EXHIBIT 10.2
SOFTWARE LICENSE AGREEMENT
This Software License Agreement ("Agreement") is entered into under
seal this 16th day of June, 1999 (the "Effective Date") by and between Segami
Corporation, a Maryland corporation having its principal offices at 00000 Xxxxxx
Xxx Xxxxx, Xxxxxxxx Xxxx XX 00000 ("Segami"), and Digirad Corporation
("Digirad"), a Delaware corporation having its principal offices at 0000 Xxxxx
Xxxxx. Xxx Xxxxx XX 00000.
Statement of Intention
A. Segami is in the business of the development and sale of
software for gamma camera image acquisition, processing and
display. Segami's current software is called Mirage
B. Digirad desires to purchase software from Segami for the
purpose of gamma camera image acquisition, processing and
display which will interface with Digirad's solid state gamma
camera.
C. Digirad desires to package the Mirage software and Digirad's
hardware for resale as a single product, identifiable only as
a Digirad product.
In consideration of the mutual promises and covenants herein contained,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
under seal as follows:
1. DEFINITIONS. For the purposes of this Agreement, the following
terms, when used herein, have the following meaning.
"Base Software"-The existing Mirage software described in EXHIBIT D hereto in
object and executable code forms, and all updates, enhancements, revisions,
modifications, modules and or sub-modules thereto and all permitted copies,
except that Base Software does not include the Interface Development.
"Interface Development"-The new code written and modifications made to the Base
Software which will allow use of the Base Software with Digirad's current
hardware, in object and executable code forms, and all updates, enhancements,
revisions, modifications, modules and or sub-modules thereto and all permitted
copies.
"Product" - Digirad's solid state gamma camera bundled together with the Base
Software and Interface Development.
2. LICENSE TO DIGIRAD. Subject to all the terms of this
Agreement, Segami grants to Digirad a nonexclusive worldwide, fully paid-up
license:
(a) to sublicense the Base Software to end-users only in
connection with the sale and use of the Products; any such sublicense shall be
pursuant to a sublicense agreement for Segami's
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benefit that contains applicable similar restrictions and obligations imposed on
Digirad hereunder.
(b) to use, adopt, reproduce, display, perform, test, demonstrate
and distribute the Base Software as necessary to market, sale and distribute the
Products.
(c) sublicense to third parties the distribution rights for the
Products and Base Software; any such sublicense shall be pursuant to a
sublicense agreement for Segami 's benefit that contains applicable similar
restrictions and obligations imposed on Digirad hereunder.
The balance of this Section 2 notwithstanding, the license granted to Digirad
shall not include the right to sublicense, sell or distribute the Base Software
independently and separate from the Product, with the understanding that Digirad
may demonstrate the Base Software or distribute demonstration models of the Base
Software, limited in function, for use on systems independent from the Product.
3. USE/LICENSE FEES.
3.1 USE. Segami hereby grants Digirad the right to
package and bundle the Base Software with the Product, the Interface Development
and Digirad hardware for sale to end-users by Digirad or its subdistributors.
3.2 LICENSE FEES. Digirad shall pay a License Fee (the
"License Fee") to Segami, in accordance with the attached Exhibit A, for each
copy of the Base Software distributed to any end-user, unless otherwise agreed
upon in writing by Segami. Payment of the License Fee shall be made by Digirad
and tendered to Segami at the sooner of *** days after customer payment or ***
days after customer installation. Digirad will receive a reasonable number of
demonstration versions of the Base Software including the dongle keys ("Keys")
for using such versions ("Demo Versions") to be used for customer demonstrations
and/or Digirad roadshows (not for sale to customers). Segami shall deliver the
Demo Versions within *** days upon written request from Digirad.
3.3 AUDIT. Segami shall have the right to audit the
books, financial accounts and documents of Digirad *** in each calendar year for
which this contract is in force, to verify the number of copies of the Base
Software disseminated by Digirad. Segami shall employ an independent Certified
Public Accountant at its own cost and expense for such audit. Segami shall give
Digirad a minimum of *** days prior written notification of the audit. Digirad
shall not unreasonably withhold its cooperation in the audit.
