EXHIBIT 10.1
PRODUCT DEVELOPMENT, DISTRIBUTION, AND WARRANTY
SUPPORT AGREEMENT
THIS AGREEMENT ("Agreement") is made as of April 14, 1999, by and
between Imatron Inc., a New Jersey corporation ("Imatron") and AccuImage
Diagnostics Corp., a Nevada corporation ("AccuImage").
Recitals:
A. Imatron is engaged in the business of providing imaging technology
and services for its products and for the products of others; and
B. AccuImage is engaged in the business providing image display
products and software and desires to contract with Imatron to provide
distribution and service on AccuImage's products for AccuImage's products.
PRODUCT DEVELOPMENT
Fee Structure:
1) Fee plus bonus paid to AccuImage for delivering a completed
Imatron Product Package (see page 2 for definition) by 5/15/99:
$50,000. For AccuImage to collect the $50,000 fee plus bonus
amount, AccuImage must have obtained FDA 510(k) product approval.
2) Fee paid to AccuImage for delivering a completed Imatron Product
Package by 6/15/99: $25,000. For AccuImage to collect the $25,000
fee amount, AccuImage must have obtained FDA 510(k) product
approval. If AccuImage has completed the product package by
6/15/99, but FDA approval has not been obtained, then the fee
paid to AccuImage is reduced to $20,000 payable upon FDA
approval.
3) Penalty suffered by AccuImage for delivering a completed package
after 6/15/99: Effective 6/15/99, AccuImage agrees to provide
Imatron free licenses of the Imatron Product Package until it is
completed (no hardware of any kind is included). Only Imatron
customers who were undergoing installation while the Imatron
Product Package was incomplete after 6/15/99 can qualify for the
free licenses. Free licenses will be released to Imatron in
complete or partial form. Completed plug-ins will be made
available to Imatron immediately, with the unfinished plug-ins
still due Imatron in accordance with this penalty provision that
states that a complete Imatron Product Package license will be
provided free of charge. Only after completion of the Imatron
Product Package, will Imatron be liable for payment to AccuImage
for software products. No fee is paid to AccuImage for late
completion of the Imatron Product Package.
4) Appropriate decrements in Bonus amount between the dates stated
in the Accelerated Delivery Date and the Delivery Date will be
calculated on daily timestamps.
Method for Determining a Completed Imatron Product Package:
A) Each software plug-in module in the Imatron Software Product
Package will be evaluated separately and deemed completed in one
of two ways:
1) If AccuImage has sold a software plug-in module to three
customers and there is substantial evidence of product
sufficiency, then that software plug-in module will be
deemed complete. Successfully placing products at customer
sites proves market acceptability in terms of functionality,
speed, image quality and ease-of-use.
2) All software plug-in modules not deemed complete by
conditions in point 1) above will be evaluated by Xxxx
Xxxxxxxx, Imatron Product Manager, or an outside third party
agreeable to both Imatron and AccuImage. This person shall
adjudicate on product completion.
B) Each EBT connectivity package, the Megalink Gateway and the UPOW
Gateway, will be evaluated by Xxxx Xxxxxxxx, Imatron Product
Manager or an outside third party agreeable to both Imatron and
AccuImage. This person shall adjudicate on product completion.
Technical Support:
1) AccuImage will be granted needed access to Imatron's Laser Camera
for testing the AccuFilm plug-in module.
2) AccuImage will be granted access to Imatron's scanner to test
Megalink connectivity and UPOW connectivity as well as debug
problems as they arise.
3) AccuImage will be granted a set of Imatron's proprietary format
images to be used to test the conversion from this proprietary
file structure to the DICOM standard.
Imatron Software Product Package: (list of included plug-ins)
Pricing shown is for individually-sold plug-ins and is NOT
representative of standard packaged product offerings.
AccuView Imatron Selling Price: $495 With any plug-in purchase: FREE
AccuView is a Viewer/Browser program that enables viewing of DICOM
formatted images stored on a local PC, or on any network drive.
