Legal Terms

1. SOFTWARE LICENSE

1.1. Upon the execution of a Sales Order, and subject to all terms of the Underlying Agreement (including this Product Terms Page) and of the applicable Sales Order, for Software locally installed on Customer’s computer systems, Merge grants to Customer a non-exclusive, non-sublicensable, non-transferable license to install one instance of the Software at the location set forth in the applicable Sales Order and use such Software (in executable or object code form only), and the accompanying Documentation.  Unless otherwise expressly set forth in the applicable Sales Order, the Software may only be accessed and used by Customer and its Authorized Users, and Customer shall be responsible for breaches of the Underlying Agreement by its Authorized Users.  The term of the license shall be as set forth in the applicable Sales Order.  If no term is set forth in a Sales Order and for licenses designated to be “perpetual”, the term of the license shall be the Term of the Underlying Agreement.  “Authorized User” shall have the meaning set forth on the applicable Sales Order, except that for Merge Software licensed subject to an Annual Procedure Volume not limited to a specific number of users (as set forth on the applicable Sales Order), “Authorized User” shall mean an employee, contractor or member of the medical staff of Customer who uses the Software as authorized in a Sales Order and solely in connection with the business activities of Customer. “Underlying Agreement” means this Sales Order and the terms and conditions that govern this Sales Order.

1.2 License Restrictions.  Except to the extent otherwise expressly set forth in the applicable Sales Order, Customer shall not:

• Use the Software for any purpose other than Customer’s internal business purposes;
• Permit the use of or access to the Software by any party other than an Authorized User;
• Sell, lease, share, loan, encumber, license, sublicense, distribute or transfer the Software to any third party (including a parent, subsidiary or other affiliated entity), nor in any manner use the Software to provide hosting, application service provider, service bureau, time sharing, outsourcing or other services to third parties; ;
• Translate, reverse engineer, decompile or disassemble or otherwise attempt to derive the source code of the Software (except and only to the extent that the foregoing restriction is prohibited by applicable law, in which event Customer shall provide Merge with prior written notice its intention to reverse engineer the Software and shall provide Merge with a right of first refusal to perform such services at rates equal to those proposed by a recognized third-party software services provider for such work);
• Use any component of the Software on a standalone basis;
• Modify, adapt, create derivative works based on the Software (but, for the avoidance of doubt, Customer may interface the Software with other Customer systems and prepare report formats for Customer’s own internal business purposes);
• Make copies of the Software or Documentation except for its internal back-up and archival purposes; and/or
• Use the Software in any manner that is unlawful or not in accordance with the Underlying Agreement.

1.3 Documentation.  Any Documentation provided to or to which Customer otherwise has access shall be used solely in connection with Customer’s use of the Software as permitted under the Underlying Agreement. 

1.4 Ownership. For Software licensed hereunder, Customer acquires only the right to use the Software in accordance with the Underlying Agreement and does not acquire any rights of ownership nor any implied right of any kind. The Software and Documentation and all modifications thereto, and all intellectual property rights therein, are and shall be owned by Merge and all intellectual property rights in and to the Products are reserved by Merge and/or its suppliers, except as expressly provided herein. Merge shall have all right, title or interest in and to all modifications and derivative works based on the Merge Software. Customer shall not alter, remove or obscure any copyright or other proprietary notices on or in the Software or Documentation or any copies thereof.

1.5 License Fees.  In consideration of the licenses granted by Merge under the Underlying Agreement, Customer shall pay Merge all license fees set forth in the applicable Sales Order. Upon execution of such Sales Order, Merge is authorized by Customer to deliver and invoice for the Software in accordance with such Sales Order. All licenses granted to Customer hereunder are specifically contingent upon payment to Merge of applicable license fees.

1.6 Annual Procedure Volume; License Use Limitation (may not be applicable for all licenses).  In addition to the limitations and restrictions elsewhere in the Underlying Agreement, a Sales Order may specify that Customer’s license to the Software is limited to an Annual Procedure Volume or a License Use Limitation. 

• For a license based on Annual Procedure Volume, if the Software is used in excess of the Annual Procedure Volume, Customer shall immediately purchase from Merge, at Merge’s then current rate or at some other mutually agreed upon rate, incremental licensing to increase its Annual Procedure Volume by an amount no less than that by which actual use exceeded the Annual Procedure Volume. For purposes hereof, the following definitions apply: “Annual Procedure Volume” means the maximum number of Procedures, as set forth on the Sales Order, permitted by the license to be processed by the Software or used in conjunction with the Software in a twelve (12) month period, as measured from First Productive Use and each anniversary thereof. Unless otherwise defined in the applicable Sales Order, “Procedure” means a captured study that: (i) has a unique DICOM study instance UID, and (ii) is managed or stored by the Software. 
• For a license based on a License Use Limitation, if the Software is used in excess of the applicable License Use Limitation, Customer shall immediately purchase from Merge, at Merge’s then current rate or at some other mutually agreed upon rate, incremental licensing to increase its License Use Limitation by an amount no less than that by which actual use exceeded the License Use Limitation For purposes hereof, “License Use Limitation” means a specific metric or limitation (such as the number of users, medical providers, workstations, etc., but not including Annual Procedure Volume) limiting Customer’s use of the Software.

1.7 Audit.  From time to time, Merge may, on its own or through a third party, perform an audit of Customer’s use of the Software and Customer’s compliance with the provisions of the Underlying Agreement.  Any such audit may take place either remotely or at Customer’s site, and if on-site shall occur at times agreed to by the Parties, with neither Party to unreasonably withhold or delay its agreement.  Customer shall be liable to Merge for use of the Software that exceeds the applicable limitations and restrictions specific to the use of Software as set forth on the applicable Sales Order.

2. SUPPORT SERVICES

2.1. Support Services

(a) Support Services.  Merge’s Support Services are provided in accordance with the terms and conditions of the Underlying Agreement. Support Services are provided for the standard version of the Software made generally available by Merge, and Support Services for custom software may be subject to additional fees as provided on the applicable Sales Order.

(b) Support Services Term, Renewal and Fees. Unless otherwise provided on a Sales Order, Support Services for newly-licensed Software shall begin on the effective date of the Sales Order (under which the applicable Software is licensed) and continue for one year thereafter (the “Initial Support Services Term”).  Upon expiration of the Initial Support Services Term, Support Services shall automatically renew for consecutive annual periods (each of which shall be referred to as a “Support Services Renewal Term”), unless either Party provides the other Party with written notice, at least twenty-eight (28) days prior to the expiration of the then-current Initial Support Services Term or Support Services Renewal Term, of its intention not to renew Support Services.  The fees for the first Support Services Renewal Term may be set forth in the Sales Order, and the annual Support Services fee is due in full at the commencement of each annual Support Services Renewal Term. Merge reserves the right to (i) immediately suspend Support Services in the event Customer is more than thirty (30) days late in payment of any Support Services Fee; and/or (ii) increase the Support Services fee for any future Support Services Renewal Term by not more than 5% (annualized), by providing Customer with advance written notice no less than forty-five (45) days prior to the expiration of the then-current Support Services Renewal Term.  If applicable, Merge may readjust the dates for the terms of Support Services and issue prorated invoices so as to synchronize Customer’s multiple terms for Support Services.

3. OBLIGATIONS UPON TERMINATION

3.1. Effects of and Obligations upon Termination of Underlying Agreement.  Upon termination of the Underlying Agreement, licenses for all Software under the Underlying Agreement and under any Sales Order under the Underlying Agreement (the “Terminated Software”) are immediately terminated and Customer shall immediately cease use of all Terminated Software. Within thirty (30) days after termination, Customer shall either return to Merge or destroy all Terminated Software and all copies (authorized and unauthorized) thereof, and remove and purge from all Customer’s systems and equipment (and that of its employees, contractors and Authorized Users) all Terminated Software. Customer shall, within such 30-day period, deliver to Merge a written certification signed by an officer of Customer certifying that Customer has ceased use of all Terminated Software and has returned, destroyed and/or purged all Terminated Software as required in this Section.  Termination shall not relieve Customer of its obligation to pay all fees that are attributable to the time preceding termination, have become payable or will become payable by Customer hereunder, and upon termination all such sums shall be immediately due and payable to Merge. Termination of the Underlying Agreement or of a license granted hereunder shall not limit either Party from pursuing any remedies available to it, including injunctive relief.

3.2. Survival.  All provisions of this Product Terms Page which by their nature are intended to survive the termination of the Underlying Agreement (including, without limitation, the provisions of Sections 1.2, 1.4, 1.5, 1.7, and 3.1) shall survive such termination.

4. PRODUCT WARRANTY

4.1. Software. Merge hereby grants to Customer limited warranty, as defined below, commencing on First Productive Use of the applicable Merge Software and continuing for ninety (90) days thereafter (the “Software Warranty Period”).   Merge warrants that during the Software Warranty Period (a) the Merge Software will perform in substantial conformity with the functional specifications contained in the Documentation, and (b) the media on which the Merge Software is delivered shall be free of defects. The preceding warranty is conditional upon the Software having been properly used on the hardware and with the operating system and other software for which it was designed.  In the event of breach of the preceding warranty, Merge shall, at its option: (i) replace the applicable Merge Software or media on which it is installed, as appropriate, (ii) correct the Merge Software so that it complies with the above warranty, or (iii) terminate the license for the applicable Merge Software and refund to Customer amounts paid as license fees for such Merge Software, together with any pre-paid Professional Service Fees and Support Services Fees for Services not rendered, and such shall constitute the exclusive remedy of Customer and Merge’s sole liability with respect to this Section 4.1.

PRODUCT TERMS PAGE: MERGE iCONNECT® NETWORK SERVICES

These Terms and Conditions (the “Terms for iConnect Network”), together with the applicable Sales Order and Underlying Agreement entered into between Merge Healthcare Solutions Inc. (“Merge”) and the customer designated in the applicable Sales Order (“Customer”) constitute the “Agreement” between the Parties as to the Merge iConnect Network Services, and the Agreement shall govern the transactions set forth in the applicable Sales Order. In the event these Terms for iConnect Network conflict with the Underlying Agreement, these Terms for iConnect Network shall control. THE AGREEMENT SHALL TAKE PRECEDENCE OVER ANY TERMS CONTAINED IN A PURCHASE ORDER OR OTHER DOCUMENT ISSUED BY CUSTOMER (regardless of whether such documents are accepted by Merge, which acceptance shall be for administrative convenience only).

1. DEFINITIONS 

1.1. “Authorized User” means an employee or contractor or member of the medical staff of Customer, a referring physician, or other person that (i) is authorized by Customer to access and use the Merge iConnect Network Services; and (ii) has been issued, by Customer, unique login credentials (individual user ID and password).

1.2. “Customer Content” means all Reports, data and other content that Customer sends to or otherwise causes to be submitted through or stored by the Merge iConnect Network Services.

1.3. “Customer Support Contact” means an individual employee or other personnel of Customer who is authorized by Customer to interact with Merge as to support issues with the Merge iConnect Network Services and whose name has been provided by Customer to Merge as a ‘Customer Support Contact’.

1.4. “iConnect Network First Productive Use” means the date that a Report has first been routed through the Merge iConnect Network.

1.5. “iConnect Network Support Services” means the technical support of Customer’s use of the Merge iConnect Network Services, as more fully described in the Merge Support Services Program Terms found below.

1.6. “iConnect Network Term” means the term during which Customer is entitled to access and obligated to pay fees for the iConnect Network, with such term being comprised of the Initial iConnect Network Term together with all Renewal iConnect Network Terms (as set forth below in Section 3).

1.7. “Internet Connectivity” shall mean that level of Customer’s connectivity from its location(s) to the iConnect Network such that the connectivity adequately allows the transfer of data as necessary hereunder.

1.8. “Maintenance Event” means that period of time for which Merge performs scheduled or emergency maintenance on the iConnect Network.

1.9. “Merge iConnect Network” means Merge’s cloud based hub through which validated clinical messages and content can be routed from one health information technology application to another (including but not limited to Customer’s forwarding of Reports to a Referring Provider’s electronic medical record system).

1.10    “Order”, also sometimes known as ‘computerized physician order entry’ (CPOE), means an electronic version of a physician request for a patient examination, medical procedure or Report.

1.11    “Per-Order Fee” means the fee payable by Customer to Merge for each Order routed through or otherwise processed by the iConnect Network.  The dollar amount of the Per-Order Fee is set forth on the applicable Sales Order. The standard Per-Order Fee is based on electronic transmission from (i) the iConnect Network; or (ii) a Referring Provider’s electronic medical record system from an EMR vendor with which Merge has partnered for such purpose.

1.12. “Per-Report Fee” means the fee payable by Customer to Merge for each Report routed through or otherwise processed by the iConnect Network.  The dollar amount of the Per-Report Fee is set forth on the applicable Sales Order. The standard Per-Report Fee is based on electronic transmission to a Referring Provider’s electronic medical record system that is certified to receive clinical messages from a third party data exchange company with which Merge has partnered for such purpose, with an alternate fee (as may be set forth on the applicable Sales Order) for a transmission via facsimile when transmission to a Referring Provider’s electronic medical record system cannot be completed through no fault of the iConnect Network.

1.13. “Referring Provider” means a physician or other qualified medical provider (i) that has ordered an exam and (ii) to whose electronic medical record system the resultant Report will be routed.

1.14. “Report” means a doctor’s report of a radiology exam that is routed through the Merge iConnect Network. A Report may include a link to the associated image embedded within such Report.

1.15 “Transaction Fees” means the Per-Order Fees and the Per-Report Fees.

1.16. “Underlying Agreement” means this Sales Order and the terms and conditions that govern this Sales Order.

2. MERGE iCONNECT NETWORK SERVICES.

2.1 Rights of Use to the Merge iConnect Network Services. As set forth herein, during the iConnect Network Term Customer may use the Merge iConnect Network Services to route clinical content limited to copies of Reports from Customer’s qualified (by Merge) health information technology system to the Merge iConnect Network, and Customer may allow its Authorized Users to access and use the Merge iConnect Network Services solely for the purpose of receiving reports and viewing imaging exam studies.  The routing of Reports may involve third party data exchange partners and electronic medical record systems of Referring Providers.

