PicomOnline Software products are not sold; rather all Software products are licensed by ScImage, Inc. ("ScImage").

In consideration of the fees paid by your Company/You (collectively referred to as "you") to access this web site (the "Site") you signify your assent to these following Terms and Conditions of your License and Service Agreement with ScImage (the "Agreement"). You agree that this Agreement is like any written negotiated agreement signed by you. This Agreement is enforceable against you and any legal entity that accessed this Site and uses the Software. If you do not agree to all of these Terms and Conditions as set forth below in this Agreement, you may not use this site. Periodically, ScImage, Inc. may revise and update these Terms and Conditions, and may do so without prior notice to you. Please review these Terms and Conditions of your Agreement periodically. Your continued use of this Site indicates your continuing agreement to these Terms and Conditions and any later revisions and changes that may be added at a later date to the Agreement.

You may have another written agreement that you have negotiated directly with ScImage (a "Non-web Agreement"), which may supplement or supersede all or portions of this Agreement. The terms of this Agreement shall control in the absence of specific language in your Non-web Agreement that supersedes any of the terms of this Agreement.

ScImage and its suppliers own all intellectual property in the Software. ScImage permits you to copy, download, install, use, or otherwise benefit from the functionality or intellectual property of the Software only in accordance with the terms of this Agreement.

The Software may include product activation, inactivation, and other technology designed to prevent unauthorized use and copying, and technology to help you and ScImage manage this license. Such technology may prevent your use of the Software if you do not follow the activation, installation, these license terms, and/or license management process described in the Software, Documentation, and the terms of any Non-web Agreement you may have.

DEFINITIONS:

"Software" means the proprietary software programs, routines, subroutines, image browsers, encryption processes, graphic user interfaces, templates, PicomOnline website and related items that are licensed by ScImage for use by you and your designees for the distribution and remote reading of Content consisting of data intensive medical images and other patient data.
"Hardware" means the equipment used by you to be used with or containing the Software. The Software and Hardware that operate together are an integrated "System".
"Documentation" means any commercially available materials published by ScImage for your use with the Software.
"Content" means all data, information, text, pictures, digital imagery and other content related to patients and other data provided by you previously to ScImage.
"License" means a non-transferable, non-exclusive license to use the Documentation, install the Software in machine-readable executable object code on your computers, including upgraded or enhanced versions, and use of the Software in accordance with the Documentation and the terms of this Agreement.
"PicomOnline" means a range of services that provides you the ability to store, distribute and/or remotely read Content.
"Service" or "Services" means certain services and Software functions to be provided by ScImage as previously ordered by you in another written agreement.

TERM

The term of this Agreement shall begin on the Effective Date as is provided in your other written agreement with ScImage (the "Term").

DESCRIPTION OF LICENSE

ScImage hereby grants to you, and you accept, a non-transferable, non-exclusive License to use the Documentation, install the Software in machine-readable executable object code on the Hardware, including upgraded or enhanced versions, and use the Software in accordance with the Documentation and the terms of this Agreement. This License shall become effective on the date of the execution of your Non-web Agreement and shall remain in effect until terminated. ScImage may terminate this License immediately if you fail to comply with any of the terms of this License. Upon termination, you agree to return, or, at ScImage's request, destroy all copies of the Software and Documentation and so certify in writing.

COPYRIGHT AND LICENSE RESTRICTIONS

The Software and Documentation is owned by ScImage or its suppliers and is protected by United States copyright laws and international treaty provisions. ScImage and its suppliers own and retain all right, title and interest in and to the Software and Documentation, including patents, trademarks, copyrights, trade secrets and other intellectual property rights embodied or contained therein. Therefore, except as specifically provided herein, you may not use, copy, rent, lease, loan, sublicense, or distribute the Services, Software, or Documentation for the benefit of any third party or otherwise use on a service bureau basis. The Software's organization, structure, sequence, logic and source code are valuable trade secrets of ScImage. You shall not under any circumstances, and shall not permit a third party to (i) decompile, disassemble, reverse engineer or other wise attempt to reconstruct or discover the source code of the Software, or (ii) prepare derivative works of the Software, or (iii) remove any product identification, copyright, trademark or other notice from the software or the Documentation.

