable
to meet the Uptime Warranty in a particular month with respect to a specific
Facility, Stentor shall discount a pro-rata portion of that month's portion of
the annual installment of the Fixed Fee as follows:
UPTIME PERFORMANCE DISCOUNT
[**] [**]
[**] [**]
[**] [**]
[**] [**]
[**] [**]
If uptime performance is less than [**]% during any month for any Facility,
Customer's obligation to pay the applicable monthly portion of the annual
installment of the Fixed Fee with respect to such Facility shall be waived.
3.4 Termination Right. Customer has the right to terminate the Master
Agreement for any affected Facility experiencing, or the Master Agreement as a
whole if [**] or more Facilities experience, either (a) [**]% uptime, or (b) any
[**] months in a [**]-month period at < [**]% uptime. The termination right will
automatically cease if not exercised within thirty (30) days after such
termination event occurs unless such period is extended by mutual agreement to
permit Stentor to attempt to further address the issue.
3.5 Sole and Exclusive Remedy. This Uptime Warranty is Customer's sole and
exclusive remedy related to System availability.
4. UPDATES
4.1 Definition. "Updates" means any patch, fix, upgrade, release or update
to the Stentor Software that Stentor makes generally available to its customers
that are under a service or maintenance contract.
4.2 Provision of Updates. Stentor shall provide Customer with, and
implement, all Updates during the Term without additional charge.
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4.3 Third Party Product Updates. Stentor shall provide Customer with, and
promptly implement, all updates, error corrections, security patches and
releases to any Third Party Products residing on the Server Hardware if and when
provided to Stentor with the right to do so.
5. TRAINING
5.1 Training Hours. Stentor shall provide the amount of training mutually
agreed upon by the parties. Such training shall, at a minimum, include
train-the-trainer training with respect to use of all Updates to the System, and
all other Stentor products added to the System after the Effective Date.
5.2 Training Schedule. Stentor and Customer will determine a mutually
agreeable training schedule for an specific installation. Training shall be
performed by qualified Stentor personnel upon completion of installation.
Customer is responsible for attendance by Customer personnel at scheduled
Stentor training sessions. Scheduled training will not be repeated due to low
attendance or now attendance. Any additional training will be billed at
Stentor's then current time and materials rates plus travel and expenses.
Group training shall be accomplished in groups of no more than 10 trainees.
Individual training shall be done with no more than 3 trainees in one group.
Stentor shall customize training to the specific needs of the user groups
defined below:
Frequent User: Radiologists and other frequent clinical users shall be trained
by Stentor to a high proficiency in all aspects of image retrieval and
manipulation.
Occasional User: Stentor shall train occasional users, such as referring
physicians, to operate workstations. Occasional users will be trained to perform
only basic image retrieval and display.
Radiology Technologist User: Stentor shall train radiology technologist users in
the overall operation of the System with all types of workstations and other
System components.
Support Staff Users: Stentor shall train administrative and support staff on all
System capabilities, especially those relating to fault diagnosis, maintenance
of database, and integrity and performance optimization.
6. SYSTEM RESPONSE TIME
Stentor warrants that the System will deliver and display the base resolution
image of standard cross-sectional (e.g., CT, MR) single-frame Studies or
standard projection radiography Studies of less than [**]MB (does not include
cine clips) on average in under [**] ([**]) seconds over a [**] minute period,
measured from the time the single exam is selected from the worklist tab or
timeline (the "Performance Warranty"), on the condition that:
(a) The System is being used under normal use conditions (e.g., excluding
substantial network loads for traffic other than that used for the System); and
(b) Customer's network is properly configured, and not oversubscribed, as
described below.
The Performance Warranty applies for up to [**] concurrent iSite Radiology users
on a switched 100 Mbit LAN and up to [**] concurrent iSite Enterprise users on a
switched 10 Mbit LAN. "Concurrent users" means the identified number of users
logged on to and using the System simultaneously under normal use conditions as
defined by that type of user.
If the System does not satisfy this Performance Warranty, Customer's sole remedy
and Stentor's exclusive obligation will be for Stentor to (1) begin system
diagnostics within [**] ([**]) hours after receiving notice from Customer, and
(2) to use commercially reasonable efforts to remedy the System to satisfy the
Performance Warranty within [**] ([**]) days after commencing system diagnostics
if the response time is under [**] ([**]) seconds and within [**] ([**]) hours
if the response time is [**] ([**]) seconds or greater. If the System is not
remedied to satisfy the Performance Warranty within those specified timeframes,
the System will be considered to be experiencing Unscheduled Downtime for
purposes of the Uptime Warranty in Section 3 above.
7. DISASTER RECOVERY / BUSINESS CONTINUITY
7.1 Backup of Image Data. Stentor shall backup a copy of all image data
from the Server Hardware to a disaster recovery datacenter to enable the
restoration of image data in the event of a loss of data on the Server Hardware.
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7.2 Backup of Database. Stentor shall incrementally backup the database
twice per day and perform a full database backup once per week.
7.3 Disaster Recovery Warranty. In the event of a loss of data on the
Server Hardware Stentor will use commercially reasonable efforts to restore the
most recent persistent storage module within [**] hours of notice of a loss of
data. Stentor will use commercially reasonable efforts to restore each
additional persistent storage module in [**]-hour increments thereafter until
all persistent storage modules have been restored. Notwithstanding any Force
Majeure Event, if Stentor does not restore the data within the foregoing
timeframes, the System will be considered to be experiencing Unscheduled
Downtime for purposes of the Uptime Warranty in Section 3 above.
7.4 Disaster Recovery Fees. In the event that Stentor performs disaster
recovery services for a loss of data that was not caused by Stentor or a failure
of the System, Customer shall pay Stentor's then current time and materials
rates to rebuild the persistent storage modules. Customer shall pay Stentor all
costs to replace Server Hardware.
7.5 Verification of Disaster Recovery. Upon Customer's request, Stentor
shall provide Customer with its then current back-up and disaster recovery plan,
and validate the efficacy of the disaster recovery process by demonstrating
restoration of data to a test server.
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