2.2 Certain Restrictions on Use of the Merge iConnect Network Services.  Customer and its Authorized Users shall not:

• Use the Merge iConnect Network or Merge iConnect Network Services for any purpose other than Customer’s internal business purposes;
• Permit the use of or access to the Merge iConnect Network Services by any party other than an Authorized User;
• Sell, lease, share, loan, encumber, license, sublicense, distribute or transfer the Merge iConnect Network Services to third parties, nor in any manner use the Merge iConnect Network Services to provide hosting, application service provider, service bureau, time sharing, outsourcing or other services to third parties, nor allow the Merge iConnect Network Services to be used in any commercial time share arrangement;
• Attempt to gain unauthorized access to the Merge iConnect Network Services or the Merge iConnect Network, or their underlying software, systems or networks;  and/or
• Use the Merge iConnect Network Services to transmit content that is illegal, is libelous, is in violation of third party rights of privacy or confidentiality, or infringes upon intellectual property rights; or use the Merge iConnect Network Services or the Merge iConnect Network or in any other manner that is unlawful or not in accordance with the Underlying Agreement.

2.3 Documentation.  Any Documentation provided to Customer shall be used solely in connection with Customer’s use of the Merge iConnect Network Services as permitted under the Underlying Agreement.

2.4 Ownership.  Merge (or, where applicable, its licensors) reserves and retains any and all right, title and interest, implied or otherwise, in and to the Merge iConnect Network Services, the Merge iConnect Network and Merge software, together with all modifications thereto. Customer acquires only the right to use the Merge iConnect Network Services in accordance with the Underlying Agreement and does not acquire any rights of ownership or any implied right of any kind.

2.5 Certain Customer Responsibilities.  Customer is responsible for all activities of its Authorized Users and all activities that occur under Customer’s Authorized User accounts. Customer is responsible for maintaining the security and confidentiality of all Authorized User usernames and passwords. Customer agrees to immediately notify Merge of any unauthorized use of any Merge iConnect Network Services username or password or account or any other known or suspected breach of security regarding the Merge iConnect Network Services or the Merge iConnect Network.

2.6 Connectivity and Third Party Elements. Maintenance of an adequate WAN connection is the responsibility of Customer. Customer acknowledges that iConnect Network Services (including the routing of Reports) are dependent upon Customer having applicable connectivity to sending and receiving health information technology applications that (i) are in proper working order and (ii) have been validated by Merge to interoperate with the Merge iConnect Network.  Merge assumes no responsibility for this connectivity.

2.7 iConnect Network Services.  Included in the Merge iConnect Network Services are the following:

(a) Internet Connectivity.  Merge will supply adequate bandwidth connectivity services at the facility housing the iConnect Network.  Customer shall make its own arrangements for internet access in order to utilize the iConnect Network. 

(b) Security Services.  Merge will provide security services via facility access limited to authorized Merge and its contracted third party personnel and through data access security via managed security appliances and virtual private networks with encrypted data streams.

(c) Monitoring Services.  Merge will provide monitoring of the iConnect Network facility including application monitoring, server and database monitoring.

(d) Release Management and Change Control.  Merge will provide release management and change control services to ensure that versions of servers, network devices, storage, software and applications are appropriate as necessary for Merge to maintain the iConnect Network Service.

(e) Administration Services.  Merge will provide for and administer the appropriate resources (including hardware, software, operating systems and personnel) at its iConnect Network facility as necessary to maintain the iConnect Network.

(f) iConnect Network Support Services.  Merge shall provide Support Services during the iConnect Network Term. 

3. iCONNECT NETWORK TERM.

3.1 Initial iConnect Network Term.   Customer shall be entitled to Merge iConnect Network Services during the iConnect Network Term, which shall commence upon iConnect Network First Productive Use and continue for the period designated on the Sales Order as the Initial iConnect Network Term, provided that if no ‘Initial iConnect Network Term’ is designated on the Sales Order, then such term shall be for one (1) year and shall expire on the first anniversary of iConnect Network First Productive Use (“Initial iConnect Network Term”). 

3.2 First iConnect Network Renewal Term.  Upon expiration of the Initial iConnect Network Term, the Parties may agree to renew the iConnect Network Term for an additional one-year renewal term or for such different term as is set forth on the Sales Order to be executed for the renewal term (the “First iConnect Network Renewal Term”).  The Sales Order for the First iConnect Network Renewal Term shall be mutually agreed to by the Parties, shall be governed by these Terms and Conditions, and shall contain the Per-Record Fee and Annual report Commitment terms for the First iConnect Network Renewal Term.

3.3 Subsequent iConnect Network Renewal Terms. Thereafter, the iConnect Network Term shall automatically renew for consecutive annual calendar-year renewal terms (each an “iConnect Network Renewal Term”), unless either Party provides the other Party with written notice, at least thirty (30) days prior to the expiration of the then-current iConnect Network Term, of its intention not to renew the term of the Merge iConnect Network Services. In the event the Per-Record Fee or Annual report Commitment terms for an iConnect Network Renewal Term  are to change from the previous term, Merge shall provide Customer with written notification of such no less than sixty (60) days prior to the commencement of the new  iConnect Network Renewal Term.

4. iCONNECT NETWORK FEES.

4.1 The following Fees shall be payable by Customer:

(a) iConnect Network Fees.  Customer shall pay Merge the applicable Transaction Fees (with the amount of the Per-Report Fee and Per-Order Fee set forth on the applicable Sales Order).  Merge will invoice Customer on a quarterly basis for the Transaction Fees for the actual number of Reports and Orders for the applicable quarter. 

 (b) Implementation Fees.  In addition to the Transaction Fees, Customer shall pay Merge additional initial fees relative to implementation and training, with such fees to be set forth on the applicable Sales Order (or on a separate Sales Order for the initial iConnect Network fees).

(c) Clinical Decision Support Tool Fees. Transaction Fees do not include charges for using clinical decision support tools (such as those provided by National Decision Support Corporation).  In the event  Customer elects to use such a third party clinical decision support tool, Customer will contract directly with the vendor of such tool and will pay the applicable fee for such tool directly to such vendor.

5. CUSTOMER CONTENT.

5.1. Warranties as to Customer Content.  Customer represents and warrants the following in regard to Customer Content:

(a) All Customer Content is and shall at all times be compliant with all law and regulations;

(b) Customer Content shall not be libelous, in violation of third party rights of privacy or confidentiality, nor infringe upon intellectual property rights; and

(c) Prior to directing Customer Content through the Merge iConnect Network, Customer shall have first obtained the all consents, authorizations and/or other forms of legal permission required under HIPAA and other applicable law and regulations.

5.2. Rights to Customer Content.   Customer Content shall be the property of Customer, and Customer grants Merge a perpetual, irrevocable license to maintain and use such data to the extent permitted by law (including the right to de-identify such data consistent with the provisions of HIPAA and other applicable law). This provision shall survive termination of the Underlying Agreement.

6. MERGE iCONNECT NETWORK WARRANTIES AND ACKNOWLEDGEMENT.

6.1. iConnect Network Warranty. Merge makes the following warranties as to the Merge iConnect Network Services:

(a) The Merge iConnect Network Services will perform substantially as set forth in the Documentation; and

(b) Services will be performed by appropriately trained personnel in a professional manner consistent with generally accepted industry standards and practices.

6.2. Remedy.  In the event of a breach of the preceding warranty, Customer’s exclusive remedy shall be to terminate the Underlying Agreement for cause (pursuant to the termination provisions of the Underlying Agreement) and have Merge refund any prepaid iConnect Network Services Fees attributable to the period subsequent to termination.

6.3. Customer Acknowledgement. Customer acknowledges that the routing of Reports may involve the systems of third party data exchange partners and electronic medical record systems of Referring Providers, and Merge is not responsible for failures or delays attributable to such. Merge assumes no responsibility for security, network infrastructure, design, implementation, proxy design and proxy implementation of Customer’s network.  To operate properly, the iConnect Network Services require adequate internet connectivity by Customer, Referring Providers and Authorized Users.

6.4. Disclaimer of Other Warranties.  EXCEPT FOR THE EXPRESS WARRANTIES MADE ABOVE IN SECTION 6.1, MERGE MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE MERGE iCONNECT NETWORK SERVICES.  MERGE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE.

7. TERMINATION OF iCONNECT NETWORK SERVICES

7.1. Effects of and Obligations upon Termination.  Upon termination of this Sales Order or of the iConnect Network Services Term or of the Underlying Agreement, Customer shall immediately cease access to and use of the Merge iConnect Network Services. Termination of the Sales Order or the Underlying Agreement shall not relieve Customer of its obligation to pay Fees through the remainder of the scheduled Term, except in the event of termination by Customer for cause (pursuant to the Underlying Agreement), Customer shall have no obligation to pay iConnect Network Services Fees attributable to the period subsequent to termination and Merge shall refund any prepaid iConnect Network Services Fees attributable to the period subsequent to termination.

7.2. Survival.  All provisions of this Products Terms Page which by their nature are intended to survive the termination of this Sales Order (including, without limitation, the provisions of Sections 2.2, 2.4, 4, 5.2, 6.3, 6.4 and 7) shall survive such termination.

TERMS AND CONDITIONS FOR MERGE iCONNECT® CLOUD ARCHIVE SERVICES

These Terms and Conditions (the “iCCA Terms”), together with the applicable Sales Order and Underlying Agreement entered into between Merge Healthcare Solutions Inc. (“Merge”) and the customer designated in the applicable Sales Order (“Customer”) constitute the “Agreement” between the Parties as to the Merge iConnect Cloud Archive Services, and the Agreement shall govern the transactions set forth in the applicable Sales Order. In the event these iCCA Terms conflict with the Underlying Agreement, these iCCA Terms shall control. THE AGREEMENT SHALL TAKE PRECEDENCE OVER ANY TERMS CONTAINED IN A PURCHASE ORDER OR OTHER DOCUMENT ISSUED BY CUSTOMER (regardless of whether such documents are accepted by Merge, which acceptance shall be for administrative convenience only).

1. DEFINITIONS

1.1 “Archive Facility” means the Merge facility at which the Merge iConnect Cloud Archive Services are provided.

1.2 “Archive Services Fees” (sometimes referred to as “Fees”) means Monthly Archive Fees and Ingestion Fees.

1.3 “Authorized User” means an employee or contractor or member of the medical staff of Customer, a referring physician, or other person that (i) is authorized by Customer to access and use the Merge iConnect Cloud Archive Services; and (ii) has been issued, by Customer, unique login credentials (individual user ID and password).

1.4 “Customer Content” means all Studies and other data and other content that Customer sends to or otherwise causes to be submitted through the Merge iConnect Cloud Archive Services or that is stored for Customer in the Merge iConnect Cloud Archive.

1.5 “Disaster Recovery Services” means services provided by Merge, as set forth in Section 2.2(b), for the recovery of certain Studies lost on Customer’s local archive. Disaster Recovery Services are only available if Customer has purchased Disaster Recovery Services as specifically set forth in the applicable Sales Order.

1.6 “iConnect Cloud Archive First Productive Use” means the first to occur of: (i) the date that the first Customer Study has been Ingested into the Merge iConnect Cloud Archive; or (ii) the date that the first Migrated Study has been moved into the Merge iConnect Cloud Archive.

1.7 “iConnect Cloud Archive Support Services” means the technical support of Customer’s use of the Merge iConnect Cloud Archive Services, as more fully described on paragraph 1.13.

1.8 “Ingest” means to process an uploaded Study and enter it into the Merge iConnect Cloud Archive. “Ingestion” means the time at which the Study is entered into the Merge iConnect Cloud Archive. “Ingested Study” means a Study that has been Ingested into the Merge iConnect Cloud Archive.  For the avoidance of doubt, a Migrated Study is not an Ingested Study (unless the Study has also been Ingested).

1.9 “Ingestion Fee” means the per-Study fee, as set forth below in Section 3, for Ingestion of each Study into the Merge iConnect Cloud Archive.

1.10 “Internet Connectivity” shall mean that level of Customer’s connectivity from its location(s) to the Archive Facility such that the connectivity allows appropriate data transfer performance.

1.11 “Malicious Code” means viruses, Trojan horses, time bombs, worms and/or other destructive, malicious or harmful files, code, programs, scripts or other content.

1.12 “Merge iConnect Cloud Archive” means the cloud based archive for DICOM images to which, through the Merge iConnect Cloud Archive Services, Customer may move copies of locally archived Studies.

1.13 “Merge iConnect Cloud Archive Services” means the services purchased by Customer, as set forth in Section 2, regarding access to and use of the Merge iConnect Cloud Archive.  Merge iConnect Cloud Archive Services include Disaster Recovery Services and iConnect Cloud Archive Support Services.

1.14 “Migrated Study” means a local copy Study that has been physically moved (i.e., via a physical medium such as tape, disk, hard drive, USB, server) by Merge, through a Professional Services engagement with Customer, from Customer’s local archive to the Merge iConnect Cloud Archive.

1.15 “Monthly Archive Fee” means the per-Study fee, as set forth below in Section 3, payable monthly during the Term (and payable in addition to any Ingestion Fees) for each Study in the Merge iConnect Cloud Archive (including both Ingested Studies and Migrated Studies).

1.16 “Study” means each captured study having a unique DICOM study instance UID.

1.17 “Underlying Agreement” means the applicable Sales Order and the terms and conditions that govern such Sales Order.

2. MERGE iCONNECT CLOUD ARCHIVE SERVICES.

2.1 Rights of Use to the Merge iConnect Cloud Archive Services. As set forth in these iCCA Terms, during the Term Customer may use the Merge iConnect Cloud Archive Services to move copies of locally archived Studies to the Merge iConnect Cloud Archive and Customer may allow its Authorized Users to access and use the Merge iConnect Cloud Archive Services solely for the purpose of storing, viewing and sharing Studies.  In the event such is specifically set forth in the applicable Sales Order, Customer may also be entitled to certain Disaster Recovery Services during the Term.

2.1 Merge iConnect Cloud Archive Services.

(a) Archive Service. Included in the Merge iConnect Cloud Archive Services are the following:

• Internet Connectivity. Merge will supply adequate bandwidth connectivity services at the Archive Facility. Customer shall make its own arrangements for internet access in order to utilize the Merge iConnect Cloud Archive Services. 
• Security Services. Merge will provide security services via facility access limited to authorized Merge and its contracted third party personnel and through data access security via managed security appliances and virtual private networks with encrypted data streams.
• Monitoring Services. Merge will provide continuous monitoring of the Archive Facility including application monitoring, server and database monitoring.
• Backup, Archiving and Recovery Services. In the event of data loss, Merge will provide reasonable recovery services to Customer to restore the most recent backup as set forth below in Section 2.2(b) (Disaster Recovery Services).
• Release Management and Change Control. Merge will provide release management and change control services to ensure that versions of servers, network devices, storage, software and applications are appropriate as necessary for Merge to maintain the Merge iConnect Cloud Archive Service.
• Administration Services. Merge will provide for and administer the appropriate resources (including hardware, software, operating systems and personnel) at its Archive Facility as necessary to maintain the Merge iConnect Cloud Archive Service.
• iConnect Cloud Archive Support Services.