NO TRANSFER

This License may not be transferred by sublicense, assignment or otherwise, unless agreed in writing by ScImage which agreement shall be in ScImage's sole discretion. Prior to such a transfer, ScImage may require that you confirm in writing your compliance with the terms of this Agreement and that the receiving party accepts the terms and conditions of this Agreement and any other terms and conditions of your Non-web Agreement. In the event of such a transfer, all previous versions of the Software including all updates and upgrades, and all copies thereof, are transferred in total to the receiving party.

NO UNBUNDLING

The Software may include various applications, utilities and components, may support multiple platforms and languages and may be provided to you on multiple media or in multiple copies. Nonetheless, the Software is designed and provided to you as a single product to be used as a single product. You are not required to use all functions of the Software. You may not unbundle or repackage the Software for distribution, transfer or resale.

UPDATES

If the Software is an upgrade or update to a previous version of the Software, you must possess a valid license to such previous version in order to use such upgrade or update. You acknowledge that any obligation that ScImage may have to support the previous version(s) is ended upon the availability of the upgrade or update. No other use of the previous version(s) is permitted after installation of an upgrade or update. Upgrades and updates may be licensed to you by ScImage with additional or different terms.

ACCESS TO CONTENT

You shall supply all Content and shall be responsible for the accuracy of such Content. If ScImage becomes aware that any Content violates any law or regulation or infringe any intellectual property rights of a third party, ScImage shall promptly notify you. In the event either party desires to remove or block access to any such Content, the parties shall attempt in good faith to resolve such issue. In the event the parties are unable to resolve such issue, ScImage reserves the right to remove or block access to any such Content and/or terminate this Agreement upon reasonable notice. ScImage makes no claims that the Content is appropriate or may be downloaded outside of the United States. Access to the Content may not be legal by certain persons or in certain countries. Users accessing the Site from outside the United States do so at their own risk and are responsible for compliance with local law.

Any Content you provide to ScImage or place on PicomOnline in connection with this Agreement shall be in a condition and/or format that require no additional processing on the part of ScImage. ScImage shall make no effort and is under no obligation to validate that Content provided herein is correct or usable.

ScImage shall allow access to Content by authorized ScImage personnel and shall provide that access in accordance with ScImage's policies and procedures that may change from time to time. ScImage makes no claim of ownership of any Content stored by you on PicomOnline. In the event that the relationship between you and ScImage is terminated, upon your written request within 30 days from the date of termination and at your expense, ScImage may return all Content to you on mutually agreeable media in an industry standard format generally practiced in medical imaging.

Other than the Content that ScImage is archiving directly on behalf of you under this Agreement, you acknowledge that you have the responsibility to maintain the integrity and use of the Content on your own primary system and to maintain adequate security for your primary system. You agree that it is your responsibility and obligation to implement sufficient internal practices and procedures to routinely insure, confirm and audit that no unauthorized person or entity shall have access to any password or account relating to the Software, PicomOnline, Content, or the Services from any location or computer under your possession or control.


LICENSEE USE OF CONTENT AND CONTENT INTERPRETATION

The Content that is accessed through this Site is for information purposes only. You assume full responsibility and risk for the appropriate use of the Content. Nothing contained at the Site or in the Content is intended to be for medical diagnosis or treatment in lieu of consultation with appropriate medical personnel who can properly interpret the Content. ScImage does not directly or indirectly practice medicine or dispense medical services and therefore assumes no liability for the Content or for any diagnosis or treatment made in reliance thereon.

You acknowledge that all physicians and other health care personnel (collectively "medical personnel") who are accessing the Site and reviewing the Content will conduct themselves in a manner consistent with all applicable bylaws, rules, and regulations for patient care. All Content is confidential under federal and state law and is considered Patient Health Information. You agree that you and your designated medical personnel performing any interpretation with the Content must be responsible for and understand any limitations inherently related to Content data compression and Hardware including any visual display limits that may affect the quality of the Content being reviewed.

If the Content on the Site is to be used for primary interpretation, then you agree that such interpretation will be performed by qualified medical personnel who have an understanding of the basic technology of telemedicine, its strengths and weaknesses (as well as limitations), and who are trained in the use of telemedicine equipment. You shall implement sufficient internal practices and procedures for routinely insuring that medical personnel performing Content interpretation will be both knowledgeable and responsible for determining the adequacy of the quality of images and other data being reviewed.