4. INTERFACE DEVELOPMENT.
4.1 DEVELOPMENT. Segami agrees to undertake and complete
the code design, programming and testing of the Interface Development. Interface
Development shall be in accordance with the specifications on the attached
Exhibit B (the "Specifications") and the delivery schedule attached hereto as
Exhibit C (the "Delivery Schedule"). Segami shall be
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responsible for obtaining and maintaining operational status and approvals of
the Base Software and Interface Development (and any new versions or
improvements thereto) under FDA, CE and other regulatory authorities or
agencies. Segami agrees that its conduct in performing its obligations under
this Agreement shall conform in all material respects to all applicable laws and
regulations of the U.S. and foreign governments (and political subdivisions
thereof).
4.2 ACCEPTANCE. Digirad will, by written notice, accept
or reject any portion of the Interface Development delivered (individually, the
"Deliverable(s)") within *** days after receipt. Failure to give notice of
acceptance or rejection within that period will constitute acceptance. Digirad
may reject any Deliverable only if the Deliverable fails to meet the
Specifications or, at the fault or failing of that Deliverable alone, the
Product cannot operate in a commercially reasonable manner. If Digirad properly
rejects the Deliverable, Segami will correct the failures properly specified in
the rejection notice within *** days of the rejection notice. When it believes
that it has made the necessary corrections, Segami will again deliver the
Deliverable to Digirad and the acceptance/rejection/correction provisions above
shall be reapplied until the Deliverable is accepted; provided, however, that
upon the *** or any subsequent rejection or if the corrections are not made
within *** days of the initial rejection, Digirad may at its option terminate
this Agreement by immediate written notice unless the Deliverable is accepted
during the notice period.
5. COMPENSATION FOR INTERFACE DEVELOPMENT. Digirad shall make
payments to Segami in accordance with the Delivery Schedule. Each payment will
be in U.S. dollars from the United States and will be made no later than ***
days from the occurrence of the event specified in the Delivery Schedule for
which payment is due.
6. OWNERSHIP RIGHTS. As between the parties Segami shall retain
all right title and interest, including all patent, copyright, trade secret,
trademark, mask work or other rights, in the Base Software, or any other idea or
product conceived or reduced to form by Segami, its agents or assigns as of the
Effective Date. Digirad shall have all right, title and interest, in the
Interface Development. The parties hereby make any assignments necessary to
accomplish the foregoing ownership provisions.
7. SUPPORT/MAINTENANCE.
7.1 SUPPORT. During the term of this Agreement:
(1) Segami shall use its best efforts to respond
within *** days after receipt of written notice of verifiable defects, and
propose a plan for prompt and effective remedy, and shall provide general
guidance concerning the Base Software or Interface Development. Defects shall be
reported in writing via electronic mail or facsimile to Segami at the
telephone/email numbers provided by Segami to Digirad from time to time.
(2) Segami shall inform Digirad promptly of any
changes in the Base Software or delivery schedules.
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(3) Subject to the other terms and conditions of
this Agreement, Segami shall use its reasonable best efforts to promptly fill
Digirad's orders for Keys. Promptly following the execution of this Agreement,
Segami shall place *** Keys in escrow. If Segami materially fails to provide a
sufficient number of Keys to Digirad for delivery of Products to end-users,
after *** days written notice to Segami, Digirad shall be entitled to receive
from escrow any or all of the Keys. If Segami fails to provide a sufficient
number of Keys to Digirad for delivery of Products to end-users, after *** days
written notice to Segami, Digirad shall be entitled to a fully executed purchase
order from Segami to the Key manufacturer ("Escrow Materials") authorizing the
Key manufacturer to provide directly to Digirad those Keys reasonably necessary,
in Digirad's sole discretion, for Digirad to sell and install Product. In
support of the foregoing and promptly after execution of this Agreement, Segami
will place in escrow (pursuant to the terms of an escrow agreement in form
mutually acceptable to the parties hereto) the Escrow Materials as they exist at
the date of the Agreement. Segami will update the escrow with any new or
modified Escrow Materials and Keys promptly as it becomes necessary and will
notify Digirad when it does so. *** ***
(4) Segami agrees to provide *** standard
training *** for Digirad personnel. *** shall be given at Digirad's main office
on a schedule reasonably acceptable to Segami but commencing no later than ***
days after Digirad's written request. ***
***
***
(5) Segami shall provide free technical support
to Digirad personnel up to *** during the first year, and *** per year after
that. This does not include time spent on developments set forth in Section 4 or
Section 7.1(1). Segami shall provide Digirad with all the user's documentation
in its possession.