(b) Disaster Recovery Services (available only if Customer has purchased Disaster Recovery Services as specifically set forth in the applicable Sales Order)

(1) Definitions. The following definitions shall apply to this Section:
 

• “Disaster” means (i) loss of Local Studies and inability to recover such lost Local Studies, or (ii) destruction of Customer’s local archive and inability to access Local Studies. Any interruption due to Customer’s hardware, software or peripheral upgrades, maintenance or peripheral device malfunctions shall not constitute a Disaster.
• “Local Study” means the DICOM copy of a Study stored on Customer’s primary local archive.
• “Notification of Disaster” or “Notification” means the written notification (with email being acceptable) by Customer, made by its Customer Support Contact to Merge upon the occurrence of a Disaster.
• “Calendar Quarter” means the three-month period commencing upon January 1, April 1, July 1 or October 1 of any year.

(2) Disaster Recovery Process.

(A) Upon receipt of a Notification of Disaster, Merge will commence commercially reasonable measures to restore, in stages, image data of Studies to Customer’s local archive.

1. Prior to any transmission of data from the Merge iConnect Cloud Archive, it shall be Customer’s responsibility to first rebuild and restore its local PACS archive system.  Merge services are available for such purpose, pursuant to a separate sales order or statement of work and for an additional fee (as shall be mutually agreed).
2. Once the local PACS archive has been satisfactorily rebuilt, Studies stored in the Merge iConnect Cloud Archive will be delivered, in stages, with a minimum of 2 terabytes of image data in the first 200 hours. The process will be repeated in stage increments until all data is successfully restored into the Customers local PACS Archive.  Customer acknowledges that the timing and amount of data transmitted in any given stage shall be dependent upon the condition of Customer’s local archive system and Customer’s internet connectivity.

(B) Merge shall provide Disaster Recovery Services as set forth above on an as needed basis, but not to exceed more than one recovery process per Calendar Quarter.    In the event Customer requires Disaster Recovery Services more than once per Calendar Quarter, Merge will be available to provide such services pursuant to a separate sales order or statement of work and for an additional fee (as shall be mutually agreed).

2.3 Certain Restrictions on Use of the Merge iConnect Cloud Archive Services.  Customer and its Authorized Users shall not:
 

• Use the Merge iConnect Cloud Archive or Merge iConnect Cloud Archive Services for any purpose other than Customer’s internal business purposes;
• Permit the use of or access to the Merge iConnect Cloud Archive Services by any party other than an Authorized User;
• Sell, lease, share, loan, encumber, license, sublicense, distribute or transfer the Merge iConnect Cloud Archive Services to third parties, nor in any manner use the Merge iConnect Cloud Archive Services to provide hosting, application service provider, service bureau, time sharing, outsourcing or other services to third parties, nor allow the Merge iConnect Cloud Archive Services to be used in any commercial time share arrangement;
• Attempt to gain unauthorized access to the Merge iConnect Cloud Archive Services or the Merge iConnect Cloud Archive, or their underlying software, systems or networks;  and/or
• Use the Merge iConnect Cloud Archive Services to transmit content that is illegal, is libelous, is in violation of third party rights of privacy or confidentiality, or infringes upon intellectual property rights; or use the Merge iConnect Cloud Archive Services or the Merge iConnect Cloud Archive or in any other manner that is unlawful or not in accordance with the Agreement.

2.4 Documentation. Any Documentation provided to Customer shall be used solely in connection with Customer’s use of the Merge iConnect Cloud Archive Services as permitted under the Agreement.

2.5 Ownership. Merge (or, where applicable, its licensors) reserves and retains any and all right, title and interest, implied or otherwise, in and to the Merge iConnect Cloud Archive Services, the Merge iConnect Cloud Archive and Merge software, together with all modifications thereto. Customer acquires only the right to use the Merge iConnect Cloud Archive Services in accordance with the Agreement and does not acquire any rights of ownership or any implied right of any kind.

2.6 Certain Customer Responsibilities. Customer is responsible for all activities of its Authorized Users and all activities that occur under Customer’s Authorized User accounts. Customer is responsible for maintaining the security and confidentiality of all Authorized User usernames and passwords. Customer agrees to immediately notify Merge of any unauthorized use of any Merge iConnect Cloud Archive Services username or password or account or any other known or suspected breach of security regarding the Merge iConnect Cloud Archive Services or the Merge iConnect Cloud Archive.

Connectivity. The WAN connection is the responsibility of the Customer, and the WAN connection must be maintained by Customer at levels to support transmission of two (2) times the Customer’s daily Study volumes and other Customer Content. Additionally, if required the Customer must maintain the Customer side VPN connection to the Merge iConnect Cloud Archive Services.  

2.8 Archive Setup.

(a) Merge Professional Services for Customer-side set-up of the Merge iConnect Cloud Archive Service and migration of Studies is provided for by a separate agreement between the Parties.

(b) Merge assumes no responsibility for security, network infrastructure, design, implementation, proxy design and proxy implementation of Customer’s network. To operate properly, the Merge iConnect Cloud Archive Services requires adequate operational network bandwidth. Based on Study volumes projected by Customer, Merge may make minimum network bandwidth recommendations, but Customer shall be solely responsible for design, acquisition, implementation, and operation of its network.

2.9 iConnect Cloud Archive Services Term. Customer shall be entitled to Merge iConnect Cloud Archive Services during the Archive Services Term, which shall commence upon iConnect Cloud Archive First Productive Use and, unless earlier terminated as set forth in the Agreement, continue for the period set forth on the applicable Sales Order (“Initial Archive Services Term”). Thereafter, the Archive Services Term shall automatically renew for consecutive annual calendar-year renewal terms (each an “Archive Services Renewal Term”), unless either Party provides the other Party with written notice, at least thirty (30) days prior to the expiration of the then-current Archive Services Term, of its intention not to renew the term of the Merge iConnect Cloud Archive Services. The Initial Archive Services Term together with all Archive Renewal Terms shall constitute the “Archive Services Term”.

3. FEES.

3.1 Fees. The following Fees shall be payable by Customer:

(a) Archive Service Fees:

(1) Monthly Archive Fee. The recurring Monthly Archive Fee is set forth on the applicable Sales Order and is payable on a monthly basis throughout the Archive Services Term for each Study in the Merge iConnect Cloud Archive (regardless of whether an Ingested Study or a Migrated Study), as of the last day of the applicable month.

(2) Ingestion Fee. As each Ingested Study is Ingested, a one-time Ingestion Fee shall be generated and paid to Merge on a monthly basis. The amount of the Ingestion Fee (assessed on a per Study basis) is set forth on the applicable Sales Order.

(3) Annual Study Commitment.

(i) Minimum Commitment. Customer agrees that during each calendar year of the Archive Services Term a certain minimum number of new Studies shall be Ingested into the Merge iConnect Cloud Archive (the “Annual Study Commitment”). The number of Studies comprising the Annual Study Commitment is set forth on the applicable Sales Order. In the event the first and/or final year of the Archive Services Term is not a complete calendar year, the Annual Study Commitment shall be pro-rated for such year(s).

(ii) Annual Audit. On an annual basis, Merge will perform an audit to ascertain the number of Studies Ingested into the Merge iConnect Cloud Archive during the previous calendar year. To the extent that the actual number of Studies Ingested during such year is less than the Annual Study Commitment, then Customer shall be liable to Merge for the deficiency invoiced at the full Ingestion Fee.

(4) Additional fees for excess file size. The above fees are predicated upon the average size of a Study not exceeding 40 megabytes (MB). On a monthly basis Merge shall compute the Average Study File Size (“Average Study File Size”), and in the event the Average Study File Size exceeds 40MB, the Monthly Archive Fee shall increase as follows:

• Greater than 40MB but less than 60MB: For the applicable month the Monthly Archive Fee shall increase by $0.001 from the rate identified on the Sales Order.
• Greater than 60MB but less than 100MB: For the applicable month the Monthly Archive Fee shall increase by $0.002 from the rate identified on the Sales Order.
• Greater than 100MB: For the applicable month the Monthly Archive Fee shall increase by $0.003 from the rate identified on the Sales Order.

(b) Content Return Fee (per Section 4.4 below). The Content Return Fee shall be a fee to be mutually agreed upon by the Parties (which shall be based on the quantity of data in the Customer Content of which copies are returned to Customer).

4. CUSTOMER CONTENT.

4.1 Ownership and Responsibility. All Customer Content is proprietary to Customer and through the Agreement Merge acquires no right of ownership in the Customer Content. Customer Content is the sole responsibility of Customer, and Customer is responsible for the Customer Content’s quality, completeness, accuracy and legality.

4.2 Warranties as to Customer Content. Customer represents and warrants the following in regard to Customer Content:

(a) All Customer Content is and shall at all times be compliant with all law and regulations;

(b) Customer Content shall not be libelous, in violation of third party rights of privacy or confidentiality, nor infringe upon intellectual property rights.

(c) Prior to submitting Customer Content to the Merge iConnect Cloud Archive Services, Customer shall have first obtained the all consents, authorizations and/or other forms of legal permission required under HIPAA and other applicable law and regulations;

(d) Customer Content submitted to the Merge iConnect Cloud Archive Services shall be free from Malicious Code.

4.3 Backup Archive.  Customer acknowledges that the Merge iConnect Cloud Archive and the Merge iConnect Cloud Archive Services provide a secondary archive (backup) for originals of Customer Content items. Customer is responsible for maintaining in its local archive the original of each Study and other item of Customer Content.

4.4 Return of Customer Content. Following expiration or termination of the Agreement, Merge may destroy or otherwise dispose of Customer Content in the Merge iConnect Cloud Archive or otherwise in its possession unless within thirty (30) days following termination or expiration Merge receives from Customer a written request for the delivery to Customer of the then-most recent copy of the Customer Content as stored in the Merge iConnect Cloud Archive (“Return Request”). Following receipt of a proper Return Request, Merge will use commercially reasonable efforts to deliver to Customer, within 30 days of its receipt of the Return Request, the copy of the Customer Content, for which Customer shall pay Merge a fee as set forth above in Section 3 (the “Content Return Fee”).

4.5 Effects of and Obligations upon Termination. Upon termination of the applicable Sales Order or the Archive Services Term, Customer shall immediately cease access to and use of the Merge iConnect Cloud Archive Services. Termination of the Agreement shall not relieve Customer of its obligation to pay Fees through the remainder of the scheduled Term, except in the event the Agreement is terminated by Customer for cause (pursuant to the Agreement), Customer shall have no obligation to pay Archive Services Fees attributable to the period subsequent to termination and Merge shall refund any prepaid Archive Services Fees attributable to the period subsequent to termination. Return of Customer Content shall be as provided above in Section 4.4.

4.6 Survival.  All provisions of the Agreement which by their nature are intended to survive the termination of the Agreement(including, without limitation, the provisions of Sections 2.2, 2.4, 3, 4.1, 4.4, 4.5 and 6) shall survive such termination.

5. MERGE iCONNECT CLOUD ARCHIVE WARRANTIES

5.1 iConnect Cloud Archive Warranty. Merge makes the following warranties as to the Merge iConnect Cloud Archive Services:

(a) The Merge iConnect Cloud Archive Services will perform substantially as set forth in the Documentation;

(b) Services will be performed by appropriately trained personnel in a professional manner consistent with generally accepted industry standards and practices; and

(c) The Merge iConnect Cloud Archive Services will not transmit Malicious Code (except that it will not be deemed a breach of this warranty if such Malicious Code is attributable to Customer Content or other acts or omissions of Customer or its Authorized Users).

5.2 Remedy. In the event of a breach of the preceding warranty, Customer’s exclusive remedy shall be to terminate the Agreement for cause (pursuant to the termination provisions of the Agreement) and have Merge refund any prepaid Archive Services Fees attributable to the period subsequent to termination.

5.3 Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE ABOVE IN SECTION 5.1, MERGE MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO THE MERGE iConnect CLOUD ARCHIVE SERVICES.  MERGE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE.

6. iCONNECT CLOUD ARCHIVE LIMITATIONS OF LIABILITY; MEDICAL RESPONSIBILITY

6.1 Limitation of Liability (iConnect Cloud Archive). IN NO EVENT SHALL THE AGGREGATE LIABILITY OF MERGE AND ITS SUPPLIERS ARISING FROM THE APPLICABLE SALES ORDER OR FROM PROVISION OF THE MERGE ICONNECT CLOUD ARCHIVE SERVICES EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT OF ARCHIVE SERVICES FEES PAID BY CUSTOMER IN THE 12 MONTH PERIOD PRECEDING THE CLAIM, REGARDLESS OF THE FORM OF CLAIM OR ACTION.  THIS LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS BY MERGE HEREUNDER, REGARDLESS OF THE NUMBER OF CLAIMS TO WHICH THEY APPLY, BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT.  THIS LIMITATION IS A FURTHER LIMITATION OF ANY LIMITATIONS OF LIABILITY SET FORTH IN THE AGREEMENT.

6.2 Medical Responsibility. Customer acknowledges and agrees that Merge is not engaged in the practice of medicine, and is not determining appropriate medical use of the Merge iConnect Cloud Archive Services.  Medical treatment and diagnostic decisions, including those arising from the analysis of images, are the responsibility of Customer and its professional healthcare providers.  Customer shall indemnify and hold Merge and its affiliated companies harmless, and, if requested by Merge, defend Merge, from all claims, actions, proceedings, damages, liability, judgments, settlements, losses, expenses, including reasonable attorney fees, and costs (“Losses”) resulting from any claim brought by a third party that is based upon or arises out of (a) Customer Content; (b) professional malpractice, misdiagnosis, or any other medical treatment matter in connection with the use  of the Merge iConnect Cloud Archive Services (except to the extent that such Losses are directly caused by Merge’s negligence or a defect of the Merge iConnect Cloud Archive Services); or (c) use of the Merge iConnect Cloud Archive Services other than as authorized under the Agreement.