CONDITIONS OF CONTENT PROCESSING & ARCHIVING

PicomOnline uses data compression to facilitate faster transmission and storage. You agree you shall implement sufficient internal practices and procedures for routinely insuring that Content transmitted by the Site back to you will be periodically reviewed by knowledgeable and responsible medical personnel to ensure appropriate clinical image quality.

You acknowledge that some Content may have a loss of information associated with image processing functions (filters) or image data compression (lossy compression) operations performed by the originator of the Content other than ScImage. Content on the Site may be lossless as well as lossy compressed. The lossy compression used at the originating site may result in loss of Content quality once it is transmitted to ScImage. You understand that it is your responsibility to determine the tradeoff between compression ratio and diagnostic quality of the Content sent to ScImage as ScImage is acting as the mere repository for what it is requested to receive and/or archive. You agree that you shall be fully responsible for determining the compression ratio and the overall quality of the Content being created that is to be subsequently retransmitted by ScImage back to you and to your designees.

LICENSEE'S REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION

You represent and warrant to ScImage that (a) you are the owner, valid licensee, agent, or custodian of the Content, and have secured all necessary licenses, consents, authorizations and waivers for the use of the Content, including without limitation, all text, data, digital imagery and other information contained in all Content and there are no conflicting claim(s) with respect to your rights thereto; (b) the use of the Content as contemplated herein shall not infringe the copyright, trademark or other proprietary or intellectual property rights (including trade secrets) of any party, or constitute defamation, invasion of privacy, breach of patient confidentiality, or the violation of any right of publicity or any other right of any party; (c) you have and will comply with all laws, rules and regulations regarding the Content; (d) you shall not use the facilities and capabilities of the Service to conduct any activity or solicit the performance of any illegal activity or other activity which infringes the rights of any patient, third party, or of ScImage, and (e) you shall implement sufficient internal practices and procedures to routinely insure, confirm and audit on a "timely basis" that all Content uploaded to PicomOnline has been successfully received by ScImage. Timely basis for purposes of (e) above shall mean that you shall electronically notify ScImage within 24 hours of any Content that you determine for any reason was not successfully received by ScImage through PicomOnline.

You agree to indemnify, defend and hold ScImage and its officers, directors, employees, agents, contractors, subsidiaries, affiliates, customers and clients (collectively referred to as "Affiliates") harmless from and against any and all costs, liabilities, losses and expenses (including, but not limited to, reasonable attorneys' fees) resulting from or arising out of any claim, suit, action, or proceeding brought against ScImage, and/or its Affiliates alleging: (i) any claim inconsistent with your representations, warranties and covenants contained in this Agreement, including without limitation those set forth in your Representations and Warranties above (ii) any virus, worm, Trojan horse, or other contaminating or destructive feature contained in any of the Content or arising out of your actions or omissions, (ii) any claim alleging misuse, or abuse of the Site and/or Content, provided that ScImage (i) notifies you promptly in writing of any such claim, and (ii) gives you all reasonable information and assistance at your expense.



INTERNET LIMITATIONS

You acknowledge that ScImage does not and cannot control the flow of Content to or from ScImage's or your Internet vendors and other portions of the Internet. Such flow depends in large part on the performance of Internet services provided or controlled by third parties. At times, actions or inactions caused by these third parties can produce situations in which ScImage's or your connections to the Internet (or portions thereof) and/or the Content may be impaired, delayed, disrupted, and corrupted. Although ScImage will use commercially reasonable efforts to take action it deems appropriate to remedy and avoid such events, ScImage cannot guarantee that they will not occur.

SCIMAGE LIMITED WARRANTY

Except as may be otherwise provided in a Non-web Agreement with ScImage, ScImage warrants to you, as first purchaser of a license for the Software that (1) the Software will perform substantially in accordance with the Documentation when used on the ScImage recommended operating system and Hardware configuration and (2) if all Content has been successfully received for archiving from you, ScImage will provide archival copies of Content back to you. Non-substantial variation of performance from the Documentation does not establish a warranty right. This limited warranty does not apply to subsequent upgrades or updates unless as set forth in any Non-web Agreement that you may have with ScImage. All warranty claims must be made no later than thirty days after the termination date of this Agreement. If the Software does not perform substantially in accordance with the Documentation, or archival copies of Content are not successfully returned to you then the entire liability of ScImage and your exclusive remedy will be limited to, at ScImage's option, (1) replacement of the Software, or (2) refund of the total dollar amount of the PicomOnline Services purchased by you under this Agreement for the non-returned archival copies of Content.. During the term of this Agreement, return of any archival Content back to you will be done so upon your written request and at your expense. Content may be returned to you on mutually agreeable media in an industry standard format generally practiced in medical imaging.