AccuView is extendible using a series of powerful plug-in modules that
provide additional network services and advanced processing functions.
AccuView can display all medical images that are formatted with the
DICOM standard including cine images from angiography, ultrasound,
nuclear medicine, as well 2D, 3D, and 4D images from conventional
radiography, CT, MRI, and PET. Imatron format and UltraAccess format
files are directly compatible.
AccuNet Imatron Selling Price: $ 995
AccuNet provides advanced DICOM receive service. Using this module,
data can be received from any modality and/or workstation vendor that
adheres to the DICOM standard and has an Internet connection.
AccuTrans Imatron Selling Price: $ 995
AccuTrans provides advanced DICOM send service. Data can be sent to any
workstation with resident AccuNet software running.
AccuPrint Imatron Selling Price: $ 995
AccuPrint provides the capability to print medical images on
inexpensive paper printers and Codonics network printers through an
easy-to-use, Microsoft Word based document assembly interface.
AccuEdit Imatron Selling Price: $ 5,210
AccuEdit allows the user to edit away unwanted tissue structures before
manipulating the medical data with other plug-in modules. Single image
editing, slab editing and barrel volume editing are all included.
AccuFilm Imatron Selling Price: $10,210
AccuFilm provides the capability to print medical images on laser film
imagers. Supported laser interfaces include 3M P831 and P952. Support
for Kodak film imagers is included but might not be available in the
initial software release. The Plexar (DASM) interface is included-
AccuScore Imatron Selling Price: $ 9,880
AccuScore provides calcium scoring, reporting, and database management
for quantifying the amount of calcium in coronary arteries as obtained
using Imatron EBT or spiral/helical CT image data. Included are 3D
Agatston scoring, plaque volume and calcium mass determination,
context-driven auto reporting, and database storage of clinical
parameters.
AccuProjector Imatron Selling Price: $ 9,880
AccuProjector provides the capability to perform maximum intensity
projections, multi-planner reformatting, and 3D rendering to display
vascular and other body structures. The program processes a contiguous
sequence of CT or NM image data. 2D vascular projections are possible
in any arbitrary plane with user definable increments. The resulting
images may be stored or sent to a color printer via the standard NT
platform.
AccuVRT Imatron Selling Price: $14,890
AccuVRT utilizes a volume rendering technique with transparent full
color output to display multiple tissues in various hues. This method
may be used to render "life-like" renditions of all tissues in the
body. Hallmark applications to date include diagnosis of vascular
anomalies, renal disease, tumor characterization, as well as
pre-surgical planning and post-surgical follow-up.
AccuScope Imatron Selling Price: $14,890
AccuScope enables the user to design a specific flight path through a
vessel, airway, or colon using set key-frames and auto-navigation.
Volume data along this Right path are rendered on the surface of the
lumen. With this information at hand, virtual imaging using CT data is
now a viable asset to the diagnosis. It is foreseeable that
uncomfortable studies such as barium enemas, and costly studies such as
angiograms, may become confirmation tools rather than procedures
necessary for initial diagnosis.
Megalink Gateway Imatron Selling Price: $20,000
Software providing Megalink connectivity to the EBT scanner, conversion
of proprietary Imatron file format to standard DICOM format, cards that
are installed in both the AccuImage workstation and the EBT scanner
itself and the optic fiber cable linking the two devices.
UPOW Gateway Imatron Selling Price: $15,000
Software providing UPOW connectivity to the EBT scanner, conversion of
proprietary Imatron file format to standard DICOM format, an additional
Gateway computer that runs software and houses computer cards, the UPOW
card required on the Gateway computer and an eight meter cable
providing connection between the Gateway computer and EBT scanner.
DISTRIBUTION:
1. Imatron is the exclusive distributor of AccuImage products to new
EBT customers in the United States and abroad. All current and
future software plug-ins will be available to Imatron for resale
purposes. This exclusive agreement is for a period of five years
commencing on the date that it is signed by both parties.
2. Imatron is responsible for promotion, installation, sales, and
applications training of all hardware and software products
distributed by them.