 

1. THIRD PARTY PRODUCTS applicable in the event the Sales Order provides for Third Party Products)

1.1. Sale of Third Party Products. Subject to the terms of the Underlying Agreement and any applicable Sales Order, Merge shall sell to Customer such Third Party Products as are specified on the applicable Sales Order. To the extent applicable, Customer’s use of Third Party Software is subject to Third Party Vendor license terms. “Underlying Agreement” means the applicable Sales Order and the terms and conditions that govern such Sales Order.

1.2. Acknowledgement Regarding Third Party Products. Customer acknowledges and agrees that: (i) Unless Support Services for Third Party Products are separately purchased and expressly provided for on the applicable Sales Order, Support Services do not cover Third Party Products; (ii) Merge makes no warranty with respect to Third Party Products; (iii) Third Party Products are provided by Merge as a “pass through” to Customer and such Third Party Products may be covered by a warranty offered by the Third Party Vendor, not Merge (which warranty Merge will pass-through to Customer pursuant to Section 2.2 below); and (iv) Merge shall not be obligated or liable to Customer for any defense or indemnification obligation or warranty to the extent that such involve Third Party Products.

2. WARRANTIES

2.1. Merge Hardware (applicable in the event the Sales Order provides for Merge Hardware). Merge hereby grants to Customer limited warranty, as defined below, commencing on the Delivery of the applicable component of Merge Hardware and continuing for one (1) year thereafter (the “Hardware Warranty Period”). Merge warrants that during the Hardware Warranty Period the Merge Hardware will be free of defects in material and workmanship. The preceding warranty is conditional upon the Hardware having not been modified and being used for the purpose for which it was designed. In the event of breach of the preceding warranty, Merge shall, at its sole option: (a) correct the Merge Hardware so that it complies with the above warranty; (b) replace the applicable Merge Hardware; or (c) rescind the sale of the Merge Hardware and refund to Customer the amounts paid toward the sale price, together with any pre-paid Professional Service Fees and Support Services Fees for Services not rendered, and such shall constitute the exclusive remedy of Customer and Merge’s sole liability with respect to this Section 2.1. 'Merge Hardware means Hardware manufactured by Merge and sold to Customer as set forth in the Sales Order.

2.2. Third Party Products: Pass-Through of Manufacturer Warranties (applicable in the event the Sales Order provides for Third Party Products). Merge provides no warranty on Third Party Products, and instead assigns and passes-through to Customer, to the fullest extent permitted by law and by the terms and conditions of warranties provided by the respective Third Party Vendors (“Third Party Warranties”). The Underlying Agreement shall serve as an assignment from Merge to Customer of all applicable Third Party Warranties.

2.3. Exclusions and Contingencies. Customer’s remedy and Merge’s liability under Sections 2.1 and 2.2 above are expressly contingent upon: (a) Customer notifying Merge in writing of the claim within the Hardware Warranty Period, and furnishing Merge with adequate supporting documentation and details to substantiate the claim and to assist Merge with the identification and detection of the cause of the problem; (b) the problem being capable of reproduction by Merge; (c) the Products having not been modified, altered or changed in any way by a party other than Merge; and (d) the Products having been properly installed and operated by Customer in accordance with the Documentation. The above warranties shall be void if failure of the warranted Product is attributable to accident, abuse, misapplication, or use in conjunction with any third party product, application or configuration that has not been approved (in writing) by Merge.

2.4. Customer Acknowledgement. Customer acknowledges that the Products are not intended to replace the skill and judgment of a qualified medical practitioner and should only be used by professionals who have been appropriately trained. Customer shall be responsible for the security and privacy of the Product configuration and data (including Patient Health Information) and for taking measures necessary to avoid security breaches (including hacker attacks) of its systems and network. Merge does not warrant that the Products and Services will meet the needs of Customer or Authorized Users, that the Products will operate in the combinations that Customer may select for use or with all non-Merge products used by Customer, that the operation of the Products will be uninterrupted or error-free, or that all Software errors will be corrected.

2.5. Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN THIS ARTICLE 2, MERGE MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO ANY HARDWARE OR THIRD PARTY PRODUCT. MERGE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE.

1. SERVICES

1.1. Support Services. When Merge provides Support Services to Customer, such shall be as set forth in the Merge Support Services Program Terms.

1.2. Professional Services applicable in the event the Sales Order provides for Professional Services)

(a) Professional Services and Fees. Merge shall provide to Customer such Professional Services as are specified on a Sales Order. Customer shall: (i) pay Merge the Professional Services fees specified on a Sales Order (“Professional Services Fees”); and (ii) reimburse Merge for travel and other out-of-pocket expenses incurred by Merge in connection with Professional Services, but only to the extent that such travel was approved by Customer and such expenses are consistent with the Merge Travel Expense Policy. Any change to the scope of Professional Services and/or Professional Services Fees set forth in a Sales Order shall be subject to the mutual agreement of the Parties and shall be documented by a written Sales Order amendment executed by both Parties.

(b) Customer Cancellation. In the event a scheduled Professional Services engagement (including training) is cancelled, suspended, rescheduled or otherwise delayed by Customer (collectively, a “Cancelled Engagement”), Merge may invoice Customer (i) for the non-refundable out-of-pocket expenses incurred in anticipation of performing the Cancelled Engagement, and (ii) for a Cancelled Engagement occurring within ten Business Days of the engagement’s scheduled start date and not attributable to a Force Majeure Event, for the reasonable costs of personnel assigned to the Cancelled Engagement, but only to the extent that such personnel have not been redeployed to other engagements and only for a period not to exceed two weeks. (c) Expiration of Prepaid Professional Services. Prepaid Professional Services (including training) must be used by Customer within eighteen (18) months of the date of the applicable Sales Order, unless further extended by written mutual agreement of the Parties; and unless such delay is attributable to the fault of Merge or to a Force Majeure Event, unused Professional Services shall expire thereafter without further obligation by Merge.

1.3. General Services Provisions

(a) Customer Responsibilities. Customer will cooperate with Merge and provide Merge with such assistance as Merge may reasonably request in order to perform the Services and otherwise fulfill its obligations under this Agreement. Customer shall provide Merge with adequate workspace and access (whether on-site or remote) to Customer’s facilities, systems, personnel and information reasonably required to perform the Services, with such access to Customer’s facilities and systems being subject to Customer’s reasonable rules and policies regarding worksite safety and network access. Customer shall be responsible for obtaining and paying for any licenses, rights or permissions necessary to use any third party materials which are the responsibility of Customer to provide in connection with any Services. In the event Merge’s provision of Services is limited or delayed due to Customer’s failure to perform its obligations set forth above, then Merge’s obligations shall be adjusted accordingly.

(b) Personnel Matters.

(1) Customer Contact. Customer will designate a Customer contact for each Services project, and such contact, or a designated alternate, shall be reasonably available to Merge (on site or by phone) at all times that Services are being provided.

(2) Staffing. Staffing for the Services shall be at the discretion of Merge, and Merge may subcontract portions of the Services, provided that Merge shall be responsible for the performance of its subcontractors under this Agreement.

(3) Non-Solicitation of Other Party’s Employees. During the term of this Agreement, and for a period of six (6) months after the termination thereof, neither Party shall, without the prior written consent of the other, solicit for employment (or as an independent contractor) any employee of the other Party who has provided Services under this Agreement (a “Protected Employee”). Nothing in this section shall restrict or preclude either Party from making generalized employee searches (such as by media advertisements, job postings or use of employment agencies) and hiring a Protected Employee pursuant thereto, provided that such Party did not engage in the direct solicitation of the hired employee.

(c) Proprietary Rights. All Work Product resulting from the Services and all rights, title and interest in and to such Work Product shall be owned by Merge. For purposes hereof, “Work Product” means Services deliverables, software, codes, program tools, reports, documentation, designs, works of authorship, intellectual property and any other items that are created, developed or delivered by Merge (or its subcontractor) in the performance of Services.

2. WARRANTIES

2.1. Professional Services (applicable in the event the Sales Order provides for Professional Services). Merge warrants that Professional Services provided under this Agreement will be performed by appropriately trained personnel in a professional manner consistent with generally accepted industry standards and practices. Merge’s entire liability and Customer’s sole recourse for any breach of such warranty raised during the six (6) month period immediately following completion of the applicable portion of the Professional Services (“Services Warranty Period”) shall be for Merge, at its option, to either (a) re-perform the non-conforming Professional Services at no additional cost to Customer; or (b) refund the portion of the fees paid attributable to such non-conforming Professional Services (in which case the refund shall not exceed the Professional Services Fees paid by Customer under the relevant Sales Order).

2.2. Exclusions and Contingencies. Customer’s remedy and Merge’s liability under Section 2.1 above are expressly contingent upon: (a) Customer notifying Merge in writing of the claim within the Services Warranty Period, and furnishing Merge with adequate supporting documentation and details to substantiate the claim and to assist Merge with the identification and detection of the cause of the problem; (b) the problem being capable of reproduction by Merge; and (c) the Products to which the Services relate having not been modified, altered or changed in any way by a party other than Merge. The above warranties shall be void if failure is attributable to accident, abuse, misapplication, or use in conjunction with any third party product, application or configuration that has not been approved (in writing) by Merge.

2.3. Customer Acknowledgement. Customer acknowledges that the Services and Products are not intended to replace the skill and judgment of a qualified medical practitioner and should only be used by professionals who have been appropriately trained. Customer shall be responsible for the security and privacy of the Product configuration and data (including Patient Health Information) and for taking measures necessary to avoid security breaches (including hacker attacks) of its systems and network. Merge does not warrant that the Products and Services will meet the needs of Customer or Authorized Users, that the Products will operate in the combinations that Customer may select for use or with all non-Merge products used by Customer, that the operation of the Products will be uninterrupted or error-free, or that all Software errors will be corrected.

2.4. Disclaimer of Other Warranties. EXCEPT FOR THE EXPRESS WARRANTIES MADE IN SECTION 2.1 ABOVE, MERGE MAKES AND CUSTOMER RECEIVES NO OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO ANY SERVICES. MERGE SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR TRADE USAGE.

This Business Associate Agreement (this “BA Agreement”) is made by and between Merge Healthcare Solutions Inc. (“Business Associate”) and the Merge Healthcare Customer (“Covered Entity”) and is effective as of the date of the applicable Sales Order or underlying agreement (“Effective Date”). Capitalized terms used in this BA Agreement without definition shall have the respective meanings assigned to such terms in the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act and their implementing regulations as amended from time to time (collectively, “HIPAA”).

RECITALS

WHEREAS, Covered Entity and Business Associate are parties to that certain agreement setting forth certain services that may require Business Associate to have access to Protected Health Information (as defined below) (the “Services Agreement”); and

WHEREAS, it is the intent of Covered Entity and Business Associate to amend the Services Agreement, as described in this BA Agreement, for the parties to comply with HIPAA (as defined in Section 1.1). NOW THEREFORE, in consideration of the mutual premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Covered Entity and Business Associate agree as follows:

AGREEMENT

I. GENERAL PROVISIONS

Section 1.1 Effect. This BA Agreement is hereby incorporated into and made part of the Services Agreement. The provisions of this BA Agreement shall control with respect to the handling of Protected Health Information that Business Associate receives from or on behalf of Covered Entity (“PHI”), and the terms and provisions of this BA Agreement shall supersede any conflicting or inconsistent terms and provisions in the Services Agreement, including all exhibits or other attachments thereto and all documents incorporated therein by reference, to the extent of such conflict or inconsistency as to the handling of PHI. This Agreement shall not modify or supersede any other provision of the Services Agreement.

Section 1.2 No Third Party Beneficiaries. The parties have not created and do not intend to create by this BA Agreement any third party rights, including, but not limited to, third party rights for Covered Entity’s patients.

Section 1.3 HIPAA Amendments. The parties acknowledge and agree that the Health Information Technology for Economic and Clinical Health Act and its implementing regulations impose requirements with respect to privacy, security and breach notification applicable to Business Associates (collectively, the “HITECH BA Provisions”). The HITECH BA Provisions and any other future amendments to HIPAA affecting Business Associate agreements are hereby incorporated by reference into this BA Agreement as if set forth in this BA Agreement in their entirety, effective on the later of the effective date of this BA Agreement or such subsequent date as may be specified by HIPAA.

Section 1.4 Regulatory References. A reference in this BA Agreement to a section in HIPAA means the section as it may be amended from time-to-time.

II. BUSINESS ASSOCIATE’S OBLIGATIONS

Section 2.1 Use and Disclosure of PHI. Business Associate may use and disclose PHI as permitted or required under the Services Agreement, this BA Agreement and as Required by Law, but shall not otherwise use or disclose any PHI. Business Associate shall not use or disclose PHI received from Covered Entity in any manner that would constitute a violation of HIPAA if so used or disclosed by Covered Entity (except as set forth in Sections 2.1(a), (b) and (c) of this BA Agreement). To the extent Business Associate carries out any of Covered Entity’s obligations under the HIPAA privacy standards, Business Associate shall comply with the requirements of the HIPAA privacy standards that apply to Covered Entity in the performance of such obligations. Business Associate is permitted to use or disclose PHI as set forth below:

(a) Business Associate may use PHI internally for its proper management and administrative services or to carry out its legal responsibilities;

(b) Business Associate may disclose PHI to a third party for Business Associate’s proper management and administration, provided that the disclosure is Required by Law or Business Associate obtains reasonable assurances from the third party to whom the PHI is to be disclosed that the third party will (1) protect the confidentiality of the PHI, (2) only use or further disclose the PHI as Required by Law or for the purpose for which the PHI was disclosed to the third party and (3) notify Business Associate of any instances of which the third person is aware in which the confidentiality of the PHI has been breached; and

(c) Business Associate may use PHI to provide Data Aggregation services as defined by HIPAA and to create de-identified health information in accordance with the HIPAA de-identification requirements.

Section 2.2 Safeguards. Business Associate shall use reasonable and appropriate safeguards to prevent the use or disclosure of PHI, except as otherwise permitted or required by this BA Agreement. In addition, Business Associate shall implement Administrative Safeguards, Physical Safeguards and Technical Safeguards that reasonably and appropriately protect the Confidentiality, Integrity and Availability of PHI transmitted or maintained in Electronic Media (“EPHI”) that it creates, receives, maintains or transmits on behalf of Covered Entity. Business Associate shall comply with the HIPAA Security Rule with respect to EPHI.