7.2 MAINTENANCE RELEASES. In the exercise of its sole
discretion and from time to time, Segami may develop and make available
maintenance release for the Base Software at no cost to Digirad. Such
maintenance release shall be patches for the purpose of correcting any
deficiencies in the Base Software which may become apparent to Digirad and
Segami after successful delivery of the Interface Development.
7.3 ENHANCEMENTS/UPGRADES. In the exercise of its sole
discretion and from time to time, Segami may develop and make available for sale
through Digirad to end-users, and at an additional license fee to Segami, to be
negotiated in good faith by the Parties, substantially upgraded versions of the
Base Software which incorporate significant functional changes or additions, or
substantially improved performance.
8. CONFIDENTIALITY. Each party agrees that all code, inventions
algorithms, know-how and ideas and all other business, technical and financial
information they obtain from the other are confidential information and property
of the disclosing party ("Confidential Information"). Each party shall use
Confidential Information of the other party which is disclosed to it only for
the purposes of this Agreement and shall not disclose such Confidential
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Information to-any third party, without the other party's prior written consent,
other than to Segami's subcontractors, subdistributors and employees on a
need-to-know basis. Each party agrees to take measures to protect the
confidentiality of the other party's Confidential Information that, in the
aggregate, are no less protective than those measures it uses to protect the
confidentiality of its own Confidential Information, but at a minimum, each
party shall take reasonable steps to advise their employees, subcontractors and
subdistributors of the confidential nature of the Confidential Information and
of the prohibitions on copying or revealing such Confidential Information
contained herein. The parties each agree to require that the other party's
Confidential Information be kept in a reasonably secure location.
Notwithstanding anything to the contrary contained in this Agreement neither
party shall be obligated to treat as confidential, or otherwise be subject to
the restrictions on use, disclosure or treatment contained in this Agreement for
any information disclosed by the other party (the "Disclosing party") which: (1)
is rightfully known to the recipient prior to its disclosure by the Disclosing
Party; (2) is generally known or easily ascertainable by non-parties of ordinary
skill in computer process design or programming or in the business of the
client; (3) is released by the Disclosing Party to any other person, firm or
entity (including governmental agencies or bureaus) without restrictions; (4) is
independently developed by the recipient without any reliance on Confidential
Information; or (5) is or later becomes publicly available without violation of
this Agreement or may be lawfully obtained by a party from a non-party. Neither
party will be liable to the other for inadvertent or accidental -disclosure of
Confidential Information if the disclosure occurs notwithstanding the party's
exercise of the same level of protection and care that such party customarily
uses in safeguarding its own confidential information.
Notwithstanding the foregoing, all Confidential Information developed
by Segami, including but not limited to the Interface Development, in connection
with this Agreement shall be deemed Confidential Information of Digirad
disclosed by Digirad to Segami and exceptions (1) and (4) above will not be
applicable thereto.
9. EXPORT CONTROL. Each party hereby agrees to comply with all
export laws and restrictions and regulations of the Department of Commerce or
other United States or foreign agency or authority, and not to export, or allow
the export or re-export of any proprietary information or software or any copy
or direct product thereof in violation of any such restrictions, laws or
regulations.
