Exhibit 10.44
AMENDMENT NO. 2 TO
MARKETING AND DISTRIBUTION
AGREEMENT
BETWEEN
VITAL IMAGES, INC.
AND
TOSHIBA MEDICAL SYSTEMS
CORPORATION
THIS AMENDMENT NO. 2 TO MARKETING
AND DISTRIBUTION AGREEMENT (the “Amendment”), is made and
entered into this 12th day of December, 2003 by and between Vital
Images, Inc., a Minnesota corporation having its principal place of
business at 3300 Fernbrook Lane N., Suite 200, Plymouth, Minnesota
55447 USA (“Vital Images”) and Toshiba Medical Systems
Corporation, having its place of business at 1385, Shimoishigami,
Otawara-Shi, Tochigi 324-8550, Japan
(“Toshiba”).
RECITALS:
WHEREAS, Vital Images and Toshiba Corporation, acting
through its Medical Systems Company, previously executed that
certain Marketing and Distribution Agreement (the
“Agreement”) dated January 21, 2002, and effective
October 1, 2001; and
WHEREAS , Vital Images and Toshiba Corporation
previously executed that certain Amendment No. 1 to Marketing
and Distribution Agreement (the “First Amendment”)
dated January 9, 2003, and effective October 1, 2002;
and
WHEREAS, Section 14 of the First Amendment provides
that the term of the Agreement would expire on September 30,
2003; and
WHEREAS, as of October 1, 2003, Toshiba succeeded to
all of the Toshiba Corporation’s medical equipment and system
business including its rights and obligations relating thereto, and
Vital Images confirms such succession through signing this
Amendment; and
WHEREAS, Vital Images and Toshiba now desire to extend
the term of the Agreement to December 31, 2004 and amend
certain terms of the Agreement retroactively effective as of
October 1, 2003 as set forth below.
AGREEMENT:
NOW, THEREFORE,
in consideration of the premises and
the mutual covenants and agreements hereinafter contained and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree as
follows:
1.
Article 1 of the Agreement is
hereby amended by adding new Section 1.10, such new sections
to read as follows:
1.10
Floating License
. “Floating
License” shall mean one software license for a Product which
instead of being restricted to one (1) access point (i.e., a
computer workstation), can be used at more than one (1) access
point, provided that such use shall be restricted to one access
point at a time.
2.
Section 1.2 of the Agreement is
hereby restored to the original wording of Section 1.2 in the
Agreement, and the amended Section 1.2 as presented in
Paragraph 2 of the First Amendment is hereby rescinded.
3.
Section 2.2 of the Agreement is
hereby amended by deleting the last sentence of said
Section 2.2.
4.
Section 3.1(c) of the Agreement
is hereby restored to the original wording of Section 3.1(c)
in the Agreement, and the amended Section 3.1(c) as presented
in Paragraph 4 of the First Amendment is hereby
rescinded.
5.
Section 3.1(f) of the Agreement
is hereby amended by deleting said Section 3.1(f) and
replacing it with the following:
(f)
To maintain an adequately trained
and staffed sales and technical support group for the marketing and
distribution of the Products in the Territory, for the First Level
Installation in the United States, and for the First Level
Installation and First Level Maintenance outside the United
States.
6.
Section 3.3 of the Agreement is
hereby amended by adding the following new paragraph at the end of
said Section 3.3:
In addition, upon written request of
Toshiba and/or its Dealer Associates, Vital Images agrees to grant
to Toshiba and/or its Dealer Associates up to four (4) royalty free
software licenses, in total at any time, for the latest version of
the Products solely for use at four (4) mutually agreed-upon
customer sites (“National Show Sites”) in the Territory
for purposes of referrals and business development, provided that
such customers do not already have software licenses for the
Products, and subject to the Terms and Conditions for the
Demonstration License attached hereto as Exhibit D .
Vital Images also agrees to provide Toshiba and/or its Dealer
Associates with such update or upgrade releases of the Products as
would be provided to their customers pursuant to Vital
Images’ standard software maintenance program, free of
charge, during the term of these National Show Site licenses.
It is understood and agreed that the National Show Sites are
expected by Vital Images to become “clinical
collaborators” pursuant to Vital Images’ standard
collaboration agreement.
7.
Section 3.6 of the Agreement is
hereby amended by deleting its first sentence and replacing it with
the following:
Toshiba and its Dealer Associates
assume full responsibility for all its own costs and expenses
incurred in carrying out its obligations under this Agreement,
including but not limited to all rents, salaries, commissions,
advertising,
2
demonstrations, travel and
accommodations; provided, however, Vital Images will provide to
Toshiba and its Dealer Associates at no charge training for (a) one
hundred (100) of Toshiba’s and the Dealer Associates’
sales and technical support staff, and (b) two (2) of Toshiba
America Medical Systems, Inc.’s (“TAMS”) clinical
managers, at Vital Images’ facilities or at any other
mutually-agreeable location, in the function, application,
installation and the First Level Maintenance of the Products and in
the provision of assistance to Vital Images in the Second Level
Maintenance, provided, however, Toshiba or the Dealer Associates
shall pay the salaries and all transportation and living expenses
for its staff.
8.
Article 3 of the Agreement is
hereby amended by adding new Section 3.7, such new
section to read as follows:
3.7
Clinical Support
License . Upon written
request of Toshiba, Vital Images agrees to grant to Toshiba and/or
its Dealer Associates up to five (5) royalty free software
licenses, in total at any time, for the latest version of the
Products solely for their own clinical support uses, subject to the
Terms and Conditions for the Demonstration License attached hereto
as Exhibit D . Three (3) of the clinical support
licenses shall be available for use in the U.S., and two (2) of the
clinical support licenses shall be available for use outside the
United States. Vital Images also agrees to provide Toshiba
and/or its Dealer Associates with such update or upgrade releases
of the Products as would be provided to their customers pursuant to
Vital Images’ standard software maintenance program, free of
charge, during the term of these clinical support licenses.
Toshiba hereby acknowledges and agrees that these licenses will be
solely f