Section 2.3 Minimum Necessary Standard. To the extent required by the “minimum necessary” requirements of HIPAA, Business Associate shall only request, use and disclose the minimum amount of PHI necessary to accomplish the purpose of the request, use or disclosure.

Section 2.4 Mitigation. Business Associate shall take reasonable steps to mitigate, to the extent practicable, any harmful effect (that is known to Business Associate) of a use or disclosure of PHI by Business Associate in violation of this BA Agreement.

Section 2.5 Subcontractors. Business Associate shall enter into a written agreement meeting the requirements of 45 C.F.R. §§ 164.504(e) and 164.314(a)(2) with each Subcontractor (including, without limitation, a Subcontractor that is an agent under applicable law) that creates, receives, maintains or transmits PHI on behalf of Business Associate. Business Associate shall ensure that the written agreement with each Subcontractor obligates the Subcontractor to comply with restrictions and conditions that are at least as restrictive as the restrictions and conditions that apply to Business Associate under this BA Agreement.

Section 2.6 Reporting Requirements.

(a) If Business Associate becomes aware of a use or disclosure of PHI in violation of this BA Agreement by Business Associate or by a third party to which Business Associate disclosed PHI, Business Associate shall report any such use or disclosure to Covered Entity without unreasonable delay.

(b) Business Associate shall report any Security Incident involving EPHI of which it becomes aware in the following manner: (1) any actual, successful Security Incident will be reported to Covered Entity in writing without unreasonable delay, and (2) any attempted, unsuccessful Security Incident of which Business Associate becomes aware will be reported to Covered Entity orally or in writing on a reasonable basis, as requested by Covered Entity. If the HIPAA security regulations are amended to remove the requirement to report unsuccessful attempts at unauthorized access, the requirement hereunder to report such unsuccessful attempts will no longer apply as of the effective date of the amendment.

(c) Business Associate shall, following the discovery of a Breach of Unsecured PHI, notify the Covered Entity of such Breach in accordance with 45 C.F.R. § 164.410 without unreasonable delay and in no case later than the time Required by Law.

Section 2.7 Access to PHI. Within 15 business days of a written request by Covered Entity for access to PHI about an Individual contained in any Designated Record Set of Covered Entity maintained by Business Associate, if any, Business Associate shall make available to Covered Entity such PHI for so long as Business Associate maintains such information in the Designated Record Set. If Business Associate receives a request for access to PHI directly from an Individual, Business Associate shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility for determining whether to approve a request for access to PHI.

Section 2.8 Availability of PHI for Amendment. Within 15 business days of receipt of a written request from Covered Entity for the amendment of an Individual’s PHI contained in a Designated Record Set of Covered Entity maintained by Business Associate, if any, Business Associate shall provide such information to Covered Entity for amendment and incorporate any such amendments in the PHI (for so long as Business Associate maintains such information in the Designated Record Set) as required by 45 C.F.R. § 164.526. If Business Associate receives a request for amendment to PHI directly from an Individual, Business Associate shall forward such request to Covered Entity within ten business days. Covered Entity shall have the sole responsibility for determining whether to approve an amendment to PHI. Notwithstanding anything in this BA Agreement to the contrary, Covered Entity understands and agrees that Business Associate does not have the ability to correct or amend, or make any amendment to, any PHI contained in any image generated by or used or viewed through the software and/or services licensed to Covered Entity by Business Associate, which images are displayed as received from Covered Entity’s scanning modalities.

Section 2.9 Accounting of Disclosures. Within 30 business days of written notice by Covered Entity to Business Associate that it has received a request for an accounting of disclosures of PHI (other than disclosures to which an exception to the accounting requirement applies), Business Associate shall make available to Covered Entity such information as is in Business Associate’s possession and is required for Covered Entity to make the accounting required by 45 C.F.R. § 164.528. Covered Entity shall have the sole responsibility for providing an accounting to the Individual.

Section 2.10 Availability of Books and Records. Following reasonable advance written notice, Business Associate shall make its internal practices, books and records relating to the use and disclosure of PHI received from, or created or received by Business Associate on behalf of, Covered Entity available to the Secretary for purposes of determining Covered Entity’s compliance with HIPAA.

III. OBLIGATIONS OF COVERED ENTITY

Section 3.1 Permissible Requests. Covered Entity shall not request Business Associate to use or disclose PHI in any manner that would not be permissible under HIPAA if done by Covered Entity (except as provided in Sections 2.1(a), (b) and (c) of this BA Agreement).

Section 3.2 Minimum Necessary PHI. When Covered Entity discloses PHI to Business Associate, Covered Entity shall provide the minimum amount of PHI necessary for the accomplishment of Business Associate’s purpose.

Section 3.3 Permissions; Restrictions. Covered Entity warrants that it has obtained and will obtain any consents, authorizations and/or other legal permissions required under HIPAA and other applicable law for the disclosure of PHI to Business Associate. Covered Entity shall notify Business Associate of any changes in, or revocation of, the permission by an Individual to use or disclose his or her PHI, to the extent that such changes may affect Business Associate’s use or disclosure of PHI. Covered Entity shall not agree to any restriction on the use or disclosure of PHI under 45 CFR § 164.522 that restricts Business Associate’s use or disclosure of PHI under this Agreement unless such restriction is Required By Law or Business Associate grants its written consent, which consent shall not be unreasonably withheld. Section 3.4 Notice of Privacy Practices. Except as Required By Law, with Business Associate’s consent or as set forth in the Services Agreement or this BA Agreement, Covered Entity shall not include any limitation in the Covered Entity’s notice of privacy practices that limits Business Associate’s use or disclosure of PHI under the Services Agreement.

IV. TERMINATION OF THE AGREEMENT

Section 4.1 Termination Upon Breach of Provisions Applicable to PHI. Any other provision of the Services Agreement notwithstanding, the Services Agreement and this BA Agreement may be terminated by either party (the “Non-Breaching Party”) upon 30 days written notice to the other party (the “Breaching Party”) in the event that the Breaching Party materially breaches any provision contained in this BA Agreement in any material respect and such breach is not cured within such 30-day period.

Section 4.2 Return or Destruction of PHI upon Termination. Upon termination of this BA Agreement, Business Associate shall return or destroy all PHI received from Covered Entity or created or received by Business Associate on behalf of Covered Entity and which Business Associate still maintains as PHI. Notwithstanding the foregoing, to the extent that Business Associate reasonably and in good faith determines that it is not feasible to return or destroy such PHI, the terms and provisions of this BA Agreement shall survive termination of the Services Agreement and such PHI shall be used or disclosed solely for such purpose or purposes which prevented the return or destruction of such PHI.

Section 4.3 Survival. Section 4.2 shall survive the expiration or earlier termination of this BA Agreement.V.

1. Definitions Relevant to Support Services

“Business Day” means any day except Saturdays, Sundays and Merge holidays (with a calendar of such holidays being available to Customer on an annual basis, at Customer’s request).

“Customer Support Contact” means an individual employee or other personnel of Customer: (i) who is authorized by Customer to interact with Merge on Support Services matters; (ii) whose name has been provided by Customer to Merge as a ‘Customer Support Contact’; and (iii) who has received the appropriate Merge training for the current major release of the applicable Product(s) being supported. The number of Customer Support Contacts is limited as set forth below in Section 6.

“Daytime Telephone Hours” are as set forth in applicable Sales Order for particular Product being supported. In the event the Sales Order does not specify ‘Daytime Telephone Hours’, Daytime Telephone Hours shall mean each Business Day between the hours of 7:00 am through 7:00 pm Eastern Time. “Hardware Support Fee” means the fees payable by Customer to Merge for the provision of Hardware Support Services for a particular Hardware component, as initially set forth in the applicable Sales Order and more fully defined in Section 4(b) below.

“Hardware Support Services” shall have the meaning assigned to it in Section 4(a) below.

“Hardware Support Term” means the time period specified in Sales Order for which Customer has contracted and paid (or will pay) for Hardware Support Services for a particular Hardware component.

“Hardware/System Refresh” shall have the meaning assigned to it in Section 11 below.

“Mandatory Update” shall have the meaning assigned to it in Section 5(c) below.

“Merge’s Prevailing Rate” means Merge’s standard fee or rate for its Products or services, as determined on the date that the applicable Product or service is ordered or provided, as the case may be.

“Support Services Fee” means the fee payable by Customer to Merge for the provision of Support Services.

“Support Services Term” (for each applicable Product) means the Initial Support Services Term and all Support Services Renewal Terms.

“Supported Hardware” shall have the meaning assigned to it in Section 4 below.

“Underlying Agreement” means the applicable Sales Order or support renewal agreement and the terms and conditions that govern such Sales Order or support renewal agreement.

“Update” means a version the Merge Software and/or Documentation that is from time-to-time released and that may include updates, modifications, bug fixes, corrections, and feature enhancements to the Merge Software and Documentation. Updates do not include new Merge products or modules that are marketed and priced separately by Merge or releases that materially increase the functionality of the Software. Whether a software release constitutes an Update is in Merge’s sole discretion.

2. Merge Software Support

All Support Services will be provided in a professional manner by qualified and knowledgeable personnel. Merge provides remote Support Services via telephone, a high-speed secure connection to Customer’s site, and the Merge web self-service portal. Remote connection to Customer may be through an appropriate VPN connection or some other connection approved by Merge (with such connection typically being (i) a dedicated Internet connection with a throughput of at least 128 kilobytes/second, or (ii) a dedicated T-1 line). Merge’s Support Services include maintaining the Merge Software in operative condition, including the identification and correction of programming errors or problems with the Merge Software

Provided that Customer has fulfilled its responsibilities under the Support Services Program and the Underlying Agreement, Support Services include commercially reasonable efforts to perform the following:

• Diagnose and troubleshoot problems with the Software reported by Customer;
• When practicable, provide a workaround solution until a permanent resolution is defined;
• Remotely install and implement any corrections, fixes, and work-around solutions, in conjunction with Customer’s support staff;
• Provide advice and answers to questions and problems through telephone, email, and portal communication modalities; and
• Provide Updates to Customer as and when commercially released.

3. Support Services Process (a) Communication through Customer Support Contacts. Only Customer’s Customer Support Contacts shall access Support Services. Merge Support Services personnel shall only be obligated to respond to a Customer Support Contact.

(b) Customer Action Prior to Contacting Merge. Prior to contacting Merge for Support Services, Customer’s Customer Support Contacts will take the following steps:
 

• Use reasonable efforts to verify that there is a Merge system issue (i.e. not a problem with an outside system component, network connection, power issues, etc.);
• Attempt to resolve the issue using any troubleshooting techniques provided during training;
• Failing the above, ensure that the network gatekeeper is enabled and operational so that Merge can access Customer’s network. (This connection must be in place to allow Merge to provide technical support); and
• When the issue involves a specific piece of system Hardware; document any service tag identification information for the Hardware.

(c) Case Management

• Trained personnel will receive and log telephone trouble calls during Daytime Telephone Hours, or support cases may be entered 24x7 via the Merge Web Self-Service portal. The portal allows Customers to view all open and closed cases, as well as submit a new case, or add a comment and/or attachments to an existing case.
• During Daytime Telephone Hours, the call center is staffed by Merge’s technical support staff.
• Contact information and the nature of the call are entered into the Merge ‘Customer Relationship Management’ (CRM) system. A case number is generated and provided to Customer for follow up purposes. All cases received via telephone will be acknowledged within one (1) hour and worked on a first in, first out by priority basis.
• Where possible the technical support staff receiving the call will resolve the issue, otherwise the case will be escalated as appropriate to a product expert.

(d) Prioritization of Issues: A priority rating has been established for incoming Customer calls and expected actions and will be classified in good faith by Merge. This information can be found in Appendix A hereto.

(f) Emergency/Critical Issues

• All cases regarding emergency or critical issues should be called into Merge support; not entered through the web self-service portal.
• Merge shall employ commercially reasonable measures to ensure that Customer will be provided status updates within one (1) hour.

(g) After Hours Call Process. During times other than Daytime Telephone Hours, all calls are routed to either the Merge answering service or else to a voicemail/paging system. On the initial contact, the caller’s name, site name, and contact information and brief description of issue is taken from Customer, after which a Merge trained support person is paged to speak with Customer directly. As may be necessary and appropriate for the nature of the application and issue, Merge will use commercially reasonable efforts to respond evenings, weekends and holidays. A response is the initial contact with Customer to determine the nature of the problem and to begin diagnosis and troubleshooting and research for determining a resolution.

4. Hardware Support [NOTE: Hardware Support does not apply to all Hardware and is applicable only to the extent that Customer is entitled to such Hardware Support, as set forth in the paragraph immediately below.]

Merge’s obligations regarding Hardware Support are applicable only to the extent that both (i) the supported Hardware is purchased from Merge under the Underlying Agreement and specified in a Sales Order; and (ii) Hardware Support Services for the supported Hardware is purchased from Merge under the Underlying Agreement and expressly specified in a Sales Order with all applicable Hardware Support Fees having been paid by Customer (“Supported Hardware”). Hardware Support is limited to the Hardware Support Term and is provided as follows:

(a) Hardware Support. Merge agrees to use commercially reasonable efforts to repair errors with the Supported Hardware (as reported to Merge by Customer) and to maintain the Supported Hardware in operative condition during the Hardware Support Term (“Hardware Support Services”). Hardware Support Services includes maintenance of the Supported Hardware in operative condition during the Hardware Support Term; provided, however, that Customer acknowledges that minor issues with the Supported Hardware will be addressed as soon as commercially practicable, but may not be corrected promptly. If reasonably possible, a work-around solution will be provided until a permanent resolution is defined. Provided that Customer has fulfilled its responsibilities under the Support Services Program and the Underlying Agreement, Merge will use commercially reasonable efforts to respond to the issues set forth below in Appendix A in accordance with the timeframes set forth therein. Customer acknowledges and agrees that training, installation and/or some or all of the Hardware Support Services for certain Supported Hardware components may be provided directly by the Third Party Vendor (or its designee) or by Merge’s contractors.

(b) Hardware Support Fees. Customer is obligated to pay the Hardware Support Fees for any applicable Hardware Support Term. Failure to make payment due to Merge of the Hardware Support Fee will result in forfeiture of Customer’s right to receive Hardware Support Services. Except as otherwise expressly provided in a Sales Order, Merge may adjust the Hardware Support Fee at any time beginning twelve months after commencement of the initial Hardware Support Term by delivering to Customer written notice of the adjustment provided such adjustment shall occur not more than once per year.