10. TERMINATION
10.1 TERMINATION BY DIGIRAD. Digirad may terminate this
Agreement if Segami is in material breach of, or default under, this Agreement
and such breach or default is not cured within *** days after Digirad delivers
written notice of such breach or default to Segami.
10.2 TERMINATION BY SEGAMI. Segami may terminate this
Agreement if Digirad is in material breach of or default under, this Agreement
and such breach or default is not cured within *** days after written notice to
Digirad. A material breach of and default
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under, this Agreement by Digirad shall include, without limitation, the
occurrence of the failure of Digirad to pay any License Fee when due.
10.3 SURVIVAL. Sections 5-15 of this Agreement, any
accrued rights to payment, any licenses granted in this Agreement that are
expressly perpetual and any remedies for breach of this Agreement shall survive
termination.
11. LIMITATION OF LIABILITY.
(a) Except under Section 8 and the indemnity provisions
of Section 12, neither party nor its affiliates shall, under any circumstances,
be liable to the other party or its affiliates for any claim based upon any
third party claim or for consequential, incidental, indirect, punitive,
exemplary or special damages of any nature whatsoever, or for any damages
arising out of or in connection with any malfunctions, delays, loss of data,
loss of profit, interruption of service or loss of business or anticipatory
profits, even if a party or its affiliates have been apprised of the likelihood
of such damages occurring.
(b) ***
***
***
12. INDEMNIFICATION
(a) The parties each agree to indemnify, defend and hold
harmless the other from and against any and all amounts, including legal fees
and other out-of-pocket expenses, payable under any judgment, verdict, court
order or settlement for death or bodily injury or the damage to or loss or
destruction of any real or tangible personal property to the extent arising out
of the indemnitor's negligence, gross negligence, or willful misconduct in the
performance of this Agreement.
(b) Segami agrees to indemnify, defend and hold harmless
Digirad, its distributors and end-users from and against any and all amounts,
including legal fees and other out-of-pocket expenses, payable under any
judgment, verdict, court order or settlement to the extent resulting from any
third party allegation that the Base Software or the work performed by Segami
under this Agreement infringes such third party's intellectual property rights,
including, without limitation, patent, copyright or trade secret. Should
Digirad's use of work performed by Segami be determined to have infringed, or if
in Segami's and Digirad's reasonable judgment such use is likely to be
infringing, *** *** ***
(c) Digirad agrees to indemnify, defend and hold harmless
Segami from and against any and all amounts payable under any judgment, verdict,
court order or settlement to the extent resulting from any affiliated third
party allegation that the work performed by Segami under this Agreement
infringes such third party's intellectual property rights to the extent
attributable to software, hardware, data, knowledge or services provided by
Digirad.
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(d) The indemnities in this paragraph are contingent
upon: (1) the indemnified party promptly notifying the indemnifying party in
writing of any claim which may give rise to a claim for indemnification
hereunder; (2) the indemnifying party being allowed to control the defense and
settlement of such claim; and (3) the indemnified party cooperating with all
reasonable requests of the indemnifying party (at the indemnifying party'
expense) in defending or settling such claim. The indemnified party shall have
the right, at its option and expense, to participate in the defense of any
action, suitor proceeding relating to such a claim through a counsel of its own
choosing.
13. WARRANTIES. Segami warrants that it has and will obtain
agreements with its employees and contractors sufficient to allow it to provide
Digirad with the assignments and licenses to intellectual property rights
contemplated in this Agreement. Segami also warrants that the Base Software and
Interface Development and any part thereof shall meet the Specifications, and
perform in a commercially reasonable manner until the later of (i) *** years
from the final date of delivery on the Delivery Schedule and (ii) with respect
to each product containing the Base Software and/or Interface Development, ***
year from the date of installation of such product by Digirad or its distributor
to an end-user. If Digirad finds that the Products, or part thereof fail to meet
the above warranty, Segami shall, at its option, immediately repair or replace
the Base Software and/or Interface Development or part thereof at its costs and
expenses without prejudice to any other rights and remedies of Digirad under
this Agreement or applicable law. If a Deliverable is rejected, the warranty
will extend accordingly from any adjusted final delivery date. Except for
Section 14, notwithstanding anything to the contrary contained in this
Agreement, Segami makes no other warranties, express or implied, or whether
arising by operation of law, course of performance or dealing, custom, usage in
the trade or profession or otherwise including without limitation implied
warranties of merchantability and fitness for a particular purpose.
