Exhibit 10.1
AMENDMENT NO. 3 TO
MARKETING AND DISTRIBUTION
AGREEMENT
BETWEEN
VITAL IMAGES, INC.
AND
TOSHIBA MEDICAL SYSTEMS
CORPORATION
THIS AMENDMENT NO. 3 TO MARKETING
AND DISTRIBUTION AGREEMENT (the “Amendment”), is made and
entered into this 30th day of March, 2005 by and between Vital
Images, Inc., a Minnesota corporation having its principal
place of business at 5850 Opus Parkway, Suite 300, Minnetonka,
Minnesota 55343 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 , Vital Images and Toshiba previously executed
that certain Amendment No. 2 to Marketing and Distribution
Agreement (the “Second Amendment”) dated
December 12, 2003, and effective October 1, 2003;
and
WHEREAS, Section 14 of the Second Amendment provides
that the term of the Agreement would expire on December 31,
2004; and
WHEREAS, Vital Images and Toshiba now desire to extend
the term of the Agreement to December 31, 2006 and
retroactively amend certain terms of the Agreement effective as of
January 1, 2005, 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.
Section 2.1 of the Agreement is hereby amended adding new
subsections (a) and (b), such new subsections to read as
follows:
(a)
Notwithstanding the foregoing,
Toshiba shall have the exclusive right to distribute and resell the
SurePlaque option solely to Toshiba customers for a period of
eighteen (18) months after the SurePlaque option has been
integrated into Vitrea ® 2 pursuant to
Section 3A.1 hereof and made available for commercial
distribution. During such 18-month period, Vital Images may not,
directly or indirectly, distribute or resell the SurePlaque option
to any person. For purposes of this subsection (a), a
“Toshiba customer” is a customer who has purchased or
is in the process of purchasing an Aquilion CT scanner from
Toshiba. Further, Toshiba shall have the exclusive right to
distribute and resell the SurePlaque, stent visualization and the
myocardial perfusion options to the “VitalCardia”
package solely to Toshiba customers for a period of eighteen (18)
months after such options have been integrated into the
“VitalCardia” package pursuant to Section 3A.1
hereof and made available for commercial distribution.
(b)
Notwithstanding the foregoing,
Toshiba shall not have the right to distribute or otherwise sell
the
1
ViTAL Connect option in the U.S.
market except in connection with the sale of a
“VitalCardia” package (as defined in Exhibit E
hereto). However, Vital Images agrees to work with Toshiba to
consummate a transaction in a case where a customer is considering
the purchase of a Toshiba CT equipment in combination with a Vital
Images workstation, regardless of whether such purchase involves a
VitalCardia Package. If Vital images has submitted a proposal
for sale of Vital Images workstation before Toshiba’s
involvement in an account, Vital Images will not withhold the sale
of such workstation to Toshiba if Toshiba later elects to
participate in such sale.
2.
The Agreement is hereby amended by
adding new Article 3A, such new Article 3A to read as
follows:
ARTICLE 3A: GENERAL
OBLIGATIONS OF VITAL IMAGES
3A.1
Development and
Integration . Vital
Images will use its best efforts to integrate Toshiba’s
SurePlaque option into Vitrea ® 2 . In
addition, once Toshiba has made its stent visualization software
and its myocardial perfusion software available to Vital Images,
Vital Images will use its best efforts to integrate such options
into the “VitalCardia” package.
3A.2
Market Awareness
. Vital Images will use its
best efforts to promote awareness of the Products for use in the
radiology and cardiology market through tradeshows and other
marketing venues. At a minimum, Vital Images will attend the
trade shows set forth in Exhibit G to this
Agreement. If Vital Images will have a separate booth in any
trade show in which TAMS also participates, Vital Images will be
required to provide such workstations and qualified personnel for
the TAMS booth in addition to its own. Furthermore, Vital Images
will exercise its best efforts to have its booth located adjacent
to TAMS’ booth where both participate. Vital Images
will also advise TAMS of any trade shows in which Vital Images
participates so as to provide TAMS the opportunity to send
personnel to Vital Images’ booth to promote the TAMS
equipment, if TAMS will not have a separate booth in such trade
shows. Any exhibits prepared by Vital Images for its trade
shows must show the Vital Images products working in conjunction
with Toshiba’s images from Toshiba’s Aquilion CT
equipment.
3A.3
Software for Training
Purposes . Vital
Images will provide, at no charge, thirty (30) temporary licenses
for Vitrea ® 2 , including any Vitrea
® 2 Options, solely for use by TAMS CT
applications specialists for training purposes. Toshiba
hereby acknowledges and agrees that in no event shall such licenses
be sold to any party, nor used in any clinical setting or for
clinical purposes. In addition, Vital Images will send
software updates automatically to TAMS, which updates will be
provided free of charge.
3A.4
Demonstration License
. Vital Images will provide to
TMSE eight (8) royalty free software licenses, in total at any
time, for the latest version of Vitrea ® 2 ,
including any Vitrea ® 2 Options but
excluding any third party software, solely for demonstration
purposes, subject to the Terms and Conditions for the End User
Agreement. Six (6) of these licenses shall be used in six
(6) regions of TMSE and the remaining two (2) licenses
will be provided to new luminary sites. In addition, Vital
Images will send software updates automatically to TMSE, which
updates will be provided free of charge.
3A.5
Support . During the term of this Agreement, Vital
Images agrees to maintain an adequate number of trained sales,
applications and service support personnel sufficient at a minimum
to support the products commitment stated in Exhibit E
to this Agreement.
3A.6
CT Specialist Training
. During the first six months of the
term of this Agreement, as amended, Vital agrees to train a minimum
of four (4) TAMS CT applications specialists on the use of
Vitrea ® 2 .
2
3.
Section 8.1(a) of the Agreement is hereby amended by
deleting said Section 8.1(a) and replacing it with the
following:
(a)
Limited Warranty . Vital Images warrants to Toshiba
and the Dealer Associates for twelve (12) months from installation
or sixteen (16) months from the delivery date, whichever expires
first (the “Warranty Period”), that the Products, when
properly installed and operated, will substantially perform the
functions described in the functional specifications for the
Products, as contained in the applicable written documentation for
the Products, and that such Product shall be upgraded or updated to
its latest version with the assurance of downward compatibility.
Vital Images shall have no obligation under this provision if
(a) the Products have not been properly installed, used or
maintained, whether in accordance with Vital Images’
then-applicable operating manuals;