3. AccuImage carries all installed base responsibilities for all
equipment and software sold by Imatron under this Distribution
section (except as provided for in the Warranty Support section
contained herein).
4. AccuImage reserves the right to solicit direct sales to the
installed base of Imatron scanners. Computer hardware servicing,
software installation and application training of sales to this
installed base will be done, at AccuImage's discretion, either by
AccuImage application engineers, or Imatron application engineers
at an agreed upon fee for this service.
5. AccuImage agrees not to run any promotions with special pricing
that discounts the stated MSRP or published actual selling price
of any plug-in or combination of plug-ins without the prior
review and written approval of Imatron. (see page 13 for
communications instructions). Such approval may not be
unreasonably withheld.
6. End user pricing will remain the discretion of Imatron.
7. AccuImage will provide Imatron with a full software suite and
production hardlock dongle free of charge for demonstration and
training purposes.
8. AccuImage agrees to achieve and maintain compliance with all
applicable Food and Drug Administration (FDA) regulations,
Medical Device Directive (MDD) provisions, and any other
regulatory or compliance requirements that apply to sales of
AccuImage products in the United States and to foreign countries.
9. AccuImage Diagnostics Corp. will supply to Imatron individual
plug-ins, with required hardware included as described in the
plug-in descriptions above, at the prices listed below. All
pricing is in U.S. Dollars. Note: These prices are derived by
discounting AccuImage's published software-only Plug-in prices by
30%. AccuFilm was then increased by $4,000 to include the Plexar
(DASM) interface hardware.
Plug-in Imatron Cost
AccuView $347 (Free with any plug-in purchase)
AccuNet $696
AccuTrans $696
AccuPrint $696
AccuEdit $3,647
AccuFilm $7,647 (Includes Plexar (DASK)
AccuScore $6,916
AccuProjector $6,916
AccuVRT $10,423
AccuScope $10,423
MegaLink $ 5,000 (or $15,000 if not sold w/ Imatron
Standard Config.)
UPOW $ 2,500 (or $12,500 if not sold w/ Imatron
Standard Config.)
10. All transfer pricing is FOB South San Francisco, CA. Payment
terms are 50% with delivery, with the balance due within 30 days
of shipment to the customer. AccuImage will ship all orders to
Imatron within 7 days of receipt.
11. For software plug-in selections of $40,000 dollars and above,
AccuImage will include PC hardware with the software. AccuImage
will continue to upgrade its standard hardware configuration to
take advantage of advances in that industry. AccuImage will
provide hardware that is certified with the "CE xxxx" whenever
required (currently required in Europe). AccuImage is responsible
to determine if this requirement exists and automatically ship
the "CE Marked" hardware with the order.
12. For software plug-in selections less than $40,000 dollars,
AccuImage will provide the plug-ins (which may include
specialized hardware) at the agreed upon Imatron price. If PC
hardware is required, AccuImage will add the cost of computer
hardware plus 10%.
13. When Imatron sells two AccuImage workstations in one sale to a
customer, AccuImage agrees to provide Imatron with the second
AccuImage workstation at a 50% discount off of the agreed upon
Imatron price. Hardware for this second workstation will be
provided at cost plus 10%.
14. AccuImage agrees to provide a maximum of 15 AccuImage
workstations including hardware and software at a price equal- to
hardware cost plus 10%. These workstations are to be used only in
cases where:
Imatron has booked a two workstation package (any
combination of UltraAccess workstations and AccuImage
workstations where AccuImage has been booked or sold
into the account) to a customer prior to 4/l/99,
AccuImage agrees to provide Imatron with one
workstation under this provision, Or,
Imatron is offering the AccuImage workstation as a Y2
replacement for an UltraAccess workstation.
15. In cases where AccuImage provides hardware to Imatron to upgrade
an existing AccuImage workstation, AccuImage will charge cost
plus 20% for the additional hardware required. Software is
provided free of charge as provided for in the Warranty Support
section herein.