14. MILLENNIUM WARRANTY.
14.1 GENERAL, Other sections of this Agreement
notwithstanding, Segami represents and warrants that for a period of four (4)
years after the Effective Date, the Base Software and the Interface Development
will be able to accurately: (a) process any date-roll event with no adverse
impact on the functionality of the software including without limitation, the
producing of error(s) or abnormal interruption; (b) process date-data
calculations including, without limitation, computation, comparisons,
sequencing, sorts and extracts and return and display date-data in a consistent
manner regardless of the dates used in such date-data whether before, on,
during, or after January 1, 2000; (c) process any date-data computations that
can be expected from the software if used for its intended purpose, regardless
of the date in time on which the processes are actually performed and regardless
of the date-data input, whether before, on, during or after January 1, 2000; (d)
exchange date-data related information with other hardware, firmware or software
with which it interacts, provided that the interacting hardware, firmware or
software is itself capable of exchanging accurate date-data; (e) accept and
respond to four-digit year-date input in a manner that resolves any ambiguities
as to the century in a defined predetermined and appropriate manner; and (f)
store and display date-data in ways that are unambiguous as to the determination
of the century. No date-data shall cause such software to
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perform an abnormally ending routine or function within the processes or
generate incorrect values or invalid results. For purposes of the foregoing, a
date-rollover event is defined as any transaction between one calendar year and
the following calendar year including, without limitation, any time, date and
day-of-the-week progressions and any regularly scheduled leap events. Date-data
is defined as any data, formula, algorithm, process, input or output, which
includes, calculates or represents a date, day or time, a reference to a date,
day or time, or a representation of a date, day or time.
14.2 SPECIAL REMEDIES. In the event of any breach of the
warranties and covenants contained in this section, provided that such breach is
not cured by Segami within *** days following receipt of written notice of such
breach, in addition to other rights and remedies that may be available to
Digirad under this Agreement, Segami shall be responsible for: (a) any costs of
repairing, replacing and/or correcting the affected software; and (b) cover and
other similar damages that are incurred by Digirad as a result of Segami's
breach of this warranty.
15. MISCELLANEOUS
15.1 BINDING NATURE. This Agreement shall be binding upon
and shall inure to the benefit of the parties to this Agreement and their
respective successors and permitted assigns. Segami shall not have any right or
ability to assign, transfer, or sublicense any obligations or benefit under this
Agreement without the written consent of Digirad, except that Segami may assign
and transfer this Agreement and its rights and obligations hereunder to any
third party who succeeds to substantially all its business or assets.
15.2 ENTIRE AGREEMENT. This Agreement constitutes the
entire agreement between the parties and there are no representations,
warranties, covenants, or obligations except as set forth in this Agreement.
This Agreement supersedes all prior or contemporaneous agreements
understandings, negotiations and discussions, written or oral, of the parties to
this Agreement, relating to any transaction contemplated by this Agreement.
15.3 SEVERABILITY. Each provision of this Agreement shall
be considered separable and if for any reason any provision or provisions in
this Agreement are determined to be invalid arid contrary to any existing or
future law, that invalidity shall not impair the operation of this Agreement or
affect those portions of this Agreement which are valid.
15.4 ARBITRATION. If any dispute or controversy arises
among the parties to this Agreement concerning any provision of this Agreement,
that dispute or controversy shall be submitted for resolution to a board of
arbitration in *** *** *** Such arbitration shall be conducted pursuant to the
rules of the American Arbitration Association (the "AAA") or other governing
rules and *** *** ***
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15.5 NO AGENCY. This Agreement shall not be deemed to
constitute the parties hereto as partners, joint venturers, nor shall either
xxxxx hereto be deemed to be an agent of any nature, kind and description
whatsoever of the other.