WARRANTY DISCLAIMER

THE FOREGOING LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY SCIMAGE AND ITS AFFILIATES AND STATES THE SOLE AND EXCLUSIVE REMEDIES FOR SCIMAGE BREACH OF WARRANTY. EXCEPT FOR THE FOREGOING LIMITED WARRANTY, SCIMAGE PROVIDES THE SOFTWARE, SERVICES, PICOMONLINE, AND INTERNET ACCESS AS-IS AND WITH ALL FAULTS AND EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, CONDITIONS REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE, OR OTHERWISE AS TO ANY MATTER, INCLUDING BUT NOT LIMITED TO PERFORMANCE, FUNCTIONALITY, RESULTS, SECURITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, SCIMAGE DOES NOT WARRANT THAT THE SERVICE OR SOFTWARE IS OR WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED OR MEETS OR WILL MEET YOUR REQUIREMENTS. SCIMAGE MAKES NO REPRESENTATIONS OR WARRANTY THAT THE SOFTWARE WILL INTEROPERATE WITH ANY PRODUCT OR EQUIPMENT NOT SUPPLIED OR SPECIFIED BY SCIMAGE.

LIMITATION OF LIABILITY

EXCEPT FOR THE EXCLUSIVE REMEDY SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, WHETHER TORT, CONTRACT, PROFESSIONAL LIABILITY, WARRANTY, OR OTHERWISE, SHALL SCIMAGE HAVE ANY LIABILITY TO YOU OR FOR ANY CLAIMS BY A THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, BUSINESS INTERRUPTION, BUSINESS REPUTATION, COMPUTER FAILURE OR MALFUNCTION, IMPAIRED, DELAYED, DISRUPTED, LOST, OR CORRUPTED CONTENT, LOSS OF USE OF ANY CONTENT, PERSONAL INJURY, WRONGFUL DEATH, LOST PROFITS, OR LOST SAVINGS. SCIMAGE SHALL BE LIABLE ONLY TO THE EXTENT OF ACTUAL DAMAGE INCURRED BY YOU, NOT TO EXCEED THE TOTAL DOLLAR AMOUNT OF THE PICOMONLINE SERVICES PURCHASED BY YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE SCIMAGE IS NOTIFIED BY YOU OF ANY CLAIM OR LIABILITY, EVEN IF SCIMAGE SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR OF THE POSSIBILITY OF ANY CLAIM BY ANY OTHER PARTY. THIS LIMITATION IS CUMULATIVE; THE SUM OF MULTIPLE CLAIMS MAY NOT EXCEED THIS LIMIT. ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF THE EVENT GIVING RISE TO SUCH ACTION. REMEDIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND ARE LIMITED TO THOSE EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. THIS LIMITATION WILL APPLY EVEN IN THE EVENT OF A FUNDAMENTAL OR MATERIAL BREACH OR A BREACH OF THE FUNDAMENTAL OR MATERIAL TERMS OF THIS AGREEMENT.

JURISDICTION

This Agreement and the enforcement hereof shall be subject exclusively to the internal laws (but not the choice or conflicts of law rules) of the State of California. You hereby irrevocably waive any right you may have to assert the application of any other law of any other state or nation. The parties agree that no action or proceeding may be maintained by you against ScImage except the respective courts of Santa Clara County, California, and that these courts shall have exclusive jurisdiction over such action or proceeding. This Agreement will not be governed by the conflict of law rules of any jurisdiction or the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.