16. All hardware (PC, Plexar-DASK Megalink, etc.) sold by AccuImage
carries a full one year parts and labor warranty and will be
implemented as detailed in the Warranty Support section herein.
17. AccuImage will provide Imatron with replacement software for its
customers free of charge if the original software is irrevocably
lost or deleted from the disk drive. Imatron will be responsible
for installation and technical support.
18. AccuImage agrees to supply all source sales and marketing
materials it produces to Imatron in a timely manner. Master
demonstration CDs containing sales and marketing material will be
produced periodically by AccuImage and sent to Imatron for
replication and distribution. Imatron may edit, print and
distribute these materials as Imatron sees fit, subject to
AccuImage's approval.
Definition of the Imatron Basic Workstation Package Configuration:
Included Modules:
----------------
AccuView AccuNet AccuTrans
AccuEdit AccuScore AccuProjector
AccuVRT AccuScope AccuPrint
Minimum Hardware:
----------------
Dual 400MI-Iz Pentium H chip set Recordable CD with software
9 Gigabyte hard-drive 512 Megabytes RAM
2 1 -inch color monitor Keyboard, mouse
10 mbit network hub Fast and wide SCISI port
Epson color ink-jet printer
Pricing to Imatron:
------------------
TOTAL: $40,000 includes software and hardware detailed above
Definition of all Imatron-sold Configurations with Pricing:
Imatron
Basic Configuration above PLUS: Cost MSRP
Only Basic Configuration $40,000 $60,000
With AccuFilm, $48,000 $70,000
With AccuFffm and MegaLink* $53,000 $809,000
With AccuFilm, MegaLink, and UPOW Gateway $55,500 $85,000
With MegaLink $45,000 $70,000
With MegaLink and UPOW Gateway $47,500 $75,000
With UPOW Gateway $42,500 $65,000
* typical configuration sold to Imatron customers.
WARRANTY SUPPORT
1. AccuImage agrees to utilize Imatron exclusively as its provider
of on-site corrective maintenance, warranty and customer support
for systems AccuImage has sold.
2. Imatron Sold AccuImage Products: Imatron will provide on-site
applications training and installation. The sale will include a
one year warranty that covers parts and on-site service performed
by Imatron. The sale will include the Platinum Phone Support
Plan, defined at the end of this document. The fee paid by
AccuImage to Imatron will be 5% of the total Imatron cost of the
product. This calculation is made using the cost figures given in
this agreement regardless of what Imatron actually paid AccuImage
for the product(s).
3. Imatron Sold AccuImage Products at Difficult Geographic
Locations: In cases where it is not reasonably possible to
provide on-site service, the customer will receive the Platinum
Phone Support Plan, and AccuImage will utilize a
return-to-factory method of correcting hardware problems. In this
case Imatron will not charge AccuImage to provide the Platinum
Phone Support.
4. AccuImage Sold AccuImage Products over USD$40,000: The sale will
include a one year warranty that covers parts and on-site service
performed by Imatron. The sale will include the Platinum Phone
Support Plan, defined at the end of this document The fee paid by
AccuImage to Imatron will be 5% of AccuImage's product MSRP. For
difficult geographic locations, AccuImage will pay Imatron for
the Platinum Phone Support package only. Application training and
installation will be performed by AccuImage, or may be
subcontracted out to Imatron at an agreed upon price and at
AccuImage's discretion.
5. AccuImage Sold AccuImage products under USD$40,000: AccuImage
will offer its customers the suite of Phone Support Plans,
defined at the end of this document. The fee paid to Imatron will
be the agreed upon Imatron fee for the customer's choice of Phone
Support Plan.
6. This Warranty Support section does not apply to systems sold by
AccuImage that are governed by pre-existing distributor
agreements with a party other than Imatron, provided they are
located outside the United States of America. Imatron may, at its
discretion, offer other AccuImage distributors technical phone
support for an agreed upon fee.
7. Imatron agrees to set-up a toll-free number (separate from the
Imatron service number) as the dial-in number for AccuImage
customers purchasing one of the Phone Support Plans, defined at
the end of this document. AccuImage reserves the right
periodically to check the efficacy of Imatron's staff in
administering phone support. Feedback from AccuImage on customer
support will be used to improve the service.