15.6 JURISDICTION AND VENUE. This Agreement shall be
governed, enforced, performed and construed in accordance with the laws of the
State of *** *** Subject to the provisions of Section 15.4 hereof each of the
parties hereto hereby submits to the exclusive jurisdiction of the state and/or
federal courts located within the State of *** for any suit, hearing or other
legal proceeding of every nature, kind and description whatsoever in the event
of any dispute or controversy arising hereunder or relating hereto, or in the
event any ruling, finding or other legal determination is required or desired
hereunder.
15.7 ATTORNEYS FEES. In the event that legal proceedings
are commenced in connection with this Agreement or the transactions contemplated
hereby, the party or parties *** *** ***
15.8 AMBIGUITY. The parties acknowledge that each party
and its respective counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Agreement or any amendments or exhibits, or schedules hereto.
15.9 EXHIBITS. The exhibits attached hereto and each
certificate, schedule, list summary or other document provided or delivered
pursuant to this Agreement or in connection with the transactions contemplated
hereby are incorporated herein by this reference and made a part hereof.
15.10 COUNTERPARTS. Provided that all parties hereto
execute a copy of this Agreement, this Agreement may be executed in
counterparts, each of which shall he deemed an original and all of which
together shall constitute one and the same instrument. Executed copies of this
Agreement may be delivered by facsimile transmission or other comparable
electronic means.
15.11 VOLUNTARY AGREEMENT. The parties hereto represent
that they have carefully read the foregoing Agreement, understood its terms,
consulted with an attorney of their choice, and voluntarily signed the same as
their own free act with the intent to be legally bound thereby. The terms of
this Agreement are contractual and not a mere recital.
15.12 FORCE MAJEURE. Neither party shall be liable to the
other for its failure to perform any of its obligations under this Agreement
during any period in which such performance is delayed due to circumstances
beyond its control, including acts of God or public authorities, was and war
measures, civil unrest, natural disasters or delays in transportation, delivery
or supply.
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15.13 NOTICE. All notices under this Agreement shall be in
writing and shall be deemed given when personally delivered or three days after
being sent prepaid certified or registered United States mail to the address of
the party to be noticed as set forth below or such other addresses as such party
last provided to the other by notice:
Digirad: Digirad Corporation
0000 Xxxxx Xxxxx
Xxx Xxxxx XX 00000
Attn: President and COO
Segami: Segami Corporation
00000 Xxxxxx Xxx Xxxxx
Xxxxxxxx Xxxx XX 00000
Attn: Xxxxxxxx Xxxxxxxx Ph.D.
Copy to: Xxxxxxxxxxx X. Xxxxx, Esq.
0000 Xxxxxxxx Xxxxxx Xxxxx
Xxx. 000
Xxxxxxxx Xxxx XX 00000
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
under seal as of the date first above written.
ATTEST: Digirad Corporation
By: /s/ ILLEGIBLE By: /s/ Xxxxx Xxxxxxxxxx
------------------------------- --------------------------------
Title: Controller (SEAL) Title: President & COO
---------------------------- -----------------------------
Segami Corporation
By: /s/ ILLEGIBLE (Secretary) By: /s/ ILLEGIBLE
------------------------------- ------------------------------
Title: (SEAL) Title: President
---------------------------- -----------------------------
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EXHIBIT A
PRICING SCHEDULE
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EXHIBIT B
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Information contained in this document is proprietary to DIGIRAD Corporation and
should not be released outside of the company without written permission of the
company.
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should not be released outside of the company without written permission of the
company.
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company.
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company.
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company.
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EXHIBIT C
DELIVERY SCHEDULE
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EXHIBIT D
SEGAMI'S BASE SOFTWARE
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