(c) On-Site Assistance for Hardware. In the event a Supported Hardware error cannot be resolved using telephone support and remote access capabilities, then Merge agrees to send a repair technician (either a Merge employee or a third party agent) to the address where the Supported Hardware is located to attempt to resolve the Supported Hardware error. Merge will have full and free access to the Supported Hardware to provide Hardware Support Service thereon. Merge agrees that its repair technicians will install repaired or replaced hardware in substantially the same manner as the Supported Hardware was installed when such repair technician arrived on-site.

(d) Depot Support Services – Shipping Costs. In the event Merge or its designee provides depot support services and any Supported Hardware is shipped to Merge or its designee, Customer will pay for the cost of shipment of any Supported Hardware to Merge or its designee, and Merge will pay for the cost of return shipment of any Supported Hardware to Customer. Customer will bear the risk of loss and be responsible for carrying any insurance of any Hardware during the shipment to Merge or its designee.

(e) Replacement Parts. Maintenance parts will be furnished on an exchange basis. Such parts may be new, equivalent to new or refurbished and will be in good working order and at least functionally equivalent to the part or item being replaced. Any malfunctioning part of the Supported Hardware that has been replaced will be the property of Merge and Customer agrees to return such malfunctioning part to Merge. If Customer fails to return any replaced malfunctioning part within ten business (10) days after delivery of the new maintenance part, then Merge may invoice and Customer will pay for the maintenance part that was delivered to replace such malfunctioning part at the Merge then current sales price

(f) Limitations and Exclusions (Additional Terms for Hardware Support). Merge will neither be responsible for nor obligated to provide Hardware Support Services for Supported Hardware in the event such repair is necessitated by the following: (a) faulty electrical systems external to the machines or accessories, attachments, or other devices not furnished by Merge; (b) accident, transportation, neglect or misuse; (c) failure to provide a suitable installation environment (including but not limited to failure of or failure to provide adequate or proper electrical power, air conditioning, humidity control, or protection from dust or dirt from the outside or within the building), or from use of supplies or materials not meeting machine specifications for such installation; (d) the improper use of the Supported Hardware; (e) Customer relocating the Supported Hardware or adding or removing accessories, attachments, or other devices; (f) fire, lightning, aircraft, explosion, riot, civil commotion, vehicles, windstorm or hail, vandalism or malicious mischief, leakage or accidental discharge from sprinkler systems, damage to the room housing the Supported Hardware and or peripheral devices, smog, smoke, vapor or gas, rain or other weather elements, or water damage; (g) replacement of expendable items such as printer ribbons, print heads/bands, and tape cartridges; (h) Customer’s failure to perform regular maintenance in an adequate manner; or (i) such service which is necessitated by or the result of malfunctions or other problems of software or hardware other than Software or Hardware provided by Merge. After the expiration of any Hardware Support Term, Merge in its discretion, may remove specific components from Supported Hardware and adjust the Hardware Support Services Fee accordingly.

The limitations and exclusions set forth above in this Section 4(f) are in addition other limitations and exclusions provided for herein.

5. Merge Software Updates

(a) Availability of Updates. Generally-released Updates shall be made available to Customer for no additional software license fee. Merge makes no warranties or representations regarding the frequency of Updates or the extent to which Updates are made available. Customer acknowledges that there is no specific Update to which it is entitled, but instead is entitled to receive Updates on an ‘if and when available’ basis (at such time that the Update is commercially released). Customer is entitled to Updates only during such time that Customer is entitled to Support Services.

(b) Installation. If Customer requires Services or Products to be purchased or licensed in order to use or install such Updates, Merge may, pursuant to a Sales Order, provide such to Customer at Merge’s Prevailing Rates. Customer will be required to coordinate the installation of Updates, corrections, fixes, and work around solutions provided by Merge. In some instances, Customer may be required to install fixes, and work around solutions provided by Merge, following Merge’s or designees’ reasonable instructions and guidance so as to obviate the need for on-site Support Services.

(c) Mandatory Update. From time to time, Merge may notify Customer that an Update to the Software is of such nature that it must be installed by Customer in order for Merge to continue to provide Support Services (“Mandatory Update”), and in such event Customer shall install the Mandatory Update within six (6) months of its release. In the event Customer fails to install the Mandatory Update as provided above, the applicable Support Services Fees shall be increased as mutually agreed, however should the Parties fail to attain mutual agreement as to the fee increase, Merge shall have no further obligation to provide Support Services related to the applicable Software.

6. Customer Requirements

(a) Customer Responsibilities. Customer agrees that it is responsible to:
 

• Regularly back up data, programs and files associated with all Software;
• Assure that individuals of Customer that are tasked with managing and supporting the Software attend appropriate Merge training classes;
• Assist in basic troubleshooting steps relating to both hardware and software issues;
• Provide for its network administration;
• Maintain its web server and network;
• Provide for system maintenance to the extent not specifically provided under Support Services;
• Implement and maintain all hardware, systems and processes as set forth in the relevant Documentation and other product administration manuals;
• Apply Updates, install fixes, and work around solutions provided by Merge; and
• Provide Merge with a 24x7x365 high speed connection to Customer’s applicable on-site servers that host the Software for the purpose of enabling Merge to provide remote Support Services to Customer (provided that Merge uses commercially reasonable efforts to comply with such of Customer’s written security policies that are provided to Merge regarding its remote access to the Software).

(b) Customer Support Contact. Customer shall designate at least one but no more than five Customer Support Contacts for each Software application and shall provide (and keep current) Merge with the names and contact information for each Customer Support Contact.

(c) Customer will cooperate with Merge and provide Merge with such assistance as Merge may reasonably request in order to fulfill its Support Services obligations. As necessary, Customer shall provide Merge with adequate workspace and access (whether on-site or remote) to Customer’s facilities, systems, personnel and information reasonably required to perform the Support Services. Merge acknowledges that such access to Customer’s facilities and systems are subject to Customer’s reasonable rules and policies regarding worksite safety and network access.

7. Support Services Limitations and Exclusions The terms herein are subject to change from time to time by Merge upon notice to Customer provided any change shall not have a material adverse impact on Support Services

Merge will not be responsible for providing Support Services relating to the following:
 

• Problems that result from Customer’s improper use of any software or hardware;
• Problems caused by changes, alterations or revisions made by Customer or on Customer’s behalf (other than by Merge);
• Problems caused by Customer’s data, network, operational or other environmental factors not within the direct control of Merge;
• Failure by Customer to incorporate any Mandatory Update or any other previously-released Update that corrects the problem;
• Failure by Customer to comply with its obligations and responsibilities hereunder, including but not limited to those set forth above in Section 6(a);
• Failure by Customer to complete a Hardware/System Refresh as provided herein;
• The restoration of data lost as a result of any event beyond the control of Merge, including power failures, hardware failures, viruses, and Customer’s not following standard system monitoring and maintenance duties, such as monitoring the status of how much free space is available on hard drives;
• Third party databases (except for any database that is supplied by Merge as part of the Software);
• Any use of the Software in violation of the Underlying Agreement or of any agreement under which Customer’s license rights to the Software are derived, or use of the Software not in accordance with the Documentation; and
• Any problems or errors caused, directly or indirectly, by hardware that is not Supported Hardware or by any hardware not in accordance with Merge specifications.

For purposes of the points above in this Section 7, “Customer” shall be deemed to include Authorized Users and any other party (other than Merge) that accesses the Software with the permission of or through Customer.

Merge assumes no responsibility for security, network infrastructure, network design, network implementation, proxy design, and proxy implementation. To operate properly, the Software requires adequate operational network bandwidth. Based on Procedure Volumes projected by Customer, Merge makes minimum network bandwidth recommendations, but Customer shall be solely responsible for design, acquisition, implementation, and operation of the network.

Customer will be liable for all reasonable expenses incurred and time spent by Merge in responding to an Unfounded Support Claim. Such services will not be treated as Support Services, and will be invoiced to Customer at Merge’s Prevailing Rates. For purposes hereof, “Unfounded Support Claim” means a claim, case or issue submitted by Customer that is not entitled to Support Services, as set forth above in Section 4(f) or Section 7.

8. Reinstatement of Lapsed Support Services. If Support Services are cancelled by Customer or otherwise lapse, Customer shall not be entitled to receive Updates or other new versions of the Software. Customer may reinstate Support Services after a period of lapse by paying a reinstatement fee equal to the aggregate of all fees that would have otherwise been paid for Support Services during such period of lapse.

9. Releases Supported. During the Support Services Term, Merge will support all versions of the active Merge Software, provided that Merge will only be required to issue software correction releases for the generally available versions of the current and the immediately prior major release of the applicable Merge Software (with a major release usually reflected by a change in the digit to the left of the decimal point in new version releases (e.g. 2.0 to 3.0)).

10. Support Services for Third Party Products Support Services do not include support for any Third Party Products, unless Support Services for such Third Party Products is expressly indicated on a Sales Order and Customer is paying an applicable Support Services Fees for said Third Party Products. In such event, Support Services will be rendered for the Third Party Products only to the extent necessary to operate Merge Software. In order to provide Customer with the most appropriate support, Merge may transfer the direct technical ownership of resolutions to Third Party Products issues to the manufacturer or other qualified support organization. Where applicable, Merge will work directly with Third Party Vendors support personnel to resolve issues relating to conflicts between the Merge Software and the Third Party Products provided by Merge

11. Hardware/System Refresh. From time to time, Merge may notify Customer that in order for Customer’s system to meet new system requirements for a new Software release or otherwise for Merge to continue to provide Support Services, Customer must upgrade the operating system, database software, server(s), workstations and/or other hardware and system software upon which the Software is used by Customer (“Hardware/System Refresh”), and in such event Customer shall complete the Hardware/System Refresh within one (1) year of such notice. Customer’s failure to complete the Hardware/System Refresh as provided above shall relieve Merge of the obligation to provide Support Services to the Products affected by the failure to complete the Hardware/System Refresh. Merge Support Services Program
 

Priority	Description	Merge (or Designee) Response	Customer Response
Emergency/  Critical	• Merge Software application down, with complete loss of core organizational or business process; • Performance issues that stop workflow of core organizational or business process such that work cannot continue.	• Merge support engineer troubleshoots the case within 1 hour of notification, engages experts, and dispatches parts and labor as required. • Case status is communicated hourly or less frequently as mutually agreed or as appropriate under the circumstances. • For Hardware Support Services Issues:  Within 4 hours (if within the Business Day in which the issue is logged, otherwise within 4 hours on the next Business Day) of the determination that a “hardware” support issue exists, a support engineer will be dispatched on-site within 4 hours.	• Customer provides appropriate staff and resources to sustain continuous communication and work effort. • Without appropriate Customer resources/cooperation, the case will be downgraded to High priority • Customer notifies senior executives on site of the case.
High	• Loss of critical functionality with impact on organizational or business process (but does not rise to the level of Emergency/Critical Priority), with no available Customer workaround • Issue impairs daily business, but does not completely stop business	• Merge support engineer troubleshoots the case within 1 hour of notification, engages experts, and dispatches parts and labor as required. • Case status is communicated every 4 hours or less frequently as mutually agreed or as appropriate under the circumstances.  • For Hardware Support Services Issues:  Within 8 hours (if within the Business Day in which the issue is logged, otherwise within 8 hours on the next Business Day) of the determination that a “hardware” support issue exists, a support engineer will be dispatched on-site within 1 business day.	• Customer provides appropriate staff and resources to sustain continuous communication and work effort. • Without appropriate Customer resources, the case will be downgraded to Medium priority • Customer notifies management at Customer site of the case.
Medium	• Procedural issues • Questions from Customers • Inconveniences • Issue that is not preventing Customer from working in the application	• Merge support engineer troubleshoots the case within 1 hour of notification, engages experts, and dispatches parts and labor as required. • Case status is communicated daily or less frequently as mutually agreed or as appropriate under the circumstances.  • For Hardware Support Services Issues:  Engineer and replacement parts will be dispatched to Customer’s location within a commercially reasonable time after phone-based troubleshooting, if necessary.	• Customer provides contact information for case owner. • Customer case owner responds to support engineer requests within 24 hours.
Low	• Minimal impact to functionality • Minimal impact to user workflow • Aesthetics • Customer requests training or an enhancement	• Merge support engineer troubleshoots the case within 1 hour of notification, engages experts, and dispatches parts and labor as required. • Case status is communicated daily or less frequently as mutually agreed or as appropriate under the circumstances.   • For Hardware Support Services Issues:  Engineer and replacement parts will be dispatched to Customer’s location within a commercially reasonable time after phone-based troubleshooting, if necessary.	• Customer provides contact information for case owner. • Customer case owner responds to support engineer requests within 24 hours

12. SUPPORT SERVICES

12.1. Support Services
 

(a) Support Services.  Merge’s Support Services are provided in accordance with the terms and conditions of the Underlying Agreement. Support Services are provided for the standard version of the Software made generally available by Merge, and Support Services for custom software may be subject to additional fees as provided on the applicable Sales Order.

(b) Support Services Term, Renewal and Fees. Unless otherwise provided on a Sales Order, Support Services for newly-licensed Software shall begin on the effective date of the Sales Order (under which the applicable Software is licensed) and continue for one year thereafter (the “Initial Support Services Term”).  Upon expiration of the Initial Support Services Term, Support Services shall automatically renew for consecutive annual periods (each of which shall be referred to as a “Support Services Renewal Term”), unless either Party provides the other Party with written notice, at least twenty-eight (28) days prior to the expiration of the then-current Initial Support Services Term or Support Services Renewal Term, of its intention not to renew Support Services.  The fees for the first Support Services Renewal Term may be set forth in the Sales Order, and the annual Support Services fee is due in full at the commencement of each annual Support Services Renewal Term. Merge reserves the right to (i) immediately suspend Support Services in the event Customer is more than thirty (30) days late in payment of any Support Services Fee; and/or (ii) increase the Support Services fee for any future Support Services Renewal Term by not more than 5% (annualized), by providing Customer with advance written notice no less than forty-five (45) days prior to the expiration of the then-current Support Services Renewal Term.  If applicable, Merge may readjust the dates for the terms of Support Services and issue prorated invoices so as to synchronize Customer’s multiple terms for Support Services.