8. AccuImage will provide all software upgrades or bug related fixes
free of charge to Imatron customers. The distribution channel for
these upgrades will always be through Imatron and will remain the
responsibility of Imatron service to install while the Warranty
Support Agreement is in effect. In cases where there are unusual
costs associated with bug related fixes, AccuImage will be
charged 60% of Imatron's published labor rates, and 100% of the
material costs required to perform bug related fixes.
9. Parts supplied or services rendered by Imatron will have an
amount added to the price equal to all applicable taxes.
10. Imatron reserves the right to adjust all charges described in
this Agreement if a covered product's specifications,
attachments, or features increase the cost of performing
maintenance.
11. AccuImage agrees to provide Imatron Technical Specialists with
access to AccuImage Technical Support 24 hours/day and 7
days/week.
12. AccuImage agrees to provide reasonable on-site technical support
in critical customer situations.
13. Warranty and phone support package payments are calculated and
agreed to by both parties at the end of each month. Payment terms
are Upon Receipt.
14. AccuImage agrees that, upon termination of this agreement,
AccuImage retains all responsibilities to the installed base of
AccuImage equipment, even if sold by Imatron.
15. EXCLUDED SERVICES: Not included in the warranty service provided
by Imatron are: Defects or performance deficiencies if due to (1)
acts of God, acts of civil or military authority, floods, fires,
strikes or other causes beyond the reasonable control of Imatron;
(2) Accident, neglect, misuse, negligent handling or storage of
AccuImage products by AccuImage or any other customer, or their
respective employees, agents, contractors, or other persons
having access thereto; (3) any modification, alteration, repair,
change, or addition to covered products not made by AccuImage or
Imatron; or (4) misuse of the product or use of the product in an
extraordinary or improper manner or in a manner not contemplated
by the Operating Instructions.
Definition an Pricing of Phone Support Packages:
Platinum Gold Silver Standard
Hours/No. Calls Unlimited 20/20 5/5 212
Funct. Upgrades YES YES NO NO
Imatron Fee USD$2,000 USD$1,500 USD$250 USD$100
AccuImage USDS3,000 USD$2,000 USD$500 FREE
Customer Price Free in lieu of
Standard if MSRP
is 10k or greater
GENERAL TERMS AND CONDITIONS
Assignment:
Either party, upon giving prior written notice to the other party, may assign
this Agreement and its rights hereunder to any parent, subsidiary or affiliate
thereof or to any successor occurring by merger, consolidation, acquisition of a
substantial part of its assets or the like. Other than so provided, neither
Imatron nor AccuImage shall assign this Agreement without the prior written
consent of the other party; which consent will not be unreasonably withheld- Any
attempted assignment without the prior written consent of the other party will
be void. No assignment shall release the assignor or is primary liability
hereunder.
Force Majeure:
Neither party will be responsible or liable in any way for its failure to
perform its obligations under this Agreement during any period in which
performance is prevented or hindered by conditions beyond its control, acts of
God, fire, flood, war, embargo, court order, strikes, labor disturbances,
explosions, riots and laws, rules, regulations and orders of any government
authority.
Scope:
This agreement replaces all prior and existing agreements, contracts, and
relationships between AccuImage and Imatron including, but not limited to
purchase agreements, distribution agreements and service support agreements.
This document is valid only in its entirety.
Cancellation and Default Provisions:
Either party has the right to cancel this agreement with 90 days written notice
if the opposing party is not fulfilling the terms of this agreement. Such claims
will be made in writing and are subject to mediation by third party legal
counsel in the event of separation. This agreement may also be cancelled
voluntarily at any time if the terms of cancellation are agreed upon in writing
by both Imatron and AccuImage. Imatron or AccuImage may cancel this agreement
without the consent of the other party with one year written notice. In
addition, this Agreement will automatically terminate if either party; (a)
becomes a party to any proceeding under the Bankruptcy Act or other insolvency
law, voluntary or involuntary, if such proceeding is not dismissed within ninety
(90) days; (b) suffers a receiver to be appointed for its affairs or property;
or (c) enters into an assignment or other arrangement for the benefit of its
creditors, or suffers an attachment against or a seizure of a substantial part
of its assets, products or its parts inventory.