INFRINGEMENT INDEMNITY

(a) ScImage will defend, at its own expense, any legal action brought against you to the extent that it is based on a claim that the Software used within the scope of this Agreement infringes a United States patent, copyright or trade secret of a third party, and ScImage will pay any final judgment against you in any such action if attributable to any such claim or incurred by you through settlement of such claim. However, such defense and payments are subject to the conditions that you must: (i) notify ScImage promptly in writing of such claim, (ii) permit ScImage to have sole control of the defense, compromise or settlement of such claim, including any appeals, and (iii) fully cooperate with ScImage in the defense or settlement of such claim. ScImage will pay those reasonable costs, damages or fees incurred by you in connection with such action or claim.

(b) Should the Software become, or in ScImage's opinion be likely to become, the subject of any such infringement claim, you shall permit ScImage, at ScImage's option and expense, to (i) procure for you the right to continue using the Software, or (ii) replace or modify the Software with a non-infringing version having substantially similar functionality, or (iii) terminate the right to use the Software, upon which termination you agree to promptly destroy all copies of the Software and certify the same to ScImage, whereupon ScImage will refund your fees paid hereunder for use of the Software as depreciated on a straight-line three (3) year basis.

(c) ScImage shall have no liability for any claim of patent, copyright or trade secret infringement that is based on (i) the use of other than the latest version of the Software, if such infringement could have been avoided by the use of the latest version, or (ii) the use or combination of the Software with software, hardware or other materials not recommended by ScImage, provided such infringement would not have arisen but for such use or combination, or (iii) use of the Software in a manner other than that for which it was designed or contemplated as evidenced by ScImage's Documentation, or (iv) any unauthorized modification by you or a third party of the Software, or (v) any compliance with designs, plans or specifications furnished by you or on your behalf. THIS PARAGRAPH STATES THE ENTIRE LIABILITY OF SCIMAGE, AND IS YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, AND SCIMAGE SHALL HAVE NO ADDITIONAL LIABILITY WITH RESPECT TO ANY ALLEGED OR PROVED INFRINGEMENT.

TERMINATION

Either party shall have the right at any time to terminate this Agreement by giving the other written notice thereof of any failure in the performance of or breach of this Agreement by the other provided any such failure or other breach is not corrected within thirty (30) days after sending written notice thereof. The provisions of Warranty Disclaimer, Limitation of Liability, Jurisdiction and Miscellaneous will survive the termination of this Agreement, howsoever caused, but this will not imply or create any continuing right to use the Software or Services after termination of this Agreement. Upon your written request within 30 days from the date of termination and at your expense, ScImage may return all Content to you on mutually agreeable media in an industry standard format generally practiced in medical imaging.

MISCELLANEOUS

The parties hereto acknowledge that this Agreement, and unless there is a Non-web Agreement associated herein constitute the entire agreement and understanding of the parties hereto as to the subject matter hereof, and supersedes all prior discussions, agreements and writings in respect hereto. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect. No waiver of any of the terms of this Agreement shall be deemed a further or continuing waiver of such term or condition or any other term or condition. In performing this Agreement, each party shall comply with all applicable laws and government regulations at all times, including but not limited to any applicable laws and regulations of the United States and other jurisdictions relating to export or re-export of technology, consumer protection, patient information access and privacy. You and ScImage are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties. Neither party has any right or authority to assume or create any obligations of any kind or to make any representation or warranty on behalf of the other party, whether express or implied, or to bind the other party in any respect whatsoever. Neither party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without the other party's prior written consent. Any attempt to do so shall be null and void. This Agreement will bind and inure to the benefit of the parties and their respective successors and permitted assigns. The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. This Agreement is being entered into among competent and experienced business persons and the terms and provisions of this Agreement shall be construed fairly as to the parties hereto, and not in favor of or against either party, regardless of which party was generally responsible for the preparation of this Agreement. Any notice required or permitted by this Agreement shall be in writing and shall be sent by facsimile, e-mail, prepaid registered or certified mail, return receipt requested, internationally recognized courier or personal delivery, properly addressed to the other party. If circumstances beyond the control of ScImage shall temporarily make it impossible for ScImage or you to perform their obligations under this Agreement, then the principals of force majeure shall apply and the rights and obligations of the parties will be temporarily suspended during the force majeure period to the extent that such performance is reasonably affected thereby. Circumstances beyond the control of ScImage include, but are not limited to, system and hardware damage, destruction, power outage, telephone outage, Internet access provider failure, hackers, and system security breach or failure.