The Merge Healthcare Support teams are available to assist with customer support issues of varying degrees of severity. There may be occasions where the Support teams may not be able to answer all your questions, but they will engage other groups within the company, including Operations and/or Development to help provide answers. Merge Healthcare Support will provide customer support for SaaS via electronic assistance and telephone, during regular business hours, including commercially reasonable efforts to perform the following:

(a) provide customer support in a professional manner by qualified and knowledgeable personnel

(b) diagnose and troubleshoot problems with the Cloud Services reported by authorized contacts

(c) provide a workaround solution, when practical, until a permanent resolution is defined

(d) provide advice and answers to questions and problems through telephone, email, and portal communication modalities

Severity Level Guidelines & Response Time Objectives
The following table outlines response time objectives that Merge Healthcare Support strives to achieve regarding post-deployment production offerings, measured from the time we receive your initial request for support, to the time we provide an initial communication back to you regarding receipt of your request. Response time objectives described herein are intended to describe only Merge Healthcare Support goals, and do not represent a guarantee of performance.
 

Severity	Severity Definition	Response Time Objective	Response Time Coverage (Operation Hours)
1*	Critical business impact/service down: Business critical functionality is inoperable or critical interface has failed. This usually applies to a production environment and indicates an inability to access services, resulting in a critical impact on operations. This condition requires an immediate solution.	Within 1 hour, during hours of operation	Mon-Fri 7am-7pm US ET
2	Significant business impact: A service business feature or function of the service is severely restricted in its use, or you are in jeopardy of missing business deadlines.	Within 2 hours, during hours of operation	Mon-Fri 7am-7pm US ET
3	Minor business impact: Indicates the service or functionality is usable and the issue is not causing a critical impact on operations.	Within 4 hours, during hours of operation	Mon-Fri 7am-7pm US ET
4	Minimal business impact: A general inquiry, feature request, simple configuration or operations request, or other non-technical request.	Within 1 day, during hours of operation	Mon-Fri 7am-7pm US ET

*Note: Severity 1, Critical Business Impact
 

• All cases regarding Severity 1 issues should be reported via telephone
• Merge Healthcare shall employ commercially reasonable measures to ensure that the customer will be called back within one (1) hour.

Customer Responsibilities

You play a key role in assisting us when you have questions about or have encountered problems with your SaaS offerings. Information you provide about your system and/or problem is often key to resolving your issue. We have found that the following practices can help the Merge Healthcare Support team better understand and more effectively respond to your concerns, as well as help you make the best use of your time:
 

• Keep each question or issue separate (one problem per ticket)
• Select a severity based on your judgment of the business impact
• Keep Merge Healthcare Support informed of major upgrades/implementations of your system (where applicable)
• Provide the following information as required when contacting support:
  • Your name, company name, email ID, and telephone number with extension
  • Ticket/Incident/Support Case number (as applicable)
  • Support entitlement identifiers such as client ID, mailbox ID, or Merge Healthcare Customer Number (ICN) as appropriate for the offering
  • Product name (release level and any product maintenance, if applicable)
  • Any additional information required by the Merge Healthcare Support team
• Prior to contacting Merge Healthcare Support, use reasonable efforts to verify that there is an issue with the cloud service (i.e. not a problem with end-user hardware, network connection, power issues, etc)
• Prior to contacting Merge Healthcare Support, attempt to resolve the issue using any troubleshooting techniques provided during training, or contained in product documentation
• Assist Merge Healthcare Support in basic troubleshooting steps
• Apply fixes or workaround solutions as requested by Merge Healthcare Support personnel
• Provide Merge Healthcare with a high-speed connection to the customer network for the purpose of enabling remote diagnostic services

Business Hours

Merge Healthcare Support business hours for customers worldwide are 7:00 am to 7:00 pm US Eastern Time, Monday through Friday (excluding US national holidays). Maintenance events scheduled outside of standard hours of service are subject to professional services fees.

Contacting Support

Phone Support
is available. The telephone number to reach Merge Healthcare Support will be provided once the offering is in production, following completion of during implementation services. All support is provided in English language only.

Response: Trained personnel will receive and log telephone problem reports during hours of support. Merge Healthcare Support will attempt to meet response objectives as outlined in the 'Severity Level Guidelines & Response Time Objectives' section. All cases are worked on a first in, first out, based on problem severity. Response objectives are defined as the first reply from an Merge Healthcare representative who can begin gathering information and assist in resolving your issue or query.

Support Request Workflow: Merge Healthcare reserves the right to request additional proof of identity or authorization before providing troubleshooting or providing information to those contacting us for support. Customers should ensure those contacting Merge Healthcare Support are technically familiar with and trained on the Merge Healthcare product, and empowered to take typical steps required to access, troubleshoot, and configure customer-side systems or infrastructure.

All client support issues will be documented within a support ticket. Each ticket will be assigned a unique identifier and a severity level based on the details within the ticket. Updates will be recorded in the ticket.

Who Can Contact Support

Watson Health Imaging customers are required to provide a Level 1 technical support contact to your Authorized Users for initial troubleshooting, gathering data for problem determination, and verification that the issue is isolated to the Watson Health Imaging service. It is these designated representative that are authorized to contact support.

Support Services Limitations and Exclusions

The terms herein are subject to change from time to time by Merge Healthcare upon notice to customers, provided any change shall not have a material adverse impact on technical support.

Merge Healthcare will not be responsible for providing Support Services relating to the following:

• Problems that result from End User's improper use of the Cloud Services;
• Problems caused by changes, alterations, or revisions made by End user or on End user's behalf (other than by Merge Healthcare);
• Problems caused by End User Content, End User's network, operational or other environmental factors not within the direct control of Merge Healthcare;
• Failure by End User to apply any fix or solution that corrects a problem;
• Any use of the Cloud Services in violation of this Agreement or use of the Cloud Services not in accordance with the documentation; and
• Any problems or errors caused, directly or indirectly, by hardware that is not in accordance with Merge Healthcare specifications.

To maintain competitiveness and evolve to service our customers' ongoing needs, Merge Healthcare reserves the right to modify the terms and/or methods of support expressed in this document at any time.

These Terms and Conditions are attached to the foregoing Sales Order (the "Sales Order") issued by Merge Healthcare Solutions Inc., a Delaware corporation and an IBM company, with an office located at 71 South Wacker Drive, 20th Floor, Chicago, Illinois 60606 USA ("Merge") regarding the licensing of certain of Merge's proprietary software and/or the purchase and sale of related products and services. These Terms and Conditions, together with the Sales Order to which they are appended, constitute the "Agreement", which is entered into as of the Effective Date between Merge and the customer to whom the Sales Order is issued as identified in the Sales Order ("Customer"), and this Agreement shall govern the transactions set forth in the Sales Order. In the event terms of the Sales Order conflict with these Terms and Conditions, terms of the Sales Order shall control.

1. DEFINITIONS. 

"Business Day" means any day except Saturdays, Sundays and Merge holidays (with a calendar of such holidays being available to Customer at Customer's request). "Confidential Information" means information of a Party ("Disclosing Party") that the other Party ("Receiving Party") receives in connection with this Agreement, which based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential to Disclosing Party, including, without limitation, the Software, Documentation, pricing of Products and Services, provisions of this Agreement and information that is defined as a ‘trade secret' under applicable law ("Trade Secret"). "Documentation" means user and system administrator guides and manuals and similar documentation generally supplied by Merge assist licensees in the use of the licensed Software. "First Productive Use" means, as to the applicable Software, the date that Customer first uses the Software as a method of transmitting and/or processing live data or information for use in a clinical care or commercial setting or otherwise uses the Software for commercial purposes; provided that if Customer has delayed the first use of the Software as set forth above, First Productive Use shall be deemed to have occurred when the Software was installed and first able to process live data in a production environment. "Hardware" means the computers, workstations and other devices required to run or use the Software, modality equipment, and/or other equipment that Customer may be purchasing through Merge as specified in the Sales Order. "Merge Hardware" means Hardware manufactured by Merge and sold to Customer as set forth in the Sales Order. "Merge Products" means Merge Software and Merge Hardware. "Merge Software" means Software that is proprietary to Merge and is licensed to Customer as set forth in the Sales Order. "Party" means Merge or Customer; "Parties" means Merge and Customer. "Products" means Hardware and Software. "Professional Services"means installation, implementation, integration, configuration, consulting, training and other professional services offered by Merge to Customer. "Services" means Professional Services and Support Services. "Software" means the software identified in the Sales Order and provided by Merge hereunder, including Updates thereto that Merge provides to Customer. "Software" is the standard version of the applicable software product at the release level current as of the date of the Sales Order and is provided in object or executable code form. "Support Services" means the technical support and maintenance of the Products as set forth on Merge’s website at https://w3.ibm.com/sales/downloads/cas/P2NR9O76 (PDF, 151KB). "Third-Party Product" means a product other than a Merge Product that is identified on the Sales Order as ‘Third-Party Hardware', ‘Third-Party Software', ‘Third-Party Product', or with the name of a Third-Party Vendor. "Third-Party Vendor"means a third party vendor from which Merge obtains Third-Party Products. "Update" means a version the Merge Software and/or Documentation that is from time-to-time released and that may include updates, modifications, bug fixes, corrections, and feature enhancements to the Merge Software and Documentation. Updates do not include new Merge products or modules that are marketed and priced separately by Merge or releases that materially increase the functionality of the Software. Whether a software release constitutes an Update is in Merge's sole discretion.

2. SOFTWARE LICENSE; OTHER PRODUCT SPECIFIC TERMS.

In the event this Sales Order provides Customer a license to Merge Software to be installed on-premises locally on Customer’s systems, then subject to all terms of this Sales Order, Merge grants to Customer a non-exclusive, nonsublicensable, non-transferable license as set forth in the Sales Order in conjunction with the restrictions, terms and conditions set forth in the Special Terms for Local On-Premises Software Installations, as set forth on Merge’s website at: https://w3.ibm.com/sales/downloads/cas/ONBMLA8G (PDF, 122KB). Terms for Merge’s cloud-based solutions, if applicable) are set forth on other exhibits to this Sales Order

3. PAYMENT; DELIVERY 

3.1. Payment. Fees for Products and Services (collectively, "Fees") are set forth in the Sales Order. Customer shall pay Merge's fees on the dates specified in the Sales Order, and if no date is specified in the Sales Order, Customer shall pay Merge's invoices within thirty (30) days after the date of invoice. Unless otherwise agreed to in writing, all monetary sums are expressed in and shall be paid in U.S. Dollars. Overdue balances may be assessed interest at the rate of one- and-one- half percent (1.5%) per month, but not more than that allowed by law, and in no event shall this interest provision be construed as a grant of permission for any delay of payment. Non-payment by Customer shall be deemed a material breach of this Agreement, and in the event any payment or invoice becomes overdue, Merge reserves the right, in addition to its other remedies, to suspend delivery and provision of and access to Products or Services until the account is brought current.

3.2. Taxes; Freight. Unless otherwise specifically indicated on the Sales Order, Fees do not include taxes, and Customer agrees to pay all applicable taxes (excluding taxes levied against Merge's taxable income) to Merge or to the proper taxing authority, as applicable. A tax-exempt Customer shall provide an appropriate exemption certificate to Merge. Third-party charges for freight, duty and other similar charges paid by Merge shall be reimbursed by Customer.

3.3. Delivery. Products are delivered FOB shipping point ("Delivery"), with risk of loss and, when applicable, title passing to Customer at the same point. Notwithstanding the preceding sentence, Merge may, at its option, deliver Software and Documentation to Customer through an FTP or other electronic transmission or download, in which event Merge will provide Customer with a password key (the "Key") necessary to download the Software, and provision of the Key to Customer shall constitute Delivery of the Software.

4. SERVICES. 

In the event Customer is purchasing Merge Services under this Sales Order, then in addition to the other terms of this Sales Order, the Services Terms set forth on Merge’s website at https://w3.ibm.com/sales/downloads/cas/V10L80ZL (PDF, 105KB) shall apply. Support Services for On-Premises Installations. For new licenses of Merge Software installed on-premises, unless otherwise provided in this Sales Order, Support Services shall begin on the effective date of this Sales Order and continue for one year thereafter (the “Initial Support Services Term”). Upon expiration of the Initial Support Services Term, Support Services shall automatically renew for consecutive annual periods (each of which shall be referred to as a “Support Services Renewal Term”), unless either Party provides the other Party with written notice, at least thirty (30) days prior to the expiration of the then-current Initial Support Services Term or Support Services Renewal Term, of its intention not to renew Support Services. The fees for the first Support Services Renewal Term may be set forth in the Sales Order, and the annual Support Services fee is due in full at the commencement of each annual Support Services Renewal Term. Merge reserves the right to (i) immediately terminate Support Services in the event Customer is more than thirty (30) days late in payment of any Support Services Fee; and/or (ii) increase the Support Services fee for any future Support Services Renewal Term by not more than 5% (annualized), by providing Customer with advance written notice no less than forty-five (45) days prior to the expiration of the then-current Support Services Renewal Term. If applicable, Merge may readjust the dates for the terms of Support Services and issue prorated invoices so as to synchronize Customer’s multiple terms for Support Services.

5. HARDWARE AND THIRD-PARTY PRODUCTS. 

In the event Customer is purchasing/licensing Hardware or Third-Party Products under this Sales Order, then in addition to the other terms of this Sales Order, the Hardware/Third-Party Products Terms set forth on Merge’s website at https://w3.ibm.com/sales/downloads/cas/KZXWYWJM (PDF, 95KB) shall apply.

6. TERM AND TERMINATION 

6.1. Term. The term of this Agreement shall commence as of the Effective Date and continue until terminated, as set forth below in Section 6.2 (the "Term").

6.2. Termination. This Agreement may be terminated as follows:

(a) Bankruptcy. A Party may immediately terminate this Agreement upon written notice if the other Party (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency Law, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property or business.

(b) For Cause. A Party (the "Terminating Party") may terminate for cause as follows: If one Party (the "Breaching Party") is in breach of this Agreement, the Terminating Party may deliver to the Breaching Party a written notice setting forth detail as to the breach and identifying the specific provision(s) of the Agreement (or, if applicable, the Sales Order) of which the Breaching Party is in breach or default (the "Default Notice"). The Breaching Party shall then have thirty (30) days from its receipt of the Default Notice (the "Cure Period") to cure such that the Breaching Party is no longer in breach of the provisions set forth in the Default Notice. In the event that following the Cure Period, the Breaching Party remains in breach of the provisions set forth in the Default Notice, the Terminating Party may terminate the Agreement upon written notice to the Breaching Party.