In the case of default by either party under this Agreement, each party will be
responsible for their own costs and expenses arising from the default, including
reasonable attorney's fees if the non-defaulting party engages legal counsel to
preserve or enforce its rights under this Agreement, including collection of any
payment due.
Termination of this Agreement will not adversely affect any rights existing as
of the effective date of termination.
Disclaimers and Limitation of Liability
IMATRON WILL NOT BE LIABLE (A) FOR PERSONAL INJURY OR PROPERTY DAMAGE TO ANY
PERSON EXCEPT PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY ITS GROSS NEGLIGENCE,
(B) FOR INCIDENTAL, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS
OR INCOME, OR LOSS OF USE OR OTHER BENEFITS OF ANY PERSON, OR (C) FOR ANY
DAMAGES (REGARDLESS OF THEIR NATURE) CAUSED IN WHOLE OR IN PART BY ACCUIMAGE OR
CUSTOMER, INCLUDING BUT NOT LIMITED TO ACCUIMAGE OR CUSTOMERS FAILURE TO FULFILL
OR OBSERVE THEIR RESPECTIVE OBLIGATIONS UNDER CONDITIONS OF ANY SERVICE PROVIDED
IN THIS AGREEMENT OR IN ANY OTHER AGREEMENT WITH IMATRON IMATRON'S OBLIGATIONS
HEREUNDER ARE IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED.
No advertising, publicity releases, or similar public information concerning
tins Agreement, Imatron or Imatron's name, AccuImage or AccuImage's name, or the
services to be performed hereunder, shall be published or cause to be published
by either Imatron or AccuImage without the prior written consent of the other
party, which consent shall not be unreasonably withheld. Imatron will make
reasonable efforts to provide a response within fifteen (15) working days from
the date of such request. All communications hereunder shall be in writing, and,
if sent to either party, shall be sufficient in all respects if delivered, sent
by registered mail, Federal Express, or by telecopy and confirmed to such party
at:
If to Imatron:
Imatron Inc.
000 Xxxxxx Xxxxx Xxxx.
Xxxxx Xxx Xxxxxxxxx, XX 00000
Attn: Mr. Xxxx Xxxxxx
If to AccuImage:
AccuImage Diagnostics Corp.
000 Xxxxxx Xxxxx Xxxx. Xxxxx 000
Xxxxx Xxx Xxxxxxxxx, XX 940 10
Attn: Xxxxx Xxxxxxx
This Agreement will be governed by the laws of the State of California and
constitutes the entire Agreement between AccuImage and Imatron. No provisions of
this Agreement will be deemed waived, amended or modified by either party unless
such waiver, amendment or modification be in writing signed by the party against
whom it is sought to enforce the waiver, amendment or modification. If any
provision of this agreement is held to be illegal or unenforceable, such shall
not affect the balance thereof.
Each party acknowledges that it has read this. Agreement, understands it, and
agrees to be bound by its terms and conditions. Further, each party acknowledges
that this Agreement is the complete and exclusive statement of the Agreement
between the parties, which supersedes all proposals or prior agreements, oral or
written, and all other communications between the parties relating to the
subject matter of this agreement Each party also agrees dud this agreement
effects an agency relationship, coupled with an interest, between Imatron and
AccuImage.
ACCEPTANCE:
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound, have
caused this Agreement to be duly executed as of the date first above written.
----------------------------------- -----------------------------------
Xxxx Xxxxxx Xxxxx X. Xxxxxxx, Ph.D.
Vice President, Marketing Operations President & CEO
Imatron Incorporated AccuImage Diagnostics Corp.
----------------------------------
Xxxx Xxxxxxxx
Product Manager
Imatron Incorporated