6.3. Survival. All provisions of this Agreement which by their nature are intended to survive the termination of this Agreement, however any Customer license to Software granted hereunder shall terminate with this Agreement.

7. CONFIDENTIALITY 

7.1. Obligations as to Confidential Information. A Receiving Party shall (i) limit access and use of Disclosing Party's Confidential Information to those of Receiving Party's employees and agents that require such access and use in connection with this Agreement and who are bound by confidentiality provisions no less restrictive than those in this Agreement; (ii) not disclose Disclosing Party's Confidential Information to third parties, unless authorized under this Section 7.1; (iii) protect Disclosing Party's Confidential Information as it protects its own Confidential Information, but in any event with not less than a reasonable degree of care; and (iv) not use Disclosing Party's Confidential Information for any purpose except as required to perform its obligations hereunder or as otherwise specifically permitted hereunder. Each Receiving Party shall take appropriate action with its employees, Authorized Users, and other authorized third parties, to satisfy its obligations hereunder. The obligations set forth above in this section shall survive termination of this Agreement and continue thereafter for five (5) years following termination, except that for Confidential Information consisting of a Party's trade secrets, the Confidentiality Period shall be extended for as long as such Confidential Information remains a trade secret. Either Party may disclose the existence and general nature of this Agreement, but may not, without the prior consent of the other Party, disclose the specific terms of this Agreement.

7.2. Exceptions. Nothing in this Article shall prevent Receiving Party from disclosing Confidential Information to a third party to the extent that such Confidential Information is: (i) previously known to Receiving Party prior to disclosure by Disclosing Party, without any obligation of confidentiality; (ii) publicly known or becomes publicly known through no breach of this Agreement by Receiving Party; (iii) rightfully received from a third party under no confidentiality obligation with respect to the Confidential Information; or (iv) independently developed by Receiving Party without use of Disclosing Party's Confidential Information.

7.3. Legally-Compelled Disclosure. If any judicial, legislative or administrative body seeks to compel disclosure of Confidential Information, Receiving Party shall promptly notify Disclosing Party. Receiving Party will comply with reasonable requests of Disclosing Party to assist Disclosing Party in obtaining a protective order and to prevent or minimize the disclosure of any Confidential Information, and Receiving Party may then disclose Confidential Information only if, and to the extent, required by law.

8. INDEMNIFICATION 

8.1. Intellectual Property Infringement.

(a) Indemnity. Merge will defend any third party claim against Customer that arises due to a claim that the Merge Software infringes a valid United States copyright, United States patent or involves the misappropriation of a trade secret of a third party ("Claim"), and will pay or indemnify Customer from such damages or costs as are finally awarded against Customer in favor of the third party claimant to the extent that the Merge Software is found by the court to have actually infringed as alleged by the Claim or as agreed to by Merge in settlement for such Claim, provided that: (i) Customer provides Merge with written notice of the Claim or threatened Claim within ten (10) days of Customer learning of same; (ii) Merge has the sole control of the defense, negotiations and settlement of such claim; and (iii) Customer cooperates fully with Merge in the defense or settlement of the Claim.

(b) License Rights. In the event any Merge Software becomes the subject of a Claim, or in Merge's sole opinion is likely to become the subject of a Claim, Merge may, at its option and expense, either: (i) obtain for Customer the right to continue using the Merge Software; or (ii) replace or modify the Merge Software with functionally equivalent software to make it non-infringing. Notwithstanding the foregoing, if Merge, in its sole discretion, determines that neither of the said options is commercially reasonably available, Merge may terminate Customer's license for the infringing Merge Software, in which event Merge shall refund to Customer as follows: (1) any prepaid unused fees for Support Services Fees and Professional Services for the infringing Merge Software, plus (2) For On-Premises Software Installations: a pro rata portion of the license fees paid by Customer for the infringing Merge Software (as depreciated over a five-year life or for the term of the license if less than five years); or For Cloud-Based Solutions (including but not limited to iConnect Network, iConnect Cloud Archive, eMix): any prepaid fees attributable to the period subsequent to termination.

(c) Exclusions. Merge's obligations in the event of infringement, under this Section 8.1 or otherwise, shall not apply to a Claim that arises from or relates to: (i) use of the Product, Support Services or Professional Service other than as set forth in this Agreement and in the then-current version of the Documentation; (ii) any modification or alteration to or of the Software or Hardware performed by anyone other than Merge or its designees; (iii) Merge's compliance with Customer's instructions; (iv) Customer's use of a superseded or altered release of the Product if the infringement would have been avoided by use of the current unaltered release of the Software or model of the Hardware; (v) combination, operation or use with software, hardware, information, data or other materials if infringement (including, without limitation, contributory infringement) would have been avoided by use without such software, hardware, information, data or other materials; or (vi) use of the Software or Hardware after Merge's notice to cease use of the Software or Hardware due to a claim of infringement.

(d) Sole Recourse. This Section 8.1 states Merge's entire liability and Customer's sole and exclusive remedy for any actual or claim of intellectual property infringement by, or with respect to, the Products and Services.

8.2. Medical Responsibility. Customer acknowledges and agrees that Merge is not engaged in the practice of medicine, and is not determining appropriate medical use of any of the Products and Services. Medical treatment and diagnostic decisions, including those arising from the analysis of data or images, are the responsibility of Customer and its professional healthcare providers. Customer shall indemnify and hold Merge and its affiliated companies harmless, and, if requested by Merge, defend Merge, from all claims brought by a third party to the extent such claim is based upon or arises out of any of the following: (a) professional malpractice, misdiagnosis, or any other medical treatment matter in connection with the use by Customer, Customer personnel, clients, or any third parties, of any Product or Service, except to the extent that such Losses are directly caused by negligent action or omission of Merge or its agents or any defect of the Merge Software;(b) use of the Products by Customer or by any Authorized User other than as authorized under this Agreement; or (c) any unlawful, negligent or willful acts or omissions of Customer or of any Authorized User.

9. LIMITATIONS OF LIABILITY 

9.1. Types of Damages. UNDER NO CIRCUMSTANCES SHALL MERGE, ITS SUPPLIERS, OR ANY RELATED PARTY, BE LIABLE OR RESPONSIBLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR DAMAGES ATTRIBUTABLE TO LOSS OF USE OR AVAILABILITY OF DATA, LOST PROFITS OR LOST GOODWILL, WHICH CUSTOMER MAY INCUR, EXPERIENCE OR CLAIM AND WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF ANY BREACH OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, ON ACCOUNT OF ENTERING INTO OR RELYING ON THIS AGREEMENT, EVEN IF MERGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. 9.2. Amount of Damages. IN NO EVENT WILL MERGE'S (INCLUDING ITS SUPPLIERS AND LICENSORS) AGGREGATE, CUMULATIVE MONETARY LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER LEGAL THEORY (INCLUDING STRICT LIABILITY AND NEGLIGENCE), EXCEED THE TOTAL FEES RECEIVED BY MERGE UNDER THIS SALES ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. 9.3. Allocation of Risk. The provisions ofSections 8 and 9 allocate the risks under this Agreement between Merge and Customer, and the Parties acknowledge that such provisions are a material condition for their respective entry into this Agreement.

10. GOVERNMENTAL MATTERS; HIPAA 

10.1. U.S. Government ("Government") Restricted Rights. The Merge Software provided under this Agreement is commercial computer software developed exclusively at private expense, and is in all respects the proprietary data belonging solely to Merge or its licensors. Products and Documentation that may be provided to the Government hereunder (by contracts or subcontract) are provided with the most restricted rights and limited rights permitted by law and regulation. Department of Defense: If the Software is acquired by or on behalf of agencies or units of the Department of Defense (DOD), then, pursuant to DOD FAR Supplement Section 227.7202 and its successors (48 C.F.R. 227.7202) the Government's right to use, reproduce or disclose the Software and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement. Civilian Agency: If the Software is acquired by or on behalf of civilian agencies of the Government, then, pursuant to FAR Section 12.212 and its successors (48 C.F.R. 12.212), the Government's right to use, reproduce or disclose the Software and any accompanying Documentation acquired under this Agreement is subject to the restrictions of this Agreement.

10.2. Export Controls. The Parties shall comply fully with all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations and Executive Orders.

10.3. HIPAA. In the event the Parties do not have a current Business Associate Agreement in force between them, then the Parties agree to the provisions of the Business Associate Addendum set forth on Merge’s website at https://w3.ibm.com/sales/downloads/cas/3J0KDN8W (PDF, 109KB), with the same force and effect as if each Party executed said Business Associate Addendum as of the Effective Date of the Sales Order. Customer acknowledges that compliance with HIPAA, HITECH and other privacy and security rules is not solely determined by Products and Services and is a process that involves Customer's systems, facilities and practices.

10.4. Federal Equal Opportunity Regulations. The Parties and their subcontractors shall abide by the requirements of 41 CFR 60–300.5(a) and 41 CFR 60-741.5(a). These regulations prohibit discrimination against qualified protected veterans and against individuals on the basis of disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities.

10.5 General Data Protection Regulation. Customer is responsible for obtaining all necessary rights and permissions to enable, and grants such rights and permissions to, Merge, and its contractors and sub processors to use, provide, store and process Content in the Services, or maintenance. This includes Customer providing required information, making necessary disclosures and obtaining consent, if required, before providing individuals’ information, including personal or other regulated information in such Content. Customer is responsible for adequate back-up of Content. If any Content could be subject to governmental regulation or may require security measures beyond those specified by Merge for an offering, Customer will not input, provide, or allow access to such Content unless specifically permitted in the terms of the relevant Transaction Document or unless Merge has otherwise first agreed in writing to implement additional security and other measures. In regard to the provision of technical support services, Merge’s Data Processing Addendum (DPA) is set forth as Exhibit A on Merge’s website at https://www.ibm.com/downloads/cas/AXODQBQK, and the applicable DPA Exhibit is set forth as Exhibit B on Merge’s website at https://www.ibm.com/downloads/cas/KO06B0LQ and supplement the Agreement, if and to the extent the European General Data Protection Regulation (EU/2016/679) (GDPR) applies to personal data contained in Content. As used in this paragraph, “Content” also includes any information or data Customer may provide, make available or grant access to in connection with Merge providing Services, or maintenance.

11. GENERAL PROVISIONS. Parties' Relationship; No Third-Party Beneficiaries. The Parties hereto are independent contractors to one another, and nothing herein shall be deemed to establish a partnership, joint venture or agency relationship between the Parties, and nothing in this Agreement will be construed as giving any right, remedy or claim to an entity other than the Parties, their permitted successors and permitted assigns, and persons and entities expressly indemnified hereunder. Assignment. Customer may not assign or transfer its interests, rights or obligations under this Agreement by written agreement, merger, consolidation, operation of law or otherwise, without the prior written consent of Merge. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon each of the Parties and their respective permitted successors and assigns. Notices. All legal notices required or permitted to be given pursuant to this Agreement shall be in writing and delivered personally or by a commercially recognized national courier (such as Federal Express or UPS), and notices shall be effective upon receipt by the office of the Party to which the notice is directed. Neither Party shall refuse delivery of any notice hereunder. Legal notices hereunder to the Parties shall be to such Party's address set forth on the first page of this Agreement (with legal notices to Merge being directed to the attention of its General Counsel), provided that either Party may, by written notice to the other Party, direct that notices be sent to a different address. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its principles of conflicts of law or to the United Nations Convention on Contracts for the International Sale of Goods. Equitable Relief. Each Party agrees that, in the event injunctive or other equitable relief is appropriate to enforce compliance with confidentiality, license or property provisions of this Agreement, then such relief shall be in addition to any other remedies available to the aggrieved Party and that the aggrieved Party shall be entitled to seek such equitable relief without the requirement of any bond or security and without the necessity of having to establish the failure of legal remedies. Force Majeure. Neither Party shall be responsible for any delay or failure in performance of any part of this Agreement to the extent that such delay or failure is caused by fire, flood, explosion, war, embargo, government requirement, internet accessibility, utilities outage, inability to obtain products from a third party supplier, civil or military authority, act of God, act or omission of carriers or other similar causes beyond its control (collectively, a "Force Majeure Event"). The performance of the Party suffering the Force Majeure Event shall be excused and the time for performance shall be extended for the period of delay or inability to perform due to such Force Majeure Event. Contract Construction. This Agreement will not be presumptively construed in favor of or against either Party, including the Party that drafted the Agreement. The headings to the sections of this Agreement are for ease of reference only and shall not affect the interpretation or construction of this Agreement. Severability. If any term or condition of this Agreement is determined by a court of law (or arbitration proceeding to which both Parties are parties) to be invalid or unenforceable in whole or in part for any reason, this Agreement shall, to the greatest extent permitted by law, be reformed so as to be valid and enforceable consistent with the intention of the Parties as expressed herein. No Waiver. No term or provision of this Agreement shall be deemed waived and no breach excused, unless such waiver or excuse is in writing signed by the Party granting such waiver or excusing such breach. No consent to or waiver of a breach shall be deemed as a consent to, waiver of, or excuse for any different or subsequent breach by such Party. Entire Agreement. This Agreement, including the Schedules hereto and all Sales Orders hereunder, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all proposals, purchase orders, previous agreements, understandings, representations and any other communications (whether written or oral) between the Parties relating thereto. The terms and conditions contained in any purchase order or other purchase document issued by Customer or by any other party on Customer's behalf (collectively, "Purchase Order") shall be of no legal force or effect, even if such Purchase Order is delivered to Merge; such Purchase Order is signed or otherwise accepted by a Merge employee; and/or Merge provides Products and/or Services pursuant to such Purchase Order. Order Independence. This Sales Order is an order separate and independent from any other executed or contemplated order(s). Any fees due Merge for this Sales Order are separate from any other executed or contemplated order(s), and the payment terms for this Sales Order are not intended to be dependent upon or otherwise coincide with performance criteria of any other executed or pending order(s). No products or services that are the subject of this Sales Order are interrelated or interdependent in terms of design, technology or function or are essential to the functionality of a product in any other executed or contemplated order(s). Amendment. This Agreement may not be modified, except by a written amendment instrument that expressly refers to this Agreement and is signed by authorized representatives of each Party. Execution. This Agreement and Sales Order may be executed by the Parties in counterparts and may be executed and delivered by facsimile or by email. A signed document transmitted as an electronic document (such as a PDF) via email or other electronic means shall be afforded the same weight as a document with original ink signatures, and all such counterparts and electronic documents shall together constitute one and the same agreement.